|Verizon Asks U.S. Court for Judgment Against Pittsfield Health Board|
|By Brittany Polito, iBerkshires Staff|
04:20AM / Wednesday, May 11, 2022
PITTSFIELD, Mass. — Verizon is asking for a declaratory judgment from the U.S. District Court in Springfield against the city of Pittsfield after the Board of Health issued a cease-and-desist order against the company for a cell tower it says is affecting the health of the neighborhood.
The City Council was to take up a request from the Board of Health on Tuesday for $84,000 to hire legal counsel against the telecommunications company but this was sidelined when the council was informed of the lawsuit.
Verizon claims that the board violated Section 332 of the federal Telecommunications Act (TCA) of 1996 that prohibits state and local governments from regulating a personal wireless service facility because of perceived health effects from radiofrequency emissions that comply with the Federal Communications Commission (FCC) regulations.
"The defendant Pittsfield Board of Health ("Board") violated this section of the TCA by issuing an order (the "Emergency Order") to plaintiff Pittsfield Cellular Telephone Company d/b/a Verizon Wireless ("Verizon") and its landlord requiring that Verizon cease and desist operating its lawfully constructed and lawfully operating PWSF at 877 South Street in Pittsfield, Massachusetts (the "Facility")," Verizon's complaint reads.
"The Board improperly based its order on the premise that the RF emissions from the Facility have health effects and that state and local law give the Board authority to address those effects by requiring Verizon to shut down its tower, even though the Board recognized that the Facility complies with the TCA and the FCC regulations. In fact, however, the TCA preempts the Board’s authority to regulate the Facility on the basis of RF emissions. Therefore, the Emergency Order is unlawful, improper, and the relief this complaint requests in the form ,,of a declaratory judgment is appropriate."
The complaint was filed on Tuesday.
After more than an hour in executive session during Tuesday's City Council meeting, a request for $84,000 from the city for legal counsel to shut down a Verizon cell tower at 877 South St. was tabled.
Council President Peter Marchetti then reported that Verizon had filed a case against the city of Pittsfield in federal court.
In early April, the board voted to act on the order nearly two months after first approving it. This vote was conditioned on the order being withdrawn without prejudice if the board is unable to retain legal counsel prior to an administrative or judicial proceeding.
The order stated that the cellular company had one week to respond or come to the table with a solution that pleases the panel, which would be to remove or turn off the tower. The board had planned on meeting on April 20 to follow up on the order but never met.
Since the tower's erection in August 2020, Alma Street resident Courtney Gilardi and her daughter have spoken during open microphone about negative health effects they say are from electromagnetic fields (EMF) generated by the antennae on the 115-foot pole.
She says her family has had to leave their home and has provided documentation from a physician to the board. Other residents have joined her protests, with four other residents speaking at Tuesday’s meeting.
Gilardi saw the cease-and-desist order as a beacon of hope and asked that the council approve funding for legal counsel to allow her family to go home.
"For 644 days we have been harmed, we have been forced to move from our homes, we have been forced to pay relocation and renovation bills and expenses on two properties, we have had out-of-pocket medical bills," she said.
"Not to mention the pain of seeing my children's sick and vomit in their own beds, the pain of good neighbors moving away from homes that they love, the pain of people not here tonight because they have been ignored and they feel like they are a waste of your time and taxpayers dollars and they are not. Tonight you can change this. Tonight all of this can change."
The city and Verizon commissioned RF emissions studies in June and October of 2021 both studies showed that the RF emissions are "well below" Federal Communications Commission regulatory standards, Verizon's complaint reads.
The wireless company also said it has informed the board on more than one occasion in the last year that the facility is within FCC guidelines and also reported reminding the board that TCA preempts it from regulating the tower on the basis of alleged environmental or health effects of its RF emissions.
After the issuance of the emergency order, Verizon reported responding to the order by submitting a letter to the Board of Health reminding it of the federal law that preempts the order and claiming it to be unlawful.
"The Board's conclusions and the Emergency Order are a direct challenge to the adequacy and supremacy of the FCC’s RF emissions regulations," the complaint reads.
"The Emergency Order stems from the Board’s conclusion that 'RF/EMF – even if emitted at levels within the FCC emissions guidelines – can be injurious to health or cause common injury to the significant portion of the public who are electromagnetic sensitive' and that such emissions are 'a cause of sickness' (emphasis added). Simply stated, the Board’s conclusion is both contrary to applicable federal law and specifically preempted by the TCA."
Verizon is asking that the court expedite the case and find that the emergency order violates the Federal Communications Act of 1996 and therefore is void and null.
Pittsfield Cellular Telephone Co. v. Board of Health of the City of Pittsfield by iBerkshires.com on Scribd