Residents appeal court ruling on telecom’s tower health concerns

A group of Massachusetts residents from the “Shacktown” neighborhood in Pittsfield has filed an appeal against a county Superior Court ruling that directed them to seek relief from the Federal Communications Commission (FCC) rather than the court system regarding health concerns linked to a Verizon cell tower near their homes.

The residents have been engaged in a prolonged battle to either relocate or reduce the radiation levels of the Verizon tower, which was installed in their neighborhood in March 2020.

Years of Illness and Displacement

“It’s been 1,694 days of being sick and displaced,” said plaintiff Courtney Gilardi, a mother who claims her family fell ill and had to move due to the tower’s presence. “The kids just want to go home and be back in their own rooms in their own community without vomiting in their beds.”

Gilardi described the symptoms suffered by affected residents, stating, “The injured neighbors still living in Shacktown want to live safely in their own houses without feeling dizzy, nauseous, and without experiencing palpitations, afib, cardiac issues, migraines, and other neurological symptoms. We have been begging for help for the last four years, seven months, and 21 days. It feels like Verizon just wants us to shut up and die.”

After noticing a surge in illnesses following the tower’s activation, Gilardi and other residents sought intervention from their local health board.

In February 2022, the board, after researching the health impacts of radiofrequency (RF) radiation from the tower, issued a cease-and-desist order against Verizon unless the company agreed to discuss removing or relocating the tower. Verizon subsequently sued to overturn the order.

Legal Battle and Appeal

Lawyers supported by Children’s Health Defense (CHD) stepped in to argue that the Pittsfield Health Department, whose mission is to protect the well-being of residents, should have the authority to act on behalf of those affected.

However, Berkshire County Superior Court Judge Francis E. Flannery ruled on September 3, 2024, that the board was “preempted from regulating the operation of the tower due to health concerns from RF emissions that are within FCC guidelines.”

Judge Flannery stated that since the Verizon tower complies with FCC emission standards, the plaintiffs must address their grievances with the FCC. The plaintiffs are now appealing to the Massachusetts Appeals Court, seeking to overturn Flannery’s ruling and return the case to the Superior Court for further proceedings.

In the appeal, lead litigator W. Scott McCollough, representing CHD’s Electromagnetic Radiation (EMR) & Wireless cases, argued that the FCC does not provide a viable avenue for relief.

“We show the FCC cannot, in fact or law, actually provide a remedy,” McCollough said. The appeal highlighted that the FCC lacks a statutory process for individual complaints in this context.

McCollough further contended that the local health board’s action did not obstruct any federal purpose. “On the contrary,” he wrote, “it would serve the overarching purpose of saving lives and protecting people’s health.”

Gilardi emphasized that Massachusetts Boards of Health are responsible for addressing public health concerns. “All we are asking is for those powers to be respected by the courts. If they are not, why would we have Boards of Health in the first place?”

Outdated FCC Standards and Public Health Concerns

The plaintiffs argue that the current FCC limits for wireless radiation exposure fail to protect them from harm. “My family and the rest of the families injured near the Pittsfield tower have been affected at a fraction of the radiation levels that the FCC allows,” said Gilardi.

She also pointed out that the FCC’s RF standards were established nearly 30 years ago. “In no way do they protect men, women, and children from the 24/7 exposure to the kind of radiation that is pervasive today.”

Scientific studies used to establish FCC limits date back to the 1970s and 1980s and were based on small-scale animal research. Despite a 2021 court mandate to review modern scientific studies and justify its exposure limits, the FCC has yet to update them since 1996.

Legal Initiative to Challenge Federal Preemption

Miriam Eckenfels, director of CHD’s EMR & Wireless program, said the Pittsfield case illustrates how challenging it is to fight cell towers under current federal law.

“This is why we are working on a new legal initiative called ‘704 No More’ to challenge the constitutionality of the federal preemption and the FCC’s all-encompassing authority that denies justice for people harmed by cell towers,” she said.

The initiative seeks to overturn Section 704 of the Telecommunications Act (TCA) of 1996, which restricts state and local governments from regulating cell tower placement based on RF radiation concerns, as long as emissions comply with FCC standards.

Courts have broadly interpreted “environmental effects” under Section 704 to include public health concerns, limiting residents’ legal options. CHD argues that Section 704 is unconstitutional because it removes states’ traditional authority to protect public health and welfare.

Implications for Pittsfield and Beyond

In his ruling, Judge Flannery acknowledged the serious health concerns raised by the lawsuit but maintained that his decision was strictly based on legal precedent. “The court’s analysis and decision is necessarily focused only on the legal issue at hand,” he wrote.

McCollough pointed out that the judge did not rule against local health boards outright but instead based his decision on “conflict preemption,” arguing that the health board’s cease-and-desist order created an obstacle to the FCC’s regulatory objectives.

“704 No More will challenge the express preemption in Section 704 and the judicial line of cases finding conflict preemption, like the one in Pittsfield,” McCollough stated.

The outcome of the appeal could have significant implications not only for Pittsfield residents but also for communities nationwide that face similar struggles in regulating cell tower emissions and protecting public health.