Public Comment

Of Councils, Courts and a Failure to Communicate

By Steve Martinot
Wednesday February 18, 2009 - 06:16:00 PM

Let’s go over what is at stake in the cell phone antenna permits that City Council has approved for UC Storage and the French Hotel. First, there is the question of health protections against possibly injurious technology. And second, there is the question of representation.  

As a review, here are some of the health risks from radio frequency and microwave radiation. Based on both laboratory and epidemiological (community at large) studies, they include brain cancer tumors, lymphomas, breaks in DNA strands, leukemia in children, changes in sleep patterns, headaches, disruption of the blood-brain barrier, cell death, changes in calcium ion concentrations, changes in neural electrophysiology, eye damage, increased blood pressure, and memory impairment. (Documentation at These are risks, not hidebound causal connections (yet). The precautionary principle would counsel that we pay attention. 

The industry and the government claim their radiation levels are safe because it does not heat human tissue (the microwave oven effect). But the list above is compiled from studies of non-thermal effects, which neither institution addresses. 

The City Council has consistently abstained from considering the “health issue” in its approval of permits. It has hidden behind the myth that the Telecommunications Act (1996) bars local government from including resident health concerns in the permitting process. Thus, it has abrogated its responsibilty to protect those who live in the city, and chosen instead to protect the interests of the industry (which live outside the city). 

It therefore behooves us to look carefully at this legal dodge deployed by the council (those readers with tender dispositions, who have adverse reactions to legal language, please proceed with caution). The Telecommunications Act states (slightly redacted), in the only clause in 170 pages relevant to this issue: “No state or local government may regulate the placement of personal wireless service facilities [cell phone antennas] on the basis of the environmental effects of radio-frequency emissions if the facilities comply with FCC regulations concerning emissions.” But there have been three cases decided in federal court, that suggest Council’s flight from its responsibility by way of this clause is baseless, to say the least. 

In U.S. vs. Lopez, which went to the Supreme Court in 1995, Rehnquist ruled that Congress could not bar local government from regulating activities that were truly local in character, and that the federal government over stepped its bounds when it sought to preempt local regulations. Congress, he argued, is bound in economic matters by the Commerce Clause of the Constitution (art. 1.8.3). It can regulate interstate commerce only, and can prohibit local activities only insofar as they impact interstate commerce, and are economic in nature. It is important, he said, to distinguish between what is truly national and what is truly local—which is actually a paraphrase of the 10th Amendment, which states that powers not specifically delegated to the federal government by the Constitution are reserved for the states or the people. In overturning the defendant’s conviction (the case involved gun possession), Rehnquist stated that if the federal government saw fit to preempt local regulations, it had to show that what it prohibited was clearly an economic factor, and a factor that directly impacted interstate commerce (which the gun possession in question did not).  

And neither would citizen health concerns. Indeed, the opposite is the case. Injuries to the health of local citizens from possibly dangerous technology would have adverse effects on commerce, owing to illness, and thus run the risk of impacting interstate commerce negatively if not protected locally. In other words, on Rehnquist’s argument, local health protections would be something Congress would not prohibit under their constitutional mandate to sustain interstate commerce. 

A second case, Santa Cruz vs. Mukasey (2008), was a suit to halt federal harassment of medical marijuana users. The Ninth Circuit court ruled that though federal statutes governed controlled substances, a patient had health rights, and those rights included protection against harassment by a federal agency. This too was a 10th Amendment case, and another instance in which the federal government sought to preempt local regulations.  

If patient’s have health rights, those rights would extend to potential patients (for instance, those made ill by injurious technology). But in that case, people, having rights, cannot be included in the category of “environmental effects.” To harm the environment and to harm a human being belong to different domains of law. On the basis of this decision, health protections would be a valid responsibility for the city to uphold. Yet the present City Council has chosen not to assume that responsibility in approving the present antenna permits, despite the fact that several neighborhood groups objected to Council, and despite the fact that cell phone use in the city has not increased, but slightly dropped off. There has definitely been a failure to communicate with alleged representatives. 

Finally, in Sprint vs. San Diego (2008), the Ninth Circuit court ruled that it was not sufficient for Sprint to think a city’s regulations might possibly be prohibitive. It had to show that there was actual and effective prohibition, which San Diego’s antenna regulations, against which Sprint sued, did not do. And neither would regulation of antenna power, which would serve to better protect Berkeley residents. 

In hiding behind the Telecommunications Act, our city council has ended up representing the wrong interests, and exercising a real abrogation of responsibility. 

The power density allowable in the U.S. under the Act is 579mW/cm^2. Don’t be non-plussed by that expression. It is a power output rating, analogous to the horsepower rating of an automobile engine. What is important about that number is that it is the second highest in the world. By comparison, Italy and Russia have set their power density standard at 10mW, and China has set it at 6mW. The technology exists to make antennas safer, operating at lower power. The legal framework exists for the city to include citizen health concerns in its permitting process. There is no excuse for the city’s abrogations. 


Steve Martinot is a Berkeley resident.