SJC to weigh Telecommunications Act preemption in cell tower dispute

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While cell tower installations frequently draw neighborhood opposition and even litigation, a case to be argued before the Supreme Judicial Court on Dec. 3 is not your typical cell tower dispute.

Perhaps the most notable way in which Gilardi, et al. v. Orsi, et al. is different is that the plaintiffs argue their injuries are not speculative. Rather, through an “exhaustive” 18-month investigation, the Pittsfield Board of Health has at least preliminarily verified that the harms they have suffered — headaches, sleep problems, heart palpitations, ringing in the ears, dizziness, nausea, skin rashes, and memory and cognitive problems — are real.

However, those same Board of Health members now comprise the defendants in Gilardi, after the board rescinded, without prejudice, a cease-and-desist order it had issued to the operator of the wireless tower, Verizon.

The board’s reversal was prompted by Verizon filing a federal lawsuit, which sought a declaratory judgment that the Telecommunications Act of 1996, 47 U.S.C. §332(c)(7)(B)(iv), prohibits state and local governments from regulating personal wireless service facilities based on the perceived health effects of radio frequency emissions, as long as they comply with the relevant Federal Communications Commission regulations.

Once the cease-and-desist was rescinded, Verizon voluntarily dismissed its federal suit as moot. The board then adopted Verizon’s argument when it was sued in Berkshire Superior Court by six residents who live near the tower in Pittsfield’s “Shacktown” neighborhood. Those residents challenged the board’s rescission of its order as arbitrary, capricious and not supported by substantial evidence.

The defendants’ preemption argument held sway with Superior Court Judge Francis E. Flannery, who allowed their motion to dismiss on Sept. 3, 2024.

“To allow local boards of health to issue orders concerning the operation of wireless tower facilities based on the health effects of RF emissions, where those emissions comply with the FCC’s guidelines would upset the balance struck by the FCC and shift the power to regulate RF emissions away from the FCC,” Flannery wrote. “Upholding a board’s determination that towers in compliance with the FCC’s guidelines are still unreasonably dangerous would, in essence, permit local governments to second-guess the FCC’s conclusion on how to balance its objectives.”

Even as he was ruling against them, Flannery was sensitive to the fact that the plaintiffs had raised “serious concerns about the health effects of RF emissions from wireless telecommunications facilities.” However, that did not change his conclusion that they needed to seek redress elsewhere.

“Though the plaintiffs may of course raise those concerns directly with the FCC, the Board is preempted from second-guessing the FCC’s judgment with respect to RF emissions standards,” Flannery wrote.

The plaintiffs will now try to convince the SJC that Flannery got it wrong and that local health boards still have a role to play in addressing public health harms, lest people in their situation be left without any recourse.

Improper regulation or start of conversation?

To Buffy D. Lord of North Adams, one of the attorneys for the defendant health board, the stakes of the Gilardi case are high.

“If the SJC were to hold that preemption did not apply, it would frustrate the purposes of the Telecommunications Act, which would impact people across the United States, because then you have any number of state or local agencies seeking to usurp the FCC’s authority in terms of setting those limits,” she said. “And it will also frustrate the creation and construction of additional resources.”

Cell service is not just a luxury, she added.

“We are at that point in time where if you do not have cell access, you might not be able to call for emergency help if you need it,” she said.

If the SJC were to hold that preemption did not apply, it would frustrate the purposes of the Telecommunications Act, which would impact people across the United States, because then you have any number of state or local agencies seeking to usurp the FCC’s authority in terms of setting those limits.

— Buffy D. Lord, North Adams

Representing the plaintiffs in Gilardi are W. Scott McCollough of Texas, an expert in public law and regulation relating to telecommunications and other utilities, and Centerville attorney Paul Revere III.

In one of his previous cases, McCollough presented the oral argument before the D.C. Circuit Court of Appeals in a 2021 challenge to the FCC’s exposure guidelines in the case Environmental Health Trust, et al. v. FCC, in which the court ruled that the FCC had “failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer.”

In advance of oral argument, McCollough declined to comment except to say that he was pleased the SJC had transferred the case from the Appeals Court sua sponte.

“We’re thankful that the Supreme Judicial Court determined that this is a big case,” he said.

In their brief, McCollough and Revere characterize the board’s action in issuing the cease-and-desist order as something short of attempting to regulate a wireless facility and more akin to initiating a conversation, albeit through a formal process.

“The Board did not intend to sue for enforcement, at least initially; the goal was to have Verizon appear in the administrative proceeding and engage in collaborative problem-solving at the administrative level,” the brief reads.

Had the company sat down with the board, there may have been solutions that would not have involved turning off the tower entirely, the brief suggests.

Lord countered that it is “abundantly clear” that the board was intending to regulate the tower’s operation, even if it would prefer to characterize it otherwise. Flannery correctly concluded that the doctrine of “obstacle conflict preemption” applied, she said.

“By telling Verizon [that] if they fail to come to the table to discuss something that’s operating within the law, they have to turn it off — that is regulating the operation of the tower,” she said.

Whose burden?

Part of the plaintiffs’ argument is that Flannery relieved the defendants to produce evidence to assert preemption as an affirmative defense.

“Particularly instructive” on that front is the SJC’s 1985 decision Arthur D. Little v. Commissioner of Health of Cambridge, noted Northampton attorney Michael Pill, who submitted an amicus brief on behalf of the public interest group Massachusetts for Safe Technology in support of the petitioners in Gilardi.

“Preemption is not favored, and State laws should be upheld unless a conflict with Federal law is clear,” the SJC wrote in Arthur D. Little, adding that the party claiming preemption is obligated to show it “with hard evidence of the conflict on the basis of the record evidence in this case.”

The reluctance to overturn state laws “applies with special force to laws designed to protect the public health and welfare, a subject of ‘particular, immediate, and perpetual concern’ to any municipality,’” the court added in Arthur D. Little.

To Pill, it simply cannot be true that any concern about public health needs to be dismissed due to the Telecommunications Act.

“I’m old enough to remember when nuclear power was perfectly safe and too cheap [not to produce],” he said. “The problem is that it simply ignores the public health issue. These towers need to be located in places that do not affect public health.”

But there is a “stark” contrast between the situation in Arthur D. Little, which involved chemical warfare research, and Gilardi, argues Verizon in a disputed amicus brief (see sidebar).

In Arthur D. Little, the party claiming preemption could not point to a specific statute that addressed local regulation of chemical warfare research. That is markedly different from the situation with cell towers, with which a specific preemptive statute, the Telecommunications Act, has long been recognized, Verizon argues.

What’s in a name?

Pill’s brief also highlights the fact that the caption to paragraph §332(c)(7) is “Preservation of Local Zoning Authority.”

That “strongly impl[ies] that the scope of the paragraph is limited to zoning authorities, not health authorities,” he argues.

All of the subsequent subparagraphs and clauses similarly suggest their concern is with zoning matters, such as the placement, construction or modification of personal wireless service facilities, Pill adds.

“None of these express provisions contemplate, or would even practically work, in the context of a post-permit proceeding undertaken by a different kind of authority like a health board,” his brief argues.

Despite what the caption might suggest, conflict preemption cannot be ruled out, Lord countered.

“It would frustrate the purpose of the [Telecommunications] Act to say you can’t stop them from building it, but you can stop them from turning it on,” she said.

The parties in Gilardi also disagree as to whether the FCC offers people in the plaintiffs’ shoes any recourse whatsoever.

To the plaintiffs, the answer is a resounding “no.”

“There is no FCC remedy when a licensee is acting within the terms of its license but for some reason is, as here, still harming a specific group of people,” their brief reads.

As a result, they argue that the Superior Court’s disposition “allows FCC authorizations to become licenses to kill with impunity.”

Lord acknowledged the frustration with the fact that the FCC is the agency charged with setting nationwide standards and that, since the Environmental Health Trust case has been remanded, nothing seems to have happened.

But working with either the FCC or federal lawmakers remains the most promising avenue for change, she suggested.

Lord reiterated that the board rescinded its emergency order without prejudice, which was done for a reason.

“The legal landscape presently prevents the board from taking the action it attempted to take,” she said.

If that landscape shifts, rescinding the order without prejudice would allow her clients to reevaluate whether the board does have a role to play.

For now, however, the legal argument is clear, at least in Lord’s view.

In cases like this one, “someone gets painted as the good guy, and someone gets painted as the bad guy,” she noted.

“I don’t necessarily view that as the case here,” she said. “We are doing what we are required to do under the rules.”