An Expert's Critique of the JMZO 5G Wireless Ordinance

On May 23, 2022, representatives of Pennsylvanians for Safe Technology hosted a Zoom meeting with Andrew Campanelli, Esq., who is a national expert in telecommunications law. Mr. Campanelli reviewed the current version of the JMZO Wireless/5G Antenna Ordinance and summarized several problems including a “fatal gap” that renders the entirety of the ordinance moot!

Mr. Campanelli also discussed other “gaps” such as protections against excessive limits of radiation, random testing provisions, effective notices to the public, and ADA compliance issues. 

He is knowledgeable about Pennsylvania’s Act 50, which represents itself as the guideline to be followed by Townships in the State of Pennsylvania. Mr. Campanelli referred this piece of legislation as “hoodwink law” crafted by moneyed interests to benefit the wireless industry that strips local governments of far more power than the state legislature ever intended. For more on that, view this video: “Andrew Campanelli discusses Act 50”.

“Our biggest concern,” said a representative of Pennsylvanians for Safe Technology, “is we have been continuously told we have limited options to 5G being placed in our community. We do understand and appreciate the immense amount of work everyone has done on this ordinance, but it seems many communities in Pennsylvania have overlooked critical information that could have positioned them in the best possible scenario to protect themselves.”

[Quotes are from the Zoom transcript – my comments are highlighted in bold type.]

“Fatal Gaps”

A fatal gap is the “type of gap in an ordinance that renders the entirety of the ordinance moot.”

“They [the 5G wireless companies] would essentially be able to put wireless facilities pretty much anywhere they wanted, and the townships would be powerless to stop them. And if [the township’s ZHB] ever turned down an application, the site developer would file a lawsuit and win pretty much every time.”

“Under the Telecommunications Act of 1996, as it was adopted by Congress, Congress actually preserved to local governments the general authority to regulate the placement modification of wireless facilities. Now that general authority is subject to six, what are largely procedural constraints. And as long as you comply with these procedural constraints, you pretty much have the power to do what you want with wireless facilities. The problem is codes which are not drafted in a complete manner fail to apprise the local boards 9ZHB) of what those procedural constraints are.”

I think this should be addressed from a legal standpoint and, if necessary, the ordinance should include the required “procedural constraints” and whatever else that is necessary to provide the ZHB with the information it needs.

“…they have to prove that their proposed installation at the specific site they wanted on the specific portion of the site at the height they want is the least intrusive means of remedying that gap. And there's no possible alternative locations. So that is one constraint, the effect of prohibition. The other constraint I need to address is the substantial evidence constraint. And that says if any local government wants to deny an application for a wireless facility, any denial must be based upon substantial evidence. So that is addressed partially in your code. If I go through your code. And I get to. Page 13. It's paragraph 803i5c5”

“The site developers are arguing that unless your code says they can ask for it, your local hearing board cannot ask for evidence.”

“sophisticated local governments are doing is they're providing evidentiary guidelines. So for example, and it's even before then in the application requirements, the codes will provide what an applicant has to produce if they're claiming they have a significant gap in service or a capacity deficiency.”

“And the FCC staff determined that the current propagation maps that they submit had an accuracy level of 16.4%, minimum to a maximum of 64%. So they're gone. So what do you do? Sophisticated local governments are requiring applicants to provide probative evidence, just like it's a court. If an applicant claims to have a significant gap in coverage, this refers to a geographic area. You require them to produce hard drive test data… computer. You can say, okay, if you claim we have a capacity deficiency on Smith Street, give us the denial of service records.”

I think we concluded that for Newtown this “gap” may not apply as there are plenty of suitable locations for towers, which is what Mr. Campenelli seems to be talking about here. However, perhaps the JMZO ordinance should include some “evidentiary guidelines.” [see below regarding small towers.]

Small 5G Antennas/Towers & Overexposure to Radiation

“And number two, they're preparing in advance for streaming services. In other words, in many jurisdictions, they want to put up wireless facilities every 150 feet in residential neighborhoods, not for 4G, not for 5G, but for streaming services. They want to replace Cablevision and all your hard wired services. And unless you know what evidence to ask for your zoning hearing board will be completely unable to ever deny any application, no matter how bad it is. So you must provide evidentiary guidelines what your local board should ask for. Even better, I put them in the application requirements because you don't want the shot clocks to work against you, which is a whole other matter.”

When it is said that “people who complain about 5G they should get rid of their cell phones” - that not only a “dismissive” statement, it is misleading as well. The main impetus for wireless 5G is so that companies like Verizon, Comcast and T-mobile can stream video/TV live without the expense of installing and maintaining underground cables. This is inevitable and will result in the loss of cable company fees paid to the township for the use of rights-of-way for cables.

FCC Compliance with Radiation Limits

 “I will tell you that at least once a week I get calls from people allegedly getting sick from exposure of radiation.”

“Your code requires facilities to be FCC compliant. That's great. It is a strict it is severely important that local governments have provisions to prevent to protect against illegally excessive levels of radiation coming from these facilities. Because while the FCC has set limits as what it deems safe, the FCC never enforces the limits. The FCC never test facilities and never requires owners to test them. So sophisticated local governments are enacting provisions to protect their citizens because you're the first and only line of defense against being overexposed to illegally excessive levels of radiation. The easy one is the FCC compliance reports. I've seen many false FCC compliance reports, and there's only two ways really to falsify them. And it's easy to spot if you put in your code. And here's what they are.

“When they prepare an FCC compliance report, what they say is when this facility is built, the level of radiation that they're going to expose members of the general public to will be within the FCC's limits… What they don't tell you is they referring to the wrong sets of limits. So your code should say, on the face of any FCC compliance report, number one, they identify which set of limits they're referring to. Number two, they must identify on the face of the report, the minimum distance factor. What does that mean when they start that calculation? How high is the radiation level going to be? The first thing you have to start with is the minimum distance factor.”

“What about when the tower is built? How will you know if it's exposing your citizens to illegally excessive levels of radiation, which even the FCC admits would be dangerous? Sophisticated local governments are putting in random testing permissions, and they're very simple. What it says is at any time the town can randomly test the radiation emissions from any facility. We can hire an engineer. We're not going to tell you when because we don't want you to power down the facility. And if our engineer test the facility and find the facility is exposing members of the general public to radiation levels which exceed the FCC's limits.”

“You can just say, okay, I'm going to find you first offense, five grand, second offense, 25 grand, something like that. Almost as important as the fact that you are randomly testing is that the wireless facilities, the site developers that at least they know this because they will never want it reported in the test that an RF engineer tested and found that their facilities were exceeding the FCC's limits.”

There is no reason why this cannot be addressed in the Jointure 5G Wireless Ordinance. As far as I know there is no restriction on mentioning compliance with FCC regulations and including measures that can verify compliance AFTER the antennas are installed (see below).

Random Testing

“All of them [“sophisticated” municipalities] call for random testing, basically use the power in the local government to perform random testing, whatever they want. Any RF engineer they hire from go test any facility at any time. The safest way to do it is to have the town pay for the testing. And it's not that bad. You can probably find someone to do it for like $400.”

The key is that you make the wireless industry know the testing is being done because they don't want to be caught exceeding the FCC limits. The other thing you can do is you can put in the code that the owner of the facility has to pay for.”

“Now, some jurisdictions have done that and they've been threatened with litigation, but it hasn't happened yet.”

“And if it's proven that they exceeded the FCC's limits, they have to pay. The company has to pay their attorney's fees. It turns everybody, it deputize everybody.”

While not specifically citing any health concerns of excessive 5G radiation, the ordinance can call for random testing if, for example, a resident complains of health effects from a nearby small 5G wireless antenna. This will give people who may be susceptible to this radiation some recourse/data to have the situation mitigated. Of course, wireless companies may not like this idea. Township officials, however, are called upon to protect the “health & safety” of citizens, not the profit of wireless companies!

Notice Requirements

“Your code is lacking in notice requirements, not fatal, but it's always a good idea to give local residents advance notice so they can appear at any hearing. And you should have hearings and they can voice their objections and raise any relevant information that the board can actually use… it is critical that you codify what the notice has to say on the outside of the envelope. And here's why. For years, local government said, okay, you want to build 150 foot cell tower. You, the applicant, have to serve notice to all property owners within 5000 feet. Well, the newest game in the wireless industry is they hire marketing companies to send those notices. And the envelopes will say things like ABC Marketing Corp. and they'll use instead of a real stamp, they use a bulk permit. And when people see letters from ABC Marketing without a postage permit, they automatically assume it's junk mail and they throw it out. This is not by accident. This is done on purpose. They're saying, Well, we fulfilled our obligation. We sent notice of the public hearing and nobody came. Well, that's because they thought it was junk mail.”

“Even certified mail, if they don't know who it's from, if they see it from a marketing company or some company in the Midwest or something, what I do is this. I put it on the outside of the envelope. They must write a notice of public hearing for new cell tower or wireless facility in all bold, at least 12.12 point font size. Now it's on the outside of the envelope and bold. The residents are going to read it.”

This is important to address in our code. We need to do whatever we can to ensure that citizens who may be impacted by wireless 5G are properly notified. BTW, this is a good idea for developers as well!

ADA Compliance

“There's a segment of the population that is susceptible to adverse health impacts from exposure to this radiation, even at levels that don't normally affect other people. There is litigation pending right now that those persons claim to be disabled in the meaning of the ADA and are thus entitled to reasonable accommodation.”

I feel this is something we might address in our code although I am not sure what “Reasonable accommodation” means in this context.

Historic & Environmentally Sensitive Sites

“…if you want to make it as bulletproof as possible, basically, I have to take your existing zoning code, any comprehensive plan, any general plan. The new ordinance must take into account your topography, your zoning districts, US stock districts, your environmentally sensitive properties, the existing legislative intent in your code.”

“The great part is if you bring in historic properties or environmentally sensitive properties into the mix, now you have the National Historic Preservation Act and the National Environmental Policy Act, and you can use those to or to your advantage. Your planning board can say, we recognize the possibility that this will adversely impact a historic property.”

We have at least one historic farm and a residence on that farm with perhaps very sensitive people. And we have other environmental protected types of properties, historic districts. I don't know how this would affect historic districts, but we do have those maps.

ACT 50

“I can't give you advice on Pennsylvania law. But I can tell you this Act 50 is what is known as a hoodwink law. It's not as bad as most of the ones I've seen. Hoodwink laws are laws that come about when representatives. Groups favorable to the wireless industry go and deceive state legislatures into adopting laws that strip local governments of far more power than the state legislature ever intended… and using these hoodwink laws, they are putting cell tower and cell tower equipment on people's private property, on their front lawns, on the side lawns. It's a horror show. So ACT 50 does limit the powers to a certain extent…But this doesn't stop you from adopting an ordinance which still. empowers you to control where these things go.”

So even with ACT 50, we can substantially improve this ordnance!

Are Campanelli’s Comments Biased?

A resident recently emailed me:

“I read with interest  'An Expert's Critique of the JMZO 5G Wireless Ordinance' in your newsletter.

“It was a bit difficult to read as I didn't feel it was well written, but I suppose it may have been an unedited transcription.

“After reading it I Googled Andrew Campanelli, Esq.to find he's the head of 'Anti Cell Towers Lawyers.com'.  He may be an expert but obviously not an unbiased one.  I wish you would have made this clear in your newsletter.  Hopefully in the future you can publish a report by a neutral expert.”

My Response:

Thanks for your comments. Yes, this was from an automated transcript of an audio recording, which you can listen to here: https://sonix.ai/r/RnYp17VYFrhX4RebKEQCZjmE/share 

As far as being "unbiased" I should tell you that I am not a source of unbiased news. What I publish is often my own opinion.

Obviously Mr. Campanelli is biased against the communications companies that want to put small 5G antennas near homes. Nevertheless, his critique does have merit in that he gives good advice on how to create a better ordinance while being compliant with the provisions of ACT 50.

You should note that the current draft of our ordinance was based on another biased lawyer's input: Dan Cohen, who was the principal author of ACT 50, which prohibits municipalities from passing 5G ordinances that specifically are based on the health effects of 5G radiation.

You should also note that at the next Jointure meeting (tomorrow at 7:30 PM; Guest Registration: https://us02web.zoom.us/webinar/register/WN_wydEdA-cS3GRcWDdFcDQJA), we will consider actually hiring Dan Cohen to review our ordinance and address comments from Campanelli. This seems very biased to me because the Jointure did NOT pay for Mr. Campanelli's comments - his time was paid for by residents.

 

Posted on 22 Jun 2022, 12:57 - Category: Public Safety