On January 12, 2015, the New Mexico Court of Appeals, in a unanimous decision, dismissed this lawsuit. It decided that an increase in the intensity of radio frequency radiation from cell towers does not constitute an “intensification of use” under the Santa Fe City Code. Importantly, the Court of Appeals reversed the lower court opinion which had ruled that the Telecommunications Act supersedes the Americans with Disabilities Act.
The New Mexico Court of Appeals considered arguments that the Americans with Disabilities Act (ADA) and the U.S. Constitution require cities to protect the rights of people injured by wireless technology.
The biggest threat to the lives of people injured by wireless technology is the Telecommunications Act of 1996—a shocking piece of legislation that turns the role of government on its head. This law makes it illegal for cities and counties to protect the public health and welfare if to do so would interfere with the construction of a national wireless telecommunications network. Municipalities are prohibited from taking action to stop antennas and towers from being built where they will injure people. As a result, a growing class of refugees have been forced to leave their homes in order to survive.
The Cellular Phone Task Force is funding a groundbreaking lawsuit brought by our president, Arthur Firstenberg, in order to restore the rights of the people to protect themselves. The lawsuit was filed in 2010 and is still being fought in the courts. Here is its history and current status.
PETITION FOR WRIT OF MANDAMUS
A writ of mandamus is a type of court order requiring a government official or a government body to perform a mandatory duty.
On November 15, 2010 AT&T upgraded its cell phone service from “2G” (second generation) to “3G” (third generation) throughout Santa Fe, New Mexico. Santa Fe has a zoning ordinance prohibiting any intensification of an existing use without a public hearing and a new permit. Since AT&T had not applied to the city to increase the power of its cell towers, Firstenberg, who owns a home in Santa Fe, filed suit in state court against the city and AT&T asking the court to order the new service suspended pending public hearings. He argued that people with electromagnetic hypersensitivity (EHS) were being discriminated against, and that the city is required under the Americans with Disabilities Act (ADA) and the Fourteenth Amendment to protect them. The Fourteenth Amendment guarantees all citizens the equal protection of the laws, and says that no citizen may be deprived of life, liberty or property without due process of law.
AT&T transfered the case to federal court. On July 5, 2011 Judge James A. Parker dismissed the case, ruling that the Telecommunications Act supersedes the ADA, and that people with EHS are not protected by the Fourteenth Amendment of the Constitution.
TENTH CIRCUIT COURT OF APPEALS
Judge Parker’s ruling was appealed to the U.S. Court of Appeals for the Tenth Circuit in Denver, attorney Lindsay A. Lovejoy, Jr. arguing the case on appeal.
“The Telecommunications Act should not be interpreted to injure an identifiable segment of the population, exile them from their homes and their city, leave them no place where they can survive, and allow them no remedy under City, State or Federal laws or constitutions.”
Oral argument in Denver took place May 10, 2012. On October 9, 2012, a panel of three judges ruled that the case did not belong in federal court. It reversed Judge Parker’s decision and sent the case back to New Mexico to be tried all over again.
BACK IN STATE COURT
On October 1, 2013, Firstenberg, representing himself, re-argued the case in the First Judicial District Court of New Mexico before Judge Sarah M. Singleton. During the course of the proceedings, AT&T made a remarkable admission. Radio frequency radiation, wrote AT&T’s lawyer Mark Basham, “plainly can impact all persons to some extent.” And AT&T is no longer denying that the radiation affects some people more than others.
However, Judge Singleton adopted all of AT&T’s arguments almost verbatim. She ruled that the Telecommunications Act supersedes the ADA, and that it provides a “valid reason” to deprive injured parties of a hearing, and a “rational basis” for discrimination.
NEW MEXICO COURT OF APPEALS
On December 2, 2013, Firstenberg appealed Judge Singleton’s decision to the New Mexico Court of Appeals. On January 2, 2014 he filed a docketing statement outlining his arguments. On June 30, 2014, Firstenberg filed his opening brief. If the Telecommunications Act overrides the Constitution, he argues, then it is unconstitutional.
If he prevails, we will set an important precedent. No longer will the courts, the government and the industry be able to pretend that the growing numbers of people who are being cast aside by society in its embrace of these technologies do not exist. No longer will people who oppose Smart Meters, WiFi in schools, and other technologies be afraid to tell the courts that they are suffering.
In previous cases involving microwave radiation and health, judges have been unwilling to rule against the wireless industry on the basis of only theoretical harm. What our case in the Tenth Circuit brings to the table for the first time are allegations of actual injury caused to people with a documented disability that requires them to avoid exposure to microwave radiation for medical reasons.
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