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 lawsuit brought by our president, Arthur Firstenberg, in order to restore the rights of the people to protect themselves.
Firstenberg v. City of Santa Fe
TENTH CIRCUIT COURT OF APPEALS, CASE No. 11-2156
On November 15, 2010 AT&T upgraded its cell phone service from “2G” (second generation) to “3G” (third generation) throughout Santa Fe, New Mexico. 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 a lawsuit in state court 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.
AT&T transfered the case to federal court. On July 5, 2011 Judge James A. Parker dismissed the case, ruling that because of the Telecommunications Act, people with EHS are not protected by the ADA or the Fourteenth Amendment of the Constitution.
Judge Parker’s ruling has been appealed to the Tenth Circuit Court of Appeals in Denver. The opening brief was filed on December 20, 2011. The reply brief was filed February 21, 2012. Oral argument in Denver took place May 10, 2012.
Attorney Lindsay A. Lovejoy, Jr. is representing Firstenberg in this case.
TENTH CIRCUIT COURT UPDATE
On July 5, 2011 Federal District Judge James A. Parker ruled that the Telecommunications Act of 1996 preempts the Americans with Disabilities Act.
On October 9, 2012, the Court of Appeals for the Tenth Circuit in Denver reversed Judge Parker’s decision. Our case is being sent back to the state district court in New Mexico.
This is neither a win nor a loss. The court of appeals undid the damage done by Judge Parker. But it also chose not to decide such a difficult case on its merits. Instead, it threw the ball back in the court of New Mexico District Judge Sarah Singleton.
On May 10, 2010 Santa Fe attorney Lindsay A. Lovejoy, Jr. argued our case before the Tenth Circuit Court of Appeals in Denver. This groundbreaking lawsuit, Firstenberg v. City of Santa Fe, was originally filed in state district court in New Mexico to assert the rights of people with disabilities whose lives are threatened by the proliferation of cell towers.
ORAL ARGUMENT IN TENTH CIRCUIT APPEAL
On May 10, 2012 environmental attorney Lindsay Lovejoy argued our case before a panel of three federal judges in the Tenth Circuit Court of Appeals in Denver.
This groundbreaking lawsuit, Firstenberg v. City of Santa Fe, was originally filed in state district court in New Mexico to assert the rights of people with disabilities whose lives are threatened by the proliferation of cell towers. If we prevail, we will set a critical 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.
It is up to a court’s discretion in any appeal whether to hear oral argument, or to decide the case entirely on the written briefs. A court will only hear oral argument if it thinks that important legal issues have been raised. This court scheduled oral argument in spite of requests by the City of Santa Fe and AT&T that it not do so.
Our reply brief states as follows:
“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.”
We have asked that if the court so interprets the Telecommunications Act, then it must also find that it is unconstitutional. The Fifth and Fourteenth Amendments guarantee to all citizens the equal protection of the laws, and say that no citizen may be deprived of life, liberty or property without due process of law.
Three other lawsuits are presently underway in federal courts: one in Naperville, Illinois, against Smart Meters; one in Maine, also against Smart Meters; and one in Portland, Oregon, against WiFi in public schools. The plaintiffs in those cases are alleging violation of privacy rights, property rights, and scientific evidence of harm from microwave radiation. The case in Maine, Friedman v. Maine Public Utiilties Commission, was argued before the Maine Supreme Court the week of May 7.
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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