Residents of Massachusetts Town Head Back to Court in Case Alleging Verizon Cell Tower Is Making Them Sick

Rights & Freedoms

13 hours ago

Originally posted by: Children's Health Defense

A group of Massachusetts residents who alleged a Verizon tower near their homes is making them sick have appealed a county Superior Court’s ruling that they must seek relief from the Federal Communications Commission (FCC), not the court system.

The residents of the “Shacktown” neighborhood of Pittsfield have been fighting for years to relocate or turn down the radiation levels of the Verizon cell tower installed in their neighborhood in March 2020.

“It’s been 1,694 days of being sick and displaced,” said plaintiff Courtney Gilardi, a mother who said her family became ill and had to move because of Verizon’s tower. “The kids just want to go home and be back in their own rooms in their own community without vomiting in their beds.”

Gilardi added:

“The injured neighbors still living in Shacktown want to live safely in their own houses without feeling dizzy, nauseous and without experiencing palpitations, afib, cardiac issues, migraines and other neurological symptoms.

“We have been begging for help for the last four years, seven months and 21 days, and up until our Board of Health became involved, all we’ve had is finger-pointing on whose responsibility it is to deal with a community health problem. It feels like Verizon just wants us to shut up and die.”

After noticing a sharp spike in illness after the tower went up, Gilardi and other residents reached out to their local health board for help.

In February 2022, the board — after researching the health impacts of radiofrequency (RF) radiation emitted by the tower — issued a cease-and-desist order to Verizon unless the telecom giant agreed to discuss removing or relocating the tower. Verizon sued to overturn the order.

Lawyers supported by Children’s Health Defense (CHD) intervened, arguing that the residents’ local health authorities should be able to act on residents’ behalf because the Pittsfield Health Department’s mission is to “protect and improve the health and quality of life of its residents.”

However, Berkshire County Superior Court Judge Francis E. Flannery on Sept. 3, 2024, ruled against the residents. He said the board is “preempted from regulating the operation of the tower due to health concerns from RF emissions that are within FCC guidelines.”

According to Flannery, the Verizon tower complies with the FCC’s emission guidelines. If Gilardi and the other plaintiffs have an issue with it, they have to take it up with the FCC.

The plaintiffs’ appeal asks the Commonwealth of Massachusetts Appeals Court to overturn Flannery’s decision and send the case back to the Superior Court for further proceedings.

FCC can’t solve plaintiffs’ problem

In the appeal, W. Scott McCollough — lead litigator for CHD’s Electromagnetic Radiation (EMR) & Wireless cases and attorney for the plaintiffs — laid out why having the plaintiffs bring their complaint to the FCC isn’t a realistic solution.

“We show the FCC cannot, in fact or law, actually provide a remedy,” McCollough said.

For instance, the appeal stated the FCC has “no statutory process for an individual complaint in this context.”

McCollough also argued the local health board’s action didn’t create an “‘obstacle’ to any federal purpose.”

“On the contrary,” he wrote, “it would serve the overarching purpose of saving lives and protecting people’s health.”

Massachusetts Boards of Health are charged with protecting residents from nuisances in the ground, the water and the air, Gilardi said. “All we are asking is for those powers … to be respected by the courts. If they are not, why would we have Boards of Health in the first place?”

McCollough noted in the appeal:

“The FCC has ruled that generally applicable state and local health and safety laws are not preempted. … Massachusetts’ generally applicable health and safety laws specifically charged local boards with doing precisely what was attempted here.”

FCC radiation limits failed to protect residents from harm

The current FCC limits for wireless radiation failed to protect Gilardi and the other plaintiffs from harm, Gilardi said. “My family and the rest of the families injured near the Pittsfield tower have been injured at a fraction of the radiation the FCC allows.”

Gilardi added, “People need to know the RF standards were established almost 30 years ago … In no way do they protect men, women and children from the 24/7 exposure to the kind of radiation that is pervasive today.”

As The Defender previously reported, the FCC’s RF radiation limits are based on a handful of outdated studies, including a 1977 study involving eleven rats; a 1982 study involving five rhesus monkeys, one squirrel monkey and one rat; and a 1984 study involving five rhesus monkeys.

The studies focused on finding out how hot from radiation the animals needed to become to stop seeking food.

The FCC has not updated the limits since 1996, despite a 2021 court-ordered mandate to review more recent scientific studies and explain how the limits adequately protect human health and the environment.

This article was funded by critical thinkers like you.

The Defender is 100% reader-supported. No corporate sponsors. No paywalls. Our writers and editors rely on you to fund stories like this that mainstream media won’t write.

Please Donate Today

Telecommunications Act is also part of the problem

Miriam Eckenfels, director of CHD’s EMR & Wireless program, said the Pittsfield residents’ case shows how difficult it is to challenge cell towers under the existing legal framework.

“This is why we are working on a new legal initiative called 704 No More to challenge the constitutionality of the federal preemption and the FCC’s all-encompassing authority that denies justice for people harmed by cell towers,” she said.

CHD’s initiative is raising money to legally challenge section 704 of the Telecommunications Act (TCA) of 1996. The section states:

“No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.”

Courts have interpreted “environmental effects” to include people’s concerns about how the cell tower or antenna might affect their health, according to the initiative’s website.

Section 704 of the TCA is unconstitutional because it “deprives states of their traditional police powers designed to protect the health and welfare of their citizens,” the website said.

Getting it changed would have an impact on cases like the one in Pittsfield where the local health board tried to act on behalf of the residents, said Eckenfels.

In his ruling, Flannery acknowledged that the plaintiff’s lawsuit raises “serious concerns” about the health effects of RF radiation. “However,” he wrote, “the court’s analysis and decision is necessarily focused only on the legal issue at hand.”

According to Flannery’s interpretation of the law, the local health board’s cease-and-desist order conflicted with the FCC’s regulations and section 407 of the TCA.

McCollough noted that the judge didn’t rule on what’s called “express preemption,” meaning he didn’t say the health board couldn’t be involved in a cell tower siting issue just because it’s a local authority.

“He went off on what is known as ‘conflict preemption’ and specifically whether the local board’s action would create an obstacle to attainment of the purposes and objectives behind the FCC’s exposure limits,” McCollough said. “He held that it would.”

“704 No More will challenge the express preemption in 704 and the judicial line of cases finding conflict preemption, like the one in Pittsfield,” he added.

Related articles in The Defender