Riemer Reluctantly Places

ZTA 19-07 into "Suspended Animation

while County Pursues Litigation against FCC

Action on Zoning Text Amendment (ZTA) 19-07 was effectively "suspended" on February 1, 2020 when Hans Riemer (D/At-Large), Chair of the County Council's PHED Committee,  summarily pulled a scheduled vote on the proposed bill from the Committee agenda. ZTA 19-07 is the third attempt in just two years by Mr. Riemer (as Lead Sponsor) to make it faster, easier and cheaper for Big Wireless to install bulky, high-powered radio transmitters as close as 30 feet from front doors of residences in Montgomery County.  

Mr. Riemer was unable to enlist the support of Councilmembers
Andrew Friedson (D - District 1) and Will Jawando (D/At-Large) in order to move the bill out of the PHED Committee. Committee approval is necessary to bring the bill to full Council for consideration.

Mr. Friedson and Mr. Jawando apparently both declined to support Mr. Reimer's bill while Montgomery County is actively engaged in two lawsuits against the FCC. (Those lawsuits are very briefly described below. )

So, rather than be defeated in a formal (and public) Committee vote, Mr. Riemer - as Chair - simply removed the item from consideration on February 1. ZTA 19-07 was also sponsored by Councilmembers Gabe Albornoz (D/At-Large) and Craig Rice (D -District 2). However, neither of these two Councilmembers serves on the PHED Committee. (More explanation about Mr. Riemer's recent action on ZTA 19-07 can be found in this Bethesda Beat article...)

But, ZTA 19-07 is by no means dead!

While PHED Committee members Friedson and Jawando effectively stalled Riemer's ZTA 19-07, they did not kill it. We urge each of you to email thanks to both Mr. Friedson  and Mr. Jawando for prioritizing concerns of County residents and neighborhoods ahead of the interests of Big Wireless. 

Mr. Riemer is widely expected to re-insert ZTA 19-07 onto PHED Committee agenda or just as soon as the 9th Circuit Court takes action on the two pending lawsuits. (That may be as early as September, 2020 - depending on when the Court renders its decisions.)

Montgomery County's Lawsuits Against the FCC

The County remains engaged in two very important pending lawsuits against the FCC. Decisions are expected sometime in the second half of this year.  These lawsuits are: 

  1. Challenge to FCC's 3rd Order(WC docket 17-84 and WT docket 17-79) as adopted in August 2018. Montgomery County was one of more than 40 municipalities and counties (plus many other entities) that contested the FCC's "3rd Order." The FCC's issuance of the 3rd Order was widely interpreted as a huge win by the wireless industry where Chairman Pai's FCC allowed expedited roll-out of 5G at expense of local regulatory authority over public rights-of-way. The various multiple lawsuits contesting the 3rd Order were consolidated into the 9th Circuit. Oral arguments were heard by a three-judge panel on February 10 , 2020. Video of the proceedings can be seen here
  2. Challenge to FCC's failure to update 1996 RF Emissions standards.This separate lawsuit was funded exclusively by Montgomery County and filed in early 2019. The suit seeks to compel the FCC to update RF emission rules to reflect realities of close proximity wireless transmitters that Big Wireless is installing for 4G and 5G technology. {You can read more about Montgomery County's suit here.} Keep in mind that small cell technology did not exist in 1996 - when almost all wireless facilities were on taller "macro towers" or on roof tops of multi-story commercial buildings - usually away from general public. Montgomery County's litigation against the FCC's failure to act on RF emissions  was also consolidated with case(s) described above in 9th Circuit. Oral arguments were also heard on February 10, 2020. 

It is no small irony, that Mr. Reimer and Mr. Rice, who were both on the Council in November 2018 voted IN FAVOR of the
RF Emissions litigation at the urging of outgoing County Executive Ike Leggett. And, yet both would subsequently introduce and support ZTA 19-07 which seeks to expedite 5G rollout with NO new RF safety standards!

The FCC Tries to Cut Legs Out from Under Montgomery County's RF Emissions Lawsuit

On November 27, 2019 the FCC very suddenly decided to end a long running "Notice of Inquiry" that had sought public input on whether FCC should amend RF Emissions standards. (It was the failure of the FCC to conclude this very inquiry that led to Montgomery County's second lawsuit described above.) The FCC found in
Order 19-226 that - despite extensive public comments and ample scientific data to the contrary:

  • "no appropriate basis for and thus decline to propose amendments to existing (RF emissions) limits - at this time." 
  • imputted the safety of  RF emissions to include all "modern" technology and then streamlined criteria for licensing. 
  • decided that methodology for assessing high frequency (gigahertz GHz) devices will be extended to apply to THz frequencies, as well; and, 
  • denied a petition regarding health exposure to outer ears - by treating these sensitive sensory organs just "like all other extremities."

Council Effectively Declines to Appeal FCC Order 19-226 - and Slams Door Shut on Back-up Strategy to Beat FCC

During February 10, 2020
 oral arguments members of three-judge 9th Circuit panel very pointedly asked County's legal counsel whether Montgomery County was appealing the FCC's action in 19-226.

Surprising, the County's legal counsel answered: "No!"

As a important footnote, the Council held a "Executive Session" - out of public view - on January 28, 2020 to meet with legal counsel (Keller & Heckman) representing County regarding lawsuit on RF emissions. Regrettably, as is the Council's custom regarding Executive Sessions, the
meeting minutes provide no summary of the actual discussion nor the conclusions reached by Council - except that "guidance was provided to the County Executive."  As such, the Council has made no public announcements regarding the January 28th closed Council session where "FCC litigation" was reportedly discussed, nor provided any interim updates to residents of Montgomery County  on progress of this very important litigation.

But from all appearances, the County Council apparently declined to file as intervenor (or even file amicus brief) to support very important
Petition for Reconsideration as filed by the Environmental Health Trust seeking to specifically overturn Order 19-226. The EHT asserts that the FCC (in Order 19-226) improperly terminated a Notice of Inquiry begun in 2013 to update RF Emissions standards and by doing so unlawfully disregarded a large body of evidence in violation of the Administrative Procedures Act. (APA)

Thus, MC4T remains very concerned that through action/or inaction in secret Executive Session, the Council may have effectively closed off the only possible backup alternative if the 9th Circuit rejects the County's own RF Emissions lawsuit for lack of standing. (e.g. the FCC did what the County's lawsuit asked and ended the Notice of Inquiry.) In other words, there is real possibility that County's second lawsuit becomes moot, even if outcome of updated RF regulations were not issued as County sought.

Legal Counsel leading EHT's appeal is Montgomery County resident Ed Myers, who recently factored prominently in a successful legal challenge against FCC in United Keetoowah Band of Cherokee Indians, et al v. FCC, 933 F.3d 728 (D.C. Cir., Aug 19, 2019). In fact, the County's own lawsuit against the FCC (the second suit listed above) even cites that decision in it's brief! 

Updated: April 15, 2020 and July 15, 2020

Montgomery County Coalition for the Control of Cell Towers


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MC4T is fighting for fair, transparent and accurate regulation of cell poles and cell towers to minimize adverse impacts to surrounding land uses, respect the harmony and aesthetic character of our communities, and protect the the safety of all residents.

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