Following statements that the County could not regulate small cell technology on the basis of potential negative health effects, the Montgomery County Council last week approved the appointment of a special counsel to lead the County’s legal fight on wireless infrastructure.
Montgomery County will be joining a coalition of jurisdictions who are suing the Federal Communications Commission for a recent order that places limits on local governments’ ability to regulate the small cell antennas and towers.
For the past two years, public opposition to the small cell antennas has been widespread, due in part to a concern among some residents that the new technology could cause negative health effects because of the radiation the antennas emit.
While members of the County Council, including Council President Hans Riemer (D-at large), have argued that federal law prohibits them from regulating the small cell antennas based on their potential health effects, the County is now joining a lawsuit against the FCC arguing the federal agency has failed to follow the Federal Administrative Procedure Act.
“Federal law prohibits local governments from regulating wireless infrastructure based on health effects and assigns that responsibility exclusively to the FCC,” Riemer said in a statement. “While there is no clear scientific consensus on the health effects of cell phones in general or 5G in particular, we need the FCC to embrace this issue in an open and transparent manner in order to address public concerns.”
To help lead the County through the lawsuit, the County has retained the law firm Keller and Heckman, LLP, to challenge the FCC’s order. According to County Attorney Marc Hansen, Keller and Heckman attorney Albert Catalano, will argue the FCC failed to consider the potential health effects of the small cell antennas, ignoring public concern submitted to the federal agency via public comments.
“Under the Federal Communications Act and the National Environmental Policy Act, the FCC was required, before issuing its small cell order, to fairly consider the potential health effects of radio frequency emissions from small cells that will be required for the nationwide rollout of SG service,” Hansen wrote in a letter to Riemer.
For more than two years the County Council has tried and failed to get a new zoning text amendment that would facilitate the deployment of small cell antennas. Telecommunication companies argue that the antennas, which would go on utility poles, are needed for 5G cellular service, saying there is a growing demand for data for smartphone and tablet users.
But for two years, the County Council has met public opposition to its ZTAs, saying that changing County zoning laws to facilitate the deployment of small cell antennas would take away citizens’ control to the placement of the antennas as well as make way for new technology that could potentially cause cancer.
But as citizens’ concerns mounted, some members of the County Council, led by Riemer, argued that 5G service was inevitable and that the Council could do little in the face of federal law that limits local governments’ ability to limit the small cell technology.
While Riemer said he was for changing County zoning laws to accommodate the request of telecommunication companies that wanted to deploy their small cell technology, he said he was doing it so the County could keep local control in the face of federal pressure.
After the FCC issued its order in September, Riemer said the County would explore its legal options to challenge the FCC in court.
“Like other leaps in connectivity before it, 5G promises enormous benefits to the residents and businesses in our community,” Riemer said. “But we must balance those benefits against any risks that the deployment of this infrastructure might pose.”
As of the latest attempt, the most recent small cell ZTA that Riemer and County Executive Ike Leggett endorsed failed to make it through the County Council by the Oct. 31 deadline. That means a Council made up of four new members who say they are undecided on the issue, as well as a new County Executive, Marc Elrich, will decide the fate of the issue.