Letter to City Attorney

November 18, 2020

Kathleen E. Gill, Esq.
Chief of Staff for Policy and Government Affairs
Corporation Counsel
City of New Rochelle
515 North Avenue
New Rochelle, NY 1080
914-654-2125

Dear Ms. Gill,

You and I spoke via phone on Oct 20, 2020 and I followed up with an email later that day, included as Appendix B, below.

I am writing to follow up to see if you had yet found the time to reach out to the following knowledgeable attorneys that could offer the City of New Rochelle excellent advice that would assist you in evaluating the pros and cons of franchise/master licensing agreements with Wireless Cos. (the various agents/entities that are not usually NOT Big Verizon, Big AT&T or Big T-Mobile) and whether or not these agreements are even advantageous to Cities. Important to master are the insurance implications (the problem is the lack of insurance due to the pollution exclusion for injury, illness or death from Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) / Electromagnetic Fields (EMF).

I have watched the videos of the 10/27/2020 Planning Commission and the 11/10/2020 City Council meetings in New Rochelle, NY and see evidence to support many of the observations that I shared with you in our 10/20/2020 call.

The elected and appointed officials seem to be unable to separate fact from fiction in the propaganda presented by the Wireless Cos.. There are many errors being made in these meetings. Making these obvious errors are clearly not in the best interests of the City of New Rochelle or, more importantly, the residents of New Rochelle.

I will share a bit, below, about your recent email (quoted in Appendix A, below) and will invite you to call me again, if you would like to discuss the following nine quotes from your 11/17/2020 email. Your responses are lifted straight from the Wireless industry agenda playbook and don’t show a deep understanding of the issues, many of which are well-explained here → https://scientists4wiredtech.com/campanelli

Kathleen Gill on Nov 17, 2020:
  1. “We understand that our residents have concerns regarding the deployment of wireless facilities in New Rochelle and we have endeavored to address those concerns to the extent permitted by federal law.”
  2. “These requirements include . . . comprehensive insurance and indemnification coverage”
  3. “Wireless providers seeking to locate on the public right of way are required to enter into a comprehensive franchise agreement with the City in which we are able to negotiate additional protections.
  4. “Federal law is clear that the City does not have the right to regulate wireless facilities based upon the effects of radio frequency emissions.”
  5. “The prohibition on local regulation of wireless facilities based on the [environmental] effects of radio frequency emissions has been repeatedly upheld by the courts.”
  6. “The City cannot impose regulations that in any way impair the technical performance of any proposed installation.”
  7. “The City does, however, require all facilities to show proof of compliance with the FCC standards relating to radio frequency emissions.”
  8. “To regulate the emissions of wireless facilities beyond this proof of compliance with federal standards . . . violates federal law and would likely expose the City to costly litigation.”
  9. “If you have any further questions, do not hesitate to contact me.”

I have not hesitated. I wrote you this email/letter.

I understand that you and your City completed a thorough process before the City of New Rochelle adopted the Municipal Wireless Code in April, 2020 → https://ourtownourchoice.org/ny/331-98-new-rochelle-muni-wireless-code/

Please do not, in the future, mischaracterize the testimony from the residents of New Rochelle as mere concerns, which we both know is a dismissive term.

“Concern” is not based on substantial evidence, while an “effect” is based on substantial evidence . . .

  • concern (noun) :: an uneasy state of blended interest, uncertainty, and apprehension
  • effect (noun) :: something produced by an agent or cause; a result, outcome or consequence

Those who are trained, often start and end their testimony with phrases similar to the following:

  • Start: “I attest and affirm that the following statements are true, accurate, and within my personal knowledge.”
  • End: “I have expressed no matter of mere concern but solely matters of substance, fact and law.”

We appreciate your cooperation in not using the term of “concern” to attempt to dismiss the matters of substance, fact and law that the residents of New Rochelle are systematically and thoughtfully placing into the City of New Rochelle public record.

You should understand some of the building blocks of the Wireless Industry bait-and-switch tactics and their well-oiled propaganda machine:

It is easy to criticize the errors made by the judge(s) in this Second Circuit Oyster Bay Ruling from 1999.

“[when considering] ‘environmental effects’ and ‘health concerns’ . . . “we believe that the terms are interchangeable.”

These are the problems
  • No US Court of Appeals judge has the authority to rewrite the plain language of federal preemption law: Title 47 U.S.C §332(c)(7)(B)(iv)
  • Such a determination cannot be based on “beliefs”, but must be based on evidence
  • Clearly “effects” (substantial evidence) cannot be lumped together with “concerns” (worries) of any kind
  • Environmental effects and health effects are both phenomena supported by substantial written evidence, and these phenomena are separated by a plain-to-see and self-evident barrier: the skin of living organisms, including human beings
  • At present, attorneys are allowing “legally fashionable” opinions of other attorneys and judges to affect crucially important life-and-death decisions made by the City Councils, due to insufficient due diligence. This is wrong and must be corrected.

I will look forward to your return call.

Appendix A: Nov 17, 2020 Email from Kathleen E. Gill, Esq.

From: Gill, Kathleen kgill@newrochelleny.com
Sent: Tuesday, November 17, 2020 12:34 PM
To: dbrownstone@nym.hush.com; Valvi, Dania
Cc: Bramson, Noam; Strome, Chuck

Subject: Verizon franchise agreement

I write this on behalf of Mayor Bramson in response to your email regarding the Verizon application pending before City Council. We understand that our residents have concerns regarding the deployment of wireless facilities in New Rochelle and we have endeavored to address those concerns to the extent permitted by federal law. Specifically, the adopted wireless facilities management ordinance contains a number of requirements intended to assure that the deployment of wireless facilities in the City is undertaken responsibly. These requirements include a zoning review, compliance with all applicable federal regulations, comprehensive insurance and indemnification coverage, and numerous siting and aesthetic regulations. Further, wireless providers seeking to locate on the public right of way are required to enter into a comprehensive franchise agreement with the City in which we are able to negotiate additional protections. Following approval of a franchise agreement by City Council, the provider is required to submit detailed materials regarding the proposed installation for review by the Commissioners of Development and Public Works. City staff will not approve any installation if it is not fully compliant with the regulations as revised in April 2020.

Unfortunately, federal law is clear that the City does not have the right to regulate wireless facilities based upon the effects of radio frequency emissions. The Telecommunications Act of 1996 states that “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.” The prohibition on local regulation of wireless facilities based on the effects of radio frequency emissions has been repeatedly upheld by the courts. Moreover, the City cannot impose regulations that in any way impair the technical performance of any proposed installation. The City does, however, require all facilities to show proof of compliance with the FCC standards relating to radio frequency emissions on a regular basis and in the event of any subsequent modification of the facility. To regulate the emissions of wireless facilities beyond this proof of compliance with federal standards or to prohibit such facilities altogether violates federal law and would likely expose the City to costly litigation.

If you have any further questions, do not hesitate to contact me.
Kathleen E. Gill, Esq.
Chief of Staff for Policy and Government Affairs
Corporation Counsel
City of New Rochelle
515 North Avenue
New Rochelle, NY 10801
914-654-2125

Appendix B: Oct 20, 2020 Email to Kathleen E. Gill, Esq..

October 20, 2020

To:
Kathleen Gill (email)

cc:
Charles Strome (email)
Raj Mehta (email)
Dear Ms. Gill,

It was very nice to talk to you. Thank you for your time on the phone.

Attorney Gary Widman, a former law professor and, General Counsel for the Council on Environmental Quality staffer under presidents Nixon, Ford and Carter in Washington DC and I spoke to the FCC yesterday and confirmed that the following in the 1934/1996 Telecommunications Act, applies to every Wireless Telecommunications Facility (WTF).

47 U.S. Code § 324 – Use of minimum power

“In all circumstances, except in case of radio communications or signals relating to vessels in distress, all radio stations, including those owned and operated by the United States, shall use the minimum amount of power necessary to carry out the communication desired.”

(June 19, 1934, ch. 652, title III, § 324, 48 Stat. 1091.)

Oct 19, 2020 40-minute call with the FCC Wireless Telecommunications Bureau’s Competition & Infrastructure Policy Division

  1. Garnet Hanly, Division Chief
  2. Susannah Larson, Associate Chief
  3. Erica Rosenberg, Deputy Chief
  4. Paul D’Ari, Senior Legal Counsel

Tonight, you will hear from folks in New Rochelle who have medical diagnoses of Electromagnetic Sensitivity, an ADA-recognized disability. Here are the links that I promised to send.

Have a great rest of the day and a good meeting tonight.

ADA Rights for those with Electromagnetic Sensitivities

City of New Rochelle Authorities

This page is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“1996-Act”) and the stated purpose of the 1996-Act: to promote the safety of life and property.

Attorney Mark Pollock, 707-257-0389 x 1
Attorney Andrew Campanelli, 516-746-1600
Attorney Harry Lehmann. 415-897-2121

Suggested Change to City of New Rochelle Ordinance

Thank you.