Copy
View this email in your browser

December 7, 2021: Oral Arguments in Both
OTARD & Smart Meters Mandate Cases

 

Hi All,

 

This week is an important week. On Tuesday, Dec 7, 2021, oral arguments will be held in both (1) the OTARD case and in (2) the Pennsylvania Supreme Court case regarding smart meters mandate

Time: Both cases are scheduled for the morning session which starts at 9:30 am. However, both cases are second on the roster of the court in which they are being heard, so we do not know the exact time they will start. Most likely, neither will start before 10 am

Links to Listen to the Hearings Live: The attorneys will appear in-person at the hearings. The public can attend the PA hearing in person and can listen to both online, in these links:


Please see below for further updates regarding each of these cases and as to what can be expected in their hearings.


OTARD Case - US Court of Appeal for the DC Circuit
 

The case which was filed by the Children’s Health Defense (CHD) under my direction, challenges the FCC’s amendment of the OTARD rule. The amendment allows the installation of fixed wireless base station antennas on private property (including homes) in order to provide wireless service to other properties. To encourage quick deployment, the rule amendment uses sweeping preemptions, including preemptions of all local and state zoning regulations (including the requirements of notice, application and permit). It also preempts disability accommodation laws. The rule amendment is enabling a ‘Wireless Wild West.’ 

 

The Legal Issues - CHD’s case challenges the legitimacy of this amendment on various grounds. It claims the amended rule violates constitutional rights and common law personal and property rights. It leads to due process violations, and was passed without authority and statutory jurisdiction. For a simple explanation of the legal arguments we raised, read this article. However, the central issue and the focus for us has been Radiation Sickness / Electro-Sensitivity and other wireless-related injuries. We believe that the court will have to address these issues and decide whether the FCC can continue to ignore those who are injured while removing all their due process rights

 

Recent Court Submissions  - Since my last update about the case (when we filed the main brief), we have been busy working on the case. Even though I no longer work for CHD, I have continued to work on this case. In September we filed the Reply Brief (our reply to the FCC’s brief) and in October we filed the Joint Appendix (the compilation of evidence referenced in the case). The Joint Appendix consists of 27 binders with a total of 5,000 pages. Most are comments filed with the FCC asserting the amended rule violates state, federal and constitutional rights. To read more about the case, access previous submissions, watch webinars about the case and read the media coverage, press here

 

The Hearing - It seems that the court has listened to our request to expedite the case and the oral arguments were scheduled relatively quickly - for only a month after our last submissionThe purpose of the oral arguments is to allow the court to ask the parties questions to clarify issues that were raised in the briefs. Each party will have 15 minutes for arguments. However, usually the judges begin to ask questions before the parties have a chance to conclude their arguments

 

The Judges: The three-judge panel appointed includes judge Patricia Ann Millett, who will be presiding judge on the panel, and judges Gregory G. Katsas and A. Raymond Randolph. Judge Millet is one of the two judges who decided in favor of CHD in its successful case against the FCC for the agency’s decision not to review its 1996 obsolete wireless health guidelines (“guidelines case”). Her questions of the FCC attorney in the oral arguments of that case were pointed and indicated she saw through the clear inadequacy of the FCC guidelines in addressing current wireless reality. We think it is important she is on the panel as she is familiar with the massive evidence of harm and the issues. 

PA Smart meters Mandate Case - PA Supreme Court

 

This case concerns a 2008 Pennsylvania law, Act 129, a smart meter opt-in law which has been interpreted by the Public Utility Commission (PaPUC) to mandate wireless smart meters on homes and deny disability accommodation to those suffering from exposure to pulsed radiofrequency (RF) radiation. The hearing is following an appeal of the decision of the PA Commonwealth Court by all parties (called “cross-appeals”). 

 

Losing this case could have devastating implications for any opt-out programs around the country. For that reason, while I worked for CHD, we filed an amicus brief which was joined by 80 other organizations. It was also accompanied by a statement from physicians who combined have over 3,000 patients suffering from electrosensitivity; a statement from scientists; a statement by an expert engineer; and a statement by the Building Biology Institute. The amicus references the FCC 2019 admission of harm from non-thermal RF for frequencies below 10 MHz and the historic win of CHD in its case against the FCC for its obsolete guidelines. It is an important submission, and the various documents we filed as part of the amicus can be used to support advocacy efforts regarding smart meters

 

In addition to CHD’s amicus and the consumers (petitioners) briefs that were filed on 9/15 (Lewis’s brief; Harvey’s brief), additional amicus briefs were filed (McKnight; Jennings). The briefs for PaPUC and PECO were filed in July, and their reply briefs by PaPUC and PECO were filed in October. Reply briefs by the consumers were filed in November (Lewis’s reply brief; Harvey’s reply brief). Link to the briefs can also be found here

 

Until this appeal stage, all consumers were represented by the same attorney, Steve Harvey. However, for the appeal to the PA Supreme Court two of the consumers, Laura Sunstein Murphy and Maria Povacz, decided to discontinue Mr. Harvey’s representation and engaged another attorney, Tracey Lewis, instead. Prior to becoming their attorney, Ms. Lewis filed an amicus brief in this case, in the appeal to the PA Commonwealth Court on behalf of Friends Of Merrymeeting Bay (this amicus effort was led by Ed Friedman, who has been leading various cases regarding smart meters).   

 

CHD's amicus is in alignment with the arguments made by attorney Lewis in her briefs (rather than those that were made by Mr. Harvey). In this cross-appeals hearing in the PA Supreme Court, both attorneys for consumers (Lewis and Harvey) will be allowed time to speak (in addition to PaPUC and PECO attorneys). Each of the attorneys will have about 15 minutes. 

 

Note that this hearing is unlikely to start before 10:30 am. According to attorney Lewis, the Court's first case for the day is super-charged as it involves a police shooting. Therefore the Court is expecting a large turnout and said they will take extra time to clear and sanitize the courtroom between arguments. 

 

In the spirit of Hanukkah - may light prevail over darkness in these cases.
Good luck to us all, 

 

Dafna


Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.