Verizon Wireless is asking a federal court to block the Pittsfield Board of Health from enforcing its order demanding the company defend the safety of its tower at 877 South St. Residents of the neighborhood say the 4G tower is causing health problems.
Unfortunately but unsurprisingly, Verizon is hitting back hard against the Pittsfield Board of Health, previewing a messy — and entirely avoidable — legal battle.
In a federal lawsuit filed this week, Verizon seeks to block an order issued by the municipal health panel aimed at removing a cell phone tower located at 877 South St.
We repeatedly underscored the specious grounds on which city health officials picked this ill-advised fight with a telecom giant armed with plenty of reasons to push back — logic, legality, regulatory precedent and self-interest among them.
The Board of Health’s declaration that this particular cell tower “directly causes harm” is baseless. Nearby residents’ reported health issues do not in themselves constitute a causal link. The key word there is “causal,” but even evidence for correlation is mixed. The complaints are concentrated in the Alma Street neighborhood that was pre-opposed to the cell tower on largely procedural grounds, yet curiously there appear to be no complaints from other areas within a similar radius, such as Lori Court residents or those who work at nearby businesses.
When an objective third-party analysis was ordered from an expert consultant, the tower’s radiation emissions were far below the Federal Communications Commission’s regulatory maximum; none of that study’s multiple measurements reached 2 percent of the FCC’s threshold. After health officials touted this taxpayer-funded study as a way to seriously engage with the issue, they cast aside its findings as meaningless when tower opponents found the data too inconvenient.
Apparently, none of this matters to the Board of Health, which is troubling. We sincerely hope, however, that it matters to the City Council, which faces the decision of whether to fund the Board of Health’s misguided mission to its predictable and costly end. As such, we have some questions for councilors before they decide whether to push tens of thousands of dollars from the city’s coffers into a mission with few upsides but many deep downsides for Pittsfield.
The Board of Health’s request for legal funding is $84,000. This was a lowball estimate even based on the board’s assumption that this would play out in the Massachusetts Trial Court system. Verizon, however, filed its suit in federal district court — which means that initial request is no longer conservative but completely unrealistic. Are you willing to greenlight not just that five-figure sum but far more heading from city coffers out the window to fund this frivolous uphill battle?
In its suit, Verizon is asking a federal court to decide whether the Board of Health’s cease-and-desist order against the tower violated the Telecommunications Act of 1996. That law’s preemption clause states that no municipal entity may regulate location or modification of cell towers “on the basis of the purported environmental effects of radio frequency emissions” so long as the structure meets FCC radiation standards, which the aforementioned third-party study pursued by the Board of Health clearly demonstrated. Do you have any reason to doubt that this federal law applies here or that a judge would agree with Verizon?
Even if the Board of Health is successful in getting Verizon to shut down and/or relocate the tower, that could entail further costs for the city. If that means taking that parcel back from Verizon after it was already permitted to site a cell tower, then such a taking could see the company turn around and ask Pittsfield to compensate not just the cost of construction but unrealized future earnings from its operation. Do you want the city to be on the hook for such a risk and its potentially massive price tag?
The Board of Health’s grandstanding has legitimized the heckler’s veto for a handful of residents who didn’t want a cell tower near their property. That does not bode well for the city’s future when other controversial infrastructure projects inevitably crop up. Backing and funding this legal fight wouldn’t be just one imprudent expenditure, but the tacit approval of municipal boards pursuing questionable agendas on behalf of a vocal minority of residents while laying the outsize costs and risks on the entire city. As the city’s top municipal panel, do you really want to set this precedent?
In order to do their due diligence on the Board of Health’s request before them, city councilors must grapple with these questions.
For the best interests of their constituents and their city, there is only one reasonable answer to the above questions: no. It is not a wise expenditure to escalate a fight with Verizon, as the Board of Health was not on steady ground while picking it. It is not worth the precarious position in which Pittsfield is placed, and it is not a precedent the City Council should be keen to legitimate. By pressing an assertion for which it clearly did not have the authority, the Board of Health has put Pittsfield in a tight spot: publicly capitulate now, or engage in expensive litigation that would likely produce the same results.
We urge councilors to show some backbone and prudence where their fellow officials on the Board of Health did not, and move to dial down this legal conflict before it spins out of their control entirely.