Rogers Communications Inc., et al. v. City of Châteauguay, et al.
(Quebec) (Civil) (By Leave)
Constitutional law – Administrative law – Division of powers – Radiocommunication – Interjurisdictional immunity – Federal paramountcy – Municipality bringing expropriation proceedings and establishing reserve on immovable in order to find alternative site for construction of telecommunications tower – Whether municipality’s actions interfered unconstitutionally with federal jurisdiction over radiocommunication – Lawfulness of municipality’s actions – Whether municipality’s actions were in bad faith or constituted abuse of authority.
After establishing a search area to build a telecommunications tower in Châteauguay, Rogers informed Châteauguay in March 2008 that it intended to build the tower at 411 Saint-Francis, which it had been renting since December 2007. Châteauguay initially opposed the project but eventually issued a construction permit. The population of Châteauguay mobilized, and the public consultation process required by federal standards then resumed. The City proposed an alternative site that suited Rogers, namely 50 Industriel, but the City first had to expropriate the owner. Faced with a prolonged contestation, Rogers decided to move forward with 411 Saint-Francis. The City then issued a notice of land reserve on the 411 Saint-Francis site.
The lawfulness and constitutionality of the notices of expropriation and reserve were contested in the Superior Court. Perreault J. began by finding that the City had not abused its expropriation authority in relation to 50 Industriel. She also held that the expropriation of 50 Industriel did not amount to unconstitutional interference with federal jurisdiction over radiocommunication. However, she found that, by issuing the notice of reserve on 411 Saint-Francis, the City had acted in bad faith and abused its authority, which made the notice null. The Court of Appeal affirmed the decision except with respect to the lawfulness of the notice of reserve. In its opinion, when the two notices were considered together, it had to be concluded that the City had acted for a legitimate municipal purpose, namely protecting the welfare of its citizens and ensuring the harmonious development of its land.
- Date modified: 2016-05-02
Do Cell Phones Cause Cancer? A New Court Ruling Reignites the Debate
On Friday, a Superior Court judge ordered California to release documents written by the state’s Environmental Health Investigations branch that are believed to contain warnings about the risk of cell phone radiation and recommendations aimed to protect public health.
The ruling comes after a lawsuit filed by Joel Moskowitz, the director of the Center for Family and Community Health at UC Berkeley School of Public Health. He sued the state under the California Public Records Act after his request to access the information was denied.
“I would like this document to see the light of day,” Moskowitz told KPIX 5, a CBS affiliate in San Francisco, “because it will inform the public that there is concern within the California Department of Public Health that cell phone radiation is a risk and it will provide them with some information about how to reduce those risks.”
Moskowitz’s concerns are based on new research that suggests a worrisome link between using cell phones regularly for at least a decade and an increased risk of developing brain tumors. He urges cell phone users to limit their physical contact with their mobile devices.
The judge sided with Moskowitz, noting the significant public interest in the DPH’s research and public health recommendations based on those findings. The DPH did not immediately comment on the ruling or whether or not it would even release the documents, as state lawyers noted they could appeal the decision.
But the Federal Communications Commission, the governmental agency that oversees the television, radio and telephone industries, wants to reassure the public that the devices are safe.
“The weight of scientific evidence has not effectively linked exposure to radio frequency energy from mobile devices with any known health problems,” the FCC maintains. “Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses.”
It should be noted that the federal government hasn’t developed a national standard for safe RF energy exposure levels, relying instead on non-governmental experts, like the Institute of Electrical and Electronics Engineers and the National Council on Radiation Protection and Measurements, to establish such guidelines. For exposure to RF energy from wireless devices, the allowable FCC Specific Absorption Rate (SAR) limit is 1.6 watts per kilogram (W/kg), as averaged over one gram of tissue. The FCC states, “All wireless devices sold in the U.S. go through a formal FCC approval process to ensure that they do not exceed the maximum allowable SAR level when operating at the device’s highest possible power level.” The regulation has been in place since 1996.
RF energy, which contains both electric and magnetic energy, is used to provide service not only for cell phones, but to a wide range of telecommunications services, including radio and television broadcasting and satellite communications. But cell phones, which first became widely available in the 1980s and were common by the late ’90s, represent the first time humans are regularly exposed to RF energy by devices that are touching or kept close to their bodies for many hours every single day. In 2012, the Italian Supreme Court ruled that a man’s cell phone was the cause of his tumor, which grew close to where his cell phone touched his head. The ruling followed a tentative warning issued the previous year by the World Health Organization saying that cell phone usage may cause the development of glioma, a type of tumor that starts in the brain or spine.
Still, public health concerns haven’t hindered sales in mobile devices: In the third quarter of 2016, worldwide smartphone shipments totaled more than 363 million, growing the market by more than 5 percent over the previous quarter, according to International Data Corporation, a market intelligence firm. Many of those phones were shipped to the U.S.: A 2013 Pew Research study found that 91 percent of Americans use cell phones. If a conclusive link can be made between long-term cell phone usage and cancer risk, the widespread use of such devices poses a massive public health problem.
Scientists are trying hard to figure it out. Last year, federal researchers at the National Toxicology Program, an interagency group under the National Institutes of Health, released partial findings from a $25 million study that subjected thousands of rats to a lifetime of electromagnetic radiation that attempted to emulate the regular use of cell phones by humans. The rats in the study developed rare cancers in at least two types of cells in their brains and hearts. While some public health advocates may point to this study in an effort to improve regulation of cell phone radiation exposure, scientists have still been unable to establish a conclusive link between cell phone radiation and cancer in humans, and there are fundamental concerns about translating findings from animal experiments to humans.
Many scientists are hesitant to support findings in animal studies, arguing that they are not good predictors of human reactions. In a 2008 paper, Michael B. Bracken, co-director of the Center for Perinatal, Pediatric and Environmental Epidemiology at the Yale University Schools of Medicine and Public Health, explained the problem:
One reason why animal experiments often do not translate into replications in human trials or into cancer chemoprevention is that many animal experiments are poorly designed, conducted and analyzed. Another possible contribution to failure to replicate the results of animal research in humans is that reviews and summaries of evidence from animal research are methodologically inadequate.…The few systematic reviews of the animal literature that have been done also pointed to the poor quality of other animal research, and the difficulty of extrapolating from it to humans.
Even if animal experiments are well designed, there’s still the issue of different biological responses.
“The use of animals as stand-ins for humans can give rise to misleading results because of the intrinsic differences between humans and other species,” according to the National Anti-Vivisection Society, a nonprofit advocating the end of animal testing. “Human disease and human response to drugs and other chemicals should be studied in human-relevant systems….the differences between other species and humans make translating data from animals to people problematic.”
The group points out that just because humans share genetic material with other species doesn’t mean their genes are similarly expressed. “This explains why 150 drugs that successfully treated sepsis-like conditions in mice failed in human clinical trials,” they say.
Even the scientists behind the major federal study weren’t able conclusively to connect the rats’ tumors to radiation exposure, with John Bucher, the associate director of the NTP, saying the tumors are “likely related to the exposures.” Ultimately, a long-term cohort study on thousands of human subjects may provide better clinical results, but there’s no single test for carcinogens, and it would be extremely difficult, perhaps impossible, to isolate cell phone radiation from all the other carcinogenic substances the human test participants would be exposed to on a daily basis.
In 2011, Siddhartha Mukherjee, a cancer expert who teaches medicine at Columbia University, addressed the limits of a population-wide survey of cell phone users. “The carcinogenic effect of a phone might be so subtle that it never registers in such a survey,” he wrote in the New York Times. “A phone may cause cancer after a long lag time—say, 20 years—and it may be too early to look for an effect in a general population. The survey data could be incomplete or of poor quality, thus limiting an epidemiologist’s ability to ever find a discernible link.”
While the inability to establish a conclusive link between cell phones and cancer is vexing not only to scientists, but for public health advocates who have lodged concerns, mobile companies are happy that we remain in the dark on the issue. CTIA, the Wireless Association, an advocacy group representing the wireless communication industry, has been trying to overturn a new Berkeley city law that requires cell phone retailers to provide consumers with a warning about cell phone use. The notice says, in part, “if you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is on and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.”
By attempting to suppress the Department of Public Health’s document, California appears to be siding with the mobile industry.
“They claim that [releasing the papers] would lead to chaos and confusion among the public,” said Moskowitz. “I suspect that they were afraid of the reaction from the telecommunications industry should they publish this document. In fact, they even argued that in their brief.”
Considering the frustratingly inconclusive research on the subject, it’s unlikely that the California health department’s papers reveal anything new. But Moskowitz believes that Friday’s ruling will, at the very least, help create more public awareness about a possible health risk that could impact as many as 9 out of 10 Americans. For now, it’s probably a good idea to keep your cell phone away from your body when you’re not using it.
UPDATE Feb 16 2015
UPDATE Dec 2015
Ninth Circuit Court Judge Friedland’s Conflict of Interest
On September 13 th, 2016 the Ninth Circuit Court of Appeals he ard the CTIA- Wireless Association’s appeal in their lawsuit against the City of Berkeley’s Cell Phone Right to Know ordinance which was implemented in March, 2016. A decision has not yet been rendered. Video of hearing below.
The three presiding judges of the Ninth Circuit Court of Appeals were Judge William Fletcher, Judge Morgan Christen and Judge Michelle Friedland. The potential conflict of interest rests with Judge Michelle Friedland.
Friedland’s husband’s career included design engineering in the wireless telecommunication industry with Cisco Systems, a member of the CTIA- wireless association .
This case has high visibility on the basis of constitutionality of the law and because the CTIA is represented by Theodore Olson, past Solicitor General for George W. Bush. The City of Berkeley is defended pro bono by Harvard Constitutional Law Professor Lawrence Lessig. Lessig is also a past United States presidential candidate.
The outcome of this case is much anticipated as many cities and states are awaiting this critical ruling as they plan to enact their own versions of Berkeley’s cell phone right to know label.
California Attorney General Harris’s office submitted an Amicus Brief in support of Berkeley with concerns that a ruling against Berkeley’s ordinance may harm other important disclosures protecting the welfare of California citizens.
During the hearing Judge Michelle Friedland seemed to have an unfavorable opinion regarding the City of Berkeley’s position giving consumers the right to know. This predisposed bias was present in the form of questions and statements made by the judge.
The case before the federal Court of Appeals is CTIA-The Wireless Association v. City of Berkeley et al., case number 16-15141.
In past years Friedland also submitted an amicus brief supporting the work of Theodore Olson in regard to prop 8 (same sex marriage).
Link to the hearing:
WORCESTER, Mass. — The parents of a student at a private Massachusetts school have filed a lawsuit claiming the school’s Wi-Fi signal made their son sick.
The parents, referred to as Mother and Father in the complaint, said their 12-year-old son, a student at the Fay School in Southborough, suffers from electromagnetic hypersensitivity syndrome, a condition aggravated by electromagnetic radiation. The condition causes headaches, nosebleeds, nausea, and other symptoms.
It is 1987 and Gordon Gekko stands on a windswept beach with a cell phone to his ear. He is talking on the world’s first mobile phone – the Motorola DynaTac 8000X. It wasn’t cheap back then costing $3,995 – which in today’s terms is close to $9,000. Not surprising only the wealthiest could afford these phones, and Wall Street was the epicentre of an industry that became a global phenomenon over the next decades.
Wall Street execs were the first to use cell phones. They have used them the longest and the most intensively. They were the first to upgrade to more powerful units. It is perhaps not surprising therefore that it is Wall Street firms that are the ‘canary in the mine’ in terms of litigation around the health impacts of long term cell phone use.
The links between brain tumours and cell phones are hotly contested. As telcos fight a growing public relations battle that is flaring through social media, a little known legal case has continued to make its way through US courts.
On 8th August 2014 Judge Frederick H. Weisberg issued a judgement in the Superior Court for the District of Columbia in a long running case alleging that brain tumours of the litigants were caused by cell phone use.
Weisberg did not make a judgement on whether cell phones cause cancer. What he was examining is whether the evidence that was being presented by trial lawyers was permissible under the Court’s rules. To do this he went through an exhaustive process under the Dyas/Frye test which is essentially about whether an expert uses a methodology that is generally accepted in the relevant scientific community to arrive at his opinion.
Weisberg ruled that a number of expert witnesses were permitted to present evidence in the next stage of the trial. But he also made some thought provoking comments:
“If there is even a reasonable possibility that cell phone radiation is carcinogenic, the time for action in the public health and regulatory sectors is upon us. Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discover thirty or forty years from now that the early signs were pointing in the right direction. If the probability of carcinogenicity is low, but the magnitude of the potential harm is high, good public policy dictates that the risk should not be ignored.”
The significance of Weisberg’s judgement is that he has inadvertently provided an independent verification of research. The research that he has admitted to the next stage of the court process will no doubt be challenged, but the methodology that the researchers have used has been accepted by the Court.
One of the problems that medical researchers in the radiation field have found is that their work is criticised by parties with strong commercial self interests. Weisberg has no such pressures. He is simply a judge doing his job.
The question for investors is what does this all mean?
In the heated discussion about whether cell phones can cause cancer it will be litigation that will ultimately determine the issue. The insurance industry understands this.
In 2010 Lloyds of London produced a paper, Electro-magnetic fields from mobile phones: recent developments, which discussed the potential for litigation. Lloyds stated:
“If EMF is proved to cause an increased risk of brain cancer it is likely the insurance industry will see claims under product liability policies for bodily injury….The issue of asbestos and its implications is widely known throughout the insurance industry, and many comparisons can be drawn with EMF – the initial impression that it was a ‘wonder product’ coupled with potential very long-term serious health issues not understood at the start of its use. Like asbestos any EMF litigation will probably be long and complex – similar issues could occur such as the definition of an actionable injury, policy triggers and apportioning liability….Should EMF prove to cause brain cancer, or any other adverse health effects, it is likely the main effect on the insurance industry will concern product liability claims for bodily injury.”
Lloyds concluded their report stating “With regards to the implication to insurance, as the current scientific evidence stands, it is unlikely that insurers will be liable for compensation for bodily injury on product liability policies. However, as asbestos has shown, new scientific developments coupled with a small number of key legal cases can change the situation very rapidly.”
Insurers have already taken Lloyds’ advice to heart by excluding coverage of radiation risks from insurance contracts.
In the meantime the debate will continue. New evidence is coming out on a regular basis demonstrating the links between cell phone use and cancer. A recent French study for example that came out in May 2014 (see links) found a positive association that was statistically significant for heavy users of cell phones considering life-long cumulative duration.
Whilst the telco industry may fight to the wall on litigation it may be employers that will ultimately bear the brunt of litigation claims.
A significant question for Wall Street firms is how they will manage this risk. Currently Wall Street firms supply and pay cell phone bills for their employees. Work is structured in such a way that it is impossible for an employee to work without a phone.
If a court determines that there is a link between cell phones and cancer we can expect that, because Wall Street has the greatest exposure, it will be first to be hit. Compensation, which would most likely be based on lost earnings, would be significant for an industry that routinely pays out multi-million dollar bonuses.
The question is whether Wall Street is already experiencing claims? There have been high profile Wall Street executives that have passed away in recent years from aggressive brain cancers. Wall Street firms are unlikely to want to proactively disclose litigation but it is a question that should be asked.
Wall Street firms also have some tough decisions to make about managing future risk. If we were to see a change of behaviour in the way firms manage their employees’ cell phones then this may be an indication that they are aware of the problem. At least one Wall Street firm has recently moved to no longer paying cell phone bills for its employees. Employees that have been spoken to believe that this is part of a cost cutting exercise, but wider factors may be at play.
What would Gordon Gekko be doing in these circumstances? The way he was smoking those cigars he may not have made it this far to worry about it. But if he did he would no doubt be shorting his own company.
Dariusz Leszczynski – molecular biology scientist who has advised The World Health Organisation. Dariusz is currently visiting Australia giving public lectures. See his blog for details:
Reuters: Are wireless phones linked with brain cancer risk?
Transcript of Judge Frederick H. Weisberg judgement on expert witness in telco / brain tumour case:
Gordon Gekko’s cell phone:
Gaëlle Coureau, et al., Mobile phone use and brain tumours in the CERENAT case-control study,Occupational & Envtl. Med., May 9, 2014 (available at http://oem.bmj.com/content/early/2014/05/09/oemed-2013-101754.abstract
29 brain tumor lawsuits move toward trial in Washington, DC
Arthur Firstenberg, Cellular Phone Task Force, Aug 11, 2014Twenty-nine high-profile lawsuits brought by people whose brain tumors were caused by their cell phones are finally moving toward trial. Six of these cases were originally filed in 2001 and 2002. Many of the plaintiffs are no longer alive.On Friday, Judge Frederick H. Weisberg, in the D.C. Superior Court, admitted the testimony of five expert witness for the plaintiffs, and the 12- and 13-year-old cases will now move into the discovery phase. Each of the plaintiffs is asking for more than $100,000,000. There are 46 defendants including Motorola, Nokia, AT&T, Bell Atlantic, Cellular One, Cingular Wireless, SBC Communications, Verizon, Vodafone, the Telecommunications Industry Association, the IEEE, ANSI, the CTIA, and the FCC. The plaintiffs are represented by Jeffrey B. Morganroth of Morganroth & Morganroth, a law firm in Birmingham, Michigan.
For over a decade the industry and the plaintiffs have played tug-of-war with the oldest cases, sending them back and forth between federal and state courts, and fighting over whether the plaintiff’s claims were preempted by the Telecommunications Act of 1996.
In 2009 the D.C. Court of Appeals, in Murray v. Motorola (982 A. 2d 764), ruled that the telecommunications companies could not be sued over brain tumors caused by cell phones manufactured after 1996. But since all of these plaintiffs had used pre-1996 phones, their lawsuits were allowed to go forward. They were also allowed to go forward on their claims that the defendants made false and misleading statements and failed to disclose information about the dangers of cell phones. These claims were brought under the D.C. Consumer Protection Procedures Act.
In December 2013 and January 2014, testimony was heard from:
DR. SHIRA KRAMER, a Maryland epidemiologist;
DR. MICHAEL KUNDI, professor of epidemiology and occupational health at the Medical University of Vienna;
DR. VINI KHURANA, a neurosurgeon and professor of neurosurgery at the Australian National University in Canberra;
DR. IGOR BELYAEV, head research scientist at the Cancer Research institute at the Slovak Academy of Science in Bratislava, Slovakia;
DR. WILHELM MOSGOELLER, professor and medical doctor at the University of Vienna Medical School’s Institute for Cancer Research;
DR. DIMITRIS PANAGAPOULOUS, founder of the Radiation Biophysics Laboratory at the University of Athens;
DR. ABRAHAM LIBOFF, professor emeritus of physics at Oakland University in Rochester, Michigan; and
DR. LAURA PLUNKETT, pharmacologist and toxicologist in Houston.
On Friday, August 8, 2014, the testimony of Drs. Kramer, Khurana, and Panagopoulos was disallowed. But the testimony of Drs. Kundi, Belyaev, Mosgoeller, Liboff, and Plunkett was admitted. They will testify at trial about “general causation,” i.e. that cell phones can cause brain tumors.
The lawsuits now move into the discovery phase, in which each side is compelled to produce documents and answer questions. This is the first time that the industry has had to turn over data. There will then be a fight over the admission of the testimony of witnesses on “specific causation,” i.e. doctors and others who will testify that these specific cell phones caused these specific tumors.
Friday’s decision by Judge Weisberg allowed 13 of the cases, which have been consolidated in one action, to go forward. The other 16 cases are being tried separately, but the parties in those cases agreed to be bound by Friday’s decision.
Merchant Law Group LLP is pursuing litigation concerning cellular phone use and brain tumours in Canada.
Excerpt from Merchant Law Group’s circulated flyer asking for participants in a class action:
Cell Phone Radiation Litigation
Merchant Law Group LLP is pursuing litigation concerning cellular phone use and brain tumours in Canada.
If you wish to receive updates about this action, particularly if you have used a cell phone and have been diagnosed with a brain tumour, please join the contact list by completing the form below. Please note that joining our contact list for the Cell Phone Litigation creates no financial obligation for you and your information will be kept confidential.
Merchant Law Group LLP has 12 offices across Canada, with lawyers practising law in six provinces. Merchant Law Group and Tony Merchant Q.C. are well known for pursuing class action lawsuits in Canada including litigation regarding Complete Contact Lens Solution,Winners/HomeSense, Various Cellular Phone Fees, BCE Dividends, GM Gasket Manifolds, Hip Implants, Lead Paint in Toys (and similar consumer products), Maple Leaf, Celebrex/Bextra, Vioxx, Sony, Residential Schools, Zonolite and various other cases. Tony Merchant is known to be one of Canada’s most active litigators with more than 600 reported cases in leading Caselaw Journals, having argued thousands of cases before the Canadian and American Courts, in Trial and Administrative Courts, and the Courts of Appeal of various American and Canadian jurisdictions, the Federal Court of Canada, and the Supreme Court of Canada. Tony Merchant, Q.C., has a long history in pursuing public policy cases and is a former Member of the Legislative Assembly (M.L.A.)
T-Mobile South, LLC v. City of Roswell
|Docket No.||Op. Below||Argument||Opinion||Vote||Author||Term|
|13-975||11th Cir.||Nov 10, 2014
|Jan 14, 2015||6-3||Sotomayor||OT 2014|
Holding: 47 U.S.C. § 332(c)(7)(B)(iii), which provides that a locality’s denial of an application to build a cell phone tower “shall be in writing and supported by substantial evidence contained in a written record,” requires localities to provide the reasons for such denials in writing. However, those reasons do not have to appear in the written denial letter as long as they appear in some other written record, are sufficiently clear, and are provided or made accessible to the applicant essentially contemporaneously with the written denial notice.
Judgment: Reversed and remanded, 6-3, in an opinion by Justice Sotomayor on January 14, 2015. Chief Justice Roberts filed a dissenting opinion in which Justice Ginsburg joined and in which Justice Thomas joined as to Part I. Justice Thomas filed a dissenting opinion.
Supreme Court to hear Roswell cell phone tower case
7:43 p.m. EST November 11, 2014
ROSWELL, Ga. — A fight over whether to put a cell phone tower in the city of Roswell has made it all the way to the U.S. Supreme Court.
Four years ago, T-Mobile wanted to build a 108-foot cell tower in Roswell. It promised to disguise the tower as an over-sized pine tree.
After a heated debate at a city council meeting, the city denied the request, T-Mobile appealed to the courts saying it was never given specific and required reasons for denial.
Under the Telecommunications Act of 1996, local towns and cities have to provide specific reasons — in writing — why they won’t allow a tower.
Constitutional law experts say that brings up a much bigger question.
“Should and can Congress dictate to local towns and cities how they go about their business,” said Eric Segall, a Constitutional law professor at Georgia State University. “Now on one hand, the answer should be yes for this kind of nationally important new technology. On the other hand, we have to be careful that the federal government doesn’t intrude too far to local prerogatives.”
The issue has made it all the way to the Supreme Court.
Florida Supreme Court Says Warrant Needed for Cell Tower Data
Courts continue to be divided on whether a search warrant is needed for cops to obtain cell site locator data. This week the Florida Supreme Court ruled a warrant is necessary. It is the first state to decide the issue based on the 4th Amendment.
The case specifically involves cell tower data for a convicted drug dealer that police obtained from a telecom without a warrant. But the way the ruling is written, it would also cover the use of so-called “stingrays”—sophisticated technology law enforcement agencies use to locate and track people in the field without assistance from telecoms.