WASHINGTON-A health-related lawsuit that sought to block the June 29 start of the advanced wireless services auction was abruptly withdrawn last week after the Justice Department challenged a U.S. District Court’s jurisdiction to hear the case. However, one of the plaintiffs’ lawyers said the suit against the Federal Communications Commission will be re-filed at a federal appeals court shortly.
The turn of events followed the Justice Department’s filing and pre-motion conference at the U.S. District Court for the Eastern District of New York last week. The Justice Department and the FCC have shown increased interest in cell phone health litigation in the past year and a half, particularly on the issue of whether brain cancer suits pending in the Superior Court of the District of Columbia are pre-empted by federal law.
The suit, which could show up next in the U.S. Court of Appeals for the District of Columbia Circuit, alleges the failure of the FCC to prepare an environmental impact statement in advance of the AWS auction violates the National Environmental Policy Act of 1969.
The Plaintiff is Maria Gonzalez, a critical care nurse and mother of two daughters who attend public school in Astoria, Queens, N.Y. Gonzalez, according to the original suit, was part of a group that included teachers, parents and a local city council member that battled then-Nextel Communications Inc. (now part of Sprint Nextel Corp.) after the wireless carrier installed 12 wireless transmission antennas on top of a four-story building across the street from her daughters’ public school. Nextel subsequently agreed to remove four antennas that were pointed directly into the windows of the school.
But Gonzalez claims the remaining eight wireless antennas-which cover approaches to the school and residential apartments nearby-still pose a health risk to students. The suit included as one of its exhibits a photograph of a warning sign placed by Nextel on the door leading up to the roof where the antennas are located warning Nextel employees about dangerous emissions from antennas.
“Mrs. Gonzalez and her daughters are regularly exposed to emissions from these antennas as they come and go along the street to and from PS [public school] 122, and will be subjected to the new broader range of emissions for advanced wireless services authorized by the defendants under the proposed licenses covering this market area,” the suit stated.
The FCC plans to auction 1,122 licenses in the 1710-1755 MHz and 2110-2155 MHz band as part of the AWS auction, also known as Auction 66. FCC Chairman Kevin Martin and four other commissioners were named defendants in the suit.
Whitney North Seymour Jr., co-founder of the National Resources Defense Council, is representing Gonzalez on a pro bono basis. EMR Policy Institute, an advocacy group concerned with health implications of non-ionizing radiation produced by wireless transmitters, also is assisting Gonzalez.
The EMR Network, Gonzalez, a parental group called Protect Schools, the American Skin Association and a Canadian professor-citing various studies-raised health concerns during the AWS rulemaking at the FCC.
Government health officials here and overseas say scientific studies have not established a definite link between cancer and cell phone use, but they support continued research in light of studies that have suggested health risks to humans exposed to low-level radiofrequency radiation. Much of the research is being conducted in Europe.
The Food and Drug Administration, which is legally responsibly for ensuring cell phones are safe, is working with the U.S. cell phone industry on research intended to shed more light on a health controversy that took root in the early 1990s.
“The FDA continues to monitor studies looking at possible health effects resulting from exposure to radio frequency energy,” the agency said recently in response to a newly published study that found an increased risk of malignant brain tumors for heavy cell-phone users. “In 1999, FDA signed a Cooperative Research and Development Agreement with the Cellular Telecommunication & Internet Association (now CTIA-The Wireless Association). As called for by this CRADA, FDA plans to convene a meeting in the near future to evaluate all completed, ongoing and planned research looking at health effects associated with the use of wireless communication devices and identify knowledge gaps that may warrant additional research.”
