Berkeley’s cell phone radiation warning law can go into effect, judge rules

Berkeley’s cell phone radiation warning law can go into effect, judge rules

All city had to do was delete: “This potential risk is greater for children.”

Daniel Parks

After complying with a federal judge’s order on Wednesday, the city of Berkeley, California, will now be allowed to go forward with its cell phone radiation warning law, as it has cut out one controversial line. It is not clear when the new notice will go into effect.

Last year, the city passed a municipal ordinance requiring that a retailer provide, either in the form of a mounted poster or as a printed handout, this message:

The City of Berkeley requires that you be provided the following notice:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. 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. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

Berkeley Municipal Code § 9.96.030(A)

Shortly thereafter, the city was sued by CTIA, the wireless trade group, in an attempt to halt the law on the grounds that it was in violation of the First Amendment—the government was compelling speech by requiring retailers to display the notice. That language was based on warnings and notices already provided by the Federal Communications Commission.

The case, known as CTIA v. City of Berkeley, pitted two giants of the legal world against one another. On the side of the plaintiffs is Ted Olson, a former solicitor general under the George W. Bush administration. Meanwhile, the defendants are armed with former presidential hopeful and rockstar Harvard law professor Lawrence Lessig.

In September 2015, United States District Judge Edward Chen found in favor of Berkeley, saying that the above language could stand, but only if the city struck the line: “This potential risk is greater for children.” He then granted a preliminary injunction until the change was made, stopping the law from taking effect.Two months later, Berkeley gave the court the new city council-approved language with the relevant changes and asked the judge to lift the injunction.

Judge Chen did so in his Wednesday order, and he denied the CTIA’s request to stay the legislation pending an appeal.

As he wrote: 

CTIA contends that, even if the two sentences are technically accurate, the juxtaposition of the two gives rise to the implication that carrying or using your phone in a pants or shirt pocket or tucked into a bra when the phone is on and connected to a wireless network is unsafe. But even though the FCC has indicated that such should not be unsafe (at least from a thermal effects perspective), the fact remains that the FCC still decided to set the guidelines at particular levels because of its safety concerns. Thus, ultimately, CTIA’s beef should be with the FCC. If CTIA believes that the safety margin is too generous because there is no real safety concern at that level, it should take that matter up with the FCC administratively. It has not done so. Berkeley’s reference to these unchallenged FCC guidelines does not violate the First Amendment.

As Ars reported previously, it’s important to note that there really isn’t any current science to support the need for the warnings Berkeley is mandating. There’s no well-described mechanism by which non-ionizing radiation can induce long-term biological changes, although it can cause short-term heating of tissues. There are also no clear indications that wireless hardware creates any health risks in the first place, which raises questions of what, exactly, the city’s legislation was supposed to accomplish. At best for cities like Berkeley, large and comprehensive works indicate that any potential risks take decades to be felt, and cell phones simply haven’t been in use long enough for us to know for sure.

Neither the city of Berkeley nor the CTIA responded to Ars’ request for comment.

UPDATE 4:15pm ET: In a statement, the CTIA told Ars that it would appeal.

We believe Judge Chen has created new law in this case that dramatically weakens First Amendment protections and contradicts binding decisions of the 9th Circuit Court of Appeals as well as the Supreme Court. In fact, the Ninth Circuit previously invalidated a very similar cellphone ordinance in San Francisco. That is why we will respectfully be appealing Judge Chen’s ruling to the 9th Circuit. The overwhelming scientific evidence refutes Berkeley’s ill-informed and misleading mandatory warnings about cellphones, according to the FCC and other experts. With these realities on our side, we are confident that we will prevail in our appeal.

Amanda Shanor, one of the attorneys representing Berkeley, told Ars that the city was “pleased” with the ruling.

“We are confident that Berkeley’s regulation will be upheld on appeal,” she e-mailed.

She also noted that “the ordinance will go into effect on March 22nd unless the Court of Appeals issues a stay pending appeal.”

EDITORIAL: Verizon Cell Tower Controversy Unfolding in Pagosa Lakes

EDITORIAL: Verizon Cell Tower Controversy Unfolding in Pagosa Lakes

Read Part One

I contacted Jason Nichols and Diana Luppi, two of the organizers with the Pagosa Power group, to ask whether they wanted to weigh in on the PLPOA-Verizon tower re-zoning request that will be addressed by the Archuleta County Planning Commission tonight at 6pm at the County Administration Building, 398 Lewis Street. (The meeting is open to the public.)

Mr. Nichols and Ms. Luppi, as grassroots organizers, have a slightly different take on the issue.

Clearly, the Pagosa Lakes Property Owners Association (PLPOA) administration and elected PLPOA board members and their appointed committees view the proposed installation of a 70-foot Verizon cell tower on PLPOA-owned “Open Space” as a beneficial concept, in an area where “service interruptions such as dropped calls can be regular occurrences,” according to a letter by PLPOA General Manager Chip Munday, (featured in today’s Daily Post.)

The agreement with Verizon Wireless will also be financially beneficial to the Association, we are told, bringing in perhaps $400,000 over the 25-year course of the lease (according to a rough estimate offered by the PLPOA administration.) That comes to maybe $16,000 a year, contributed toward what is currently a $2 million PLPOA operating budget.

The objections I’d seen, as submitted in writing to the Archuleta County Planning Commission, concerned the impropriety of placing an industrial installation on what many neighbors believe to be dedicated “open space” intended for recreational use.


An email from Jason Nichols of Pagosa Power addressed, among other concerns, unresolved questions about the health hazards posed by high-frequency radio emissions in a residential neighborhood.  Do high-frequency, digital radio signals — of the type coming from, say, a Verizon Wireless cell tower — threaten human and animal health? Mr. Nichols believes the threat is real.

From his email:

These are my concerns I would like to bring up at the meeting on Wednesday.

1. This is a recreation area the proposed, and disguised tower is going into, which will continue to be used for recreation. Just because the FCC and Federal Government do not recognize non-thermal health effects, does not mean damage is not being done to all of us, including children and sick individuals. There are thousands of studies proving how dangerous this technology is, but officials and corporations are willfully blind to this because they are making so much money. No tower should be placed anywhere near where people gather or live.

2. Smart meters need towers to collect the data for the utility. Smart meters do not work in rural, mountainous areas, and LPEA’s horrible decision to jump on the smart meter band wagon for money, does not justify putting more towers up. Fiber optic cable is a much faster, more reliable, and safe solution. Nothing wireless works well here — we’re in the mountains.

3. The Pagosa Springs SUN article made it sound wonderful that calls won’t be dropped so much during busy tourist seasons with this tower. The tourists don’t live here, we do. Last time I checked they are here primarily to enjoy nature and outdoor activities — they’re not here for our cell phone reception. There are personal range extending devices people can purchase themselves if they have a problem with coverage.

Again, we are in the mountains, you can’t expect 5 bars everywhere.

4. I moved here for the same reasons many others have. It is a big reason people vacation here too. I came to escape the city, and everything that comes with it. The crowds, traffic, noise, pollution, WIFI and cell towers everywhere, crappy chain restaurants and big box stores. I came here to find peace and enjoy my life. I came here to be happy.

Now smart meters have moved in, more cell towers, Walmart, Starbucks … “The City” is trying to follow us here, and local officials just want the money. This is an amazingly beautiful, pristine area we have here, and if it is destroyed to pander to tourists, corporations, and greedy local officials, the tourism will just go somewhere else.

Mr. Nichols makes some excellent arguments for protecting the essential simplicity and access to nature that exist here in rural Archuleta County — and not in the Big City. And I believe he speaks for many Pagosans, when he says he came here to get away from that same Big City.

But sometimes we want to believe we can have our cake and eat it too.


Yesterday morning, I attended a joint meeting of the Town Council and the Board of County Commissioners, where items of shared interest and concern were being discussed by the two elected boards. Three key projects were on the agenda: Early Childhood Education (a fancy name for Daycare), Affordable Workforce Housing, and Broadband.

During the discussion of Broadband, County Commissioner Steve Wadley made the following statement:

“We need to see [high-speed Internet] as just as necessary as running water. If the community is going to be vibrant, and attract the kind of people we want to attract, we have to have high-speed connectability.”

Heads were nodding in agreement, around the table.

I wonder, however, just exactly what kind of people Commissioner Wadley is referring to? The “kind of people we want to attract”?

And who is the “we” who want to attract them?

A few minutes later in the meeting, Commissioner Michael Whiting invited local businessman Mark Weiler — President of Parelli Natural Horsemanship — to address the joint meeting.

Mr. Weiler: “I was invited to the [Community Development Corporation] meeting and the topic was broadband communication. I personally believe [broadband] is the lifeblood of every community, going forward. It is the highest need we have here — more so than affordable housing, more so than everything else.”

At the CDC meeting, Mr. Weiler told us, “it was wonderful to watch the discussion.  A beautiful two-hour discussion about ‘How do we make the community more vibrant?’  And one of the things knocked around was, we need a catch-phrase.”

Mr. Weiler suggested that the Pagosa community might marshal itself behind a clever marketing slogan: “One Gig, Everywhere in Archuleta County.”

To put that number into perspective, I operate a daily news website using an upload speed of about 1Mbps. “One Gig” is 1,000 times faster than the Daily Post’s current Internet connection. Mr. Weiler would like us, as a community, to make that speed our Number One Goal.

Speaking very personally, my number one goal at the moment is more responsive government.

See you at the Planning Commission meeting, at 6 o’clock?

Read Part Three, tomorrow…

Bill Hudson

Bill Hudson founded the Pagosa Daily Post in 2004 in hopes of making a decent living writing about local politics. The hope remains.

EDITORIAL: Verizon Cell Tower Controversy Unfolding in Pagosa Lakes, Part Two

Meter installations a fire risk, electrician says

Meter installations a fire risk, electrician says

Westsyde resident arrested again while resisting meter swap

January 7, 2016 2:35 P.M.

Electrician James Dreyer demonstrates how arcing can occur when meters are removed under load.

Two days before Christmas, James Dreyer was arrested outside his Westsyde home after he allegedly assaulted B.C. Hydro staff attempting to change his electrical meter.

It wasn’t the first time Dreyer has had a brush with the law. A little over a year ago, the married father of four children was arrested a first time, ostensibly on the same charge. The charge was dropped that time and it was dropped again on Dec. 22.

Dreyer said the charges were laid for one purpose: To allow B.C. Hydro to go about its business even if it’s violating the rights of property owners. He said his only “offence” was blocking installation of a smart meter, a denial permitted in the province for the past two years as long as homeowners agree to pay a “legacy fee,” a surcharge of $32.50 a month.

A bonded electrician, Dreyer has been one of about 14,000 holdouts among B.C. residents who have resisted the Crown corporation’s five-year, $1.5-billion program to replace all analogue meters with newer smart meters equipped with radio transmitters. About 350 of those customers are in Kamloops.

“As a field safety representative, I’m responsible for the safety of the general public,” he said.

Analogue meters were safe, he maintains. The newer smart meters are not, particularly because of the manner in which most of them have been installed, said Dreyer, pointing to 40 fires in B.C. that he says are related to smart meters.

In November 2014, electrical service was first cut to Dreyer’s home when he refused to have the analogue meter changed. His business has a separate 200-amp service on the shop and he was able to keep the lights on for 2015.

Then, three days before Christmas 2015, Dreyer encountered a Hydro installer with a bucket truck outside his home. The installer told him he had a demolition permit to remove the meter from the Dreyer’s home, which was a fabrication. After he was told there was no demolition permit, the installer left in a huff.

“He was just the fall guy for the bigger issue.”

Returning from a walk the next day, Dreyer found two more Hydro staff parked outside his house. They would not tell him why they were there. At one point, he used his walking stick to prevent them from slamming the vehicle door, which led to the assault charge, later dropped.

“I wanted to prove, through an absolute screen, that this is where we’re at. Their actions showed here is the result of where your are: Your choice is to be arrested. I find that absolutely offensive.”

Safety is uppermost in his mind, though.

“The real story is not in the violation of my rights,” he said. “The real story is, why is the government not following its own rules in regard to electrical safety?”

Meter seal expired, B.C. Hydro says

B.C. Hydro spokesman Greg Alexis said they needed to replace the Dreyer’s meter because the Measurement Canada seal has expired.

“All B.C. Hydro meters are verified for accuracy by Measurement Canada, a federal consumer protection agency,” Alexis said in an email reply. “We are legally obligated to ensure our meters meet all Measurement Canada requirements and once the seal expires, we have to remove the meter. Replacing time expired meters is a standard operational activity at BC Hydro and something we have been doing for decades.”

There can also be significant penalties from Measurement Canada for leaving a meter in service beyond the seal expiration date, he noted.

“Since the customer is enrolled in the Meter Choices Program, he is still eligible to receive a non-communicating meter. The customer will only get a smart meter if they choose to have one installed.”

B.C. Energy Minister Bill Bennett stated emphatically two years ago that homeowners would not be forced to accept a smart meter as long as they paid the legacy fee to which they are paying under duress to date. That compromise came only after two years of resistance.

Dreyer believes the utility is using strong-arm tactics with those once used to force native children into residential schools. He is convinced that the real motive for forcing the switch is “meta data,” that smart meters give utilities the ability to obtain and sell private information.

He demonstrated the safety risk in his shop, producing a shower of sparks by separating two sets of wires under load to show what happens when meters are pulled off “hot” or under load. If the female metal receptors on the meter base are damaged during the meter swap, arcing will occur when load is applied and a fire could start in the meter base.

“What you’re seeing is what happens when B.C. Hydro removes a meter way under load,” he said.”That arc that happens, it’s in the meter base. The electrons are trying to leap the meter load. If the transformer on the main service line was switched off and all the breakers were turned off in your panel, it wouldn’t happen.”

Dreyer said the change-out practices don’t meet basic safety guidelines, and B.C. Hydro has no obligation to follow Canadian electrical code rules because they are the “electrical authority.” He maintains that smart meters B.C. Hydro has installed don’t meet with CSA standards. The meters were certified by the Underwriters Laboratory in Alberta, but only to save face after safety was questioned in Saskatchewan, he said. The Saskatchewan government’s smart meter program was suspended for public safety.

“This is the law,” Dreyer claimed referring to the Canadian Electrical Code. “We have to follow this. Every electrician in Canada has to follow this law in ever instance, but this is a monopoly,” he added, alluding to B.C. Hydro.

In most cases, where homeowners were not home when the meters were changed, there remained an electrical load on the meter.

“Who’s to say that meter is safe? How many lives is this worth? There have been over 40 fires documented in B.C.”

The newer meters do not have surge arrestors, a fact Dreyer pointed out to a Hydro contractor when the man showed up to try to replace the family’s analogue meter. The contractor said he hadn’t realized and gave up on that attempt. It wasn’t the last attempt, though.

If a fire should occur, the homeowner is responsible. B.C. Hydro holds no responsibility under their ever changing electrical tariff act, Dreyer noted.

Decision expected in class-action suit

The Westsyde resident has a manilla folder several inches thick with correspondence and information on B.C. Hydro’s switchover to smart meters. A decision is expected later this month in a class-action lawsuit represented by B.C. Citizens for Safe Technology, which argues that the forced installation of smart meters violates fundamental rights and that the devices pose significant health and safety concerns.

The Dreyers are not part of the suit, though they filed a claim of right on the basis of common law. After fighting the move to smart meters for several years, Dreyer is not convinced there is any gain to be achieved through the courts. He’s begun thinking in much broader terms about the potential of next-generation power.

B.C. Hydro defends the safety of its new meters, pointing out that more than 1.9 million smart meters have been installed in B.C. since 2011 and have been operating safely and reliably.

Alexis noted that CSA certifies products manufactured for consumer use such as electronics. Electricity grid equipment, including our old meters and smart meters, are not certified by CSA. Instead, all meters must pass stringent federal and North American standards set by Measurement Canada, American National Standards Institute, the Institute of Electrical and Electronics Engineers and the International Electrotechnical Commission.

“The new meters provide more surge protection to our customers than old meters and will send B.C. Hydro voltage alerts helping us ensure power is delivered safely.

“Our new meters were thoroughly tested against these standards before they were installed, and even though it wasn’t a requirement, we had our meter manufacturer certify the design of each new smart meter by an electrical engineer. Our meters must also pass rigorous quality assurance testing, conducted by our manufacturer and us, to ensure they’re safe, accurate and reliable.

“Further, all our meter installers are qualified and follow required safety protocol. We use qualified, independent contractors to exchange our meters, as well as B.C. Hydro employees.”

Alexis also cited an independent report showing there have been fewer residential structure fires associated with electricity in B.C. since Hydro started installing smart meters.