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Related Categories: East Bay | Government & Elections
26 Activists Say Authors of Berkeley 5G Law had Major $ Conflicts
by jenny miller
Wednesday Nov 25th, 2020 2:42 PM
There has been immense opposition in Berkeley to the planned rollout of hundreds of 4G/5G "small" cell towers. Some community activists are now looking at the legal consultants hired to write Berkeley's laws, and wrote this letter to the City Council and city officials to protest the firm's conflict of interest.
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Dear Mayor Arreguin, City Council Members, and City Staff,

As you know, the legal consultants hired by the city to write its 5G “small cell” guidelines and ordinance is Telecom Law, with attorneys Jonathan Kramer and Tripp May. We have recently received conclusive information that this law firm has a financial conflict of interest, which would explain why the language in the 5G laws the city passed last July are so weighted in favor of the telecom industry, and against the community.

It would also explain why the city staff's "answer to questions by City Council members" is so filled with inaccuracies. We will give city staff the benefit of the doubt, and assume the answers were written by the telecom lawyers, but why didn't the city staff pick up on the fact that the answers are inaccurate in regard to what the federal law says, or what is contained in the ordinance and guidelines that you ended up passing?

The video below contains some very important information about Jonathan Kramer. https://www.youtube.com/watch?v=_AITgZWJofU&feature=youtu.be
It is a training video for 5G installers, in how to counteract community opposition to 5G. He openly admits to the installers that “I’m on your side,” and he tells them “Your duty is not to the community, it’s to the shareholders.” He makes fun of all the people who suffer painful symptoms caused by wireless radiation, and assures his audience that the ADA doesn’t apply.

What Kramer is teaching the installers is false. The following link demonstrates that EMF sensitivity is recognized as a disability requiring accommodation by the California state legislature: https://smartmeterharm.org/2017/09/15/california-legislature-recognizes-people-with-electromagnetic-sensitivities-as-disabled/

This link describes how the U.S. Access Board recognizes electro-magnetic sensitivity as a disability that is covered by the American with Disabilities Act (ADA). https://scientists4wiredtech.com/what-are-4g-5g/electromagnetic-sensitivity/

Medical writer and cell towers consultant Susan Dana Foster describes in a letter to the Malibu City Council, dated Sept. 29, 2020, how Kramer appears to blatantly mislead the city council, giving them the definite impression that fire fighters are in favor of having 100 foot FirstNET towers, filled with antennas, next to their fire stations. In fact, the firefighters had been very strenuously opposing them, because of the devastating neurological impacts they had suffered from cell tower radiation when towers were placed next to their stations in the past.

Even more alarming, Susan Foster testified to the City Council that law partners Jonathan Kramer and Tripp May are also principals in another business, Permit Team LLC.

She wrote: "Jonathan Kramer, Robert C. “Tripp” May and Lory Kendirjian are the three principals of Permit Team LLC http://permit.team/. This company specializes in permitting cell towers. Jonathan Kramer and Tripp May are the managing partners of Telecom Law Firm PC. Lory Kendirjian is Telecom Law Firm’s Senior Paralegal and Senior Wireless Project Manager. Kramer describes Permit Team LLC as an arm's length away from his law business."

Foster's letter continues: "From the website about Team Members: Meet the Permit Team staff. Between them, they have been involved in thousands cell site permitting matters, including new build permits, modification permits, and enforcement actions… “If Jonathan Kramer has a company that makes money assisting local authorities (that may mean ministers and school superintendents, as well) in siting cell towers, is he the best person to listen to the residents’ concerns/demands that they be protected?

Is Jonathan Kramer the best attorney to protect the ambience of Malibu, the vista, the skyline, the character and the property values? Given the inherent fire risks with cell towers and the exponential increase in fire risks given the densification of 5G small cells, is Kramer the best attorney to create a protective ordinance that will apply appropriate rigor to engineering principles and thus guard against future fires?....The Telecom Law Template (for small cell ordinances) did not have a fire safety section. We added that protection. The FCC openly states safety is an issue we can discuss and legislate. For Malibu, as with every city in the West, fire safety should be a top priority. …I already fear that with all the applications Malibu has before it, if you do not pass a protective ordinance within a matter of weeks, residents, property values and the unique vistas of Malibu will be at risk....I would urge the City Council not to renew its contract with Telecom Law."

The Malibu City Council listened to the urging of Susan Foster and the community, and have terminated Jonathan Kramer’s contract.

The most persuasive document of all regarding Jonathan Kramer’s extremely distorted interpretation of the law (exemplifying the telecom industry’s playbook) is the attached letter by attorney Scott McCullough to the Malibu city council (titled Malibu Response). It includes ten pages of examples of how Kramer mis-represents the law , for the benefit of the telecocom industry and the extreme detriment to the community.
In the following video, Jonathan Kramer is again blatantly lying, this time to the Thousand Oaks City Council (Jan. 12, 2020), telling them that the DC Court of Appeals decision (Keetoowah Tribes vs FCC)—which requires NEPA reviews for 5G small cell installations-- applies to only to some small cells, "primarily to small cells that are federally funded or on federal lands, and these are neither." https://scientists4wiredtech.com/nepafail/

It is very obvious from reading the Keetoowah decision that it applies to all small cells (it talks about the 850,000 that are planned for cities nationwide), and this has been confirmed by the attorneys who were intervenors in the Keetoowah case (NRDC and Ed Myers).

It was also confirmed in the email that the FCC Senior Attorney Paul D'Ari sent Phoebe Sorgen re Berkeley's 4G/5G application process, where he describes the necessity for all applicants to go through the NEPA checklist review--which includes investigating various types of environmental conditions and impacts, such as impacts on endangered species. (See attached document with the email exchange between D’Ari and Sorgen.)

Kramer even goes so far as to publish an article on his website promoting cell tower placement on schools. https://telecomlawfirm.com/natalia-shparber-on-school-districts-hosting-cell-sites/

Kramer repeatedly pooh-poohs the existence of any adverse health impacts from wireless radiation, for example on his blog referring to an EMF-awareness lobbyist as a “tin foil hat” because he posted a video of a scientist discussing radiation health impacts. Kramer also makes fun on his blog of the firefighters who have fought tirelessly to keep cell towers away from their stations. (California law now does exempt fire stations from the cell tower “deemed approval process”, as a result of AB 57. Fire stations were also exempted from 4G/5G small cells in the law to greenlight the 5G rollout, SB 649, which was ultimately vetoed by Gov. Jerry Brown.)

Recently the Ripon School was forced to remove a cell tower after a number of teachers and students developed rare forms of cancer. https://mdsafetech.org/2019/03/25/cell-tower-to-be-removed-after-4th-ripon-student-diagnosed-with-cancer/

Kramer continues to cling to his non-scientific beliefs, despite the hundreds of studies showing a wide range of increased incidence of disease near cell towers, such as strokes, heart disease, Alzheimers, and cancer. Many studies indicate cancer clusters found in people who live or work near cell towers.

The following compilation covers a wide range of detrimental health impacts; the section on cancer clusters begins on p.9. https://biocircuitry.com.au/wp-content/uploads/2014/12/2014-Joining-the-Dots-now.pdf. Many more scientific studies showing harmful health effects of wireless radiation can be found here: https://www.5gcrisis.com/scientific-studies and at http://www.ehtrust.org.

Kramer and May’s extreme financial and moral conflict of interest would explain all the numerous ways that the ordinance and guidelines the City of Berkeley passed last July will undermine the safety of the community. Every time the documents appear to agree to a community demand, such as undergrounding the ancillary equipment, in the next sentence (or second half of the first sentence) they eliminate any strong protections--by allowing various exceptions, such as, the Director doesn't think having the equipment above ground would adversely affect anything (slightly paraphrased).

At one point, we recall that City Council members had agreed to using much-safer analog meters on the 4G/5G installations, but this has now been changed throughout the law to wireless "smart" meters. And some extremely un-informed person at the Public Works Dept. told a community activist that the smart meters "would be measuring RF radiation."

Aside from the fact that smart meters are not designed to measure RF, the city has not been doing any testing to see how much radiation the existing cell towers are putting out, and there is nothing in the new ordinance and guidelines that requires the city to test. All the telecom applicant has to do is promise that they've done computer modeling that shows the radiation from their planned installation will be within the FCC's safety limits. (Of course the FCC's safety limits are ridiculously inadequate to begin with, and are the subject of two major lawsuits to get them to reflect the current state of scientific knowledge.)

What do Berkeley's new laws say in the event that a telecom operator's computer modeling does not show that the radiation of the small cell complies with the FCC’s ridiculously inadequate limits? They are told they need to correct the emissions. However, one section of the new law says if the radiation is too high, the operator can notate in their RF Compliance Report exactly where the emissions exceed safety limits. (Section 4, number 7 in Berkeley's Guidelines). They have to comply with safety standards but they can indicate in their safety report where they're not complying??

In regard to the use of dangerous diesel-filled backup generators, the staff's "answer to questions" assures the council that such generators might only be used temporarily, in case of power outages. Again this explanation is not reflective of what is contained in the ordinance and guidelines you passed, which allow for the use of both temporary and permanent diesel-fueled generators.

Where the Berkeley law says that they will only be used in case of emergencies the word "only" is crossed out. The telecoms are free to make use of them as much as they want.

As far as using them during disasters, did you ever stop to think that it might not be such a great idea to put large boxes containing highly-flammable diesel fuel throughout the city in the event of a wildfire or earthquake event? (News reports of the recent big fire in Santa Rosa reported fuel-filled generators exploding everywhere.) As PG and E pointed out in a recent insert to all its customers, the only reliable phone connections during an emergency are wired landlines. Fifth generation (5G) installations are not meant to improve phone service, but rather to provide support for a variety of geewhiz applications, like faster download speeds and the Internet of Things.

Other cities’ laws, like Encinitas, have very detailed fire safety provisions, while Berkeley’s laws have virtually none. There is nothing in federal law preventing the city from ensuring greater protection from wildfires. What ethical justification could there be for not doing so?

The worst aspect of Berkeley's laws is that they do not prevent 4G/5G antennae from being installed right next to people's homes, or next to playgrounds, health facilities, senior apartments, facilities for first responders, etc. These setbacks need to be at least 500 feet, but preferably 1000. The city staff is claiming that the reason cities that have used sound legal language to ensure that people's homes are protected have not been sued is because no telecom even wants to put 5G small cells in those cities. (The lawyer hired by WiRED, Berkeley’s EMF-awareness activist group, has identified the cities which have laws that can withstand legal challenge, and which do not allow the installations next to homes. They are Encinitas, Mill Valley, Calabasas, and Petaluma.)

Here again the staff's "answer to city council members' questions" is inaccurate, because this ordinance passed by the Encinitas city council says they've received numerous applications for small cells. (Ordinance 2019-12, p. 11)
https://encinitas.granicus.com/MetaViewer.php?view_id=7&clip_id=1986&meta_id=102093

To avoid confusion, it should be noted that the very carefully-crafted provisions protecting the Encinitas community were not in this early ordinance, and its passage resulted in a tremendous amount of protests at City Council meetings, until the city amended the ordinance with a policy that was passed on October 30, 2019 and revised again on June 10, 2020. We consider their updated policy to be one of several “model ordinances.” After the 2019 amendments, there were was never another small cell application in Encinitas, according to Susan Foster, who was a consultant there.

Telecoms had also approached the city officials in Petaluma about installing 5G small cells there, which resulted in the city passing a very strong ordinance that also seems to have discouraged futher inquiries. https://www.petaluma360.com/article/news/petaluma-sets-cell-phone-tower-policy/

So it is incorrect, in the above instances, that the reason those cities have not been sued is because the telecoms had no interest in installing 5G there, as the city staff has claimed. Rather, it’s because the cities had such excellent ordinances that the telecoms decided not to continue their efforts to force 5G down their throats.

We assume the same also holds true in Mill Valley and all the other Marin cities and unincorporated areas, that the reason 5G has not been installed is because they pre-emptively passed very strong and legally-sound ordinances. It appears the wealthy residents of Marin County will not have access to the much-touted spectacular benefits of having every item in their lives connected via electrosmog. What could they be thinking?

Because of the financial and moral conflict of interest of the outside law firm that wrote Berkeley's guidelines and ordinance, the City Council needs to start over from scratch. Once both laws were passed on 2nd reading of the ordinance (which happened on July 28th, 2020), we have been told no substantive changes can be made without starting over with a new first reading. That's what we are urging you to do--
Start over.

We found a copy of a sample model small cell ordinance that is as different from Berkeley's as night is from day:

https://www.electrosmogprevention.org/international-electrosmog-prevention-news/stop-5g/model-wireless-ordinance-for-siting-of-5g-small-cells/

Here is the link to Berkeley’s new ordinance and guidelines amending Municpal Code section 16.10: https://www.cityofberkeley.info/Clerk/City_Council/2020/07_Jul/City_Council__07-07-2020_-_Special_4PM_Meeting_Agenda.aspx

The above model ordinance could be a good place to start. Outstanding ordinances from cities such as Encinitas and Petaluma, including later revisions, could also be used as a model. The work has already been done to write a completely legal ordinance that remains thoroughly protective of the community. The attorney for WiRED has identified additional ways that a sample ordinance could be made stronger. (However, we should note that he had no part in the creation of this letter.)

Now the city just needs to demonstrate the will to adopt laws that will protect Berkeley from the disastrous effects and aesthetic quagmire created by installing these 4G/5G structures everywhere-- the way so many other California City Councils have succeeded in doing.

Replies and questions in regard to this letter should be addressed to ProtectBerkeley [at] yahoo.com.

Sincerely,

Jenny Miller
Meaveen O’Connor
Soula Culver
Gar Smith
Maxina Ventura
Cecile Pineda
Steve Gilmartin
Wisteria Stock
KO
Daniel Borgstrom
Rosemary Bensko
Hulda Nystrom
Vivian Warkentin
Patrick McCarthy
Signe Mattson
Cynthia Papermaster
Jason Winnett
Clifford Fred
Elizabeth Starr
Sandy Nixon
Plus 6 more Berkeley anti-5G activists and community members
§10-page letter describing Kramer's legal interpretations
by jenny miller
Wednesday Nov 25th, 2020 2:42 PM
malibu_response_to_tlc__kramer__memo__8-23-20_.pdf_600_.jpg
§Email from FCC Senior Attorney re city's NEPA requirements
by jenny miller
Wednesday Nov 25th, 2020 6:29 PM
fcc_senior_attorney_paul_d_ari_to_phoebe_sorgen.pdf_600_.jpg
In his video presentation, Jonathan Kramer told the City Council that the DC Court of Appeals decision requiring small cell applicants to complete NEPA reviews did not apply to small cells if they were not "federally funded or on federal lands." These emails from the FCC Senior Attorney Paul D'Ari to WiRED activist, Phoebe Sorgen, make it clear that, on the contrary, NEPA checklist reviews are required for all small cell applicants.
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