 Ellen, I was going to call and ask you about 5G36. On your cell phone, were you? On my cell phone. Ellen Shakowski, Office of Legislative Counsel. I am here on 5G preemption, and issues related to that. So I'm going to give you some of the legal framework related to the Federal Telecommunications Act. So the Telecommunications Act of 1996 established the Federal Communications Commission, the FCC, as the body that has authority over wireless communications. The act clearly states that the FCC has the authority to regulate wireless communications, but it struck a compromise. So it left state and local governments authority over siting of wireless telecommunications facilities. So I'm not really talking about 5G here. I'm talking about all wireless, and that technology does fall under that category. So the state and local governments retain authority over the siting. However, this authority is subject to five limitations in the act, and this is where the preemption comes in. The federal government recognized that the state and local governments are in a position to have some say over the physical location, because all areas are different. But there are some sideboards on it. So there are five limitations to the ability to regulate the siting. First, you can't flat out prohibit wireless service, and you also can't have the effect of prohibiting wireless service. And there's a lot of case law around what that means. Next, state and local governments must act on an application for the siting of wireless telecommunications facilities within a reasonable time. And since 1996, there have been a number of documents and pieces of guidance issued by the FCC stating what is a reasonable amount of time in which an application has to have a decision. Three, denials of permit applications must be in writing, and they have to be justified with evidence, have to be supported by evidence. I'm going to skip four for a second, but five is that an aggrieved person, either that has been denied a permit or that feels that they have been prohibited entirely, can bring a suit against the state or local government. But number four says that state and local governments cannot regulate wireless telecommunications facilities on the basis of radio frequency emissions. So state and local governments can regulate the physical location of telecommunications facilities, but the FCC has set radio frequency emission limits. They have explicitly kept that from the state and local governments and have set their own limits. So those limits are established, and every telecommunication facility has to abide by those limits. In December, the FCC voted unanimously to uphold the existing radio frequency emission limits, so they did revisit it recently. And yeah, so I was also asked what other states are doing around 5G. So I can tell you that 21 states have passed laws to streamline and facilitate the expeditious deployment of 5G. No states have passed laws regulating 5G based on radio frequency emissions because the preemption is clear. The state of New Hampshire in June did pass a law establishing a study committee. It set up a study committee to look at the potential health effects of 5G. Their report is due in November. The state of Connecticut also set up a study group to look at issues around 5G. The state of Massachusetts did have a bill introduced last year that called for the ban of dangerous wireless facilities. That bill had one hearing and hasn't moved since. But there are a number of municipalities that have enacted ordinances attempting to limit the deployment of 5G. So most of them are in California. And there are a number of them, primarily in Marin County, which is just outside of San Francisco. But San Francisco has a longstanding ordinance related to aesthetics and development and design that the California Supreme Court recently upheld as a type of ordinance that could be used that was not inherently violating the regulation of 5G. So there are some ordinances in California that have been enacted that are related to aesthetics and design and physical location of wireless facilities. I assume since San Francisco, that's an urban setting. Yes, and their design requirements are very detailed and they've been in existence for a long time. So one of the other things is that there are a number of these California ordinances that are related to 5G and small cell deployment. Do mention the radio frequency emissions. However, there is a difference between the precedent in California for this and in Vermont. So there is a Second Circuit case, which Vermont is in the Second Circuit, that held. There is some case law out there that said if a municipality or a local government wishes to attempt to regulate the placement of these facilities and lists the emissions, the radio frequency emissions, as one of the reasons they're attempting to regulate. As long as there is another justification related to aesthetics or physical location, that's OK. However, the Second Circuit found that having the RF emissions be any part of the consideration is a violation of the Telecommunications Act. So Vermont is preempted from regulating based on the radio frequency. We can't ban it. We can't make it so difficult that it is an effective ban. We can't just delay permits forever. And California has, sounds like, some more urban aesthetic ordinances, which we probably couldn't transfer here. We could do our own that says you've got to screen it. So the ordinances do make use of spacing requirements and physical appearance and aesthetics. If you are concerned about aesthetics of small cells, we in Vermont have state land use laws that regulate aesthetics. Acts 250 and 248A have to do with the physical location of facilities. So they all fall apart looking important. Right. But having the conversation about radio frequency emissions makes it a no, no. Yes. OK. Starting to sound like Vermont, yay, and safety. I think what you're also saying, though, is that enacting restrictions that are sensibly based on aesthetics as a fig leaf to deal with radio emissions would be struck down. Is that a fair statement? There would be a strong case. But there is also a strong case that there can be aesthetic concerns when you are installing telecommunications facilities. But if you are, yes, fig leaves are probably at risk of being challenged. OK. But I assume we could say you need to screen the poll. I assume they'd have to be neighbors that would see it screening it from the deer probably wouldn't ask muster. So it would work better probably in a more urban setting where the polls are there. I mean, the very neighborhoods there, there's just nowhere else to put them. Whereas we have an awful lot of rural facilities, which is why I think they told us because of the shorter span that 5G covers it's not likely to come to rural Vermont soon. But soon can be a relative term. Can you talk a little bit more about the language in front of you of what this study put in for New Hampshire entails? What was their charge? Sure. They do specifically list looking at the potential health impacts. This is so establishing a study committee to study the environmental health impacts of evolving 5G technology. Let's see. Who's got that? Who sits on that study? Two members of the Senate, a member of the public, the Attorney General, two members of the New Hampshire Technology Council, a member of the Business and Industry Association, a member of the New Hampshire Medical Society, a member of the University System of New Hampshire. And I'm paraphrasing. This is a member of the cell phone and wireless technology industry, the Commissioner of Department of Health and Human Services, and one member of the public with expertise in biological effects of radiofrequency emission. What does that do? November. It's November. OK. I'm sure it will be viral. It will be posted and it will be interesting to see what they do. It doesn't seem to have a lot of medical personnel on it. So one question on screening. Yeah. So if we legitimately felt a need to screen these things for a set of purposes, is there a case law or something that sort of attacks the legitimacy of that concern if we hadn't done it for a similar other device? Can you repeat the question? I guess I'm just asking. Assuming some of us had a legitimate, aesthetic concern about themselves, there's one way to approach it. We would screen, to mandate screening, not ban, but to say, we wouldn't screen them. I'm just wondering if we hadn't done that previously for other, as a cell as new, back to the initial. That is an interesting question. So we do currently regulate the aesthetics of wireless facilities under 248. Not all, because there is a jurisdictional threshold of size. I don't know if I have an answer, because I have not delved deep into the case law, but we do have an existing permitting program that relates to aesthetics. And it couldn't be focused on a particular provider. And so if you were interested in that, you'd have to be very careful to make sure it was not having disproportionate impacts on a particular provider. There's a lot, there's case law on that. I don't have a complete answer for you. I assume a lead screen would be, there would block waves, but not pass muster. What was that? A lead screen would not pass, muster would have to do trees. Or a lead, yeah, or a whole bunch of them attached together, that it would have to be the same scope type of screening that we've done with everything else, which is generally plantings, bushes, fake tree things that look like fake trees on the top of mountains, but. So the limits on emissions established by the FCC haven't changed. So they have to comply with the limits that have been in place for almost 20 years. So I cannot give you scientific or technological explanations about the emissions, but there are existing limits. And there are differences in this 5G that are, I cannot articulate. We did have the health department in, and they did do an update of the literature. And I think they said at this point, the biggest concern was for installers that got close and could get some skin burnt, that 5G does not penetrate your skin, which 4 and 3 and other Gs do. But they didn't see any major concern at this point, but it's new technology. And I think that's what makes people uneasy. We don't know. I think it would be interesting to see what New Hampshire, we said Massachusetts was studying. No, Connecticut. Connecticut. So it would be interesting to see what they come up with. And if they open up a new road for inquiry. I know a couple weeks ago you and I talked about the DC circuit. I don't know if you have time now. I don't know how much time we have. We have no idea how much time we have, but I think we're all over town at this point. Can you just give a brief summary of the DC circuit in which my folks back home are watching this closely? Sure. So the FCC in general has really been focusing on speeding the deployment of the new technology. So last year they issued two orders clarifying language under the Telecommunications Act in order that did sort of diminish the state and local role a bit more. So they clarify in one of the orders, so in one of the orders they defined reasonable time in which to respond. So it's either 60 or 90 days depending on the application. So they set a clear time limit on when a local government has to respond to the permit applications. The other order attempted to exempt all small cell from going through both NEPA, the National Environmental Policy Act review, and National Historic Preservation Act review, as well as limiting, as well as changing the way that tribes participate in the input. So there are different fees that the tribes charge for when they consult on these applications. And so both of those orders are currently being litigated, although the DC Circuit Court did release a decision on the second order I talked about. So the DC Circuit Court found that the FCC couldn't have a blanket exemption for small cells to go through the NEPA environmental analysis or the National Historic Preservation Act analysis. So small cell facilities that qualify, that trigger either of those act, do still have to go through them, although at this point many of them aren't triggering NEPA because they're part of co-location already. So that doesn't often trigger NEPA review as it is. But both of those orders were an attempt to sort of clarify that state and local governments can't slow down. They have to be sort of keeping this process moving. So the FCC is focused on fast deployment. There is another issue related to the amount of fees. They also capped the amount of fees that state and local governments can charge. I'll just figure it out when we do that, too. Did I get all the points? OK. OK. Thank you. I think there's just some specificity to things we've been told for several years that we can't regulate. There might be a crack in here somewhere, but we have to look pretty hard to find it. All right.