2023-09-29 A Public’s Guide to HR 3557 and 50+ Other Bills—Legal Analysis and Critique
BBILAN has produced four memoranda representing the collective work product of attorneys and other advisors to the National Call to Action (NCA). NCA is a coalition of over 100 organizations that are deeply concerned about the unprecedented attack presented by over 50 legislative bills currently before the US Congress. These memoranda focus on fundamental civil liberties and the constitutional balance between the federal government and the states.
Largely conceived and authored by the wireless telecom industry, the net effect of these bills taken together is to expose large segments of the American population, and our environment, to increasingly high levels of continuous and cumulative Electro-Magnetic Field and Radio Frequency (EMF/RF) radiation, emitted from densifying clusters of macro and “small cell” (which are NOT small in their radiation levels!) wireless towers and antennas in residential communities, nearby or on school properties, and even in our national parks. There will be no prior notification or public hearings, and projects under some of the bills will be “deemed approved” under shot clock rules and accelerated ministerial review. There has been no careful assessment of the health or environmental risks, or critical scrutiny of the false and misleading premises underlying these bills. If enacted, these bills will produce elevated and not easily controlled national security risks by making industrial infrastructure increasingly dependent on wireless, which in turn will render ALL local communities especially vulnerable to cyberattacks. Together, the bills will impair, and repeal by implication, numerous high priority federal statutes and policies without any apparent compelling justification. Among these are: NEPA, National Historic Preservation Act (NHPA), Diversity, Equity, and Inclusion (DEI), protections for disabled persons, and civil and human rights of First Nation peoples.
Below are summaries and links to the Memoranda.
HR 3557 et al. will broadly restructure and realign the present cooperative relationship between the federal government and the states concerning decisions directly affecting the design and deployment of wireless telecommunications infrastructure. HR 3557 et al. will unnecessarily expand federal power at the expense of traditional state and local prerogatives and rights.
HR 3557 goes well beyond mere federal regulation of state regulation; it affects private rights, authorizes takings, and does not provide for reasonable compensation consistent with Constitutional requirements.
Many provisions in HR 3557 et al. exceed Congress’ power under the Commerce Clause. They impermissibly delegate Article I legislative power to Article II executive agencies, interfere with Article III judicial power, and violate or undermine retained rights in the people or the states under the Ninth, Tenth and Eleventh Amendments.
Memorandum #2: Abridgment of Civil Liberties Allowed Under HR 3557
The implementation of HR 3557, the American Broadband Deployment Act (ABDA) will trespass upon and violate several fundamental Constitutional provisions, including the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, in addition to the overreach of Article I relating to the Commerce Clause.
It presents serious procedural and substantive violations of due process, authorizes unbridled invasions of privacy, threatens public health and safety, directly violates state Constitutional environmental rights, and launches wireless “strike forces” in the national parks and against protected historic sites.
HR 3557 is based on clusters of blatantly false unchallenged claims designed to deceive members of Congress and an unsuspecting public, including Wireless infrastructure is safe, fast, cybersecure, resilient, energy efficient, will help to close the Digital Divide, and promotes Diversity Equity and Inclusion (DEI). In fact, it is the very opposite.
Memorandum #3: HR 3557, HR 1123, and HR 4510 Undermine Infrastructural Security and Cyber-Security
The regime of centralized control intended by HR 3557 will cripple local communities’ capacity to adapt during local and national emergencies, especially during cyber-attacks.
HR 4510 nominates NTIA to lead a one-year cybersecurity study, when the Department of Homeland Security and its Cybersecurity and Infrastructure Security Agency (CISA) have far greater domain expertise and are less biased in favor of the wireless industry.
There is no need to create competition and incoherence among federal agencies, when one agency, CISA, is already responsible for this critically important task. At the very least, CISA must retain sign-off authority on any significant findings by NTIA affecting cybersecurity.
In any event, 5G must be included in any future NTIA cybersecurity assessment.
HR 3557 directly interferes with, will effectively undermine, and repeal by implication numerous other high priority federal statutes and policies without any apparent compelling justification.
Important laws and policies at risk include NEPA, Historic Sites Preservation Act (NHPA), Diversity, Equity, and Inclusion (DEI), protections for disabled persons, and civil and human rights of First Nation peoples.
HR 3557 will undermine the principles of collaborative federalism recognized by the 1996 Telecommunications Act.
HR 3557 fosters the very worst aspects of an industrial policy where uninformed government bureaucrats substitute their judgments for the free market, in this case favoring the wireless industry that is proven to be dangerous, wasteful, and inefficient, disadvantaging fiber which is far superior in all respects.