This story was updated at 2:25 p.m. on Aug. 17, 2021, to include further comment from Theodora Scarato, executive director of Environmental Health Trust.

In a case Montgomery County was monitoring, a federal appellate court ruled last week the Federal Communications Commission must provide more information about potential health and environmental impacts of 5G technology.

The U.S. Court of Appeals for the District of Columbia ruled Aug. 13 that the FCC “failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer.”

The court ordered the FCC to “provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer.”

Last month, the Montgomery County Council passed a zoning text change that sets guidelines for how 5G small cell antennas can be placed countywide. It passed 7-2

The change set specific guidelines for how and where those antennas could be placed countywide. It also established how high new or replacement utility poles could be.

Some limits are:

  • A minimum height for streetlight pole replacements for 5G technology at 20 feet
  • In Commercial/Residential, Industrial, and Employment zones, the pole must be at least as tall as the one it’s replacing or as the tallest one within 50 feet, whichever is taller
  • Replacement poles meet a “preferential placement” standard: close to intersections, close to property lines between dwellings and “along the non-front-facing side of residential properties, or abutting properties used for a non-residential purpose.”

County Executive Marc Elrich opposed the change, but he can’t veto a zoning text change — only a regular bill.

Debbie Spielberg, a special assistant in Elrich’s office, said Monday that the court’s ruling does not immediately affect the council’s decision, but added that the ruling was “scathing” in its criticism of the FCC.

Members of Environmental Health Trust, a petitioner in the D.C. case, held a news briefing Monday to laud the court’s ruling and hope it spurs the FCC to provide more research regarding the health effects of 5G.

Theodora Scarato, executive director of Environmental Health Trust and a county resident, said in an interview Tuesday the Montgomery County Coalition to Protect Neighborhoods — a group of community organizations who have raised concerns about the 5G zoning change — will attempt to convince the council to revisit its vote from July.

The need for 5G infrastructure has been debated in the county for years.

Supporters say the change to expand the placement of 5G antennas is needed because other jurisdictions in the region have adopted laws on where and how antennas can be placed, putting Montgomery County behind.

Opponents have said the legislation was being rushed through, and have complained about possible negative health effects due to the antennas.

They have previously cited a 2018 study from the National Toxicology Program headquartered at the National Institute of Environmental Health Sciences. The study showed that extremely high doses of radio frequency radiation — the transfer of energy of radio waves — were linked to cancerous heart tumors in male rats.

But the National Cancer Institute says radio waves are non-ionizing, meaning they don’t have the energy to break apart DNA and cause cancer. The World Health Organization has said radio frequency radiation is “possibly carcinogenic,” but that designation also applies to talcum powder and ginkgo extract.

Council Members Sidney Katz and Will Jawando said before they voted last month against the zoning change that they wanted to wait for court decisions to be finalized, including the ruling in the D.C. court.

Jawando said in an interview Monday he didn’t want to “pre-judge” how the court’s ruling could affect the county’s zoning change, if at all. He added, however, that it would be easier for county officials and telecommunication providers to install infrastructure where it is legally allowed, versus moving it at a later date.

If the county needs to make any changes, the council could amend what it just passed, Jawando said.

Ultimately, the ruling will cause the FCC to provide more information about why it believes 5G technology is necessary and safe, he added.

“I just think that the prudent thing to do would have been wait and see how this plays out,” Jawando said. “We will know the information. Will it require us to change what we did? I don’t know, but it may.”

Council Member Hans Riemer, who has led efforts to pass the zoning text amendment, said in an interview Monday the ruling was more of a “process” issue versus one of questioning the underlying science. 

Riemer said the FCC historically could have done a better job of explaining the research of 5G. But that doesn’t change the science itself, he said.

“They’re saying the FCC should have followed its process better and they really take no position on the science whatsoever,” Riemer said. “I think the FCC could do more to communicate the scientific research that it is relying upon which is pretty extensive and go through better public processes to support that.”

Scarato disagreed. She said the court ruling shows the “FCC was found to have failed to have explained why it ignored science showing harm to the environment, harmful effects to children who are vulnerable, and harmful exposure.”

Council President Tom Hucker, who voted for the proposal, said at a news conference Monday the County Attorney’s office told him the council had to vote on the 5G proposal, because of a prior FCC order. 

If they didn’t pass some sort of legislation, the county was at risk of being sued by telecommunications companies, which could have cost a considerable amount of money, Hucker said.

“We need the dollars for all our unmet needs, we don’t need to be losing more of our money to the telecomm carriers because we failed to pass a 5G bill, that’s what’s at stake,” Hucker said. 

If the FCC changes its standards for how the 5G infrastructure must be deployed, council members will take another look at the legislation, Hucker said.

Steve Bohnel can be reached at steve.bohnel@bethesdamagazine.com