SJC Dismisses Pittsfield Cell Tower Suit

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The Supreme Judicial Court has dismissed a lawsuit against Verizon and the Board of Health over a Pittsfield cell tower.
PITTSFIELD, Mass. — The Supreme Judicial Court has affirmed a lower court's order to dismiss a lawsuit over the cell tower on South Street. 
 
The court's opinion, released Thursday, found that the city had no authority to pre-empt federal legislation, specifically the Federal Telecommunications Act of 1996.
 
The finding comes four years after the Board of Health issued — and then rescinded — an order for Verizon to cease the tower's operations. 
 
Six residents in the Shacktown neighborhood have been fighting Verizon over the construction of the tower and the purported health issues they've suffered from the radio frequencies emanating from it. They first sought a ruling against the Zoning Board of Appeals over the notification process, which was dismissed. 
 
They sought relief through the Board of Health, which discussed the problem for nearly a year before issuing a cease and desist to Verizon in 2022 if it did not respond to a show-cause hearing about the effects of RF radiation within seven days. Verizon, operating as Pittsfield Cellular Telephone, asked for a declaratory judgment from the U.S. District Court in Springfield against the city. 
 
The Health Board, citing fears of litigation, withdrew the order and the residents, in turn, sued the city for failing to protect them. 
 
The case was first heard in Superior Court on July 28, 2022, which dismissed the suit based on pre-emption of federal laws. The plaintiffs appealed and the Supreme Judicial Court, on its own initiative, transferred the case from the Appeals Court.
 
The plaintiffs, represented by W. Scott McCollough, of Texas, argued that the board's failure to act "was arbitrary and capricious and constituted a breach of its duty under G.L.c. 111, § 122, to eliminate nuisances injurious to public health."
 
Attorney Buffy D. Lord, representing Pittsfield's Board of Health, made the case that the board could not pre-empt the federal act regulating telecommunications. 
 
The Supreme Judicial Court, which heard the case back in December, agreed, stating "enforcement of the board's order would have frustrated the TCA's objective of creating uniform wireless networks nationwide."
 
Federal legislation setting standards for wireless networks dates back nearly a century, the court opined, and the 1996 TCA was designed to "encourage the rapid deployment of new telecommunications technologies" ... through removal of "impediments imposed by local governments upon the installation of facilities for wireless communications."
 
The Board of Health's order would have subjected the tower's operations to local compliance rather than national uniformity and, secondly, would have interfered with the authority of the Federal Communications Commission to regulate RF emissions, a task delegated to it by the 1996 TCA. 
 
"We are unpersuaded by the plaintiffs' various arguments against the applicability of pre-emption," the court stated. "As a preliminary matter, characterizing the order as an 'adjudication' rather than a regulation of RF emissions cannot shield it from pre-emption analysis. ...
 
"The order compelled Verizon to either attend a show cause hearing or 'eliminate all activities and operations' at the cell tower because the board concluded that the RF emissions from the tower constituted a health threat."
 
Local law, the court opined, "must yield to the Federal law under our constitutional system."
 
In regard to the plaintiffs' argument about health concerns, the court, in a footnote, stated that "if the plaintiffs do not think the current Federal standard is sufficiently protective, they can file a challenge in Federal court."

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Free Vaccinations Available Throughout Berkshire County

By Breanna SteeleiBerkshires Staff

PITTSFIELD, Mass. — Fall season is also the flu season, which means vaccine clinics are now available.

The Berkshire Vaccine Collaborative will provide public vaccination clinics in Berkshire communities this fall, including the influenza and COVID-19 vaccines. There are about 49 clinics. 

The collaborative began during COVID-19 to help vaccinate people across Berkshire County. Berkshire Health Systems started the Get Vaccinated Berkshires website and still manages it. The group works with the Pittsfield Public Health Department, Community Health Programs, and the Southern Berkshire Public Health Collaborative.

"The majority of people will always get the flu [vaccine] because, as I said, if you've ever gotten the flu, you will always get a flu vaccine because it's so bad. And just so you know, the flu is already in Berkshire County. It's an early season this year," said Leslie Drager, who is the senior public health nurse at Berkshire Regional Planning Commission.

Drager said last year they issued 2,705 vaccines, with more than 1,100 of them being for COVID-19 and more than 1,500 being flu. In total, they were able to vaccinate 1,669 people in Central and North County, in addition to Pittsfield.

Drager also said she will be carrying three types of COVID vaccines this year, which is in high demand.

"We have a high demand of COVID vaccine, which is awesome," she said. "So we're doing a lot of COVID vaccines. Also, I provide Pfizer, and this year I have Moderna and the Novavax, which I think is real important to get out there because the Novavax, a lot of people want, people with long COVID. So I'm carrying all three vaccines this year, which I normally only carry the Pfizer."

Public health departments also can help people access other vaccines such as for measles or meningitis when they cannot get them through a pediatrician, she added.

Using the website, people are able to get vaccines even if they are homebound by filling out a form.

All public Berkshire Vaccine Collaborative clinics are free of charge, but registrants are asked to provide insurance information, when available, in order to defray costs. The clinics are open to anyone 6 months of age or older, the age group recommended to receive an annual flu vaccine and the latest COVID-19 vaccine.

"I always encourage everybody to wear a short sleeve shirt because it makes it a heck of a lot easier to get at," Drager said. "And children, we do carry the nasal flu, the live virus of nasal flu for kids that are afraid to get needles."

Registration is highly recommended for the clinics. Walk-ins may be accepted depending on the number of vaccine doses available at each clinic, with preference given to those who are registered.

"It's really important. I'm really encouraging vaccinations for the schools, because not only you know if the kids are vaccinated and the teachers are vaccinated, the schools won't have the flu go wild right through it," Drager said. "And of course, the best way to prevent infections: washing your hands. So don't touch your face, and wash your hands."

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