IV. NEXTEL'S AND SPRINT'S ANTENNAS, CONCRETE PAD, EQUIPMENT, BUILDING, WIRES, AND FENCE DO NOT CONSTITUTE "MINOR UTILITY INSTALLATIONS" IN THE THURMONT ZONING ORDINANCE. 1. Nextel and Sprint Are Not Public Service Utilities. Nextel and Sprint are not regulated by the Maryland Public Service Commission for the purpose of providing essential or universal service to all willing applicants. They are not required to serve all members of the public upon reasonable request. Depending on the technology, wireless providers are only required within the first five years to cover up to 37.5% (narrowband PCS), 37.5% (broadband PCS), and 66.6% (private land mobile radio services) of the population, and therefore may have significant gaps in their coverage without losing their license. See 47 C.F.R. § 24.103 and narrowband and broadband services). Wireless phone companies are specifically excluded as public service utilities in Maryland. The Maryland Code defines a "public service company" as follows: 'Public service company' means a common carrier company, electric company, gas company, sewage disposal company, telegraph company, telephone company, water company, or any combination of public service companies. Md. Code Ann., Public Utility Companies (PUC) Art. § 1-101(p) (Supp. 2001). The PUC definition for "telephone company," in turn, specifies that "'Telephone company' does not include a cellular telephone company." PUC Art. § 1-101(bb)(2) (Supp. Exclusion from the definition of "public utility" precludes eligibility for the land use preferences accorded to public utilities. Crown Communications v. Zoning Hearing Board Of The Borough Of Glenfield, 705 A.2d 427, 430 (Pa. 1997). Such preferences include not only the direct preferences at issue in cases such as Crown Communications, but also the indirect preferences granted by a Zoning Administrator through an abuse of discretion in the reading of local land use ordinances. AT&T was an amalgamation of many public utility providers, and many private corporations followed in the wake of the break-up of AT&T. Competitors such as Nextel and Sprint, having rejected the public duties required of "public utilities," can not now claim the land use preferences bestowed on those with such legal status. An important question in land use law is whether Maryland law permits the granting of special subsidies and privileges, such as those contained in the conflicting exemption in the Thurmont Ordinance, to companies who never were "public utilities" and thus are not within the definition of those entities which can claim such privileges. In other words, under what legal principal may Sprint and Nextel claim exemptions and privileges under Thurmont law that, for instance, the franchisee of a Dairy Queen could not claim? Indeed, why should huge, nationwide corporate entities be subject to less regulation than a small businessman or woman would be allowed to claim? The distinction is such that while Verizon (formerly Bell Atlantic) is a "public utility," Verizon's separate mobile phone service company, Verizon Wireless, is not. A further distinction is that unlike Verizon, wireless phone companies are not regulated by the Maryland Public Service Commission (PSC), and do not file tariffs with the PSC. Wireless companies also do not enjoy the franchise rights that a true public utility company such as Verizon enjoys. Board of County Commissioners Of Garrett County v. Bell Atlantic-Maryland, Inc., § 5, expressly granted telegraph corporations the right or franchise to employ 'the public roads and highways . . . of this State' to serve its own ends"). 2. Nextel and Sprint Are Not "Minor Utility Installations" R-1 residential districts in Thurmont are the lowest density residential districts in Thurmont. They are "intended to encourage and promote the development of large lot, single family residential neighborhoods free from congestion and conflicting land uses." Ordinance, Art. V. Permitted uses in R-1 districts are limited, and do not include commercial wireless communications facilities. Id. at § 1.0-1.6. The Ordinance has an exception for "Minor Utility Installations" (MUI) defined at Art. XIV as: MINOR UTILITY INSTALLATIONS: Wires, lines, cables, or pipes used for the distribution, collection, supply or disposal of electric, gas, communication, steam, water or sewage, including poles, crossarms, guy wires, towers, repeaters, boosters, switches, transformers, regulators, pumps, mains, drains, pipes, conduits, wires, cables fire alarm boxes, police call boxes, traffic signals, hydrants and other similar accessories and equipments used as an integral part of public service and utility systems that are necessary for the furnishing of adequate service by public utilities or government agencies, but not including buildings, yards, stations or facilities used for storage, repair or processing of material or equipment, and not including buildings, areas, stations, substations, or treatment plants for transforming, boosting, switching, pumping or treatment, when such facilities are constructed on the ground. Thurmont is not engaged in wireless communications, so the facilities are not "necessary for the furnishing of adequate service by public utilities or government agencies," a fact the ZA confirmed. E161. Nextel and Sprint's wireless communications facilities do not meet the above definition for several reasons. These wireless systems include ground facilities for storage, which is prohibited for an MUI. Nextel's system includes a four inch thick concrete slab, on top of which is a large 12 ft. x 20 ft. x 10 ft. high building to store equipment, an air conditioner, backup batteries, and other materials. Sprint has three equipment cabinets and an ice bridge near Nextel's building, and future equipment shelters near the base of the tower. There is currently a wood fence around the building and other ground equipment. See the photos in App. p. 1. The microwave antenna arrays themselves are certainly not "minor." Nextel has an array of 12 transmitting and receiving antennas about five feet high around the underside of the water tower. Sprint has a six antenna array on the top of the tower, installed on a five foot tall antenna mounting frame. The initial site plan also indicates a pole labeled "Future GPS" sticking above the Sprint antenna platform at the top of the tower. In addition to storage, the buildings also carry out one or more of the following functions, all prohibited activities for an MUI: repair or processing of material or equipment, transforming, boosting, switching, or treatment. Nextel's attorney admitted at the Board hearing that the equipment in the building has an amplifier in it for the signals. E163. Thus, the proposed wireless communications facilities are not "Minor Utility Installations" as defined in the Thurmont Ordinance. However, the term "Minor Utility Installations" is mentioned in a conflicting exemption located elsewhere in the same Ordinance, under Art. IX, Special Provisions: shall be permitted in any district as authorized and regulated by other County, State and Federal regulations and a Zoning Certificate will not be required for the installation, construction, extension, or maintenance of such public or private utilities and services, except that, without altering or affecting such exemption, the plans for any new overhead electric transmission line or (sic) 35 K.V. or more, any cross-country telephone trunk line including microwave, any transmission pipe line, or any truck sewer line, proposed to be located in an "A" or "R" District shall be submitted to the Planning Commission in adequate time for its review and recommendation. This exemption conflicts with the MUI definition. The title and beginning refers to "Minor utility installations," which under the Ordinance definition in Art. XIV does not include private or commercial utilities. However, this exemption later refers to "such public or private utilities and services." The inclusion of the word "private" is clearly contrary to both the intent and the defining language of MUI in Art. XIV, discussed supra. The intent of the definition is to exempt only minor public service or government utilities necessary for the public good. The ZA acknowledged these applications were not public necessities. E161. Wireless phones are not necessities. Land line phones are a necessity, as reflected by the state requirements to allow land line phone service to low-income persons in Maryland. PUC Art. § facilities to land lines as that they are a distinct entity, but an optional accessory to the land line network, on whose existence wireless phone calls are dependent for completion. The ZA interpreted the Ordinance exception in Art. IX, § 3.4 to exempt private utilities. However, taken to its logical conclusion, exempting a utility simply because it is private, regardless of whether it meets the definition of an MUI (under Art. XIV) would allow § 3.4 to become the exception that swallows the rule. Any utility or service could be located in an R-1 residential zone, or for that matter, could be "permitted in any district." This is a totally illogical interpretation, at odds with both common sense and the very title of Section 3.4: Minor Utility Installations Exemption. This interpretation must be rejected: "A charter or an ordinance generally is read and construed in the same manner as a statute. . . In determining this intent a court must read the language of the charter or ordinance in context and in relation to all of its provisions and additionally must consider its purpose." Howard Research and Dev. Corp. v. Concerned Citizens for the Columbia Concept, 297 Md. 357, 364 (1983); Harbor Island Marina v. Calvert Co., 286 Md. 303, 311 (1979). The overall purpose of the Ordinance is to exempt only those minor utility installations that are "necessary for the furnishing of adequate service by public utilities or government agencies," and not all public or private utilities. The reasonable construction to adopt is the one which requires all utilities, public and private, to meet the Art. XIV definition of MUI in order for the exemption to apply. Fortunately, this conflict is easily resolved by the Ordinance's savings clause: "Whenever there is a discrepancy between minimum standards of dimensions noted herein and those contained in any other official regulations of the town, the more severe standards shall apply." Ordinance Art. XV, § 2.0. The MUI definition in Art. XIV, which prohibits private facilities, is more severe than the exception in Art. IX, § 3.4 which arguably exempts certain private facilities. The more severe Art. XIV definition of MUI should therefore apply. Thurmont's Subdivision Regulations, adopted pursuant to Art. 66B, § 5.03, contain a similar clause dictating that the "provision which is more restrictive or imposes higher standards or requirements shall govern." Thurmont Subdivision Regulations, Art. I, § 1.1. The more restrictive provision or definition applies, and there is simply no ZA discretion involved. The only limitation for private utilities under the Town's interpretation of Art. IX, § 3.4 would be the requirement in the second half of § 3.4 for overhead lines over 35 K.V., telephone trunk lines, and sewer lines in A and R zones, to be submitted to the Planning Commission, after which a Zoning Certificate would still not be required. Appellants argue that the wireless systems at issue here are included within "any cross-country telephone trunk line including microwave," and are thus subject to the § 3.4 requirement for submission to the Planning Commission for approval.

V. THE ZONING ADMINISTRATOR AND TOWN OF THURMONT ILLEGALLY FAILED TO STAY ANTENNA CONSTRUCTION AND OPERATION AS REQUIRED BY THE ORDINANCE AND ART. 66B. The ZA did not certify that a stay of the construction and/or operation of the wireless communications antennas would "cause imminent peril to life or property." Without such certification, Ordinance Art. XI, § 3.5 and Art. 66B, § 2.08 both require that an appeal shall stay all proceedings in furtherance of the action appealed from. The term "proceedings" in the Ordinance section refers to activities such as the construction and operation of the communications system. To interpret the term "proceedings" to mean legal proceedings in a court, would render the provision of the Ordinance meaningless, since the ZA has no power or authority to stay proceedings in a court. To interpret "proceedings" to mean "appeal" would force both this Ordinance clause and Art. 66B to read as an absurd provision that an appeal shall stay an appeal. The Circuit Court abused its discretion by denying Appellants' Motion to Stay construction.

VI. THE 1996 TELECOMMUNICATIONS ACT DOES NOT PREEMPT LOCAL CONTROL OVER THE "HEALTH EFFECTS" OF WIRELESS RADIATION Appellees argued below that local control of radiation health effects is preempted by the 1996 Telecommunications Act, 47 U.S.C. § government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions." This is incorrect. Federal preemption is not presumed, especially in matters of health and safety: "As a matter of statutory construction congressional intention to displace local laws in the exercise of the commerce power is not, in general, to be inferred unless clearly indicated by those considerations which are persuasive of statutory purpose. This is especially the case when public safety and health are concerned." Mauer v. Hamilton, 309 U.S. 598, 614 (1940). Relevant here is that the "regulation of health and safety matters is primarily and historically a matter of local concern." Hillsborough County, Florida v. Automated Med. Lab., Inc., Congress is said to have pre-empted has been traditionally occupied by the States 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Hillsborough County, 471 U.S. at 716. A Court should properly place the burden on the entity seeking to establish Congressional preemption. Congress has distinguished adverse environmental effects from adverse human health effects disjunctively in several environmental statutes. The Toxic Substances Control Act defines the term "health and safety study" to mean "any study of any effect of a chemical substance or mixture on health or the environment or on both." 15 U.S.C. § 2602(6). A second and even clearer distinction is in the Clean Air Act (CAA), which provides that: The Administrator shall periodically review . . . pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise . . . . term "adverse environmental effect" to mean "any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas." 42 U.S.C. § 7412(a)(7). This definition clearly does not include human health effects. These Congressional definitions do not support the argument that the 1996 Act's preemption of "environmental effects" extends to encompass human health effects. At least one federal court has distinguished health effects from environmental effects specifically in the context of the 1996 Act. In Iowa Wireless Services, L.P. v. City of Moline, Ill., 29 F. Supp. 2d While it is clear from the record that the City of Moline considered potential health effects of the tower, it is less clear that they considered environmental effects. In any event, Moline's position, which this Court finds correct, is that this statute prevents the denial of a permit on the sole basis that the facility would cause negative environmental effects. Here, even if it were to be concluded that the expressed "health concerns" fell within the meaning of "environmental effects," the decision which denied IW's application articulated other reasons besides that of environmental concerns. Id. at 924 (emphasis in original). In Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2nd Cir. 2000) the Second Circuit discussed 47 U.S.C. § 332(c)(7)(B)(iv) and recognized that the term "environmental effects" is not defined. Id. at 325. Furthermore, to interpret the 1996 Act to preempt local control over health issues would violate the constitutionally based nondelegation doctrine, by granting the FCC excessive legislative discretion in the area of health and the environment. The FCC admits that "The Commission does not have the expertise to make independent judgements on such alleged health effects as 'electrosensitivity' or other reported effects on human health. This is the responsibility of the federal health and safety agencies and other qualified public health organizations." Second Memorandum Opinion and Order, 12 F.C.C.Rcd. 13494 (1997) at 111. The FCC thus recognizes that Congress gave the Environmental Protection Agency (EPA) the authority to provide guidance to all Federal agencies in forming radiation standards. 42 U.S.C. § 2021(h). Regarding legislative delegation, the Supreme Court has recognized that "If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 408 (1928) (citation omitted). Since the FCC is not such a board or commission, and the EPA is the authorized agency for developing radiation standards, one must presume Congress did not intend to give unconstitutional preemption authority to the FCC. The conclusion is that local health regulation over RF emissions may not be preempted by the FCC under the jurisdiction of the 1996 Act. To do otherwise allows the interpretation of federal statutes and promulgation of regulations by a federal agency that admits it has no expertise in the area it is interpreting. It also allows the FCC to determine the extent of federal preemption in the area it admittedly has no expertise in. The FCC preemption would also violate the non-delegation doctrine because Congress did not provide an "intelligible principle" for the FCC to follow. Mistretta v. United States, 488 U.S. § 704(b) of the 1996 Act consisted of simply a reminder for the FCC to complete an Environmental Impact Statement (EIS) action in Docket 93-62. To rule that a pre-existing EIS requirement is proper delegation of an "intelligible principle" would allow Congress to delegate legislative power simply by reminding an agency to perform an EIS. Such a vague Congressional directive would not be permissible delegation even for an agency which has expertise in the delegated area. Congress simply did not preempt local control over "health effects" from wireless radiation in clear unambiguous language, and any attempt to do so would be an unconstitutional delegation of power to a non-expert agency in health issues.

VII. THE BOARD'S DECISION VIOLATES SUBSTANTIVE DUE PROCESS BY PLACING APPELLANT'S IN AN UNCONTROLLED MICROWAVE RADIATION EXPERIMENT. Sprint's representative admitted their technology was new. E156. The reality is that the operation of these microwave antennas is an uncontrolled radiation experiment on Appellants and the surrounding community, in violation of their 14th Amendment substantive due process rights. It violates substantive due process to subject Appellants and other people without their consent and/or knowledge to new forms of microwave radiation on a long term basis and which Appellees have admitted is not even monitored by the FCC or themselves. E154 and E177, bottom. Nextel, Sprint and the Town bear the burden of proof that the proposed antennas are safe over the long term not just for animals, which most published studies focus on, but for humans. Until this burden is met, it violates substantive due process to permit the antennas to operate in close proximity to numerous families, children and residences. Nextel and Sprint have failed to meet even their minimal burden under the 1996 Act to demonstrate compliance with the FCC's radiation standards. The Town included in its version of the Record (at § 8(b)) a nine page expert's report dated March 4, 1999, and authored by Jules Cohen, P.E., a consultant for Sprint, titled "Radio Frequency Exposure Considerations Applicable To Sprint PCS Base Stations." App. at p. 2.  Mr. Cohen was never offered as an expert at either the Planning Commission hearings, or before the Board of Appeals. At the Board hearing, the ZA did not even know whether this report was part of the Record. E156, bottom. The Town simply slipped this report into the Circuit Court Record. An expert technical report can not be simply submitted as part of an application, as suggested by the statement of Mr. Ray at the Board hearing. E156. Without a chance to cross-examine Mr. Cohen on his qualifications or the details of his report, and with the report not available during the Board hearing, the report is inadmissable for supporting the legal requirement that the antennas comply with FCC standards, and more importantly, are safe for the surrounding neighborhood. However, even without an opportunity to cross-examine Mr. Cohen, his report falls flat on its face. For a start, it is a study done for Sprint, not Nextel. Nextel transmits radiation at 851-866 Megahertz (MHz), E150, less than half Sprint's frequency, which according to the Cohen report broadcasts in the 1930-1945 MHz band. Even if properly admitted, Sprint's report is irrelevant to, and can not support, Nextel's application. Furthermore, Mr. Andrews, a Nextel representative present at the Board hearing, revealed the lack of monitoring of the antennas in response to cross-examination questions: Mr. Worsham: "Is it monitored by computer or does someone look at a measurement reading?" Mr. Andrews: "I don't know." Mr. Worsham: "Does the FCC tell Nextel on a particular antenna that you have violated, do they actually monitor a specific antenna?" Mr. Andrews: "Not that I'm aware of but I can't say for certain." E154. This was later confirmed by Nextel's attorney. E177, bottom. Thus, Nextel has not shown how it monitors its antenna radiation or assures compliance with the FCC regulations.  A final point regarding the Cohen report is that even if it applied to Nextel, it only includes an analysis of radiation exposure at heights ranging from 100 feet to 250 above ground level. Nextel's antennas are located underneath the ball/bulb section of the water tank, at a height of 64 feet above ground level. The antennas as attached to the tower are even closer to people in the surrounding homes, which generally have an occupied second story. The Cohen report does not address radiation exposure at these heights. Even as to Sprint, the Cohen report is a generic, and not specific to the Thurmont water tower site, and was done well over a year before the Planing Commission review. Mr. Ray, a land use representative of Sprint, admitted that it was a new technology: "So, 1½ - 2 years ago Sprint went over to digital. That's correct." E156. Thus the Sprint technology was only coming into use at the time of the Cohen report, and the report's applicability to the current technology actually being used is unknown. It is very notable that the Town's contract with Sprint states in paragraph 8, "Compliance with Laws," that Sprint (APC) is in "substantial compliance" with all applicable laws relating to its possession and use of the Site." E22 at 8. Sprint thus has not or will not guarantee full FCC compliance for its new digital technology. Sprint's antennas, like Nextel's, will be closer to some people in their second story homes than the 104 feet height above ground elevation of the antennas indicated in the site plan. In light of these facts and unanswered questions, a generic and dated engineering report written for one company's specific wireless frequency, and not properly submitted into the Record, simply can not be accepted as proof that the antennas Nextel and Sprint seek to operate will fully comply with FCC regulations, or be safe to the residents over the long term. It violates substantive due process for the Town to force its citizens to live with this unknown radiation exposure.

CONCLUSION This Court should reverse the Circuit Court's and Board of Appeals' decision upholding Nextel's zoning certificate. The Court should hold that Nextel's and Sprint's wireless communications systems are not "Minor Utility Installations" and not exempted under the Thurmont Ordinance for location and operation in an R-1 zone. The case should be remanded with directions for these systems to be immediately removed from the water tower. The Court's holding should affirm and uphold the first July 27, 2000 Planning Commission denial of the site plans as lawful denials pursuant to the Commission's authority under Art. 66B. Alternatively, the case should be remanded for a public hearing with adequate notice and preparation, both to provide due process for Appellant's and other citizens in Thurmont, and for factual development to determine whether the wireless systems at issue do in fact include activities prohibited for "Minor Utility Installations," comply with FCC radiation guidelines, and are safe to the effected community. Under either of the above options this Court should direct that these wireless systems not be operational until all appeals are exhausted.   Respectfully, _________________________________________ Michael C. Worsham, Esq. Forest Hill, Maryland 21050 (410) 557-6192 Fax: (509) 357-1930Admitted Pro Hac Vice Attorneys for Appellants _________________________________________ Daniel P. Meyer, Esq. Washington, D.C. 20009 (202) 265-7337 Admitted Pro Hac Vice   May 13, 2002 The original Appellants Brief was printed in Times New Roman in 13 point font.

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