Telecom Radiation Fight Booted to State Court

(CN) - A New Mexico man can get another crack at claiming that AT&T signal upgrades made him sick because of electromagnetic hypersensitivity, the 10th Circuit ruled.

In a pro se complaint, Arthur Firstenberg said that he suffers from electromagnetic hypersensitivity and must therefore avoid exposure to radiofrequency radiation from cellphones, base stations and other sources.

AT&T owns and operates several base stations in Santa Fe, where Firstenberg lives. When the telecommunications company upgraded its broadcast signals from second generation (2G) to third generation (3G) in November 2010, Firstenberg says the increased radiation made him suffer insomnia, irritability, eye pain, dizziness, nausea and itching.

Firstenberg also argued that AT&T violated city ordinances by not requesting new special exceptions for each base station during the upgrade.

A federal judge had dismissed the complaint against the city of Santa Fe and AT&T for failure to state a claim.

On appeal in Salt Lake City, however, a three-judge panel said last week that the District Court should vacate its judgment and remand the case to state court.

All the parties insisted during briefing that the case belonged in federal court, but the judges disagreed.

Courts have a responsibility to read pro se cases liberally, it still found that Firstenberg's claims do not present federal-question jurisdiction.

"Plainly, the pith of the complaint, which Mr. Firstenberg never sought to amend, is a state-law cause of action," Judge Jerome Holmes wrote for a three-member panel.

There is no basis to support the claim that the U.S. Constitution or other federal law empowers Santa Fe to enforce its own building Land Development Code, the decision states.

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