9th Circuit Affirms Dismissal of ADA Suit Based on Cellsite Emissions

The U.S. District Court for Northern California in Oakland “properly dismissed” plaintiff Richard Wolf’s claims against the City of Millbrae for failing to provide a “reasonable accommodation” in violation of the Americans with Disabilities Act, said a 9th U.S. Circuit Court of Appeals decision Tuesday (docket 21-16649).

Court documents show Wolf bought a condominium unit in Millbrae in 2000, unaware that T-Mobile was operating a working cellsite 6 feet above his residence. Wolf suffers from electromagnetic hypersensitivity, causing him physical illness when exposed to RF emissions from cellphone equipment, a condition confirmed by his doctors.

Wolf hired experts who said the RF emissions above his condo exceeded the Building Biology Institute’s precautionary guidelines by a factor of 1,300 or more, but he didn’t allege the emissions exceeded FCC limits. Wolf’s lawyers sent letters to the homeowners’ association, T-Mobile and the city of Millbrae seeking what they deemed a reasonable accommodation under the ADA by having the cellsite relocated or turned off but to no avail.

Wolf’s complaint alleged the city discriminated against him based on denial of a reasonable accommodation request. But the district court’s Aug. 23 dismissal order said Wolf’s claim fails “because his request for accommodation was unreasonable.” It would have required the city to violate federal law, including the 1996 Telecommunications Act, said the order.

Title II of the ADA prohibits disability-based discrimination in the provision of public services,” said the 9th Circuit decision. Wolf’s complaint “does not plausibly allege” the city’s permit application approval process for wireless communications facilities is a city output that Wolf participates in or receives, it said. Because Wolf didn't allege he was denied a reasonable accommodation that would allow him equal access to a public service, program or activity, Wolf’s Title II claim against the city was properly dismissed, it said.

Because “the only connection alleged” between the city and the cellsite is the permit approval process, and Wolf concedes that the RF emissions from the cellsite above his condo are within FCC limits, “Wolf seeks accommodations that are inconsistent with the Telecommunications Act,” said the 9th Circuit.

The district court also properly dismissed Wolf’s claims against the homeowners association, the city of Millbrae and T-Mobile for failing to provide a reasonable accommodation in violation of the federal Fair Housing Act and California’s Fair Employment and Equal Housing Act, said the 9th Circuit. “We affirm the district court’s conclusion that Wolf failed to plead a fair housing violation” because he failed to allege that the requested accommodation was necessary to afford him equal opportunity to use and enjoy his condo, it said.

The district court also properly dismissed Wolf’s claims against the city and T-Mobile “for violations of his fundamental rights to self-defense, personal security, and bodily integrity,” said the 9th Circuit. Wolf asserts the defendants’ application of the TCA’s Section 332 to his detriment “constitutes a substantive due process violation,” it said. The district court said it doesn’t, and the 9th Circuit agreed.

Wolf’s private nuisance claims against T-Mobile, the homeowners association and the individual defendants also were properly dismissed “because federal law preempted those claims,” said the 9th Circuit. Congress passed the TCA to promote competition and reduce regulation with the goal of lowering prices and boosting higher-quality services for U.S. consumers, plus encouraging the rapid deployment of new telecom technologies, it said, citing the statute’s preamble. “Permitting nuisance suits based on RF emissions within FCC limits would interfere with these goals,” it said.