Wireless companies don’t have to make accommodations or changes to their practices under the Americans with Disabilities Act (ADA) — even when their towers make people sick in their homes, a federal appeals court ruled.
The ruling came as a blow to plaintiff Henry “Hank” Allen, who alleged the radiofrequency (RF) radiation emitted by a cell tower installed next to his home triggered more than 15 episodes of atrial fibrillation.
Allen told The Defender the ruling confirms the “deeply troubling reality” that there is “no legal remedy for Americans being injured by wireless infrastructure.”
“Under the current interpretation of the ADA, people like me who are disabled by involuntary exposure to cell tower radiation are simply left behind,” Allen said. “In effect, the wireless industry has been given a license to harm and a ‘get out of jail free’ card. They can place harmful towers next to homes, schools, and businesses without consequences — even when people are getting sick.”
In late 2023, Allen sued Verizon and other companies involved in the operation of the tower, alleging Verizon’s tower triggered a slew of health symptoms, including life-threatening cardiac events, extreme fatigue, impaired memory and vision, sleep disruption and flu-like symptoms.
Children’s Health Defense (CHD) funded the suit. Allen’s case was the first in CHD’s strategic line of cases seeking relief for people disabled by RF radiation under the ADA, a federal law that “protects people with disabilities in many areas of public life.”
The complaint argued that the space on the tower leased to the telecommunications companies and associated infrastructure that are necessary to access the internet constitute a physical “place” subject to compliance with the ADA.
However, the U.S. District Court for the District of Idaho dismissed the case, ruling that wireless companies’ cellular networks are not a “place of public accommodation” under the ADA.
On May 12, the U.S. Court of Appeals for the 9th Circuit affirmed the lower court’s ruling.
W. Scott McCollough, lead litigator for CHD’s Electromagnetic Radiation (EMR) and Wireless cases, called the outcome “terrible” because it means wireless companies don’t have to make ADA-mandated accommodations or modifications to their practices or policies when their towers make people nearby sick.
“The District Court, and now the 9th Circuit appeals panel, have ruled that wireless companies are not subject to the ADA at all with regard to how they deliver their wireless service,” McCollough said. “Their stores are covered, but not the product sold at the stores.”
In other words, a Verizon store could be required to install a ramp to accommodate wheelchair-bound individuals under the ADA. However, Verizon couldn’t be required to alter the RF radiation emitted by its tower so that RF-disabled individuals like Allen could access the company’s internet service without getting sick.
Miriam Eckenfels, director of CHD’s EMR and Wireless Program, said Allen’s case shows it’s nearly impossible to get relief for people suffering from RF radiation exposure symptoms once a tower goes up near them.
“These rulings emphasize the importance of fighting cell towers before they go up through our Stop 5G program and toppling the ridiculous regime of federal preemption that leaves people exposed and vulnerable with no recourse,” Eckenfels said.
Allen agreed. “There are only two meaningful legal paths forward. We must change our local wireless zoning codes to restore control at the community level, and we must repeal the preemption laws — both state and federal — that strip that control away.”
“That’s why I’m asking everyone to join the #704NoMore movement. This is how we turn our pain into purpose,” Allen said.
CHD’s 704 No More initiative is raising money to legally challenge Section 704 of the Telecommunications Act of 1996, which prohibits local authorities from denying cell tower applications based on health and environmental effects.
Eckenfels said people who experience negative symptoms from RF radiation may sometimes feel hopeless, but CHD will continue to fight on their behalf.
Allen said, “We’ve been forced to the margins, made to feel invisible, and left with no legal protections. But we are not alone — and we are not powerless.”
CHD files appeal in related case on behalf of woman who suffered strokes
Two days after the 9th Circuit issued its ruling in Allen’s case, CHD filed an appeal in a related lawsuit on behalf of a Minnesota woman who alleged she suffered over 50 strokes after AT&T put up a cell tower near her home.
In March 2024, Marcia Haller sued AT&T and other companies operating the tower in the U.S. District Court for the District of Minnesota (Duluth), alleging the companies must provide her with a “reasonable accommodation” and/or modify their “policies, practices or procedures” to comply with federal disability law.
In addition to suffering dozens of strokes, Haller has suffered vision and hearing loss, headaches, sleep disruption, chronic fatigue and cognitive impairment since AT&T “upgraded” the tower in 2019. She also experiences ongoing issues with balance, orientation and mobility.
On Feb. 18, the District Court dismissed the suit, ruling that wireless companies weren’t discriminating against people like Haller as long as they made the same wireless service available to everyone.
CHD’s appeal, filed in the U.S. Court of Appeals for the 8th Circuit, argues that the District Court erred and that the wireless companies are engaging in “several forms of discrimination” against Haller, McCollough said.
The appeal asks the 8th Circuit court to vacate the District Court’s judgment and send the case back to the District Court. Alternatively, Haller should be allowed to amend her suit.
McCollough said the exact issues in the Haller and Allen cases differ, but the outcome of their rulings is the same regarding the ADA.
“The bottom line is that wireless companies can’t be forced to make ADA-mandated accommodations or modifications to their practices or policies when their towers make people nearby sick, even in their homes,” he said.
McCollough declined to comment on the planned next steps in either case.
“We do think the panel got it wrong in Allen’s case, and we’ve appealed the Haller District Court decision, so we obviously hope the 8th Circuit will agree with us on the problem with that decision,” he said.
‘I didn’t choose this battle — I tried to avoid it’
Allen said he didn’t go out looking for a legal battle with telecommunications companies.
He was diagnosed with electromagnetic sensitivity — now called EMR Syndrome — in 2014 while working as a licensed general contractor in California on job sites with high RF radiation.
“I didn’t choose this battle — I tried to avoid it,” he said.
After realizing how exposure to RF radiation was exacerbating his symptoms, he and his family relocated to a small farm in Idaho, roughly two miles away from a cell tower.
Allen also changed careers to minimize his exposure to RF radiation by getting licensed as a real estate broker and working from his home, which he had hardwired for internet access.
With these changes, Allen was able “to successfully live and work normally from home despite his disability” — until April 2021, when Verizon built a cell tower next to his property.
Shortly after Verizon turned on the tower, Allen’s health “took a dramatic downturn” as he suffered atrial fibrillation and was rushed to the emergency room, “unsure whether he would live,” the complaint said.
A doctor did an echocardiogram, ran a full blood panel, did a cardioversion to restore a regular heartbeat and administered intravenous drugs to slow his heart rate.
Two days later, it happened again.
In March 2022, Allen had invasive heart surgery — cardiac ablation — to treat the recurrent heart rhythm problems.
However, Verizon, AT&T and Dish in 2022 added additional antennas to the tower.
“This equipment … also triggers Mr. Allen’s severe and in some instances life-threatening symptoms associated with his recurring and ongoing disability,” stated Allen’s lawyers in an August 2023 letter to Verizon, AT&T and Dish in which they asked the companies to provide disability accommodations/modifications.
Allen “exhausted all available self-help options,” according to the complaint, including painting his house with RF-blocking paint, tinting the windows with RF-blocking tint, utilizing wire screens and wearing special clothing that blocks RF.
The RF emitted by the transmitting equipment threatens the plaintiff’s life. “His condition is such that he may die as a result of the next cardiac event caused from RF exposure,” the complaint alleged.
I’m deeply grateful to Children’s Health Defense and the McCollough Law Firm,” Allen said. “They stood by my family at our darkest hour, when no one else would. Their courage and commitment reminded us that we weren’t alone in the fight.”
Related articles in The Defender- CHD Funds Lawsuit on Behalf of Man Who Says Verizon Cell Tower Triggered Life-Threatening Cardiac Events
- CHD Sues AT&T on Behalf of Woman Who Alleges Cell Tower Caused 51 Strokes
- Exclusive: Woman Living Near Cell Tower Diagnosed With 51 Strokes
- For 50 Years Regulators Ignored Report Linking Wireless Radiation to 23 Chronic Diseases
- ‘High Certainty’ Cellphone Radiation Linked to Cancer in Animals, WHO Study Finds
