Four years ago, Wireless Estimator reported that some members of Pittsfield’s Board of Health privately doubted their own cease-and-desist order against a Verizon cell tower would survive a legal fight — even as the board voted to spend $84,000 defending it. On Thursday, the Massachusetts Supreme Judicial Court confirmed those doubts were well-founded, ruling that the board never had the authority to issue the order in the first place.
The court found in its 18-page decision that federal law preempts local efforts to shut down a wireless tower based on concerns about radiofrequency emissions, affirming that FCC emissions standards are exclusive — even when residents blame a tower for real physical symptoms.
The ruling, written by Chief Justice Kimberly Budd in Gilardi v. Board of Health of Pittsfield, closes out a fight that started with the tower’s activation in August 2020 and ran through a cease-and-desist order, a federal lawsuit, a rescission, a second lawsuit by residents, and now a unanimous rejection by Massachusetts’ highest court.
How It Started
Pittsfield Cellular Telephone Company, doing business as Verizon Wireless, activated the 115-foot monopole at 877 South Street in August 2020. Residents in the surrounding Shacktown neighborhood soon reported headaches, tinnitus, and nausea, which they attributed to continuous RF exposure. The city’s board of health investigated at the city council’s request, and on April 11, 2022, issued the emergency order Wireless Estimator covered at the time — concluding the residents’ symptoms were consistent with radiation sickness caused by the tower, declaring it a public nuisance, and giving Verizon seven days to request a show-cause hearing or face a shutdown order.
As that 2022 article noted, the board was relying heavily on roughly 11,000 pages of documentation supplied by the Environmental Health Trust, and had retained outside counsel who had also represented EHT in a separate, ongoing federal case against the FCC over RF standards — a case that would later become relevant to the SJC’s own reasoning.
Verizon didn’t wait to find out how the show-cause hearing would go. It sued the board in federal court, arguing the order was preempted by the Federal Telecommunications Act of 1996 (TCA). Facing that suit, the board voted to rescind its own order, and Verizon dropped its case.
That’s when six residents — Courtney Gilardi, Charlie Herzig, Judy Herzig, Mark Markham, Angelika Markham, and Elaine Ireland — sued the board directly, arguing the retreat was arbitrary and capricious and breached the board’s statutory duty to abate nuisances injurious to public health. A Berkshire Superior Court judge dismissed that suit on preemption grounds, and the SJC took the case up on its own initiative rather than let it go through the Appeals Court first.
Uniformity Is the Whole Point
The court’s reasoning turns almost entirely on a single idea: radio waves don’t recognize municipal boundaries, and Congress didn’t want 50 states’ worth of health boards deciding, tower by tower, what RF exposure is acceptable. The opinion notes that a “high quality national wireless telecommunications network cannot exist if each of its components must meet different RF standards in each community” — language lifted from the TCA’s own legislative history.
The justices found that the board’s order failed on two fronts at once. First, it would have let Pittsfield impose restrictions tighter than the federal standard regardless of whether the tower was in compliance, which the court said would “impair the efficiency of the wireless market” nationally. Second, and more pointedly, it would have let a local health board override a balancing decision that Congress deliberately handed to a single federal agency — the FCC — which set the current RF emissions standard in 1996 after consulting the EPA, FDA, OSHA, and NIOSH, and reaffirmed that standard again in 2019.
The court wasn’t persuaded by the residents’ attempt to frame the board’s order as an “adjudication” rather than a regulation, calling that distinction a difference without a difference: however the board labeled it, the order still tried to impose additional RF-related restrictions on a tower already operating within federal limits.
A Narrow Door, Not a Closed One
The opinion doesn’t leave residents with no options — it just points them toward federal, not municipal, avenues. The court noted that a challenge to the FCC’s own 2019 standard already succeeded in part in Environmental Health Trust v. FCC — the same EHT litigation whose counsel had also advised the Pittsfield board — where the D.C. Circuit found the agency hadn’t adequately explained why its guidelines protect against non-cancer harms, and sent the standard back to the FCC for further explanation without striking it down. If Pittsfield’s residents believe the federal RF standard itself isn’t protective enough, that’s the fight to have — in federal court, against the FCC, not against Verizon at the local board of health.
The court also brushed back the residents’ argument that two general savings clauses in the TCA should have preserved local authority here, holding that a savings clause “does not bar the ordinary working of conflict preemption principles” and doesn’t rescue a local order that would otherwise upend a carefully balanced federal regulatory scheme.
What It Means Going Forward
For carriers and tower owners, the ruling is about as clean a reaffirmation of TCA preemption as one could ask for — and it arrives with a seven-justice panel behind it, plus amicus support from CTIA, the Wireless Infrastructure Association, the U.S. Chamber of Commerce, and the Massachusetts Association of Health Boards, all aligned against the residents. For municipalities, it’s a clear signal that a board of health cannot use nuisance authority as a backdoor to regulate emissions Congress already assigned exclusively to the FCC — regardless of how sympathetic the underlying health complaints may be.
The residents weren’t left entirely without acknowledgment: the court’s opinion notes that even the board’s own chair, weighing the decision to rescind, said she believed people in the community were “being harmed somehow” but didn’t know what was going on. That admission didn’t change the legal outcome, but it echoes the very uncertainty WirelessEstimator flagged four years ago, when board members backing an $84,000 legal defense privately wondered whether they could actually win.
