[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:02] Speaker 01:
And I would like to reserve three for rebuttal if I could, please.

[00:00:06] Speaker 01:
I'm George Wentz.

[00:00:07] Speaker 01:
It's a pleasure to meet you all this morning.

[00:00:09] Speaker 01:
And I'm honored.

[00:00:11] Speaker 01:
I'm with the David Lear Law Group.

[00:00:13] Speaker 01:
I'm honored to represent Mr. Henry Allen.

[00:00:17] Speaker 01:
Mr. Allen suffers from a diagnosed

[00:00:21] Speaker 01:
disability known as electromagnetic sensitivity.

[00:00:25] Speaker 01:
This disability makes them unable safely to be exposed to the electromagnetic field that is generated by the defendant's tower and array of antennas.

[00:00:39] Speaker 01:
So here's what we think the case comes down to.

[00:00:41] Speaker 01:
It's a 12b6.

[00:00:43] Speaker 01:
We think the judge below improperly applied the standard.

[00:00:47] Speaker 01:
We think he found facts.

[00:00:48] Speaker 01:
We think he invaded the province of the jury.

[00:00:50] Speaker 04:
We think that we didn't get... Well, counsel, I mean, there's a host of problems with this case.

[00:00:56] Speaker 04:
And I mean, number one is you don't have a physical presence.

[00:00:59] Speaker 04:
What is the physical presence that you're looking for or the nexus to the physical presence?

[00:01:03] Speaker 01:
Let's go with physical presence, Your Honor.

[00:01:05] Speaker 01:
We think this is right down the fairway in wire.

[00:01:09] Speaker 01:
versus 20th Century Fox and all the cases that are cited there under.

[00:01:14] Speaker 01:
So if you recall the Verizon commercials, can you hear me now?

[00:01:21] Speaker 01:
Can you hear me now?

[00:01:23] Speaker 01:
When you're in

[00:01:25] Speaker 01:
the service area, and they call it a service area, that is generated by the tower and the array, you are in a physical public place, physically there in that place, much as if you were in the- Okay, so even if that were true, which I think the cases suggest that that's not accurate, the ADA cannot apply just because you're in a physical place.

[00:01:48] Speaker 04:
You have to be in a public accommodation.

[00:01:51] Speaker 04:
Correct.

[00:01:51] Speaker 04:
And how is that a public accommodation?

[00:01:53] Speaker 01:
It is a public accommodation because that is where the defendants who own the tower, own the arrays, and actually, Your Honor, own the spectrum.

[00:02:02] Speaker 01:
They buy it in an auction.

[00:02:05] Speaker 01:
That is the area that they cover for their service.

[00:02:07] Speaker 01:
That's where they provide their service.

[00:02:10] Speaker 01:
Unlike any of the cases cited, I cannot possibly put myself into an insurance policy.

[00:02:16] Speaker 01:
I can't put myself into an AT&T cable.

[00:02:19] Speaker 01:
I can't put myself into any of the cases of the Facebook website, right?

[00:02:25] Speaker 01:
I can't go in there.

[00:02:26] Speaker 01:
I cannot go in there.

[00:02:27] Speaker 01:
But in order to avail myself of their services, I must go in there.

[00:02:32] Speaker 04:
And so how is he prohibited from going in there?

[00:02:35] Speaker 01:
Oh, it's not that he's prohibited from going in there, sir.

[00:02:37] Speaker 01:
It's that because of the way that they make this radioactive field, this electromagnetic field, it's like a dome emanating from the towers, right?

[00:02:48] Speaker 01:
When he's in there, when he uses the service.

[00:02:51] Speaker 04:
He can use it, right?

[00:02:52] Speaker 04:
There's no restriction on him using it.

[00:02:54] Speaker 01:
When he uses it, it makes him sick.

[00:02:55] Speaker 01:
That's when he goes into the hospital.

[00:02:57] Speaker 04:
But that's not what the ADA is designed to cover.

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You've brought a tort claim under the auspices of an ADA claim.

[00:03:03] Speaker 04:
It doesn't make any sense.

[00:03:05] Speaker 01:
I think it does, Your Honor.

[00:03:07] Speaker 01:
And I know that was argued.

[00:03:09] Speaker 01:
But what the ADA was.

[00:03:12] Speaker 04:
But if that's true, then when you build a ramp,

[00:03:17] Speaker 04:
to accommodate someone who might be disabled to come in.

[00:03:21] Speaker 04:
If they claim that they are somehow injured by using the ramp, that's not an ADA claim.

[00:03:29] Speaker 04:
They can still get in.

[00:03:30] Speaker 04:
They might have a tort claim, but they don't have an ADA claim.

[00:03:35] Speaker 01:
They have an ADA claim because this gentleman has an ADA claim for the reason that the ADA is to allow disabled people access to modern day life.

[00:03:52] Speaker 01:
I was in a wheelchair.

[00:03:53] Speaker 01:
I couldn't go to a restaurant.

[00:03:54] Speaker 01:
I was in a wheelchair.

[00:03:54] Speaker 01:
I couldn't go to eat.

[00:03:56] Speaker 01:
I couldn't go to a movie theater.

[00:03:59] Speaker 01:
What's happened is technology has advanced.

[00:04:02] Speaker 01:
Now it is a physical place.

[00:04:05] Speaker 04:
But to access this... What's the physical place?

[00:04:07] Speaker 01:
Well, if you take the defendant's own brief and you look on page five, you will see that they refer there, and page two in their lower court brief, you'll see that they refer there to a significant gap.

[00:04:22] Speaker 01:
There's a gap.

[00:04:24] Speaker 01:
That's why they sued Ada County.

[00:04:26] Speaker 01:
They sued Ada County to cover a very specific physical place, a gap.

[00:04:31] Speaker 01:
We can't provide our services to the public because there's a gap.

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That was the gap in coverage.

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They said it.

[00:04:40] Speaker 01:
It's just like, can you hear me now?

[00:04:43] Speaker 01:
If you can't hear me,

[00:04:44] Speaker 01:
then there is a physical gap.

[00:04:48] Speaker 02:
What are the boundaries of this RF field?

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Is he so sensitive that he can't be exposed to RF anywhere in North Idaho where there's cell service?

[00:05:04] Speaker 02:
So what's the radius of, give me the danger zone here that you're insisting is the physical place.

[00:05:12] Speaker 01:
The specific physical place in this case is the gap that they sued over in Ada County.

[00:05:18] Speaker 02:
All areas in which there is not current cell phone service but which is now covered with the erection of this tower?

[00:05:26] Speaker 02:
This particular tower.

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And the gap.

[00:05:28] Speaker 02:
So your position is that the physical presence exists anywhere that cell service coverage exists in North Idaho?

[00:05:39] Speaker 01:
My position in this particular case is that there was a gap that they sued Ada County over.

[00:05:47] Speaker 01:
Horizon sued Ada County.

[00:05:49] Speaker 01:
They said there's a significant gap in our service area.

[00:05:53] Speaker 01:
If I'm a restaurant, right?

[00:05:54] Speaker 01:
and I've got a kitchen and I've got my, this is my restaurant dining room, right?

[00:06:01] Speaker 01:
That's my service area.

[00:06:03] Speaker 01:
I can't cover it.

[00:06:03] Speaker 01:
They went to court and they said there's a physical place we cannot provide our service.

[00:06:09] Speaker 01:
They sued Ada County.

[00:06:11] Speaker 01:
Ada County settled

[00:06:13] Speaker 01:
for the reasons that they bring up in preemption, right, because they settled because of that.

[00:06:19] Speaker 01:
So they then entered agreed facts in a consent order.

[00:06:24] Speaker 01:
It's in the record, both lower court and your court.

[00:06:27] Speaker 01:
And they talk about this gap.

[00:06:29] Speaker 01:
And we all know what a gap is.

[00:06:31] Speaker 01:
I mean, I've got one between my front teeth.

[00:06:33] Speaker 04:
I mean, it's like, it's a very physical... Actually, counsel, I have no idea what a gap is in this context.

[00:06:37] Speaker 01:
Well, the gap is the defined physical area which they agreed and they say to this court in their briefing where they could not provide their services.

[00:06:50] Speaker 02:
So I'm really struggling to understand the geographical scope and what remedies are you asking the court to provide if his condition is exacerbated by exposure to RF radiation in the area that used to be a gap but is now covered by the tower.

[00:07:15] Speaker 02:
Are you

[00:07:18] Speaker 02:
saying there's an ADA violation anywhere in that geographical area that now is fully covered?

[00:07:24] Speaker 01:
I'm saying that you can't exclude access to people with a diagnosed disability.

[00:07:31] Speaker 01:
Now, the FCC allows a range.

[00:07:33] Speaker 02:
But the access that he's seeking is not to be physically present there, but to have cell coverage there, which you admit that he does have.

[00:07:43] Speaker 02:
So I'm sort of struggling with the same thing that Judge Nelson is struggling with.

[00:07:47] Speaker 02:
There's no there there.

[00:07:51] Speaker 01:
Well, he has cell coverage, right?

[00:07:53] Speaker 01:
Right.

[00:07:54] Speaker 01:
And what he can't access, because it makes him sick, to do so, the way that they are generating this field right now.

[00:08:02] Speaker 02:
What if he's 15 miles away from the tower?

[00:08:05] Speaker 02:
Does that aggravate his symptoms?

[00:08:08] Speaker 01:
That's a great fact question.

[00:08:10] Speaker 01:
Would you have a great answer?

[00:08:12] Speaker 01:
We would have shown the court, our experts do.

[00:08:15] Speaker 01:
And what would your experts say to my question?

[00:08:17] Speaker 01:
Our experts would say that if we'd had a chance to try it, our experts would say that there is a range of services that can be provided, a range of radioelectric fields that can emanate from this tower, that they can change their policies, that they can modify their policies in how they create that.

[00:08:37] Speaker 01:
If all they want to do

[00:08:39] Speaker 01:
They can actually provide all the same services, but they can modify their policies so that this gentleman doesn't end up in cardiac arrest when he uses the service.

[00:08:50] Speaker 02:
I don't understand why he wouldn't be susceptible to cardiac arrest in an area that previously had coverage before the tower was erected to cover this gap.

[00:09:01] Speaker 02:
It's this device.

[00:09:02] Speaker 02:
You're pointing to the phone?

[00:09:03] Speaker 01:
Yes, sir.

[00:09:04] Speaker 01:
This device emanates radioactive field.

[00:09:07] Speaker 02:
Isn't there a limit to how dangerous it is?

[00:09:13] Speaker 02:
In other words, if I have the phone right next to my heart, and I know they're studying this, I don't think there's any definitive scientific answer yet, but there may be a concern

[00:09:23] Speaker 02:
that the radio, the RF frequency is somehow interfering with your heart.

[00:09:28] Speaker 02:
But if it's in the corner of the room, it's probably not hurting you at all.

[00:09:33] Speaker 02:
So that's why I'm struggling here with the geographical scope.

[00:09:37] Speaker 01:
So his particular disability is the way that they are generating this dome that covers the physical place that he must be in

[00:09:49] Speaker 01:
to use it, the service, their service area.

[00:09:52] Speaker 01:
That's the physical place.

[00:09:54] Speaker 02:
But what is the effect?

[00:09:56] Speaker 02:
Okay, you say you want the court to issue an affirmative injunction telling the cellular telephone companies you've got to put in special antennas so that it only covers.

[00:10:07] Speaker 02:
I don't understand if it covers this narrow area that's otherwise a gap.

[00:10:11] Speaker 02:
Then why isn't he still susceptible?

[00:10:13] Speaker 02:
Why isn't there still an ADA violation because he's still susceptible to exposure to RF?

[00:10:19] Speaker 01:
Here's our ask.

[00:10:20] Speaker 01:
Send it back to the lower court.

[00:10:23] Speaker 01:
and make the lower court give us the lights that we play at most favorable, the inferences they're from.

[00:10:30] Speaker 01:
Don't find the main fact, this is not a physical place.

[00:10:34] Speaker 01:
This is our complaint to you.

[00:10:36] Speaker 01:
The judge stepped into the province of the jury.

[00:10:38] Speaker 02:
But you still haven't answered my question as to what are the limits of the physical place.

[00:10:43] Speaker 02:
Is it the entire world that's covered by

[00:10:47] Speaker 02:
cellular coverage or is it just a gap area that this tower was erected to provide service?

[00:10:55] Speaker 01:
It is the way that they provide the service, which within the band of the FCC acceptable ranges, they have a number of ways that they can do it.

[00:11:06] Speaker 01:
But here's what happened here, Judge.

[00:11:09] Speaker 02:
Does the FCC have a regulation that says you can't get within 15 feet of the tower?

[00:11:17] Speaker 01:
Restaurants don't have regulations that say that you can't build a bear.

[00:11:21] Speaker 01:
I mean, it's the same kind of thing.

[00:11:24] Speaker 01:
What happened here?

[00:11:26] Speaker 01:
We came in, we alleged it's a physical place.

[00:11:28] Speaker 01:
We alleged everything, right?

[00:11:31] Speaker 01:
The judge said, no, it's not a physical place.

[00:11:34] Speaker 01:
That's a great fact.

[00:11:35] Speaker 01:
That's a great fact for the jury.

[00:11:36] Speaker 01:
No, it's not a fact.

[00:11:37] Speaker 04:
It's a legal question.

[00:11:38] Speaker 04:
I mean, I can walk through the statute.

[00:11:41] Speaker 04:
You've read it, Title III.

[00:11:42] Speaker 04:
Right, right.

[00:11:43] Speaker 04:
Stop me when I get to something that sounds like a cell phone gap that you're talking about.

[00:11:48] Speaker 04:
An inn, hotel, motel, a restaurant, bar, a motion picture house, an auditorium, a bakery, grocery store, a laundromat, a terminal.

[00:11:56] Speaker 04:
a museum, a park, zoo, a nursery, a daycare center, a gymnasium, anything in there that's remotely close to the physical place that you're talking about.

[00:12:06] Speaker 01:
Everything you mentioned in today's society is accessed through just what you said.

[00:12:13] Speaker 01:
Every single example.

[00:12:14] Speaker 05:
You don't answer his question.

[00:12:15] Speaker 05:
The problem is, and I guess I didn't ever say anything, but I've been thinking I've got to find a place of public accommodation

[00:12:26] Speaker 05:
And I've got to find that because that's in the statute.

[00:12:30] Speaker 05:
And they didn't define it.

[00:12:32] Speaker 05:
And so they laid a list.

[00:12:35] Speaker 05:
And so Judge, my honorable colleague, has finally laid the list down and said, how do you make this list with what you're saying and where you went today and how this argument's gone been very confusing to me because you tried to make a list for the district court, but it didn't work.

[00:12:56] Speaker 05:
I wondered where the devil were we going to get this?

[00:13:00] Speaker 05:
You don't have it.

[00:13:01] Speaker 05:
You don't have the place of a public accommodation as defined by our circuit.

[00:13:07] Speaker 05:
Now there's other circuits that define it wider.

[00:13:09] Speaker 05:
If you want to go over there, you might make it.

[00:13:12] Speaker 05:
But our circuit makes it very straight what the place of a public accommodation is.

[00:13:18] Speaker 01:
But I think, look at the Torres case.

[00:13:21] Speaker 01:
Torres AT&T, right?

[00:13:23] Speaker 05:
Yeah.

[00:13:23] Speaker 01:
It's a district court case, but it's nicely analyzed.

[00:13:28] Speaker 01:
And it's consistent with wire.

[00:13:30] Speaker 05:
It's nicely analyzed.

[00:13:32] Speaker 05:
If you want to say it is, I read the analysis.

[00:13:35] Speaker 05:
I'm not sure it's so good, but I'll go with you that far.

[00:13:39] Speaker 01:
So here's how they applied, and here's what they said is the limiting factor, right, which I think is probably what I'm saying as well, which is if you can go into the place of public accommodation physically, then that meets the test.

[00:13:53] Speaker 01:
We're saying the service area, their place where they accommodate the public, is what they call themselves the service area.

[00:14:01] Speaker 01:
You have to be in the service area to get the service, right?

[00:14:04] Speaker 01:
You must be.

[00:14:05] Speaker 01:
They called it a gap.

[00:14:07] Speaker 01:
I'm saying yes, a gap must be a very physical place.

[00:14:11] Speaker 01:
So, you know, the physicality test.

[00:14:14] Speaker 01:
Now what Torres says is the distinction

[00:14:17] Speaker 01:
is that if you cannot physically enter this place, then it doesn't meet the wire test.

[00:14:24] Speaker 01:
I agree.

[00:14:24] Speaker 01:
I cannot go into a cable.

[00:14:27] Speaker 01:
I can't fit.

[00:14:28] Speaker 01:
I can't go into an insurance policy, right?

[00:14:32] Speaker 01:
I can't fit.

[00:14:34] Speaker 01:
I can't go into a website.

[00:14:37] Speaker 01:
I physically can't do it.

[00:14:38] Speaker 01:
I can't become zeros and ones and become digital.

[00:14:40] Speaker 04:
But I have to.

[00:14:42] Speaker 04:
But the website

[00:14:44] Speaker 04:
There are your that's the closest you can come is the website cases and but the websites are tied to a physical accommodation if you can't get on an order from a Restaurant which is in the statute.

[00:14:55] Speaker 01:
Okay, so you have a problem.

[00:14:57] Speaker 01:
So so the I Think the website cases are good for us.

[00:15:03] Speaker 01:
Yeah Because because they're close no no no because when they say the websites don't write it's not a physical place and

[00:15:14] Speaker 01:
The distinction here, Your Honors, is that in order for me, my client, to avail himself of these services, all the cases they cite, it's physically impossible for him to enter the service area.

[00:15:29] Speaker 01:
A piece of paper and an insurance policy, a cable and all those, you can't become, you cannot, you must, in order to avail himself of the services in this case, he must

[00:15:41] Speaker 01:
Enter their service area.

[00:15:43] Speaker 01:
It's a physical area.

[00:15:45] Speaker 01:
And when he's in it, he gets the services.

[00:15:48] Speaker 01:
And when he's outside of it, he doesn't get the services.

[00:15:51] Speaker 01:
You don't have to change the law.

[00:15:55] Speaker 01:
The law here is good.

[00:15:57] Speaker 01:
The Ninth Circuit law is good.

[00:15:59] Speaker 01:
I like it for our case.

[00:16:02] Speaker 01:
Wire is good, right?

[00:16:04] Speaker 01:
So when I have, when I'm, do I meet the test of a physical place?

[00:16:08] Speaker 01:
Yes, it's a gap.

[00:16:09] Speaker 01:
They filled the gap.

[00:16:10] Speaker 01:
They sued to fill the gap.

[00:16:11] Speaker 01:
They defined the physical space.

[00:16:13] Speaker 01:
They're, they're, they're, can you hear me now, Verizon and defendant in this case?

[00:16:18] Speaker 01:
They defined the gap.

[00:16:19] Speaker 02:
Let me ask him one, let me ask him one question.

[00:16:21] Speaker 02:
Mr. Wentz, would there be an ADA violation if he came near another cellular tower besides the one in Eagle that you're complaining about?

[00:16:33] Speaker 02:
Would there be an ADA violation if he happened to walk by one in Boise?

[00:16:40] Speaker 01:
That's a very good question, Your Honor.

[00:16:46] Speaker 01:
And I think all of these things can be fleshed out at trial if it hadn't been thrown out.

[00:16:51] Speaker 05:
If it's a good question, answer it, because that's exactly the point that I was making.

[00:16:57] Speaker 05:
We're not really in a public accommodation here.

[00:17:00] Speaker 01:
Now it really is a public accommodation because it is a place that you must enter to be served.

[00:17:06] Speaker 05:
If he went with another cell tower, within that distance of another cell tower would it be another violation?

[00:17:17] Speaker 05:
Answer the question.

[00:17:18] Speaker 05:
That's a really good question.

[00:17:20] Speaker 01:
That's a really good question, Your Honor.

[00:17:22] Speaker 01:
And I knew when I heard you earlier, I was in trouble.

[00:17:24] Speaker 01:
You guys are very well prepared.

[00:17:27] Speaker 01:
Thank you so much.

[00:17:28] Speaker 01:
Thank you.

[00:17:28] Speaker 01:
We'll give you a minute for rebuttal.

[00:17:29] Speaker 04:
We've taken you over.

[00:17:30] Speaker 01:
Thank you.

[00:17:31] Speaker 01:
I appreciate it, Your Honors.

[00:17:41] Speaker 00:
Good morning, and may it please the court, Scott Elder for the Appellees.

[00:17:46] Speaker 04:
Can you tell me what a gap is in this context?

[00:17:49] Speaker 04:
Because I'm more confused than I was when I started.

[00:17:58] Speaker 00:
I believe, as the appellant has used it here, that a gap is simply a location where you cannot get cell coverage with your provider of choice.

[00:18:09] Speaker 00:
So if AT&T does not provide coverage in a certain location, or Verizon does not, and you are a subscriber, that is your gap.

[00:18:17] Speaker 00:
I don't think it has any relevance under where a Roblox.

[00:18:21] Speaker 04:
It has nothing to do with the public.

[00:18:23] Speaker 04:
In fact, that's the place he can be, right?

[00:18:26] Speaker 04:
Or arguably.

[00:18:27] Speaker 04:
That's right.

[00:18:28] Speaker 04:
All right.

[00:18:30] Speaker 00:
Thank you.

[00:18:30] Speaker 04:
I'm not asking you to make his case for him.

[00:18:32] Speaker 04:
I'm trying to understand it.

[00:18:34] Speaker 00:
And your questions and Judge Tallman's questions illustrate perfectly why the decision below was correct.

[00:18:45] Speaker 00:
There is no place of public accommodation to which Mr. Allen seeks access in this case.

[00:18:53] Speaker 00:
He does not seek access.

[00:18:55] Speaker 00:
This case is not about access to a good, a service, or a location.

[00:19:01] Speaker 04:
Well, so let's look at the internet cases, because those seem to be his most analogous cases.

[00:19:08] Speaker 04:
And tell me why.

[00:19:10] Speaker 04:
I mean, we do have cases that say when you don't allow someone to use the internet,

[00:19:16] Speaker 04:
that can affect a public accommodation and be actionable under the ADA.

[00:19:23] Speaker 04:
Tell me why those cases would not be able to be extended here.

[00:19:27] Speaker 00:
Because those cases are about access.

[00:19:30] Speaker 00:
And one of your earlier questions was, doesn't Mr. Allen have access?

[00:19:34] Speaker 00:
Doesn't he have the same access that everyone else has?

[00:19:38] Speaker 00:
And the answer is yes.

[00:19:40] Speaker 00:
He admits here and he admitted below he has access.

[00:19:42] Speaker 04:
But I guess, given him the benefit of the doubt, if I understand it right, what he's technically saying is he can only exist or be physically present within a gap.

[00:19:54] Speaker 04:
Every time he leaves the gap and goes into cell phone coverage,

[00:19:58] Speaker 04:
I think, at least I thought before we came into argument, this was his argument, that then he can't leave the gap.

[00:20:06] Speaker 04:
Every time he leaves the gap, his disability impacts him.

[00:20:12] Speaker 04:
Is that right?

[00:20:16] Speaker 00:
I hesitate because I'm not sure I tracked the question and what he said about the gap.

[00:20:22] Speaker 04:
I'm just trying to say, as I understand it, every time he goes into

[00:20:27] Speaker 04:
where he can get cell phone coverage, that affects his disability.

[00:20:32] Speaker 04:
And he's asking you, the client, to make it so that he can go there, use the cell phone service without getting sick.

[00:20:44] Speaker 04:
And maybe I'm over, OK, so maybe it is he can go there.

[00:20:47] Speaker 04:
He just can't use his cell phone.

[00:20:49] Speaker 04:
When he uses his cell phone, that's what gets him sick.

[00:20:51] Speaker 00:
Well, it's the difference between access and injury.

[00:20:56] Speaker 00:
And Title III of the ADA provides access.

[00:21:00] Speaker 00:
It does not prevent injury.

[00:21:02] Speaker 00:
And so this is straight out of Weir.

[00:21:06] Speaker 00:
Weir covers this example, and it uses the example of a bookstore.

[00:21:11] Speaker 00:
And it says what Title III requires is to provide access to the bookstore.

[00:21:16] Speaker 00:
Once you are in the bookstore, Title III does not require a Braille book because that is a different good or service.

[00:21:24] Speaker 00:
That is requiring the business to change what it provides.

[00:21:28] Speaker 00:
Our service is cellular service.

[00:21:31] Speaker 00:
Mr. Allen has access.

[00:21:32] Speaker 00:
He has access wherever he can get coverage if he's not in a gap.

[00:21:38] Speaker 00:
What he wants is a service, our product that is unique to him.

[00:21:44] Speaker 00:
And that is not what title three provides because title three is about access.

[00:21:48] Speaker 00:
And this case is not about access.

[00:21:50] Speaker 00:
It's really about trying to prevent that tower from operating.

[00:21:54] Speaker 04:
Can you help us out?

[00:21:54] Speaker 04:
Cause judge Talman tried to get at it and I'm not sure we got a sense of what is he asking you to do?

[00:22:00] Speaker 04:
I mean, you've been in this case, like what would this, you have to switch your some alignment in your cell tower.

[00:22:12] Speaker 00:
I believe that's their theory, and this is the problem.

[00:22:14] Speaker 00:
There are two problems here.

[00:22:16] Speaker 00:
One, it is absolutely boundaryless.

[00:22:19] Speaker 00:
And so to Judge Tallman's questions earlier, there are no boundaries here, because as we stand in this courtroom, we are inside Verizon's coverage area.

[00:22:29] Speaker 00:
In Eagle, Colorado, we are there.

[00:22:31] Speaker 00:
In downtown Boise, we are there.

[00:22:33] Speaker 00:
in downtown Coeur d'Alene, we are there.

[00:22:35] Speaker 00:
And so in all of those places, not only would we have to adjust our product to meet Mr. Allen's needs, we would have to adjust it to meet everyone else's needs who had a

[00:22:49] Speaker 00:
a purported disability under Title III and wanted us to change that service to accommodate them.

[00:22:54] Speaker 00:
So there are no boundaries.

[00:22:57] Speaker 00:
And that raises two issues.

[00:22:59] Speaker 00:
One, there's no physical place of public accommodation under WIRE or Robeless.

[00:23:04] Speaker 00:
WIRE and Robeless end this case.

[00:23:07] Speaker 00:
The second thing is if for any reason the panel doesn't believe that WIRE and Robeless end this case, I would ask you to consider a ground that the district court below didn't reach, which is

[00:23:19] Speaker 00:
This discussion animates exactly why Congress gave the FCC exclusive jurisdiction to regulate radio frequency emissions.

[00:23:28] Speaker 00:
Radio frequency emissions by definition operate without regard to city lines, county lines, state lines,

[00:23:37] Speaker 00:
And so they have to be regulated nationally, and they are.

[00:23:41] Speaker 00:
And that is exactly what Congress specified, and it gave that exclusive power to the FCC, including specifically issues related to alleged health effects of radio frequency emissions.

[00:23:54] Speaker 00:
And so for that additional reason, you simply can't use Title III of the ADA to regulate radio frequency emissions, and that's the effort here.

[00:24:05] Speaker 00:
that the appellant admitted below that what they would prefer is to have the tower shut off.

[00:24:13] Speaker 00:
That's their preferred outcome, and they can't achieve that directly because a nuisance suit or a tort suit is preempted, and that's exactly what this court found in Wolf v. City of Millbrae.

[00:24:27] Speaker 02:
Even if you shut down the Eagle-Idaho Tower,

[00:24:32] Speaker 02:
he would still have, as I understand his theory, although he wouldn't answer my question, there would still be an ADA violation if his client got too close to the Boise Tower.

[00:24:43] Speaker 00:
If he left his home.

[00:24:45] Speaker 00:
That's exactly right.

[00:24:46] Speaker 00:
And that is part of the problem.

[00:24:47] Speaker 00:
And the reason that

[00:24:49] Speaker 00:
that it has to be regulated by the FCC on a national level and not by the DAO.

[00:24:56] Speaker 02:
So how soon are you going to launch a satellite so we don't have to use towers?

[00:25:02] Speaker 02:
That could be.

[00:25:03] Speaker 02:
That'll solve the problem, right?

[00:25:05] Speaker 04:
But he still couldn't go to space, though.

[00:25:06] Speaker 05:
Well, I'm not sure if it would solve the problem.

[00:25:09] Speaker 05:
A satellite would be just a bigger tower.

[00:25:14] Speaker 00:
But for all of those reasons, under where, under Robles, this case was properly dismissed, and we would ask you to affirm the district court.

[00:25:25] Speaker 04:
Okay, thank you, counsel.

[00:25:27] Speaker 04:
We'll give you a minute for rebuttal.

[00:25:29] Speaker 04:
Oh, we're tag teaming.

[00:25:33] Speaker 03:
We are.

[00:25:34] Speaker 03:
Scott McCullough for Appellant Henry Allen.

[00:25:41] Speaker 03:
Let me see if I can't clear through some of the outstanding questions.

[00:25:44] Speaker 03:
One, what is the remedy that Mr. Allen is requesting?

[00:25:48] Speaker 03:
It is limited to their policies, practices, and procedures with regard to that single cell tower that's right by his home.

[00:25:56] Speaker 02:
But why wouldn't he have the same problem if he'd gotten too close to a cell tower in Boise?

[00:26:03] Speaker 02:
Shutting down the Eagle Tower is not going to solve his problem, is it?

[00:26:07] Speaker 03:
Let me clear that up too.

[00:26:09] Speaker 03:
We did say that we would prefer that they close that tower, but we also indicated there are other measures that can be taken with regard to their policies, practices, and procedures that would ameliorate, if not completely eliminate, the special conditions that appear to occur there.

[00:26:26] Speaker 03:
Mr. Allen is here.

[00:26:28] Speaker 03:
He can be out around RF exposure.

[00:26:31] Speaker 02:
And you're not asserting that as he sits in our courtroom today, the ADA is being violated?

[00:26:36] Speaker 02:
No.

[00:26:37] Speaker 04:
Okay, so I don't understand, but I don't understand the difference.

[00:26:42] Speaker 05:
I don't either.

[00:26:44] Speaker 03:
One of the things about the ADA, especially when you have an individual plaintiff, is you're dealing with individual circumstances.

[00:26:51] Speaker 03:
And there's something about the individual.

[00:26:52] Speaker 04:
You're actually not.

[00:26:53] Speaker 04:
That's the problem.

[00:26:54] Speaker 04:
The problem with this case is you've entirely misused the ADA.

[00:26:58] Speaker 04:
This is a tort claim couched as an ADA claim.

[00:27:03] Speaker 04:
Kudos.

[00:27:03] Speaker 04:
You get a 10 out of 10 for creativity.

[00:27:06] Speaker 03:
You get about a 1 out of 10 for viability.

[00:27:08] Speaker 03:
We're not seeking damages.

[00:27:10] Speaker 03:
We're seeking injunctive relief.

[00:27:11] Speaker 03:
We're asking for

[00:27:12] Speaker 03:
a reasonable modification of their policies, practices, and procedures on how they are operating that single tower there in Eagle, Idaho.

[00:27:22] Speaker 03:
There are certain things that they could do that would help Mr. Allen.

[00:27:26] Speaker 04:
Let me understand.

[00:27:27] Speaker 04:
Let's go back to the initial question.

[00:27:29] Speaker 04:
Sitting here today, it's not an ADA violation.

[00:27:32] Speaker 04:
Why is it an ADA violation when he's sitting in his home then?

[00:27:35] Speaker 03:
Because for some reason, when they set that tower up,

[00:27:40] Speaker 03:
it immediately began to make him sick.

[00:27:43] Speaker 03:
There was something particular about that tower.

[00:27:46] Speaker 03:
It could be fixed by maybe changing the angle or the orientation of the antennas.

[00:27:50] Speaker 03:
There's any number of things that could be done if they would just work with us.

[00:27:55] Speaker 03:
But remember where we ended up at the district court here.

[00:27:57] Speaker 04:
That tower is unique among all other towers in the United States.

[00:28:02] Speaker 04:
They put the most unique tower in some way right next to his home.

[00:28:08] Speaker 03:
All that we know is, as soon as that thing went up, he immediately began to get sick.

[00:28:14] Speaker 02:
But if he moved his house the same distance from the tower in Boise, you'd have the same problem under your theory of the case.

[00:28:23] Speaker 02:
Perhaps, perhaps not.

[00:28:24] Speaker 02:
And we'd have to order the telephone company to modify that tower.

[00:28:28] Speaker 02:
Perhaps not.

[00:28:28] Speaker 03:
The remedy we're seeking here is only as to that tower.

[00:28:31] Speaker 02:
Now, and remember... You're asking us to write an opinion to declare that this is a violation of the ADA, so it may not be Mr. Allen, it may be Mr. Smith, who... Actually, we're not.

[00:28:43] Speaker 02:
Oh, let's take Jones, since we have... Actually, we're not.

[00:28:46] Speaker 03:
We're asking this court to tell the district court that it erroneously entered

[00:28:50] Speaker 03:
in order of dismissal with prejudice based on what we believe was an inappropriate factual conclusion that these are not physical places.

[00:29:01] Speaker 02:
But if the district court was wrong in that regard to the Eagle Tower, it would be wrong in regard to the Boise Tower.

[00:29:09] Speaker 03:
I think it is true universally that the radio frequency field that's generated by any cellular tower is a physical place.

[00:29:18] Speaker 03:
I do agree with that.

[00:29:21] Speaker 03:
But that is a factual and technical, perhaps even requiring expert testimony, issue that should be resolved not at the 12b6 stage.

[00:29:31] Speaker 04:
And I think that's the disagreement that I have, because this is a legal question about whether it's a statutory violation.

[00:29:40] Speaker 04:
Yeah.

[00:29:40] Speaker 04:
I mean, do you meet this?

[00:29:42] Speaker 04:
Have you alleged the statutory threshold?

[00:29:45] Speaker 04:
And is it a physical accommodation?

[00:29:49] Speaker 03:
We alleged that it is a place of public accommodation, and it is a physical place.

[00:29:55] Speaker 03:
Remember, what the court below ruled was it is not a physical place.

[00:29:58] Speaker 03:
Right.

[00:29:59] Speaker 03:
That was the sole basis of the dismissal.

[00:30:02] Speaker 05:
Frankly, the court ruled more than that, but that's OK.

[00:30:06] Speaker 03:
And we believe that that was just premature, that that was a disputed factual question.

[00:30:13] Speaker 03:
Now, is there a legal aspect to whether cellular companies are places of public accommodations?

[00:30:19] Speaker 03:
Yes, there are.

[00:30:20] Speaker 03:
But they do, once you have service, they do many of the same things that's in the laundry list in the statute that Your Honor just read out.

[00:30:29] Speaker 03:
They provide entertainment.

[00:30:31] Speaker 03:
You can order food.

[00:30:33] Speaker 03:
That is the purpose of the service.

[00:30:35] Speaker 04:
But he's not being restricted from accessing it.

[00:30:37] Speaker 03:
And that gets me to the last point.

[00:30:39] Speaker 03:
I was hoping you'd let me make.

[00:30:40] Speaker 03:
May I have just one more minute?

[00:30:42] Speaker 04:
Well, go ahead.

[00:30:44] Speaker 03:
We're feeling very generous today.

[00:30:46] Speaker 03:
Yes, you are, and I very much appreciate it.

[00:30:48] Speaker 03:
This isn't about access to the product.

[00:30:51] Speaker 03:
He does have access to the product.

[00:30:53] Speaker 03:
But remember, the ADA also speaks to equal enjoyment and erection of barriers.

[00:31:00] Speaker 03:
So you have to look at, from an ADA Title III perspective, access to the product, whether somebody is given unequal access or preferable access to the product or has erected a barrier to the product.

[00:31:15] Speaker 03:
Yes, it is true.

[00:31:15] Speaker 03:
There is cell phone service available around Mr. Allen's house.

[00:31:19] Speaker 03:
He could use it.

[00:31:20] Speaker 03:
But they have erected a barrier to it.

[00:31:23] Speaker 03:
And given his disability, purely on account of his disability, he is suffering unequal enjoyment of the benefits from it.

[00:31:31] Speaker 03:
Using it makes him sick.

[00:31:32] Speaker 03:
If they change their policies, practices, and procedures, he could use it.

[00:31:36] Speaker 03:
Thank you.

[00:31:37] Speaker 04:
Thank you to counsel.

[00:31:38] Speaker 04:
Thank you to all counsel for your arguments in the case.

[00:31:41] Speaker 04:
The case is now submitted.