Who says you can't fight City Hall? Corporations win battles with local governments all the time, as the people of Wellfleet, Mass., learned the hard way.
"It's a tough one, because I have mine right here," he says, pulling his phone from his belt clip and pointing to the little bars on its screen that indicate good reception. "And cell phones definitely offer meaningful advantages to a person. But if the majority of people didn't want the towers, I could live without a cell phone."
A century ago, from a station in South Wellfleet, Guglielmo Marconi tapped out a wireless greeting in Morse code from President Theodore Roosevelt to King Edward VII of England. Marconi's radio engineering feat would help earn him a Nobel Prize and would earn Wellfleet a tiny spot in science history. Inside the town's Historical Society building, where Bauer volunteers at the front desk, visitors can find Marconi memorabilia and photographs of his wireless wonder alongside corroded harpoons from the whaling era.
Today, wireless communication in Wellfleet has new meaning. In 1998, a group of Bauer's fellow residents began a battle to keep cell phone companies from putting up their antennas in the town, and therein lies our story.
The residents did everything necessary to crank up the machinery of local government and make democracy work for them. Wellfleet's Planning Board responded by voting to deny a permit to the cell phone company Omnipoint (later Voicestream, and still later T-Mobile). The corporation sued, its lawyers charging that the town had violated the Telecommunications Act of 1996. But the company didn't just want its permit; it also sued for damages and attorneys' fees under the Civil Rights Act of 1964, which bans discrimination by race, religion, and gender, and is one of the signal legislative achievements of the civil rights movement. The prospect of having to pay tens or hundreds of thousands of dollars if they lost was too much for town officials, and they backed down. The corporation had overpowered the democratic process. The antenna was installed inside the steeple of the First Congregational Church, set on a hill in the middle of town.
"It's a tough pill to swallow," says Bauer. "I resent that, when things get shoved down your throat like that."
Since the failed campaign, the people of Wellfleet have learned a couple of things. They've learned that democracy in practice isn't necessarily like the democracy we're taught in civics class, especially when a huge corporation comes to town. And some of them have learned—perhaps more than they ever wanted to—about the obscure term "corporate personhood."
It's rarely discussed these days, even in law school classes, but in 1886 the Supreme Court granted personhood to corporations. These abstract and artificial creatures of the law thus gained many of the rights of living, breathing, vulnerable human beings. Giant corporations have used these rights as levers to gain ever greater size and strength, then used their strength to co-opt governments as their allies or to simply walk over them; the footprints left by Omnipoint in its triumphant march through Wellfleet's exercise of democracy are still fresh in the minds of the town's citizens. Corporate "persons" have marched through communities all over the United States, not just to plant cellular antennas but to have their way with all kinds of democratically enacted restrictions. And, as corporate globalization becomes ever more sweeping, the phenomenon is happening everywhere due to World Trade Organization rulings.
It used to be said that you can't fight city hall, but these days it's at least as true that city hall can't fight big corporations. Wellfleet provides a picture-postcard setting for one such drama, or at least for the third of its three acts.
The first act is set in the ornate chambers of the U.S. Supreme Court. In the opening scene nineteenth-century corporate lawyers parade through in their relentless campaign to gain power for their clients by securing rights for them as persons. The act's final scene is in 1978 as the lawyers, still parading, use the First Amendment to gain a ruling that enlarges corporations' right of political speech to include spending great sums of money for lobbying and campaign contributions.
In act two, the setting shifts to Capitol Hill in the early 1990s, and instead of lawyers this time the parade is peopled by lobbyists from telecommunications corporations. Generous application of their expanded right of political speech results in the Telecommunications Act of 1996, which is famous in Washington for being written almost entirely by these lobbyists.
And in the third act, Omnipoint shows up in Wellfleet. Before that, it wasn't clear to Ernie Bauer and his fellow residents that the Bill of Rights could belong not only to the real people whom the Constitution was enacted to protect but also to corporate "persons," and that democracy could be trumped by corporate might. But they learned.
"When communities say no to the corporations and their towers...the corporations do sue," prodemocracy activist Richard Grossman writes in his 1999 essay, "Want to Violate a Corporation's Civil Rights? Just Say No to Its Cell Phone Tower." "Citing the authority of the 1996 act, which the telecommunications corporations wrote, they instruct federal judges to order city councils, county legislatures, New England-style town meetings—wherever democracy rears its head—to get out of the way."
Lynn Hiller is talking about "come-heres" and "wash-ashores," over a lunch of fresh salmon and tuna sandwiches in Wellfleet. In a gentle voice, the 75-year-old retiree explains how these terms describe two populations of nonnatives: Come-heres are summer tourists; wash-ashores are people who've retired to the Cape. Omnipoint followed the come-heres, to improve service for people who spend some time relaxing on the Cape yet can't leave their cell phones behind. Thoreau once described Cape Cod as a place "where a man may stand and put all of America behind him." Not so anymore.
A few years back, says Hiller, Wellfleet was caught flat-footed by an influx of applications from cell phone companies. It was a wake-up call and the Wellfleet Planning Board adopted a bylaw modeled after a code passed by the Cape Cod Commission, requiring cell phone antennas to be hidden in buildings, such as church steeples.
At a meeting at the Wellfleet Library in May 1998, Hiller first learned that the Congregational Church had negotiated contracts to put cellular antennas in its steeple. Omnipoint had thought the ideal place would be at the entrance to the town, but the Planning Board asked the company to place it in the steeple instead.
Wellfleet's bylaws permitted this, but local activists weren't satisfied, and public opposition grew. Among other objections, Hiller and her fellow activists were concerned that cell phone antennas might pose health hazards. No scientific studies to date support the claim that radiation from properly constructed antennas is harmful, but many people in Wellfleet and elsewhere believe otherwise.
In the view of Dale Donovan, a town selectman, the church steeple was a decent, realistic compromise. "Based on the law," he says, "this was exactly what we wanted." Yet he insists that when the Planning Board vote came out 3-2 against the antenna, he went to bat for the community because that was his job; the people had spoken.
Because of corporate personhood, however, Wellfleet, population 2,500, was like an ant facing off against Omnipoint the sumo wrestler, with a referee, in this case the law, turning a blind eye to the difference in weight class. At the time the Wellfleet dispute began in 1998, Omnipoint Communications had 1,300 employees and 200,000 customers; in 1999, it reported a gross profit of close to $90 million on $364 million in net sales. By contrast, Wellfleet's total spending from the general fund in 1999 was just over $8 million.
The law is like an ecosystem, where every decision reverberates with an impact on future decisions. By 1978, the Supreme Court's nineteenth-century personhood decision had rippled out to the free speech case of First National Bank v. Bellotti, in which Justice Lewis Powell wrote for the majority that "[t]he inherent worth of speech in terms of its capacity for informing the public does not depend on the identity of its source, whether corporation, association, or individual." For a number of years before, the Massachusetts State legislature had watched large corporations spend huge sums on advertising campaigns to defeat measures for a progressive income tax. Finally, lawmakers legislated a ban on the corporate expenditures, as long as the referendum did not directly affect corporate assets. A consortium of Boston corporations sued, raising a First Amendment challenge to the Massachusetts statute, and the Court struck down the legislation, saying the corporations had a right to make campaign contributions as protected political speech.
Since Bellotti, corporations have been spending for lobbying and campaign donations on a scale with which no individual or group of individuals can compete. The Telecommunications Act of 1996 is one result. The Washington Post estimates that telecommunications corporations donated $48 million to federal candidates and the state and national committees of the major parties while Congress was working on the bill and in the years after it took effect. An article by staff writer Mike Mills in December 1998 noted that "[d]uring one period, from October 25, 1995, to February 2, 1996, as House and Senate lawmakers were huddled in a conference committee to work out the final details . . . the industry sprinkled $2.7 million in contributions over lawmakers and parties—three times more than it gave during comparable periods in each of the previous two election cycles." The newspaper, using the 1995 Lobbying Disclosure Act, also found that lobbying expenditures and campaign giving rose even higher after the Telecommunications Act came into law, with a lot of cash "aimed at educating legislators and regulators on the fine points of carrying out the law."
The Telecommunications Act pays lip service to the importance of local zoning regulation, enough to encourage a town to dispute a site location, but it's false piety. The act says a planning or zoning board has to find a place for the tower somewhere in the town. If a town challenges this in court, the advantage is clearly with the corporation, which comes armed with a staff of lawyers, ready-to-go research, and experience with similar cases. Often, as in Wellfleet, the town is paralyzed by limited finances.
When Wellfleet voted against the antenna, Omnipoint spoke back in court papers, using Section 1983 of the Civil Rights Act of 1964. Contending that Wellfleet and its Planning Board had injured it by violating its law-given right to erect an antenna, Omnipoint sued for its permit, compensatory damages, and attorneys' fees.
Just months earlier, in a similar suit against the Zoning Hearing Board of Chadds Ford Township, the U.S. District Court of Eastern Pennsylvania awarded attorneys' fees to Omnipoint. The decision stirred interest among legal scholars, some of whom felt that the court had ignored the legislative intent behind the Civil Rights Act. The act makes it financially feasible for anyone, no matter how poor, to challenge violations of their civil rights by shifting the cost of litigation from the victim to violators. But huge corporations like Omnipoint don't need to have their court costs covered to make it financially feasible for them to sue. As Judge Julie E. Carnes of the Eleventh Circuit Court of Appeals in Atlanta remarked in an opinion in 2000, "Their financial self-interest and the vast sums at stake make them more than happy to serve as 'private attorneys general' to enforce the legislative measures that they have lobbied through Congress, without the need for taxpayers to pay their litigation costs."
Under the threat of having to pay Omnipoint's lawyers, Wellfleet officials decided to meet with Omnipoint behind closed doors. More than twenty town residents showed up for the meeting, asking to be included in the talks, but Town Administrator Bill Dugan refused, insisting he had never heard of a board discussing a lawsuit in public.
"The chairman got mad," Hiller recalls. "We stood outside and did some chanting."
After hours of talks, Wellfleet's Planning Board issued the previously withheld permit and Omnipoint agreed to drop its suit. "Our legal counsel said, 'You're dead in the water on this one,'" says selectman Donovan. "How much of the people's money can we spend to defend something? There's legislation at the federal level, and you can no longer defend the principle without saying we're going to have to throw $250,000 at something. It's really a problem and a burden for small towns everywhere.
"Omnipoint's use of the civil rights threat definitely influenced us. Then you get into serious penalties. The term 'civil liberties' has broadened so dramatically. You're a corporation! You have property rights, but that's not what civil rights laws are for."
This is the legacy of Wellfleet, where one family summarized their frustration with the system, printed it on poster-board and stapled it to their weathered, wooden fence: "Democracy is dead in Wellfleet." And if it's dead in a small town like Wellfleet, where it should exist in its purist form, what does that say for the rest of America?
see below for links to other resources, including other articles from our 2003 special issue on corporate personhood.
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