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Law360 (January 20, 2021, 5:57 PM EST) -- A Georgia federal judge freed Verizon from an Atlanta-area attorney's proposed $28 million class action accusing the telecommunications company of spreading COVID-19, exposing neighborhood residents to harmful technology and diminishing property values by installing 5G infrastructure.
U.S. District Judge Leigh Martin May said Tuesday plaintiff William F. "Bill" Kaspers, whose firm is Kaspers and Associates Law Offices LLC, failed to show that unacceptable levels of radiofrequency emissions would be emitted from a 5G transmission pole in his front yard. She said Kaspers also failed to properly state his claims against Verizon of fraud, unlawful taking and intentional infliction of emotional distress.
Kaspers claimed in May that unmasked Verizon subcontractors were on his Sandy Springs property in March preparing to install a 5G pole. He sought for himself and his neighbors in the Derby Hills subdivision $14.1 million to compensate for an anticipated 20% devaluation of their 110 homes, plus the same amount again as punitive damages, suggesting they were exposed to COVID-19 and radiofrequency-related illness.
"These allegations concern only future harm," Judge May said in her order. "Even assuming defendant had a duty to inform the parties listed in the complaint of the environmental effects of [radiofrequency] emissions, the complaint contains no allegation of defendant's intent to induce plaintiff to act or refrain from acting, plaintiff's justifiable reliance, or any damage plaintiff has suffered."
Judge May agreed with Verizon that Kaspers' state law claims were preempted by the Telecommunications Act of 1996, which prohibits state authorities from regulating wireless facilities on the basis of radiofrequency effects as long as they comply with federal regulations.
She said the communications act's "saving clause" did not rescue Kaspers' claims, as he contended. And she rejected his argument that the current federal rules were improperly made, saying he misinterpreted their history.
"Plaintiff has identified nothing that would render the [Federal Communications Commission's] rules procedurally defective or otherwise deprive them of preemptive effect," Judge May said. "Plaintiff's assertion that state and local governments are not wholly foreclosed from regulating wireless service facilities is correct but inapposite."
Judge May said Kaspers did not specify whether his unlawful taking claim, related to loss of home ownership benefits, was brought under federal or Georgia law, which was grounds for dismissal in itself. He also failed to allege facts sufficient for such a claim under either law, she said.
Judge May similarly dismissed as insufficiently pled Kaspers' fraud claim against Verizon for its alleged failure to warn him and others of at least five pieces of 5G infrastructure being installed in their subdivision.
Kaspers, 72, said in his complaint that he was quarantining at home with his wife on the afternoon of March 27 when an unmasked Verizon subcontractor rang the doorbell and subsequently failed to stay six feet away, as repeatedly asked.
He said when more subcontractors turned up three days later to dig a hole, accompanied by a sheriff's deputy, he called the Sandy Springs city attorney to report the heightened threat of COVID-19 spread.
Having just recovered from a "two-week personal battle" with the coronavirus, the city attorney was sympathetic to Kaspers' concerns and dispatched a city health official to order the subcontractors to leave the neighborhood, per the complaint.
Kaspers sought to permanently block Verizon from installing 5G equipment near his home of 46 years. He did not immediately respond to a request for comment Wednesday.
Counsel for Verizon declined to comment Wednesday, and the company did not immediately respond to a request for comment.
Kaspers is represented by himself.
Verizon is represented by Debolina Das, Scott A. Elder and Thomas P. Grantham of Alston & Bird LLP.
The case is Kaspers v. Verizon Wireless Services LLC, case number 1:20-cv-02142, in the U.S. District Court for the Northern District of Georgia.
--Additional reporting by Hailey Konnath. Editing by Ellen Johnson.
For a reprint of this article, please contact reprints@law360.com.
