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02 September 2016

Update on Berkeley Cell Phone "Right to Know" Ordinance

Berkeley Cell Phone "Right to Know" Ordinance
saferemr.com, 1st September 2016

To see media coverage about the Berkeley cell phone "right to know" ordinance
and the CTIA's lawsuit: http://bit.ly/berkeleymedia


The Ninth Circuit Court of Appeals will hold a hearing on September 13 to consider the CTIA’s arguments why the preliminary injunction to block the City of Berkeley’s cellphone “right to know” ordinance should be reinstated. The law has been in effect since March.

This landmark law requires cellphone retailers in Berkeley to post a cellphone safety notification or provide a copy to customers. The notification reminds the consumer to read the manufacturer’s safety information in the cellphone’s user manual.

The case before the federal Court of Appeals is CTIA-The Wireless Association v. City of Berkeley et al., case number 16-15141. The CTIA is represented by former Solicitor General Theodore Olson, and the City is represented by Harvard Law Professor Lawrence Lessig. The hearing will be held in the U.S. Courthouse in San Francisco at 9:30 A.M. (95 Seventh Street, Courtroom 1, 3rd Floor, Rm 338).

Following is a recap of key legal developments since March.

In March, the CTIA appealed the ruling by the Appeals Court which removed the preliminary injunction and allowed the City of Berkeley to implement its cellphone “right to know” ordinance.

In April, the City submitted a brief to the Court which argued that the CTIA’s misinterpretation of the First Amendment would severely limit government’s regulatory powers, and if the Court were to support the CTIA’s arguments, numerous federal, state, and municipal laws would be ruled unconstitutional (“Berkeley Defends Cellphone Warning Ordinance At 9th Circ.,” Law 360, Apr 5, 2016; https://www.law360.com/articles/780474).

California Attorney General Kamala Harris and the Natural Resources Defense Council submitted amicus briefs in support of Berkeley’s position. Both the Attorney General and the NRDC warned the Court against holding governments to a higher level of First Amendment free speech protection scrutiny when they are simply mandating disclosures. The Attorney General argued, “If the approach advocated by CTIA were adopted by this Court, an array of consumer protection laws, long recognized as a constitutional exercise of the state’s police powers under the authority cited above, could be called into question.” (“Calif. AG Tells 9th Circ. Phone Warning Rule Merits Leeway,” Law360, Apr 26, 2016; https://www.law360.com/articles/788952).

In May, the CTIA submitted a brief to the Appeals Court which argued that the FCC does not require radio frequency disclosures. The City pointed out in its response that the CTIA had previously agreed that the FCC required these disclosures, and that the Appeals Court should not consider new arguments. Moreover, the City claimed that the CTIA’s current assertion was false (“Berkeley Rips Group's FCC Radiation Rule Claims At 9th Circ.,” Law360, May 13, 2016; https://www.law360.com/articles/796300).

In August, the Appeals Court ruled that it would consider the CTIA’s new argument and asked the City to submit its rebuttal (“City Can't Block FCC Radiation Rule Arguments, 9th Circ. Says,” Law360, Aug 12, 2016; http://www.law360.com/telecom/articles/8277850).

On August 25, the City of Berkeley submitted to the Court a rebuttal to the CTIA’s new claim. The CTIA argues that it is not mandatory for cellphone manufacturers to report SAR values and the minimum separation distance in user manuals. Their argument is based on two Knowledge Database (KDB) publications that the FCC issued in October, 2015: KDB 212821 and KDB 447498.

KDB documents, however, are issued by FCC staff to clarify existing FCC rules, not to alter them. Such documents are not subject to public review and do not have the force of law. Hence, the Court is unlikely to consider the CTIA’s new argument to be valid. (“Berkeley Slams CTIA's Flip-Flop In Cellphone Warning Row,” Law360, Aug 29, 2016; http://www.law360.com/telecom/articles/833616).

The FCC’s website indicates that provisions made in KDB documents do not “constitute rules”:

“the KDB is intended to assist the public in following Commission requirements and does not constitute rules. Accordingly, the guidance is not binding on the Commission and will not prevent the Commission from making a different decision in any matter that comes to its attention for resolution.”

According to the City’s latest brief:

“The FCC’s stated policy is that manufacturers ‘must’ provide manual disclosures. And CTIA cannot reasonably assert that its members could ignore the FCC’s disclosure regime as ‘merely suggestive’.”

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