Between a Rock and a Hard Place, 14 January 2017
This is the next in a series of the Guest Blogs on BRHP. The opinions expressed in it are of Susan Foster herself (photo). Publication of these opinions in BRHP does not imply that BRHP automatically agrees with or endorses these opinions. Publication of this, and other Guest Blogs, is an attempt to start an open debate and free exchange of opinions on RF and health.
WILL A JUDGE’S FAILURE TO RECUSE SILENCE BERKELEY’S “RIGHT TO KNOW”?
The long battle over cell phone consumer labels, with a hidden twist of legal super heroes and questions about a Ninth Circuit Court judge’s failure to recuse herself.
A battle over free speech in Berkeley, California has pitted the city of Berkeley against the mighty telecommunications trade group, CTIA – The Wireless Association. Berkeley stands on the First Amendment argument they have a right to inform consumers of certain precautions the FCC already requires in the back of cell phone user’s manuals.
A verdict is expected shortly from the Ninth Circuit Court of Appeals, and proponents of Berkeley’s Right to Know consumer notices are growing increasingly concerned about Judge Michelle T. Friedland’s circuitous connection to the CTIA. Supporters of the Right to Know ordinance worry the judge’s husband, Dan Kelly, has links to four members of the CTIA that could jeopardize Berkeley’s fight for the right to speak freely.
Berkeley’s City Council has fought for six years for the right to inform consumers in Berkeley about cell phone usage safety information. Until Berkeley’s unanimous passage of the Right to Know ordinance on May 12, 2015, this information about keeping distance between the cell phone and the body had been hidden in small print in owner’s manuals, or deep within the phone.
The passage of this consumer notice in easy to understand language triggered a forceful response from the CTIA which has threatened legal action against every city and state over the past seven years that has attempted to pass similar right to know legislation.
In the CTIA’s corner is former solicitor general Theodore Olson, the man widely credited with helping George W. Bush win the White House.
Berkeley’s efforts to proceed with passage of the ordinance were stalled until 2014 when Harvard Law professor and constitutional scholar Lawrence Lessig agreed to help the city fight for its First Amendment rights, vowing to take Berkeley’s case, pro bono, all the way to the Supreme Court if necessary.
Initially the CTIA sought an injunction in district court to prevent the Cell Phone Right to Know notices from being displayed. That injunction was denied on January 27, 2016 by Judge Edward Chen, allowing the law to be implemented.
The CTIA then appealed to the Ninth Circuit Court. During the September 13, 2016 hearing before the three-judge panel, Berkeley supporters felt Judge Michelle Friedland displayed a bias toward the CTIA that was, at best, thinly disguised.
It was discovered that Judge Friedland’s husband, Daniel Kelly, is a senior software engineer with Tarana Wireless, Inc., having been with the Silicon Valley startup from its inception in 2011. Tarana Wireless specializes in a critical part of the infrastructure that allows 5G RF radiation to travel the last mile of a massive infrastructure network. On June 20, 2016 outgoing FCC Chairman Tom Wheeler announced at the Washington Press Club in Washington, D.C. that 5G “redefines network connectivity for years to come,” and will “generate tens of billions of dollars in economic activity.” In short, 5G is a moneymaker.
Financial disclosure documents filed by Judge Friedland in 2014 and 2015 were recently obtained by this reporter from the U.S. Courts in Washington, D.C. These documents confirmed the judge’s husband, Daniel Kelly, receives a salary from Tarana Wireless, Inc.
Further investigation has revealed AT&T as one of Tarana Wireless, Inc.’s three major funders. AT&T is a member of the CTIA. Since Dan Kelly’s salary is paid for by Tarana, and because AT&T is one of the top three financiers of Tarana Wireless, it is more than theoretical to presume AT&T is paying for at least a portion of Dan Kelly’s salary.
Another member of the CTIA, Nokia, is named by Tarana Wireless as a global partner.
Two other members of the CTIA, Ericsson and Sony Mobile, are linked to Tarana Wireless through a senior advisor, Dr. Jan Uddenfeldt, who also sits on Tarana Wireless’s Board of Directors.
According to federal law and the Code of Conduct for federal judges, a financial interest by the judge or his or her spouse to a litigant is grounds for recusal.
Title 28 U.S. Code § 455 defines “financial interest” as “ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.”
Judge Friedland’s husband, Daniel Kelly, has an active role as a software designer of Tarana Wireless’s products. He is directly involved in products that will make money for two key CTIA members: AT&T and Nokia. Neither of those companies stood before Judge Friedland on September 13, 2016 in the case of CTIA v. City of Berkley. Yet the trade association that represents AT&T and Nokia did, and therein lies the potential conflict for Judge Michelle T. Friedland.