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14 January 2018

The Wireless Association petitions the U.S. Supreme Court to Hear Their Case Against the City of Berkeley's Cell Phone "Right to Know" Ordinance

UPDATE  18 January 2018:  The city [of Berkeley], in a statement attributed to its representative in the case, Harvard law professor Lawrence Lessig, said Wednesday: “We do not believe there are any substantial questions decided by the 9th Circuit that conflict with the law elsewhere in the nation. We therefore do not believe this case merits Supreme Court review.” (Source: article published in East Bay Times, 17 January 2018.)

Berkeley Cell Phone "Right to Know" Ordinance
saferemr.com, 13 January 2018

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


The CTIA -The Wireless Association has petitioned the United States Supreme Court to hear their case against the City of Berkeley’s cell phone “right to know” ordinance.

The CTIA argues that the ordinance forces cell-phone retailers to deliver a misleading and controversial message to customers. The city asserts that the message is “literally true”; moreover, the city has a legitimate interest in protecting the health of its residents.

Berkeley’s ordinance which was adopted in May, 2015, has been in effect since March, 2016. The law requires cellphone retailers to provide consumers with the following notification:

“To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”

The appeals court ruled that government may compel commercial speech, absent any alleged false or deceptive communication, as long as the mandated message is “reasonably related to” any “more than trivial” governmental interest and is “literally true.” 

The city prevailed in the federal district court and in the Ninth Circuit Court of Appeals. In October of last year, the appeal courts denied the CTIA’s request for a hearing before the full court.

The case, “CTIA - The Wireless Association, Petitioner v. City of Berkeley, California, et al.,” was filed on the Supreme Court docket on January 9, 2018 as No. 17-976.

The CTIA is represented by Theodore Olson, a former U.S. Solicitor General, from the law firm Gibson Dunn & Crutcher LLP.

The city is represented by Harvard constitutional law professor Lawrence Lessig, Amanda Shanor, a Ph.D. candidate at Yale Law School, and Farimah Brown and Savith Iyengar of the Berkeley city attorney’s office.

The CTIA’s petition and appendix can be downloaded from the Supreme Court’s web site.

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