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08 October 2020

California: Berkeley settles with wireless industry, will not require radiation warning to cell phone customers — for now

Berkeley settles with wireless industry, will not require radiation warning to cell phone customers — for now
by Bob Egelko, sfchronicle.com, 7 October 2020

Under pressure from a judge and federal regulators, Berkeley will not require cell phone retailers to warn customers about the possible radiation dangers of holding phones close to their bodies, says a lawyer for the city.

Ruben Rosales makes a call on Telegraph 
Avenue. Berkeley settled with the wireless
industry for now. 
Photo: Michael Macor /
The Chronicle 2017
Berkeley’s ordinance took effect in 2016 and had survived years of legal challenges by the cell phone industry. But after the Federal Communications Commission, controlled by appointees of President Trump, found that the warnings were unnecessary and would hurt business, a federal judge ruled last month that the city was interfering with federal oversight of the industry.

Berkeley could have appealed the ruling but instead settled the case this week by agreeing not to enforce the ordinance, in exchange for an agreement by the industry group, CTIA, not to seek attorneys’ fees, said Lawrence Lessig, a Harvard law professor and a lawyer for the city.

Lessig said the arrangement was not necessarily permanent.

The ordinance “remains on the books awaiting a better FCC,” he said in an email to others on Berkeley’s legal team. “We should get through this crisis (the election) and then see what makes the most sense.”

Lessig was apparently suggesting that federal commissioners under a new administration could re-evaluate the ordinance, assess it more favorably and enable the city to reopen the case.

In the meantime, this is a “devastating blow,” said Ellen Marks of the California Brain Tumor Association, which supported the Berkeley ordinance.

“The FCC is looking the other way and defending an industry it is supposed to regulate,” she said.

A UC Berkeley health teacher who worked on the ordinance said the city should have appealed the ruling rather than settling the case.

“I believe we can prove fraudulent behavior on the part of the FCC,” said Joel Moskowitz, director of the university’s Center for Family and Community Health.

CTIA representatives could not be reached for comment.

The ordinance would require dealers to notify their customers that the FCC sets radiation standards for cell phones and that exposure “may exceed the federal guidelines” if users carry their phone in a pants or shirt pocket or tucked into a bra while they are connected to a wireless network.

Retailers would have to display the warning on a poster or in a handout flyer, attributed to the city of Berkeley.

Cell phone companies argued that the ordinance violated their free-speech rights by requiring them to deliver a message with which they disagreed. They made that argument earlier in a successful challenge to a San Francisco ordinance, the first of its kind in the nation, which would have required retailers to give buyers a fact sheet saying the World Health Organization considered cell phones’ emissions a “possible carcinogen,” and showing human silhouettes absorbing radiation.

But Berkeley’s more modest measure would use the same warning that the FCC requires retailers to include in the manual of every cell phone they sell. The Ninth U.S. Circuit Court of Appeals rejected CTIA’s free-speech claim last year, and the Supreme Court denied review of the industry group’s appeal.

However, the FCC, which had not previously opposed the ordinance, said in a court filing this June that the information in its manuals was enough to inform consumers about potential radiation risks from cell phones. Further warnings required at the time of sale “may create an erroneous perception that (radio-frequency) emissions from FCC-certified phones are unsafe,” the commission said.

In a Sept. 16 ruling, U.S. District Judge Edward Chen of San Francisco deferred to the commission’s conclusion that the ordinance would promote unwarranted fears about cell phone radiation.

“The FCC is tasked with balancing the competing objectives of ensuring public health and safety and promoting the development and growth of the telecommunications network and related services,” Chen said. He said the commission “could properly conclude” that the ordinance “over warns” consumers.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

https://www.sfchronicle.com/bayarea/article/Berkeley-settles-with-wireless-industry-will-not-15628995.php#photo-12458489

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