Berkeley Cell Phone "Right to Know" Ordinance

Berkeley Cell Phone "Right to Know" Ordinance
saferemr.com, 21 April 2017

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

Today the city of Berkeley won a major decision in a federal appeals court. The court denied a request by the CTIA-The Wireless Association to block Berkeley’s landmark cell phone “right to know” ordinance.

Berkeley’s ordinance which has been in effect since March 21 of last year requires cellphone retailers in the city 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 three judges who heard the case on September 13, 2016 for the Ninth Circuit Court of Appeals upheld the district court’s denial of the industry association’s request for a preliminary injunction. The panel determined that “there was no irreparable harm based on the First Amendment or preemption, that the balance of equities tipped in Berkeley’s favor, that the ordinance was in the public interest, and that an injunction would harm that interest.”

Although the federal appeals court hearing only addresses the industry's request for a preliminary injunction, the ruling bodes well for the City because the industry’s argument in the overall case for killing the ordinance is based upon the First Amendment and federal preemption. The court rejected those arguments stating that that the ordinance is in the public interest as it complements and reinforces existing Federal law and policy.

More information about the ordinance and the lawsuit appears below. For links to media coverage see: Berkeley Cell Phone "Right to Know" Ordinance: Media Coverage.

The ruling by the U.S. Court of Appeals for the Ninth Circuit can be downloaded from http://bit.ly/CTIABkly042117.

A summary of the ruling follows:

“The panel affirmed the district court’s order denying a request for a preliminary injunction seeking to stay enforcement of a City of Berkeley ordinance requiring cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation ….

… the panel held that the City’s compelled disclosure of commercial speech complied with the First Amendment because the information in the disclosure was reasonably related to a substantial governmental interest and was purely factual. Accordingly, the panel concluded that plaintiff had little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance was unconstitutional.

The panel determined that there was little likelihood of success on plaintiff’s contention that the Berkeley ordinance was preempted. The panel held that Berkeley’s compelled disclosure did no more than alert consumers to the safety disclosures that the Federal Communication Commission requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. The panel held that far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.

In affirming the denial of a preliminary injunction, the panel further determined that there was no irreparable harm based on the First Amendment or preemption, that the balance of equities tipped in Berkeley’s favor, that the ordinance was in the public interest, and that an injunction would harm that interest.

Dissenting in part, Judge Friedland stated that Berkeley’s ordinance likely violates the First Amendment and therefore should have been preliminarily enjoined. She stated that taken as a whole, the most natural reading of the Berkeley disclosure warns that carrying a cell phone in one’s pocket is unsafe. Yet Berkeley had not attempted to argue, let alone to prove, that message was true.”

http://www.saferemr.com/2014/11/berkeley-cell-phone-right-to-know.html