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24 July 2020

California: Wireless Industry Calls For End To Berkeley RF Exposure Law

Wireless Industry Calls For End To Berkeley RF Exposure Law
Law360, 23 July 2020

Law360, San Francisco (July 23, 2020, 10:02 PM EDT) -- The wireless industry urged a California federal judge Thursday to find the city of Berkeley, California's wireless disclosure ordinance violates the First Amendment, saying the Federal Communications Commission supports the trade group's view that cellphone retailers need not warn customers about potential harm from radiofrequency emissions.

CTIA – The Wireless Association, a trade association composed of U.S. wireless communications companies including AT&T, Verizon, Samsung and Apple, urged U.S. District Judge Edward Chen to grant its bid for judgment on the pleadings that Berkeley's ordinance violates free speech laws and is preempted by federal regulations.

An attorney for the trade group, Theodore B. Olson of Gibson Dunn & Crutcher LLP, told Judge Chen the ordinance must go. Olson said the FCC had made clear that mobile phones legally sold in the United States pose no health risks to consumers and that "no matter how far or how close they are carried to the body, they are safe."

Olson, pointing to a June 2020 letter of support from the commission to the court stating that the Berkeley warnings are unnecessary or even confusing, said the city's ordinance risks upsetting the balance that the FCC has stuck between public safety and wireless network connectivity.

An attorney for Berkeley, Lawrence Lessig of Harvard Law School, brushed aside the FCC's letter of interest, saying that it merely reflects the views of the FCC's general counsel, who is appointed by the FCC chairman, who in turn is appointed by the president. Lessig said that the FCC's general counsel clearly has views about what the policy is and voices those views, but that they are not necessarily the agency's.

Lessig told Law360 after the hearing that the FCC's general counsel had become "extremely activist" and "extremely aggressive" in his pursuit of his policy preferences.

But Lessig said this case calls into question to what extent the general counsel can establish policy for the FCC.

The lawsuit stems from a 2015 ordinance requiring phone sellers to inform customers that holding an internet-connected mobile phone close to their skin — such as "in a pants or shirt pocket or tucked into a bra" — could expose users to too much radiofrequency radiation.

CTIA sued to block the ordinance in June 2015, arguing that the city's "opinions" were "unfounded" and preempted by the FCC's wireless guidelines. CTIA asserted that the rule went against First Amendment principles by forcing retailers to issue the warnings.

The case reached the Ninth Circuit, which originally upheld the mandate in 2017, but the U.S. Supreme Court sent the case back to the appellate court for a rethink. On review, a divided Ninth Circuit again declined to block the ordinance, and in December, the high court refused to hear the case a second time.
In the meantime, the FCC revisited its radiofrequency guidelines in 2019, finding that the current standards are among the strictest worldwide and are still effective in protecting people from harmful wireless transmissions.

The city of Berkeley says its ordinance remains constitutional and does not present an "'obstacle' to FCC policy.

The trade group's attorney, Olsen, argued on Thursday that the city's ordinance is "overwarning and alarming" and that the FCC "could not be clearer" in its assertion that mobile devices certified for sale in the U.S. pose no risk to consumers.

"This ordinance poses an obstacle to the execution of the public policy that the FCC is responsible for enforcing. That could not be clearer either," Olsen told the judge.

But Lessig said it could be clearer and that the city's warning doesn't create an erroneous public perception or overwarning.

Lessig argued that "warnings enable people to make choices on the basis of their own judgment" without requiring the government issuing the warning to make a precise determination.

There is nothing that preempts local governments from issuing regulations consistent with that of the federal government, Lessig told the judge.

Representatives for the CTIA did not immediately respond to Law360's request for comment Thursday afternoon.

CTIA is represented by Theodore B. Olson, Helgi C. Walker, Jacob T. Spencer, Joshua D. Dick and Alexander N. Harris of Gibson Dunn & Crutcher LLP.

The city of Berkeley, California, is represented by Lawrence Lessig of Harvard Law School and Farimah F. Brown and Christopher D. Jensen of the city attorney's office.

The case is CTIA – The Wireless Association v. City of Berkeley et al., case number 3:15-cv-02529, in the U.S. District Court for the Northern District of California.

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