by Nathan Solis, courthousenews.com, 17 September 2020
|(AP Photo/Anjum Naveed)|
The judge concluded that the city’s ordinance is preempted by the Federal Communications Commission’s regulatory actions on radio frequency emissions.
U.S. District Judge Edward Chen wrote in an 18-page order “the FCC could properly conclude that the Berkeley ordinance — as worded — overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC.”
The city’s 2015 ordinance required retailers to give customers guidance on avoiding radio-frequency exposure from cellphones. CTIA filed their lawsuit in the Northern District of California and the court ruled in their favor, finding the ordinance language problematic.
But a modified ordinance deleted the troublesome language and the court’s preliminary injunction was lifted. CTIA sought an appeal, which in 2017 the Ninth Circuit Court affirmed the district court’s ruling and the ordinance survived a challenge from the U.S. Supreme Court.
The Supreme Court vacated a prior ruling upholding the challenged law and sent the case back to the Ninth Circuit, mandating reconsideration in light of the high court’s decision to strike down California’s required disclosures on abortions services in National Institute of Family and Life Advocates v. Becerra in June 2018.
CTIA motioned for judgment on the pleadings, arguing that the FCC in December 2019 issued an “opinion and order on radiofrequency emissions that upends the landscape of this case in several important ways, fatally undermining the city’s arguments in defense of the ordinance and the very basis on which the Ninth Circuit affirmed this court’s decision.”
The ordinance requires retailers to give notice that if customers “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.”
CTIA argues the ordinance is compelled speech that violates the First Amendment and is preempted by the FCC’s policies on safeguarding against potential health risks from RF emissions and maintaining a wireless communication system.
On Thursday, U.S. District Judge Edward Chen ruled in favor of the trade group, finding Berkeley’s ordinance is preempted by a 2019 RF update that found even if certified devices produce RF exposure that would be in excess of FCC limits, the exposure would be well below levels considered dangerous.
The 2019 RF update was published after the district court ruled and the Ninth Circuit Court took up the appeal.
Chen also found that the Berkeley ordinance was preempted by a statement of interest from the FCC that the ordinance should not be allowed to require the city’s warnings.
Chen wrote, “The Statement is a clear statement by the FCC that the Berkeley ordinance specifically constitutes overwarning.”
He goes on to say, “The Statement of Interest is consistent with the 2019 RF Order in recognizing that additional disclosures pose a risk of overwarning.”
“Furthermore, even if the Berkeley ordinance specifically is (as the Ninth Circuit indicated) literally true and not misleading, it does not necessarily follow that there is no risk of “overwarning” — especially given that 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.”
Berkeley argues their ordinance complements the FCC order, but Chen says the FCC’s objective is not focused on just health and safety, but to balance that with promoting the growth of the industry.
The court cannot decide if the FCC’s position in the statement of interest is not persuasive in the context of this competing objective and the required disclosure in the case, wrote Chen.
“Given the specificity of the warning required by the Berkeley ordinance, the implied risk to safety if the warning is not followed (a risk the FCC has concluded does not exist), and the acknowledged” on whether RF radiation from cellphones are dangerous if the phones are kept too close to a person’s body over time, “the FCC could properly conclude that the Berkeley ordinance – as worded – overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC.”
Chen granted CTIA’s motion for judgment on the pleadings and because he found preemptions, the First Amendment violation argument does not need to be addressed.
The city of Berkeley’s attorneys and the plaintiff’s attorneys did not immediately respond to an email for comment on the court’s order.