Bonnie Eslinger, Law360, Aug 26, 2022
Apple iPhones expose users to dangerous radiation, saying Friday that federal regulations setting radiation levels preempted the state law used to bring the case against the tech giant.
The Communications Act of 1934 and the Telecommunications Act of 1996 granted to the Federal Communications Commission broad regulatory powers over wireless communications devices, the panel said.
"We hold ... that the FCC's regulations of the [radiofrequency] radiation of cell phones, promulgated under the 1934 Act, preempt plaintiffs' state-law claims as they are presented to us on appeal," says the judgment written by U.S. Circuit Judge William A. Fletcher.
While the 1996 Act set exposure limits for radiofrequency electromagnetic waves, or RF radiation, on cell phones and other devices, the rulemaking was initiated under the 1934 law, according to Friday's judgment.
Cell phones rely on RF radiation to send and receive signals, the judgment notes.
The iPhone users who brought the case against Apple also argued that the 1934 Act did not authorize preemption for regulations that were subsequently put into effect, but the panel held that a federal statute did not need to specify the rules would have such force.
Further, Congress "need not expressly delegate preemptive authority to the FCC for its regulations to preempt state law," the judgment states.
Friday's judgment also underscores that, on appeal, the plaintiffs did not pursue the allegation in their complaint that Apple's iPhones emit RF radiation at levels above the maximum permitted by the FCC regulations. Instead, they argued that the Apple devices are unsafe "in spite of" compliance with federal standards and that Apple failed to disclose their dangers to consumers.
"Plaintiffs' concession that Apple's iPhone complies with emission levels prescribed by the FCC is fatal to their appeal," the judgment states.
The 1934 Act authorizes the FCC to balance potentially competing factors in setting safe and uniform limits for RF radiation from cell phones, according to the judgment.
"Allowing state tort law to prescribe lower levels of RF radiation than the levels prescribed by the FCC would interfere with the nationwide uniformity of regulation that is the aim of the Act, and would render the FCC's statutorily mandated balancing essentially meaningless," the decision states.
Counsel for the iPhone users also argued that in the 1996 Act, Congress gave the FCC limited preemptive authority, but the Ninth Circuit panel said the scope of preemption is controlled by the 1934 Act.
While the 1996 Act directed the FCC to complete the rulemaking related to RF radiation for cell phones, it was the 1934 Act that provided the underlying authority for adopting the new regulations, the panel decision said.
Further, two preemption provisions in the 1996 Act do not apply, according to the Ninth Circuit judgment. One says nothing in the statute limits the authority of a state or local government over decisions regarding the placement, construction, and modification of personal wireless service facilities," That relates to such facilities as cell phone towers and has "nothing to do with RF radiation emissions from cell phones," the Ninth Circuit states.
Another preemption provision in the 1996 statute says, "This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede federal, state, or local law unless expressly so provided in such act or amendments." This does not apply to the 1934 Act, the panel said.
As a result, the panel affirmed the district court's summary judgment for Apple.
While some studies have described adverse biological effects resulting from exposure to low levels of RF radiation at levels emitted by cell phones, many of these effects could not be replicated in later studies, the judgment adds.
"Current FCC regulations for cell phones set RF radiation limits far below the level at which adverse biological effects in laboratory animals have been observed," Judge Fletcher states.
In 1996 order, the FCC adopted guidelines from the American National Standards Institute that limited the maximum RF exposure to a 1.6 W/kg maximum for cell phones.
In December, counsel for the proposed class urged the Ninth Circuit to overturn the lower court's findings, arguing congressional intent and an "unbroken line" of U.S. Supreme Court rulings pave the way for the suit to move forward.
The plaintiffs originally claimed that the RF radiation emitted by iPhones regularly exceeded the federal exposure limit and brought eight claims against Apple under state tort and consumer fraud laws.
In an October 2020 order granting Apple's motion for summary judgment, U.S. District Judge William Alsup said the suit is preempted by the FCC regulations.
Matthew W.H. Wessler of Gupta Wessler PLLC, who represents the proposed class, told the three-judge panel during a remote video conference hearing that the plain text of the Communications Act of 1934 and Telecommunications Act of 1996 made "clear" that Congress did not intend for any state law to be preempted when it came to regulating cell phones and that this was evident in numerous places within the statute.
But an attorney for Apple told the court that if it sides with the proposed class, chaos in communication laws will follow, noting that the Federal Communications Commission is opposed to the proposed class' claims being brought before a jury.
"Plaintiffs want a California jury to determine that phones that the FCC said are safe, are dangerous, and find that disclosures that the FCC said are sufficient are inadequate," Joseph R. Palmore, who represents Apple, told the panel. "And they would invite juries in all 50 states to make their own determinations on these same questions."
In the suit, the proposed class alleged the iPhones exceeded the FCC's regulations, spurred by a media report that reached that conclusion after third-party testing of the phones.
In its Friday judgment, the Ninth Circuit panel notes that in response to the media report, the FCC did its own testing of the iPhones. The findings, published in December 2019, maintained that the measured RF radiation exposure from iPhones was well within the safety limits.
Representatives for the parties did not immediately respond to requests for comment on Friday's decision.
U.S. District Judges William A. Fletcher, Johnnie B. Rawlinson and John B. Owen sat on the panel for the Ninth Circuit.
The plaintiffs are represented by Matthew W.H. Wessler and Linnet Davis-Stermitz of Gupta Wessler PLLC and Elizabeth A. Fegan and Jessica H. Meeder of Fegan Scott LLC.
Apple Inc. is represented by Joseph R. Palmore, William F. Tarantino, James R. Sigel and Adam L. Sorenson of Morrison & Foerster LLP.
The case is Cohen et al. v. Apple Inc. et al., case number 20-17307, in the U.S.Court of Appeals for the Ninth Circuit.
--Additional reporting by Mike Curley and Craig Clough. Editing by Vaqas Asghar.