Phonegate USA: Apple iPhones Win a Legal Battle

The legal battle will be long and difficult. We have suffered a setback with this decision concerning the iPhones of the giant Apple in the American chapter of Phonegate. But the most shocking thing for Dr. Marc Arazi: "is the total absence of media coverage of this judgment, both in the USA and in the rest of the world. 'Do not talk about the case' is the motto that seems to be the rule for the mobile phone industry."

Phonegate USA: Apple iPhones win a legal battle
Equipe Phonegate 20 Sep 2022

In a ruling issued on August 26, 2022, the judges of the 9th Circuit affirmed that Federal Communications Commission (FCC) regulations prevail in the lawsuit against Apple over the radiation of its iPhones.

FCC regulations prevail over those of the states

The District Court dismissed the class action lawsuit claiming that Apple’s iPhones expose their users to radiation exceeding regulatory levels in actual use (for example, as carried in a pocket).

“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 line with the tech giant’s concerns, the judges said that federal regulations setting radiation levels prevailed over state law under which the case against the California giant could be brought to court:

“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. »

A change in legal strategy that defeats the plaintiffs

Moreover, the plaintiffs did not pursue an appeal of their complaint that the iPhones emit RF radiation at levels exceeding the maximum allowed by FCC regulations. This incomprehensible change in legal strategy had serious consequences, as the judgment indicates:

“Plaintiffs’ concession that Apple’s iPhone complies with emission levels prescribed by the FCC is fatal to their appeal.”

Our organization asked attorney Elizabeth Fegan, of the Fegan Scott law firm, about the possible consequences of this action against Apple. Here is her answer:

“The decision creates a Circuit split (conflict between courts at the appellate level). Accordingly, we are considering our options, which includes filing a petition for certiorari (request to allow an appeal) to the United States Supreme Court. The petition is due 90 days from the date of the 9th Circuit’s opinion (unless an extension is granted).”

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