United States: Apple Urges Justices Not To Take Up IPhone Radiation Suit

Apple Urges Justices Not To Take Up IPhone Radiation Suit
By Nadia Dreid, Law360 (April 17, 2023)

Apple wants the U.S. Supreme Court to stay out of a suit targeting the tech behemoth for the amount of radiation its iPhones put off, telling the justices that federal law is quite clear that the Federal Communications Commission is the one that sets radiofrequency emissions and not states or localities.
There's no reason for the justices to disturb the Ninth Circuit's ruling, which found that the iPhone users' suit was preempted by federal law, Apple said Friday in its opposition to the proposed class's petition for a writ of certiorari.

When the Ninth Circuit said the suit was preempted by federal law, it was "merely join[ing] every other court to confront the issue by holding that the FCC's regulations preempt conflicting state standards on RF emissions," Apple said.

The FCC is the one that sets the radiofrequency thresholds, which currently "incorporate a 50-fold safety margin from any observed effects of RF exposure," according to Apple. And the agency does so while keeping in mind the balance that Congress wanted it to strike, according to the company.

"Allowing juries (not to mention state legislatures and city councils) to subvert that balance by imposing myriad conflicting standards would plainly contravene Congress's intent, as expressly set forth in the governing statute, to promote an efficient and uniform wireless network," Apple said.

Even if the justices were interested in tinkering with the current doctrine and legal understanding of preemption when it comes to the FCC and radiofrequency emissions, Apple said that this case is a "poor vehicle" to do that.

The instant suit has an issue with shifting liability, with the proposed class of iPhone users at times claiming that Apple is exceeding FCC radiofrequency emission limits and at others arguing that the agency's limits are insufficient.

"This repeated reformulation of petitioners' claims leaves it unclear precisely what state-law claims they now ask this court to assess for a potential conflict with federal law," Apple said.

Apple has been fending off the allegations since 2019. The tech behemoth managed to convince both a California federal court and the Ninth Circuit that the California consumer protection law the iPhone users were bringing suit under was preempted by federal law.

Now the iPhone users are hoping the Supreme Court will breathe new life into their litigation, and the proposed class has its supporters.

The city of Berkeley, California, has been on the losing end of its own fight regarding the line between state and federal law when it comes to regulating radiofrequency levels, and it has asked the justices to take up the case to keep the Ninth Circuit from leaning too hard toward preemption.

The proposed class is represented by Matthew W.H. Wessler of Gupta Wessler PLLC.
Apple is represented by Joseph Russell Palmore of Morrison Foerster LLP.
The case is Andrew Cohen et al., Petitioners v. Apple Inc., case number 22-698, before the U.S. Supreme Court.

--Additional reporting by Jonathan Capriel. Editing by Daniel King.

https://www.law360.com/publicpolicy/articles/1597451/apple-urges-justices-not-to-take-up-iphone-radiation-suit