United States: Berkeley Wants High Court To Hear IPhone Radiation Suit

Berkeley Wants High Court To Hear IPhone Radiation Suit
By Jonathan Capriel, Law360, Mar 15, 2023

Law360 (March 15, 2023, 10:11 PM EDT) -- 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 wants the U.S. Supreme Court to step into another case to prevent the Ninth Circuit from leaning too hard toward preemption.

Berkeley filed an amicus brief before the justices Wednesday, asking them to grant a writ of certiorari to a proposed class of iPhone users who are suing Apple over what they say are dangerous levels of radiation that the smartphones exposed them to.

The Ninth Circuit has tossed the phone users' case, saying that the California consumer protection law they brought their suit under was preempted by the Federal Communications Commission's power to regulate radiation levels and declare what amount is considered safe.

But Berkeley says courts have been taking preemption too far.

"Even if the agency has the power to preempt state law under the [Communications Act], this court should direct that it should only be held to have achieved that preemptive effect when it states its intent expressly," the city said in its brief.

The iPhone users are hoping the justices take up their case and breathe new life into their litigation, and Berkeley is, too, telling the high court that it spent years fending off litigation from telecom trade group CTIA over a local ordinance that required cellphone retailers to provide customers with the same information about radiofrequency exposure the FCC requires manufacturers to provide.

The case worked its way up to the U.S. Supreme Court and back down before a district court judge leaned on a letter from the general counsel of the FCC to declare the ordinance preempted. That decision, as well as the Ninth Circuit's in this case, "makes a mockery of state and local prerogatives, even in the heartland of police power over health and safety concerns," Berkeley told the court.

Clarity is essential "if the values of federalism are to survive," the city said.

"As it stands, state and local governments across the country are at the mercy of the slightest whiff of agency consideration, as stated by nothing more than a letter from an agency general counsel," Berkeley said.

Berkeley is represented by Farimah Brown and Brendan Darrow of the Berkeley City Attorney's Office.

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 suit is Andrew Cohen et al., Petitioners v. Apple Inc., case number 22-698 before the U.S. Supreme Court.

--Editing by Linda Voorhis.

https://www.law360.com/articles/1586322/berkeley-wants-high-court-to-hear-iphone-radiation-suit