United States: High Court Won't Take Up IPhone Radiation Suit

High Court Won't Take Up IPhone Radiation Suit
by Katie Buehler, Law360, May 22, 2023

The U.S. Supreme Court on Monday declined to hear arguments in a proposed class action targeting Apple Inc. for the amount of radiation its iPhones emit, leaving in place a Ninth Circuit panel ruling that the California consumer protection law the consumers had brought claims under was preempted by federal law.

The justices denied a group of consumers' bid to weigh in on whether the Federal Communications Commission's guidelines on exposure limits for radiofrequency electromagnetic waves, or RF radiation, impliedly preempted conflicting state cellphone safety laws. They said the high court's input was needed to settle a circuit split.

The proposed class of consumers, led by Andrew Cohen, had asked the high court in a January petition for writ of certiorari to reverse a Ninth Circuit panel ruling that the FCC had broad regulatory powers over wireless communication devices. The panel's ruling, the consumers argued, had "deepened a split" over whether FCC guidelines impliedly preempted state laws.

According to the January petition, the Fourth Circuit had determined that the FCC's guidelines didn't preempt any state-law claims, while the D.C. Circuit had ruled the guidelines preempt some state-law claims. The Third Circuit, meanwhile, agreed with the Ninth Circuit that the guidelines preempted all state-law claims.

The circuit split alone warranted high court review, the proposed class argued. But this case also presented the Supreme Court with an opportunity to issue a definitive rule instructing judges on whether Congress' or the agency's intent counts in preemption situations and how to discern that intent, according to the January petition.

Apple, however, told the court in its April response there was no need for the justices to disturb the Ninth Circuit panel's ruling, which the tech giant claimed joined every other court in agreeing that the FCC's regulations preempted conflicting state standards.

Taking regulatory power away from the FCC and allowing individual states to establish their own RF radiation limits would also contravene Congress' intent to have a single, nationwide standard, the company argued.

The proposed class sued Apple in 2019 in the Northern District of California, alleging its iPhones exceeded the FCC's maximum cell phone RF radiation exposure limit of 1.6 watts per kilogram. Cell phones rely on RF radiation to send and receive signals.

The lawsuit, which launched eight claims under state tort and consumer protection laws, was spurred by a media report that a third-party had tested the phones' emissions and determined they exceeded the FCC's regulation. Later on, the FCC completed its own testing in response to the media report and found the phones' RF radiation exposure was well within safety limits.

In October 2020, U.S. District Judge William Aslup granted Apple's motion for summary judgment, finding the suit was preempted by the FCC regulations. The proposed class appealed that ruling to the Ninth Circuit later that year, but a three-judge panel ultimately agreed with Judge Aslup.

The Communications Act of 1934 and the Telecommunications Act of 1996 granted the FCC broad regulatory powers over wireless communications devices, the panel held. The 1934 act, for example, authorized the FCC to balance potentially competing factors in setting safe and uniform limits for RF radiation from cell phones.

Congress, the panel added, intended for regulations issued under the broad power to preempt state-law standards.

Counsel for the proposed class and Apple didn't immediately respond to requests for comment Monday.

The consumers are represented by Matthew W.H. Wessler, Deepak Gupta, Linnet Davis-Stermitz and Jennifer Bennett of Gupta Wessler PLLC and Elizabeth A. Fegan of Fegan Scott LLC.

Apple is represented by Joseph Russell Palmore, Alexandra M. Avvocato and James R. Sigel of Morrison Foerster LLP.

The case is Andrew Cohen et al. v. Apple Inc., case number 22-698, in the Supreme Court for the United States.

--Editing by Alyssa Miller.

Update: This story has been updated to include more information about the appeal.

https://www.law360.com/articles/1680025/high-court-won-t-take-up-iphone-radiation-suit