Judge to Rule on San Francisco Radiation Ordinance Within Days, After Unloading on City Attorney
SAN FRANCISCO -- A federal judge pounded a city attorney Thursday with First Amendment objections to a San Francisco ordinance requiring cellphone retailers to provide government-written disclosures about handset radiation, health questions and ways to minimize exposure. “It’s possible UFOs are going to come down,” U.S. District Judge William Alsup told Deputy City Attorney Vince Chhabria, challenging him as to whether the city could require a disclosure that “if you're concerned about UFOs, here are the steps you can take.”
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Alsup said he would rule within two weeks, and probably within one, on a request by CTIA for a preliminary injunction to prevent enforcement of the ordinance. The city agreed in court to a request by the judge to hold off on enforcement, scheduled to start Tuesday, until he can get his order out. Toward the end of the session, Alsup stepped back from any indications that he had decided the case. “It’s not my job to mediate … the ultimate science” regarding any possible health risks from cellphone use. “I don’t know the answer."
Afterward, Chhabria said he was “concerned about the judge’s comparison” between cellphone radiation and UFOs. He called the hearing “interesting.” CTIA’s lawyers declined to comment. Their argument that the regulations also violate the U.S. Constitution’s Supremacy Clause by intruding on the FCC’s safety standards and judgments got a reception from Alsup that sounded as hostile to CTIA’s case as the one on the First Amendment seemed friendly.
"The FCC has concluded after voluminous study -- and they're the experts, not the World Health Organization” -- that the handsets on the market can be sold with a “fifty-fold” margin of safety, Alsup told Chhabria. The lawyer acknowledged that “there is no scientific evidence either way as to whether anyone has gotten cancer from using a cellphone.” Everyone is constantly “bathed in radiofrequency radiation,” Alsup said. “So if somebody were going to get cancer from radiofrequency radiation, you would think it would have happened by now.” The worry is about long-term use, particularly when even very young children hold handsets to their heads for long periods, Chhabria said.
City after city kept fluoride out of its drinking water over fears that it would “sap your precious bodily fluids,” Alsup recounted from his youth in the 1950s. “You think about that,” he told Chhabria. He compared the worries to the San Francisco disclosure, which without proof “scares people that they're going to get cancer."
But “the industry is wrong,” too, Alsup said: “The FCC never found” cellphone use “absolutely safe.” He told Chhabria, “I agree with you on that point.” CTIA is the only source in the world that declares handsets risk-free, the lawyer said.
Of the 800 substances that the WHO has looked at, it has concluded that one probably isn’t carcinogenic, said Andrew McBride of Wiley Rein, who handled CTIA’s First Amendment argument. “Coffee and pickles are in there as possibly carcinogenic.” The WHO doesn’t contradict the FCC concerning cellphone safety, he said; the agencies take different approaches. To the international body, everything “is a possible carcinogen until it’s proven differently,” McBride said.
Alsup expressed incredulity over a tip in the city disclosures about keeping a phone on a belt clip instead of a pants pocket. “An eighth of an inch?” he said, referring to the depth of his leather clip. “That’s a big deal? … Where does that science come from?” Chhabria said the suggestion follows recommendations in manufacturers’ product manuals.
"There’s not enough room” on counter displays known as callout cards for stickers that the city would require to be stuck on, and the radiation message isn’t attributed to the city, Alsup said. “This looks like it comes from Samsung, so how can you say you're not imposing speech?” Chhabria acknowledged a “slight distinction” between the stickers and the other required disclosures, a wall poster and an information sheet for shoppers, both clearly credited to the city. “You say it’s a subtle distinction,” Alsup shot back. “I don’t agree with that.” Chhabria said the sticker would intrude only on a commercial transaction and the size of the displays could be increased to make room.
On the federal preemption challenge, Seamus Duffy of the Drinker Biddle law firm argued for CTIA that the city’s disclosures would discourage cellphone adoption, impermissibly throwing off a balance of interests struck by the FCC. “That’s ridiculous,” Alsup said. “The FCC has never said everyone has to be wired in 24/7.” The city’s “fundamental message that cellphones are dangerous” contradicts the FCC’s findings, Duffy said. “But it doesn’t say that cellphones are dangerous,” the judge replied.
"What’s missing” that would keep the disclosures from being improperly misleading is that the handset is “certified safe by the FCC,” Duffy said. Alsup fired back: “That’s not true. It has not been certified as safe. That is your spin.” After the exchange on preemption, Duffy told the judge, “There’s a reason our First Amendment argument comes first.”