9th Circuit: Berkeley RF Law Constitutional, 'Reinforces' Federal Rules
The 9th Circuit U.S. Court of Appeals again upheld an RF safety law in Berkeley, California, that requires the wireless industry to provide a warning about possible dangers of too much exposure to wireless frequencies. The Supreme Court had required the appeals court to revisit its 2017 decision, appealed by CTIA, because of SCOTUS’ 2018 decision rejecting a California disclosure law in National Institute of Family and Life Advocates (NIFLA) v. Becerra (see 1809070041). Dissenting Judge Michelle Friedland would have preliminarily enjoined the law for unconstitutionally forcing businesses to make false or misleading statements. The ruling gives some leeway for localities to address constituents' RF concerns, said Best Best local lawyer Gail Karish.
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CTIA is unlikely to succeed on claims the local law violates the First Amendment or conflicts with federal law, 9th Circuit Judge William Fletcher wrote in the majority opinion. The court weighed parties’ NIFLA arguments and the 9th Circuit’s 2019 decision in American Beverage Association v. San Francisco, Fletcher said. The 2019 case, involving a soda warning, reaffirmed the court's reasoning from the first CTIA decision for analyzing a First Amendment claim on compelled commercial speech, the judge said.
The majority went line by line through the required disclosure to test First Amendment claims and found it to be purely factual and not misleading or controversial, Fletcher said. "Berkeley’s required disclosure is uncontroversial within the meaning of NIFLA,” which didn’t question legality of health and safety warnings, he wrote. “It does not force cell phone retailers to take sides in a heated political controversy. The FCC’s required disclosure is no more and no less than a safety warning, and Berkeley’s required disclosure is a short-hand description of the warning the FCC already requires cell phone manufacturers to include in their user manuals.”
Friedland disagreed with reading each sentence in isolation, saying that’s not how consumers would read the required message. “Taken as a whole, the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe,” said the judge’s dissent. “Yet Berkeley has not attempted to argue, let alone to prove, that message is true.”
The mandate requires no more disclosure than the FCC does, said Fletcher, rejecting CTIA’s pre-emption argument. "Berkeley’s compelled disclosure does no more than alert consumers to the safety disclosures that the FCC requires, and direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure,” Fletcher wrote. “Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.”
“This decision suggests some types of local regulation, if carefully crafted, will likely not run afoul of federal law and policy,” emailed Karish, a California attorney for local governments. “Local authorities care deeply about the health and welfare of their citizens and they do hear from constituents concerned about the safety of RF emissions associated with wireless facilities and devices. But they also know this is an area where there is federal preemption.”
“Radiofrequency energy from wireless devices and networks, including 5G, has not been shown to cause health problems,” emailed a CTIA spokesperson. “We are disappointed that the city of Berkeley continues to mislead the public.” The association retains the option to seek another appeal at the Supreme Court. Berkeley didn’t comment.
Industry claims that RF radiation is safe didn’t sway the majority to reject requiring disclosure of possible harms. “The fact that RF radiation from cell phones had not been proven dangerous was well known to the FCC in 1996 when it adopted [Specific Absorption Rate (SAR)] limits to RF radiation; was well known in 2013 when it refused to exclude cell phones from its rule adopting SAR limits; and was well known in 2015 when it required cell phone manufacturers to tell consumers how to avoid exceeding SAR limits,” Fletcher wrote. “After extensive consultation with federal agencies with expertise about the health effects of radio-frequency radiation, the FCC decided, despite the lack of proof of dangerousness, that the best policy was to adopt SAR limits with a large margin of safety.”
Too many cautions “may cause people to pay less attention to warnings generally,” Friedland warned. “If Berkeley wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf.”