and the CTIA’s lawsuit: http://bit.ly/berkeleymedia Updates
The U.S. Supreme Court issued a ruling in CTIA v. Berkeley today. The CTIA had petitioned the Supreme Court to overturn the ruling made by the Ninth Circuit Court of Appeals. The appeals court had ruled against the CTIA’s request for a preliminary injunction that would block the city’s cell phone “right to know” ordinance pending resolution of the case. The ordinance was adopted in May, 2015 and has been in effect since March, 2016.
Instead of hearing the case, the Supreme Court sent the case back to the appeals court for further consideration. The Supreme Court wants the appeals court to review CTIA v. Berkeley in light of a new ruling in another case.
In NIFLA v. Becerra, the Supreme Court invalidated a California law that requires “pregnancy crisis centers” to provide information to patients about the availability of abortion services. Since these centers try to stop women from having abortions, they are opposed to providing their patients with such information.
That the Supreme Court clarified the limits of the ruling in NIFLA v. Becerra should help Berkeley defend its ordinance:
“… we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.” (National Institute of Family and Life Advocates v. Becerra, Opinion of the Court, pp. 16-17) https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.
The city’s cell phone “right to know” ordinance requires cell phone retailers either to post a notice or provide consumers with the following safety information:
SCOTUSblog has a summary of the issues, chronology of the filings, and links to all briefs submitted to the Supreme Court.
The CTIA -The Wireless Association has petitioned the United
States Supreme Court to hear their case against the City of Berkeley’s cell
phone “right to know” ordinance.
forces cell-phone retailers to deliver a misleading and controversial message
to customers. The city asserts that the message is “literally true”; moreover, the
city has a legitimate interest in protecting the health of its
residents.
2016. The law requires cellphone retailers to provide consumers with the
following notification:
“To assure safety, the Federal Government requires that cell
phones meet radiofrequency (RF) exposure guidelines. If you carry or use your
phone in a pants or shirt pocket or tucked into a bra when the phone is ON and
connected to a wireless network, you may exceed the federal guidelines for
exposure to RF radiation. Refer to the instructions in your phone or user
manual for information about how to use your phone safely.”
The city prevailed in the federal district court and in the Ninth Circuit Court of Appeals. In October of last year, the appeal courts denied the CTIA’s request for a hearing before the full court.
The case, “CTIA – The Wireless Association, Petitioner v.
City of Berkeley, California, et al.,” was filed on the Supreme Court docket on
January 9, 2018 as No. 17-976.
General, from the law firm Gibson Dunn & Crutcher LLP.
law professor Lawrence Lessig, Amanda Shanor, a Ph.D. candidate at Yale Law
School, and Farimah Brown and Savith Iyengar of the Berkeley city attorney’s
office.
October 18, 2017
Yesterday the CTIA submitted a statement to the federal district court regarding future management of the case. The CTIA indicated that it may petition the Supreme Court for a hearing even though the appeals court denied an en banc hearing.
According to the statement, both parties to the case have agreed that discovery and a trial is unnecessary, and neither party is willing to settle the case. The CTIA has until January 9, 2018 to petition the Supreme Court for a hearing.
October 11, 2017 (updated Oct 12, 2017)
The city of Berkeley won a decision in the federal appeals court today. The 9th Circuit Court of Appeals refused to reconsider its April decision to uphold a Berkeley ordinance that requires cell phone retailers to warn customers about possible radiation exposure.
The court rejected arguments made by the CTIA–The Wireless Association which argued for an en banc hearing of the case by a panel of eleven appeals court judges.
The majority opinion stated that upholding the court’s prior decision is consistent with four other circuit courts that have held government’s right to compel “purely factual” commercial speech to serve a compelling government interest, even in the absence of consumer deception.
“The decision of the district court was correct — twice. The decision of the court of appeals was correct — now twice,” Harvard Law professor Lawrence Lessig, who argued for the city in the case, said in an email to The Recorder. “We are hopeful that this will bring an end to this case, and the City of Berkeley will again be free to govern its citizens as its citizens demand.”
The Natural Resources Defense Council submitted a brief to support the City of Berkeley. The Association of National Advertisers, the American Beverage Association, and the Chamber of Commerce submitted briefs in support of the CTIA.
appeals court. The court denied a request by the CTIA–The Wireless Association to
block Berkeley’s landmark cell phone “right to know” ordinance.
21 of last year requires cellphone retailers in the city to provide consumers
with the following notification:
assure safety, the Federal Government requires that cell phones meet
radiofrequency (RF) exposure guidelines. If you carry or use your phone in a
pants or shirt pocket or tucked into a bra when the phone is ON and connected
to a wireless network, you may exceed the federal guidelines for exposure to RF
radiation. Refer to the instructions in your phone or user manual for
information about how to use your phone safely.”
for the Ninth Circuit Court of Appeals upheld the district court’s denial of
the industry association’s request for a preliminary injunction. The panel
determined that “there was no irreparable harm based on the First Amendment or preemption,
that the balance of equities tipped in Berkeley’s favor, that the ordinance was
in the public interest, and that an injunction would harm that interest.”
federal appeals court hearing only addresses the industry’s request for a
preliminary injunction, the ruling bodes well for the City because the industry’s argument in the overall case for killing the ordinance is based upon
the First Amendment and federal preemption. The court rejected those arguments
stating that that the ordinance is in the public interest as it complements and
reinforces existing Federal law and policy.
the ruling follows:
panel affirmed the district court’s order denying a request for a preliminary
injunction seeking to stay enforcement of a City of Berkeley ordinance
requiring cell phone retailers to inform prospective cell phone purchasers that
carrying a cell phone in certain ways may cause them to exceed Federal
Communications Commission guidelines for exposure to radio-frequency radiation
….
panel held that the City’s compelled disclosure of commercial speech complied
with the First Amendment because the information in the disclosure was
reasonably related to a substantial governmental interest and was purely
factual. Accordingly, the panel concluded that plaintiff had little likelihood
of success on its First Amendment claim that the disclosure compelled by the
Berkeley ordinance was unconstitutional.
panel determined that there was little likelihood of success on plaintiff’s
contention that the Berkeley ordinance was preempted. The panel held that
Berkeley’s compelled disclosure did no more than alert consumers to the safety
disclosures that the Federal Communication Commission requires, and to direct
consumers to federally compelled instructions in their user manuals providing
specific information about how to avoid excessive exposure. The panel held that
far from conflicting with federal law and policy, the Berkeley ordinance
complements and reinforces it.
affirming the denial of a preliminary injunction, the panel further determined
that there was no irreparable harm based on the First Amendment or preemption, that
the balance of equities tipped in Berkeley’s favor, that the ordinance was in
the public interest, and that an injunction would harm that interest.
in part, Judge Friedland stated that Berkeley’s ordinance likely violates the
First Amendment and therefore should have been preliminarily enjoined. She
stated that taken as a whole, the most natural reading of the Berkeley disclosure
warns that carrying a cell phone in one’s pocket is unsafe. Yet Berkeley had
not attempted to argue, let alone to prove, that message was true.”
Feb 19, 2017
Although it has been five months since the federal appeals court hearing, the three-judge panel has yet to rule on the request by the CTIA to block enforcement of the Berkeley cell phone “right to know” ordinance until the CTIA’s lawsuit against the city is adjudicated. In the meantime the law is in effect.
Judge Edward M. Chen has scheduled a case management conference in federal district court on March 23rd.
3:15-cv-02529-EMC – CTIA – The Wireless Association v. City of Berkeley et al Case Mgmt Conference (10:30 AM, March 23, 2017)
Sep 14, 2016
Video: Ninth Circuit Court of Appeals hearing: CTIA v. Berkeley
9/13/2016 (41 minutes)
CTIA – The Wireless Association appeals from the order dissolving a preliminary injunction in its suit challenging a Berkeley ordinance that requires cell phone retailers to provide a certain notice regarding radiofrequency energy emissions.
https://www.youtube.com/watch?v=NU2IqWFM5KY
Sep 13, 2016
Audio: Ninth Circuit Court of Appeals hearing: CTIA v. Berkeley (case no.16-15141)
9/13/2016 (41 minutes; 28 MB file)
http://bit.ly/ctiaberkeley091216
Sep 12, 2016
To listen to the live audio feed from the courtroom tomorrow go to http://www.ca9.uscourts.gov and click on the link listed at “Live Streaming Oral Arguments CR1.” Due to media interest in this case, the hearing has been scheduled for 9:30 A.M. Pacific time.
Sep 1, 2016
On September 13, the Ninth Circuit Court of
Appeals will hold a hearing to consider whether to overturn the district court’s decision that denied the CTIA’s request for a preliminary injunction to block implementation of Berkeley’s cellphone ordinance until the case was decided.
Berkeley’s law has been in effect since March after the Circuit Court decided to uphold the federal district court’s decision to deny the CTIA’s request for a preliminary injunction.
landmark cellphone “right to know” law requires cellphone retailers in Berkeley to post a cellphone
safety notification or provide a copy to customers. The notification reminds the
consumer to read the manufacturer’s safety information in the cellphone’s user
manual.
case before the federal Court of Appeals is CTIA-The Wireless Association v.
City of Berkeley et al., case number 16-15141. The CTIA is
represented by former Solicitor General Theodore Olson, and the City is
represented by Harvard Law Professor Lawrence Lessig. The hearing will be held
in the U.S. Courthouse in San Francisco at 9:30 A.M. (95 Seventh Street, Courtroom
1, 3rd Floor, Rm 338).
is a recap of key legal developments since March.
the CTIA appealed the Court’s ruling that denied the CTIA’s motion for a preliminary
injunction and allowed the City of Berkeley to implement its cellphone “right
to know” ordinance.
April, the City submitted a brief to the Court which argued that the CTIA’s
misinterpretation of the First Amendment would severely limit government’s
regulatory powers, and if the Court were to support the CTIA’s arguments,
numerous federal, state, and municipal laws would be ruled unconstitutional
(“Berkeley Defends Cellphone Warning Ordinance At 9th Circ.,” Law 360, Apr 5,
2016; https://www.law360.com/articles/780474).
amicus briefs in support of Berkeley’s position. Both the Attorney General and
the NRDC warned the Court against holding governments to a higher level of
First Amendment free speech protection scrutiny when they are simply mandating
disclosures. The Attorney General argued, “If the approach advocated by CTIA
were adopted by this Court, an array of consumer protection laws, long
recognized as a constitutional exercise of the state’s police powers under the
authority cited above, could be called into question.” (“Calif. AG Tells 9th
Circ. Phone Warning Rule Merits Leeway,” Law360, Apr 26, 2016; https://www.law360.com/articles/788952).
the CTIA submitted a brief to the Appeals Court which argued that the FCC does
not require radio frequency disclosures. The City pointed out in its response
that the CTIA had previously agreed that the FCC required these disclosures,
and that the Appeals Court should not consider new arguments. Moreover, the City
claimed that the CTIA’s current assertion was false (“Berkeley Rips Group’s FCC
Radiation Rule Claims At 9th Circ.,” Law360, May 13, 2016; https://www.law360.com/articles/796300).
August, the Appeals Court ruled that it would consider the CTIA’s new argument
and asked the City to submit its rebuttal (“City Can’t Block FCC Radiation Rule
Arguments, 9th Circ. Says,” Law360, Aug 12, 2016; http://www.law360.com/telecom/articles/8277850).
August 25, the City of Berkeley submitted to the Court a rebuttal to the CTIA’s
new claim. The CTIA argues that it is not
mandatory for cellphone manufacturers to report SAR values and the minimum separation
distance in user manuals. Their argument is based on two Knowledge Database
(KDB) publications that the FCC issued in October, 2015: KDB 212821 and KDB
447498.
by FCC staff
to clarify existing FCC rules, not to alter them. Such documents are not
subject to public review and do not have the force of law. Hence, the Court is unlikely
to consider the CTIA’s new argument to be valid. (“Berkeley Slams CTIA’s
Flip-Flop In Cellphone Warning Row,” Law360, Aug 29, 2016; http://www.law360.com/telecom/articles/833616).
website indicates that provisions made in KDB documents do not “constitute
rules”:
to assist the public in following Commission requirements and does not
constitute rules. Accordingly, the guidance is not binding on the Commission
and will not prevent the Commission from making a different decision in any
matter that comes to its attention for resolution.”
that manufacturers ‘must’ provide manual disclosures. And CTIA cannot
reasonably assert that its members could ignore the FCC’s disclosure regime as
‘merely suggestive’.”
Mar 23, 2016
Today, the Ninth Circuit Court of Appeals denied a request
by the CTIA–The Wireless Association to halt enforcement of Berkeley’s cell
phone “right to know” ordinance according to the San
Francisco Chronicle.
Chen of the Federal District Court allowed the ordinance to take effect while
the case is being litigated. Judge Chen rejected the industry’s arguments that
the city was violating retailers’ free speech rights by requiring them to
communicate a message they opposed.
Morgan Christen voting to keep the ordinance in effect during CTIA’s appeal
whereas Judge Carlos Bea dissented.
Mar 21, 2016
Since the Berkeley cell phone ordinance took effect today, I conducted a small observational study around 4:30 PM to see which downtown cell phone stores were in compliance.
The ordinance allows retailers to choose between posting the official Berkeley cell phone notice or providing customers with a handout containing the same information.
I visited six cellphone stores in downtown Berkeley. At each store I asked to see the posted notice or the handout. Four of the six stores were in compliance.
The four major cell phone retailers, AT&T, Sprint, T-Mobile, and Verizon, were all in compliance. All four posted the official notice on the counter or on a wall (Sprint). None opted to provide handouts to consumers.
The two authorized cellphone resellers were not in compliance. The sales clerks were unaware of the new law. In one store after I described the ordinance, the clerk volunteered that the law was a good idea and asked me how to get a copy of the official notice.
Max Anderson, the Council member who sponsored this ordinance stated to NBC News, “The people selling these products are not selling them for your good, They’re selling them for profit. They play fast and loose with regulations.” The goal is to get people thinking about keeping phones away from their body.
Mar 8, 2016
The Association of National Advertisers filed a brief in support of the CTIA which sued the city of Berkeley over its cell phone “right to know” ordinance (Tom Lochner. “Advertisers group weighs in against Berkeley cellphone hazards disclosure requirement.” Contra Costa Times, Mar 8, 2016).
The advertisers association argues, “While the city is entitled to hold or express its own opinions about cellphone safety, it may not require others to mouth its words or be its microphone.” The advertisers recommend that the City buy advertising if it wishes to inform consumers to read the cellphone manufacturers’ safety instructions.
Last year the Natural Resources Defense Council (NRDC), a nonprofit environmental and public health advocacy organization with more than 2 million members including 1,244 members who reside in Berkeley filed a brief in support of the City,
Last September, Consumer Reports published an article entitled, “Does Cell-Phone Radiation Cause Cancer?” The article highlights the importance of the Berkeley cell phone ordinance and calls on manufacturers to prominently display advice on steps that cell-phone users can take to reduce exposure to cell-phone radiation.
Mar 2, 2016
Because the Federal Court refused to block implementation of Berkeley’s landmark cell phone “right to know” ordinance, the CTIA has asked the Ninth Circuit Court of Appeals to issue a preliminary injunction to stop the law from going into effect.
The CTIA claims that cell phone retailers would be harmed by delivering a message they don’t believe, and that the ordinance is likely to be eventually overturned by the courts. (Patrick Boyle. “CTIA urges 9th Circ. to halt Berkeley’s cellphone warning law.” Law 360. March 2, 2016. http://bit.ly/1TSD8i2).
According to the Berkeley City Attorney’s office, the law will go into effect on March 21.
Feb 1, 2016
On January 27, the Federal Court (Judge Chen) lifted the ban on the Berkeley cell phone ordinance. The city is now allowed to enforce the amended cell phone law which requires cell phone retailers to notify their customers about the safety warnings in their cell phone or cell phone manual.
The judge affirmed Berkeley’s right to warn its citizens about potential health risks based on federal safety standards. In his ruling, the judge rejected the CTIA’s argument that the city’s mandated disclosure is controversial and therefore bound by a stricter constitutional analysis.
According to the ruling, “CTIA’s beef should be with the FCC … If CTIA believes that the safety margin is too generous because there is no real safety concern at that level, it should take that matter up with the FCC administratively.”
See Courthouse News Service for a summary of the January 21 hearing and the subsequent ruling.
Dec 23, 2015
A hearing on the CTIA’s motion to sustain the court’s preliminary injunction is scheduled for January 21, 2016 in Courtroom 5 in the federal district court in San Francisco. Judge Chen will hear the motion.
Oct 29, 2015
On October 27, the second reading of the amended cell phone ordinance which appeared on the consent calendar was unanimously adopted by the Council.
Next the city will submit a motion to the court to dissolve the injunction. This would enable the revised law to take effect.
Oct 7, 2015
Last night the Berkeley City Council adopted a minor amendment to the city’s cell phone ordinance. The Council deleted from the 82-word official notification the 7-word sentence regarding children’s risk of exposure due to Judge Chen ruling that because the FCC failed to recognize that children’s exposure to cell phone radiation is greater than adults, this sentence was “controversial.” The peer-reviewed research which demonstrates that this is factual apparently is irrelevant to the court.
Since there were no objections to the modified language, the item was moved to the consent calendar. A second reading of the ordinance will occur on October 27.
Sep 25, 2015 (updated Oct 2, 2015)
On October 6 the Berkeley City Council will consider a minor amendment to the city’s cell phone “right to know” ordinance at its regular meeting.
The amendment will make the ordinance consistent with the order issued by the U.S. District Court in CTIA v City of Berkeley (USDC ND CA C-14-2529). Seven words pertaining to children’s safety will be deleted from the city’s consumer safety notification: “This potential risk is greater for children.”
The revised ordinance will retain the remainder of the 82-word official consumer safety notification:
“The City of Berkeley requires that you be provided the following notice:
To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”
Assuming the revised ordinance is adopted by the Council, the City will ask the court to dissolve the injunction.
The Interim City Manager’s memo to Council members which includes the U.S. District Court ruling is available at http://bit.ly/1KHAF2F.
From: City Manager
Recommendation: Adopt first
reading of an Ordinance amending Section 9.96.030.A consistent with the order
issued by the U.S. District Court in CTIA v. City of Berkeley (USDC ND CA
C-15-2529 EMC).
Financial Implications: None
Contact: Zach Cowan, City Attorney, 981-6950
Sep 21, 2015
Court Judge Edward Chen gave the City of Berkeley a green light to implement
the City’s landmark cell phone “right to know” law after deleting one sentence from the safety notification. Cell
phone vendors in the City will soon be required to provide customers with a safety warning
either by giving the customer a handout or or by posting the following notice in the store:
City of Berkeley requires that you be provided the following notice:
assure safety, the Federal Government requires that cell phones meet radio
frequency (RF) exposure guidelines. If you carry or use your phone in a pants
or shirt pocket or tucked into a bra when the phone is ON and connected to a
wireless network, you may exceed the federal guidelines for exposure to RF radiation.
Refer to the instructions in your phone or user manual for information about
how to use your phone safely.”
following seven words from the 82-word safety warning: “This potential
risk is greater for children.” The judge ruled that although this sentence may be factual, it can be argued that it is controversial because the FCC does not acknowledge that children’s exposure to cell phone radiation is greater than adults. For the facts supporting this assertion, see “Children are more exposed to cell phone radio-frequency radiation than adults.”
“I am pleased to report that in spite of massive attacks by the corporations they were unable to persuade the judge from taking away the consumer’s right to know in a drastic injunction. Instead the judge requested one simple sentence to be modified. The City is moving rapidly to vote on October 6th on that one sentence modification. Thank you all for your incredible efforts on behalf of the consumer’s right to know.”
Berkeley Mayor Tom Bates declared victory in an interview with SFGate. He called the warning about children, a “relatively small problem” that the City Council will remedy:
“Judge Chen’s order upholding the main part of our cell phone ordinance confirms that the cell phone industry’s claims were ill founded,” Bates said.
Harvard Law Professor Lawrence Lessig, the attorney representing the City of Berkeley on this case, told Ars Technica he was pleased with the ruling:
“The rest of the ordinance survived First Amendment review, which was a very important victory and I couldn’t find a single sentence in Judge Chen’s opinion that I disagreed with, so I’m quite happy,” he said.
“Judge Chen has issued a very careful and well crafted opinion upholding almost every part of the Berkeley “right to know” ordinance. (The one part he found preempted was the part that said that the risk of overexposure was greater for children.) Importantly, the Court rejected the First Amendment claims made by CTIA. Really happy to have had a chance to participate in getting this corner of the law right.”
“ … the Court grants in part and denies in part CTIA’s motion for a preliminary injunction. The motion is granted to the extent the Court finds a likely successful preemption claim with respect to the sentence in the City notice regarding children’s safety. The motion is denied to the extent the Court finds that a First Amendment claim and preemption claim are not likely to succeed on the remainder of the City notice language.”
“’A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’”
“ … the thrust of CTIA’s complaint is twofold: (1) the Berkeley ordinance is preempted by federal law and (2) the ordinance violates the First Amendment.”
“This disclosure, for the most part, simply refers consumers to the fact that there are FCC standards on RF energy exposure – standards which assume a minimum spacing of the cell phone away from the body – and advises consumers to refer to their manuals regarding maintenance of such spacing. The disclosure mandated by the Berkeley ordinance is consistent with the FCC’s statements and testing procedures regarding spacing … the ordinance does not ban something the FCC authorizes or mandates. And CTIA has failed to point to any FCC pronouncement suggesting that the agency has any objection to warning consumers about maintaining spacing between the body and a cell phone. Moreover, the City ordinance, because it is consistent with FCC pronouncements and directives, does not threaten national uniformity.”
“There is, however, one portion of the notice required by the City ordinance that is subject to obstacle preemption – namely, the sentence ’This potential risk is greater for children.’ Notably, this sentence does not say that the potential risk may be greater for children; rather, the sentence states that the potential risk is greater. But whether the potential risk is, in fact, greater for children is a matter of scientific debate … the FCC has never made any pronouncement that there is a greater potential risk for children, and, certainly, the FCC has not imposed different RF energy exposure limits that are applicable to children specifically … Thus, the content of the sentence – that the potential risk is indeed greater for children compared to adults – threatens to upset the balance struck by the FCC between encouraging commercial development of all phones and public safety, because the Berkeley warning as worded could materially deter sales on an assumption about safety risks which the FCC has refused to adopt or endorse.”
“ … CTIA completely ignores the fact that the speech rights at issue here are its members’ commercial speech rights …. CTIA’s members are being compelled to communicate a message, but the message being communicated is clearly the City’s message, and not that of the cell phone retailers… (providing that the notice shall state ‘The City of Berkeley requires that you be provided the following notice” and that “the notice shall include the City’s logo’). In other words, while CTIA’s members are being compelled to provide a mandated disclosure of Berkeley’s speech, no one could reasonably mistake that speech as emanating from a cell phone retailer itself. Where a law requires a commercial entity engaged in commercial speech merely to permit a disclosure by the government, rather than compelling speech out of the mouth of the speaker, the First Amendment interests are less obvious. Notably, at the hearing, CTIA conceded that there would be no First Amendment violation if the City handed out flyers or had a poster board immediately outside a cell phone retailer’s store.”
“While CTIA has argued that being forced to engage in counter-speech (i.e., speech in response to the City notice) is, in and of itself, a First Amendment burden … that is not necessarily true where commercial speech is at issue.”
Bob Egelko, SF Gate, Aug 20, 2015 (This article appeared in the San Francisco Chronicle, Aug 21, 2015.)
Jessica Aguirre, NBC Bay Area, Aug 20, 2015
Lance Knobel, Berkeleyside, Aug 21, 2015
Should the City of Berkeley have the right to require
cell phone retailers to provide the following safety notice to their customers?
Why is the CTIA trying to suppress this 82-word notice?
City of Berkeley. The CTIA wants the
Court to issue a preliminary injunction that would block implementation of the
cell phone “right to know” ordinance until the lawsuit is resolved.The CTIA claims that the ordinance should be
subjected to “heightened scrutiny” and does not achieve “any substantial or
even legitimate government interest.” Other CTIA claims include the ordinance is “misleading, not purely
factual,” and that it is “controversial, “unduly burdensome,” and unlike other consumer
disclosures. The CTIA argues that the
ordinance is preempted by Federal regulation, and that members of the CTIA will
be “irreparably injured if the ordinance is enforced.” Finally, the CTIA claims that the“injunction
will not harm the City,” and would serve the public interest.
July 16, 2015
A hearing on the CTIA’s motion for a preliminary injunction to block implementation of the Berkeley cell phone “right to know” ordinance is scheduled for August 20 in the U.S. District Court in San Francisco. The hearing will be held in Courtroom 5 at 1:30 PM. The Honorable Edward M. Chen is the presiding judge.
The case number is 3:15-cv-02529. Legal filings are available from the U.S. Court Archive, PlainSite, and Law360.
On July 13, the Natural Resources Defense Council (NRDC) petitioned the Court for the right to file a “friend of the court” brief in opposition to the CTIA’s motion for a preliminary injunction.
The proposed brief makes the following arguments:
“Part of NRDC’s mission is to protect public health by minimizing human exposure to harmful substances. Regulations like Berkeley’s radiofrequency exposure right-to-know ordinance are important to advancing that goal: after all, an individual cannot choose whether to minimize her exposure if she does not know that it is occurring.
The logic of Plaintiff’s First Amendment claim, if accepted, would undermine not just the Berkeley right-to-know ordinance, but legions of risk-disclosure rules that apprise the public of exposures that they might not otherwise discover. Many rules that NRDC, on behalf of its members, has long supported and advanced could be swept away.” (1)
The NRDC further argues that the Court should not be put in the position of answering questions like “How safe is safe enough? and “How risky is too risky? This task falls within the institutional expertise of legislatures and regulators. Finally, the NRDC argues that “Mandatory disclosure of environmental and health risks is crucial to protecting the public’s safety and individuals’ autonomy.” (1)
Reference
(1) National Resources Defense Council. CTIA v City of Berkeley. “[Proposed] brief of amicus curiae National Resources Defense Council in opposition to plaintiff’s motion for preliminary injunction.” US District Court for Northern District of California. Case No. C15-02529 EMC. July 13, 2015.
July 6, 2015
The City of Berkeley filed its response to the CTIA’s challenge of the City’s cell phone “right to know” consumer disclosure ordinance.
The City makes the following arguments why the Court should not grant the CTIA’s request for an injunction that would block enforcement of the ordinance:
- the City has a substantial interest in providing the consumer disclosure to inform its residents about proper cell phone use;
- the mandated disclosure is accurate, factual and noncontroversial;
- the ordinance does not violate the First Amendment and is not preempted by Federal law;
- the disclosure is not burdensome for cell phone retailers;
- the CTIA’s members will not be harmed if the ordinance is enforced;
- and interfering with the ordinance is not in the public interest.
The response was submitted by Berkeley City Attorney Zach Cowan, Harvard Law Professor Lawrence Lessig, Yale Law Professor and Dean Robert Post, and Yale Law Ph.D. candidate Amanda Shanor. Declarations of support for the ordinance were filed by Anthony Miller, Om Gandhi, Tom Jensen, and Sandra Cortesi.
The introduction to the brief summarizes the City’s position:
CTIA has launched a war based on a mistake. It labors hard
to paint Berkeley’s “right to know” Ordinance as an attack on settled science.
It objects with vigor to being “compelled,” as it puts it, to spread a view
about cell phone safety that it claims is “scientifically baseless and alarmist,”
And it links Berkeley’s motives, as it describes them, to the “unsupported
proposition that cell phones are unsafe.”But Berkeley has no purpose to engage a scientific
debate through political means. Its Ordinance simply reinforces a message that
the Federal Communications Commission (“FCC”) itself already requires manufacturers
to disseminate.
The FCC has since 2001 encouraged—and now
requires—manufacturers to “include information in device manuals to make
consumers aware of the need to maintain the body-worn distance —by using
appropriate accessories if they want to
ensure that their actual exposure does not exceed the [Specific Absorption Rate
(“SAR”)] measurement obtained during testing.”
The Ordinance is a response to data demonstrating that
Berkeley residents are unaware of the information that the FCC desires them to
have. Berkeley residents do not understand that cell phones are tested at a
“body-worn distance” and are not aware that carrying a phone against one’s body
“might result” in “exposure in excess of [FCC] limits” … The Ordinance also
responds to data that a significant proportion of Berkeley residents want this
information (82%) and said that it would affect their behavior (80%). The Ordinance thus answers a desire of
Berkeley residents to have the information about RF exposure limits that the
FCC wants them to have.Yet on the basis of a single paragraph in a single FCC
Notice of Inquiry cited by Plaintiff more than a dozen times, CTIA insists that
no government can have any legitimate purpose in making consumers aware of long
established RF guidelines—the very instructions and mandates that CTIA’s
members must meet and must disclose—because, in CTIA’s view, these precautions
are too cautious.Regardless of how cell phones are used, in CTIA’s
view, cell phones must be deemed safe. And any effort to draw the public’s
attention to the actual manner in which cell phones were tested to be safe in
effect, Plaintiff maintains, slanders CTIA’s members. But a single paragraph in
a single FCC Notice of Inquiry cannot establish such an extraordinary
proposition. Neither was it meant to. The whole purpose of the FCC Notice is
to initiate an inquiry into whether the FCC should alter its limits for RF
radiation, by either strengthening or weakening them. The FCC does not begin an
inquiry by announcing its results. FCC mandates about cell phone RF limits and
the disclosure of information about those limits are the law. So long as that
is true, nothing in the First Amendment blocks Berkeley from requiring
retailers to inform customers about those mandates as well. The Ordinance
requires the disclosure only of uncontested statements of fact that refer to
existing federal requirements ….
Important filings in the case are available on Scribd at http://bit.ly/CTIABerkeleyfile.
June 9, 2015
lawsuit and a motion for an injunction in the Federal District Court in Northern
California against the City of Berkeley to block the city’s cell phone “right
to know” ordinance. This model law which was drafted by two of nation’s leading legal scholars was designed to withstand legal challenges from industry.
Amendment rights of cell phone retailers in the City of Berkeley:
“The Ordinance compels
retailers of cell phones to issue to their customers a misleading,
controversial, and government-crafted statement about the “safety” of cell
phones. The statement conveys, by its terms and design, the City’s view that
using cell phones in a certain way poses a risk to human health, particularly
to children. That compelled speech is not only scientifically baseless and
alarmist, but it also contradicts the federal government’s determination that
cell phones approved for sale in the United States, however worn, are safe for everyone.”
“…the FCC—consulting with expert federal health and safety
agencies and drawing from international standards-setting bodies—has carefully
reviewed the scientific studies that have examined cell phones for possible
adverse health effects, including health effects from the radio waves—a type of
radiofrequency energy (“RF energy”)—that cell phones emit in order to function.
The FCC has determined, consistent with the overwhelming consensus of
scientific authority, that “[t]here is no scientific evidence that proves that
wireless phone usage can lead to cancer or a variety of other problems,
including headaches, dizziness or memory loss.” FCC, FAQs –Wireless Phones,
available at https://goo.gl/ZrKBly.
“…The FCC’s guidelines are highly conservative: they are set
50 times below the threshold level of RF energy that has been shown to cause
potential adverse health effects in laboratory animals, and assume that a cell
phone is operating at its maximum certified power setting (even though cell
phones rarely use the full extent of their power) … As the FCC recently put it,
‘[t]his ‘safety’ factor can well accommodate a variety of variables such as different
physical characteristics and individual sensitivities—and even the potential
for exposures to occur in excess of our limits without posing a health hazard
to humans.’ …
“Thus, according to the FCC, ‘exposure well above the
specified [FCC’s] limit should not create an unsafe condition.’”
“By using words and phrases such as ‘assure safety,’ ‘radiation,’’potential
risk,’ ‘children,’ and ‘how to use your phone safely,’ the City’s
unsubstantiated compelled disclosure is designed to convey a particular message
that will stoke fear in consumers about the dangers of cell phones: ‘Do not
carry your cell phone in your pants or shirt pocket, or in your bra, when
powered ON and connected to the wireless network, because by doing so, you may
absorb more RF radiation than is safe, as determined by the Federal Government.
The risk of exposure to unsafe levels of RF energy is greater for children.’”
“But CTIA’s members do not wish to convey that message,
because it is not true. As explained above, the FCC has stated that even where
the RF emissions limit is exceeded, there is ‘no evidence that this poses any
significant health risk.’ It has also concluded that RF energy from
FCC-approved cell phones poses no heightened risk to children. Berkeley’s compelled
disclosure is misleading because it fails to explain that the FCC guidelines already
take account of the fact that consumers may use cell phones in different ways,
and that cell phones are used by people of different ages and different sizes.
In short, when a cell phone is certified as compliant with the FCC’s
guidelines, that phone is safe, however it is worn, even if a particular usage results
in exposure ‘well above’ the limit.”
“The City, which concededly lacks any evidence that exposure
to RF emissions from FCC-approved cell phones at levels in excess of the FCC’s
guidelines presents a safety issue, cannot meet its heavy burden under the
First Amendment to justify compelling CTIA’s members’ speech, under any
applicable standard of review.”
“Moreover, if the Ordinance is allowed to stand, other local
governments will soon follow the City’s lead, resulting in a crazy-quilt of
tens of thousands of inconsistent ‘disclosure’ obligations across the country.
The result will be more compelled speech (and very likely self-contradictory speech),
as well as widespread and unwarranted consumer confusion and anxiety about the
safety of cell phones.”
“For these reasons, and as more fully described below,
Berkeley’s Ordinance violates the First Amendment because it will require
CTIA’s members to convey a message to which they object, and which is factually
inaccurate, misleading, and controversial.”
“Berkeley’s Ordinance is also preempted by federal law
because it would stand as an obstacle to the careful balance that the FCC has
devised between protecting consumer safety and supporting the growth of mobile
wireless service.”
The CTIA also filed a motion for a preliminary injunction to petition the Court to block implementation of the cell phone “right to know” law:
“… CTIA respectfully requests that this Court preliminarily enjoin all Defendants from enforcing or causing to be enforced Berkeley Municipal Code Chapter 9.96 before the Ordinance goes into effect on June 25, 2015, pending final judgment.”
The Berkeley Cell Phone “Right to Know” ordinance is available at:
The Berkeley cell phone “right to know” ordinance takes effect on June 25th, 30 days after its second reading.
May 26, 2015
The Berkeley City Council adopted the Cell Phone “Right to Know” Ordinance after a second reading this evening.
Requiring Notice Concerning Carrying of Cell Phones; Adding BMC Chapter 9.96
From: City Manager
Recommendation: Adopt second reading of
Ordinance No. 7,404-N.S. requiring cell phone retailers to provide a notice
with each sale or lease concerning the carrying of cell phones, and adding
Berkeley Municipal Code Chapter 9.96.
First Reading Vote: All Ayes.
Financial Implications: Staff time
Contact: Zach Cowan, City Attorney, 981-6950
Action: Adopted second reading of Ordinance No.
7,404-N.S.
Excerpt from the Ordinance:
A Cell phone retailer shall provide to each customer who buys or leases a Cell
phone a notice containing the following language:
“The City of Berkeley requires that you be provided the following notice:
To assure safety, the Federal Government requires that cell phones meet
radio frequency (RF) exposure guidelines. If you carry or use your phone
in a pants or shirt pocket or tucked into a bra when the phone is ON and
connected to a wireless network, you may exceed the federal guidelines
for exposure to RF radiation. This potential risk is greater for children.Refer to the instructions in your phone or user manual for information
about how to use your phone safely.”
The entire text of the Ordinance is available at: http://bit.ly/Bklyordinance.
—
May 18, 2015
Berkeley’s Cell Phone “Right to Know” Ordinance (video)
Kevin Kunze, director and writer of the award-winning film, “Mobilize: a Film about Cell Phone Radiation,” prepared a a 6 minute video about the adoption of the nation’s only cell phone “right to know” ordinance by the City of Berkeley on May 12, 2015.
—
Lawmakers vote to highlight the potential dangers of keeping devices close to the body as scientists raise raft of concerns, especially for children
The article in The Guardian refers to EMFscientist.org. On Monday, May 11th, 190 scientists from 39 nations submitted an appeal to the United Nations, the UN member states, and the World Health Organization (WHO) requesting they adopt more protective exposure guidelines for electromagnetic fields (EMF) and wireless technology in the face of increasing evidence of risk.*
These exposures are a rapidly growing form of environmental pollution worldwide.
Berkeley Adopts Cell Phone “Right to Know” Ordinance on Unanimous Vote
This evening the Berkeley City Council adopted the cell phone “right to know” ordinance on a unanimous vote of 9-0. Berkeley is the first city in the nation to pass a cell phone radiation ordinance since San Francisco disbanded its ordinance after a two-year court battle with the CTIA
The only opposition to the ordinance came from the CTIA–The Wireless Association. The CTIA claims that consumers would be scared if they were directed to read the information that the FCC requires they provide to consumers.
May 5, 2015
Berkeley residents want, deserve cellphone ‘right to know’
—
May 1, 2015
Action Calendar — New Business
—
Excerpt from Proposed Cell Phone Ordinance
REQUIRING NOTICE CONCERNING RADIO FREQUENCY EXPOSURE OF CELL PHONES
<snip>
Section 9.96.030 Required notice
A. A Cell phone retailer shall provide to each customer who buys or leases a Cell phone a notice containing the following language:
The City of Berkeley requires that you be provided the following notice: To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
B. The notice required by this Section shall either be provided to each customer who buys or leases a Cell phone or shall be prominently displayed at any point of sale where Cell phones are purchased or leased. If provided to the customer, the notice shall include the City’s logo, shall be printed on paper that is no less than 5 inches by 8 inches in size, and shall be printed in no smaller than a 18-point font. The paper on which the notice is printed may contain other information in the discretion of the Cell phone retailer, as long as that information is distinct from the notice language required by subdivision (A) of this Section. If prominently displayed at a point of sale, the notice shall include the City’s logo, be printed on a poster no less than 8 ½ by 11 inches in size, and shall be printed in no small than a 28-point font. The City shall make its logo available to be incorporated in such notices.
C. A Cell phone retailer that believes the notice language required by subdivision (A) of this Section is not factually applicable to a Cell phone model that retailer offers for sale or lease may request permission to not provide the notice required by this Section in connection with sales or leases of that model of Cell phone. Such permission shall not be unreasonably withheld.
—
April 30, 2015
PRESS RELEASE
Berkeley, Calif. April 30, 2015. Eighty-two percent (82%) of adults in Berkeley, California reported in a recent survey that they want to be informed when they purchase a cell phone about the manufacturer’s recommended minimum distance that the phone should be kept from the user’s body.
If the Council adopts the ordinance, Berkeley will become the only city in the U.S. to require retailers to provide consumers with this important safety information.Harvard Law Professor Lawrence Lessig who helped draft the ordinance will present it to the Council on behalf of City staff. Professor Lessig has offered to defend the ordinance
pro bono should the CTIA—The Wireless Association file a lawsuit against the City.
- Fully, 70% of Berkeley adults were unaware that the government’s radiation tests to assure the safety of cell phones assume that the phone would not be carried against the user’s body, but instead would be held at least 1 to 15 millimeters from the user’s body.
- Two out of three (66%) were unaware that cell phone manufacturers recommend that their cell phones be carried away from the body, or used with hands-free devices.
- Fewer than one in six (15%) have seen the recommendations by cell phone manufacturers about how to best protect against overexposure to cell phone radiation.
- Almost three out of four (74%) reported that they or their children carry a cell phone against their body—tucked in a shirt or pants pocket while the phone is switched on.
- “Keeping the cell phone in a trouser pocket in talk mode may negatively affect spermatozoa and impair male fertility” (Agarwal et al. 2009).
- “Overall, these findings raise a number of related health policy and patient management issues that deserve our immediate attention. Specifically, we recommend that men of reproductive age who engage in high levels of mobile phone use do not keep their phones in receiving mode below waist level” (De Iuliis et al., 2009).
April 28, 2015
On Tuesday, May 12, the Berkeley City Council will vote on becoming the first city in the nation to enact legislation to give consumers information at the point of sale as to the recommended distance information which is currently hidden in the cell phone or in the manual. Harvard Law Professor Lawrence Lessig helped draft the ordinance and will be at the meeting to present it to the Council.
Advocates for the ordinance will hold a rally in front of City Hall at 6 PM.
For more information see Berkeleyside Events Calendar.–
March 27, 2015
NBC Bay Area aired a four minute news story on the 11:00 news, “Documentary ‘Mobilize’ Examines Cell Phone Dangers,” about the Berkeley cell phone ordinance and the feature-length documentary, “Mobilize: A Film about Cell Phone Radiation.”
—
March 10, 2015
The cell phone “right to know” ordinance will be on the agenda of the Berkeley City Council meeting on Tuesday, May 12.
—
November 21, 2014
On November 18, the Berkeley City Council adopted a referral to the City Manager on a 7-2 vote. The referral asks the City Manager to
draft a cell phone “right to know” ordinance.
Once this ordinance is enacted, Berkeley will become the first city in the nation to require cell phone retailers to provide those who purchase a new phone an informational fact sheet. Retailers will be required to provide the fact sheet to those who purchase a cell phone which informs them to
read the user manual to learn the cell phone’s minimum separation distance from
the body.
The FCC requires manufacturers to provide this information to ensure
that the consumers’ cell phone radiation exposure does not exceed the amount when
the cell phone was tested. Few consumers are currently aware of
this safety information because it is buried in their user manual or within their smart phone. Knowledge of this information is an important step in increasing awareness that cell phones should not be used next to the body.
Councilman Max Anderson who sponsored the referral grilled the CTIA representative, Gerard Keegan, about why the industry does not want consumers to see the safety information that the FCC mandates. The CTIA position is that this is between the FCC and the industry, and the FCC is in the process of deciding whether this information is necessary so the City should not act on this issue.
A video of the meeting is now available for streaming (see 01:44:50 – 03:36:25).
Summaries of the meeting have been published by The Daily Californian and the Contra Costa Times.
—
November 10, 2014
The Berkeley City Council postponed discussion of the cell phone “right to know” ordinance until Tuesday, November 18, 2014.
City Manager Referral: Cell Phone Ordinance Referral to City Manager (Continued from October 28, 2014)
From: Councilmember Anderson
Recommendation: Refer to City Manager for the creation of an ordinance to have cell phone retailers give to consumers who purchase a phone, a factual, informational handout referring the user to their cell phone manufacturers’ disclosure regarding the recommended separation distance for use against the body.
Financial Implications: See report
Contact: Max Anderson, Councilmember, District 3, 981-7130
http://bit.ly/1EvJvPz
—
October 15, 2014
Press Release: Berkeley’s Proposed Cell Phone “Right to Know” Ordinance
—
October 10, 2014
This cell phone “right to know” ordinance is on the consent calendar for the Berkeley City Council meeting to be held on Tuesday, October 28, 2014. The referral and briefing document are available at http://bit.ly/BerkeleyReferral.
City Manager Referral: Cell Phone Ordinance Referral to City Manager
From: Councilmember Anderson; Councilmember Worthington
Recommendation: Refer to City Manager for the creation of an ordinance to have cell phone retailers give to consumers who purchase a phone, a factual, informational handout referring the user to their cell phone manufacturers’ disclosure regarding the recommended separation distance for use against the body.
Financial Implications: See report
Contact: Max Anderson, Councilmember, District 3, 981-7130
The advisory will be in the form of an informational handout to be handed to consumers by the retailer at the time of purchasing a cell phone. The proposed wording is as follows:
“The Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. Don’t carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is turned ON and connected to a wireless network. This will prevent exposure to RF levels that may exceed the federal guidelines.”
“Refer to the instructions in your phone or user manual for the recommended separation distance.”
—
Precaution or Paranoia? Berkeley May Require Cancer Warning Stickers for Cell Phones
Sabin Russell, California Magazine, August 19, 2014
[An indepth article about the science and politics underlying the proposed Berkeley cell phone ordinance–research on cancer risk and fetal effects on neurological development is discussed.]
Just as the world supply of mobile phones is reaching one unit for every human being on Earth, here comes Berkeley, with a warning: These things could be hazardous to your health …
Stakes in this argument are extraordinarily high. Cell phones are radio transmitters that are not only ubiquitous, they are close at hand: We press them against our ears. We store them in our pants pockets. Women slip them into their bras. Teens sleep with them under their pillows. With the adult market nearly saturated, the big growth opportunity for mobile devices is children.
“In our society, the precautionary principle does not resonate well. We want to see a body count first.”
The CTIA statement builds a case that the “scientific consensus” is firmly in their camp. In fact, the two-word term appears 28 times in their filing. They quote numerous federal agencies asserting a lack of evidence that cell phone radiation can cause harm. Among them is the FCC itself, the FDA, and most notably, the National Cancer Institute, which states on its web site that “there is no evidence from studies of cells, animals, or humans that radiofrequency energy can cause cancer.
Moskowitz dismisses the endorsements. “Industry and government agencies seem to be in denial, and have been in that frame of mind for decades,’’ he says.
… Cell-phone makers in their fine print do advise keeping these devices about a half-inch away from your body, although there is no mention of it in an industry-written parents’ guide to cell phone safety.
And meanwhile, let’s face it: We just love these little appliances. They are changing the way we live. If they are changing the way we die, we’ll find out, eventually.
Eric Schultz. Killer App: A Berkeley researcher weighs in on cell phones and cancer. California Magazine. Winter 2010. http://bit.ly/1kSu5z5
version: “CELL PHONE ORDINANCE: Berkeley
will fight for cancer warnings,” San
Francisco Chronicle, Jul 15, 2014, pg. A – 1
Berkeley,
undaunted by abandoned efforts in San Francisco, is attempting to become the first
city in the nation to require retailers to put stickers on cell phone packaging
warning people that the devices may emit cancer-causing radiation …
Joel
Moskowitz, head of UC Berkeley’s Center
for Family and Community Health, has no such indecision. He’s been studying
the issue since 2009, and has concluded that cell phones are “one of the
top emerging public health risks.”
Studies
cited by the cell phone industry are outdated, he said. Newer and more complex
wireless technology, coupled with people spending increasing amounts of time on
their phones, is almost certain to lead to an uptick in brain cancer,
he said.
“It’s
just a matter of time,” he said. “The evidence is a lot more
compelling than it has been.”
Radiation
from cell phones penetrates the skin and skull and absorbs into the brain
tissue, having an adverse affect on cells, he said. Phone radiation can also
affect sperm count among men who carry phones in their pockets, he said.
Consumers
should wear headsets, use the speaker feature and otherwise keep phones away
from their bodies, he said.
“With
cell phones, distance is your friend,” he said.
Pregnant
women and children are particularly vulnerable, he said.
A warning
sticker should advise consumers that some studies link cell phones to rare but
serious cancers, and they should take precautions, he said …