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CTIA Sues City of Berkeley Over POS RF Warning Ordinance

In a move surprising no one who has studied history or the CTIA v. San Francisco case from July, 2010, CTIA, one of the two main wireless industry trade associations, has sued the City of Berkeley over its ordinance titled, “REQUIRING NOTICE CONCERNING RADIO FREQUENCY EXPOSURE OF CELL PHONES.”

The ordinance, codified at Chapter 9.96 of the City’s Municipal Code requires sellers and lessors of cell phones to provide the following point of sale notice:

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.

If you would like to read the CTIA v. Berkeley compliant, filed on June 8, 2015, CLICK HERE.  (PDF; about 1.5 Mb)

The complaint’s first paragraph sets the tone: “The City of Berkeley, California (“the City”) may be entitled to its opinions, however unfounded.” Enjoy the rest of the complaint, which is framed as a First Amendment ‘freedom not be forced to speak’ claim.

CTIA seeks the following:

WHEREFORE, Plaintiff prays that this Court:
(A) Enter a judgment declaring that Berkeley’s required disclosure regarding RF
Exposure, codified at Berkeley Municipal Code Chapter 9.96, impermissibly abridges CTIA’s
members’ First Amendment rights;
(B) Enter a judgment declaring that Berkeley’s required disclosure regarding RF
Exposure, codified at Berkeley Municipal Code Chapter 9.96, is preempted by federal law;
(C) Enter an injunction barring Defendants the City of Berkeley, California and Christine
Daniel, the City Manager of Berkeley, California, from enforcing or causing to be enforced Berkeley
Municipal Code Chapter 9.96 in order to prevent imminent and irreparable injury to CTIA’s members and harm to the public;
(D) Grant CTIA such relief as it deems just and proper, including an award of reasonable
attorneys’ fees and the costs of this action.

By the way, that last prayer for relief–for reasonable attorney’s fees–lead me to wonder what reasonable might be. It turns out that the CTIA’s lead attorney on the suit, Theodore B. Olson made some news in his own right about his own fees. It was highlighted in a National Law Journal article published on January 5, 2015 which said, in relevant part,

“Gibson, Dunn & Crutcher, with an $1,800 hourly rate for Theodore Olson, an outlier, had the highest rate the NLJ could find in public records.”

Read more HERE.

-Jonathan

PS: Interestingly, CTIA sued the City and the City Manager (in her official capacity) but they didn’t sue the members of the City Council (in any capacity) who actually voted for the ordinance.  Hummm.  jlk

PPS: I’d like to be able to charge $30 per minute for my own wise legal counsel.  Any takers? jlk

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