City of Berkeley Wins (Again) in CTIA RF Warnings Law Suit

Yesterday, the 9th Circuit ruled (again) in favor of the City of Berkeley in CTIA’s law suit regarding the City’s requirement that cell phone vendors alert purchasers to FCC-required RF warnings.

The City of Berkeley requires in its current Municipal Code the following:

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. 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 8-1/2 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. (Ord. 7443-NS § 1, 2015; Ord. 7404-NS § 1 (part), 2015)

The CTIA challenged the current law saying, essentially, that the City was forcing wireless providers to ‘speak’ thus violating their First Amendment rights.  The District Court hearing the case denied CTIA’s request to bar the City from enforcing its RF disclosure rules.  The CTIA appealed to the 9th Circuit.

In its original decision on CTIA’s appeal, a 3-judge panel of the 9th Circuit disagreed with CTIA and allowed the ordinance to remain in force.  The CTIA then asked the Supreme Court to review the 9th Circuit decision.

The Supreme Court took the case, vacated the 9th Circuit decision supporting the City, and remanded the case back to the 9th Circuit directing that the Circuit Court reevaluate the decision in light of the Supreme Court’s holding in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361, 201 L. Ed. 2d 835 (2018) (“NIFLA”).

The NIFLA case challenged a California law requiring compelled speech by anti-abortion counseling centers that included references to abortion clinics.  In a 5-4 decision, the Supreme Court overturned the California law citing a violation of the First Amendment.

NIFLA connects to CTIA by way of the Supreme Court’s analysis in NIFLA that said that a lower level of First Amendment protection exists for noncontroversial professional speech.  In NIFLA, the majority in the Supreme Court said,

[O]ur precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); Milavetz, Gallop & Milavetz, P. A. v. United States, 559 U. S. 229, 250 (2010); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978).

According, the Supreme Court’s remand to the 9th Circuit required that the Circuit Court evaluate whether the City’s RF notice was factual, noncontroversial information.

In the case re-decided yesterday in favor of Berkeley, the majority said:

Given the FCC’s requirement that cell phone manufacturers must inform consumers of “minimum test separation distance requirements,” and must “clearly disclose[ ]” accessory operating configurations “through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided,” we see little likelihood of success based on conflict preemption.

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. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.

Yesterday’s decision cited existing disclosures in the FCC Record, as well as cell phone manufacturer warnings.

On remand, the 9th Circuit found that Berkeley’s RF law as non-controversial under the Supreme Court’s holding in NIFLA.  A dissent by Circuit Judge Friedland takes the opposite position.

The decision and dissent are provided in this link: CTIA v Berkeley. Case No. 16-15141

It seems likely that there will be another petition by the CTIA to review yesterday’s decision.

Jonathan

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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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US Court of Appeals – No decision on FCC’s emergency power rules

On July 8, the Court of Appeals for the D.C. Circuit declined to act on the CTIA’s request to block the FCC rules on emergency power of telecom sites (including cell sites).

From the order:

RANDOLPH, Circuit Judge: Hurricane Katrina exposed several weaknesses in the Gulf Coast’s communications infrastructure, among which was the loss of power for critical communications networks. To address this problem, the Federal Communications Commission promulgated a rule requiring commercial mobile radio service (CMRS) providers to maintain a minimum amount of emergency backup power for “all assets necessary to maintain communications that are normally powered from local commercial power.” In the Matter of Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, 22 F.C.C. Rcd 18,013, 18,035 (2007) (“Reconsideration Order”).

The rule thus requires a backup power source (e.g., batteries or generators) for every cell site and paging transmitter unless an exemption is met.  Petitioners, who are wireless and paging service providers, oppose the backup power rule on the grounds that the Commission adopted it without statutory authority, that the parties lacked notice, and that the Commission acted arbitrarily and capriciously. We decline to address these contentions now because the case is not ripe for review.

You can download the entire order by clicking here.

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