Judge Probes FCC Statement's Force on Berkeley RF Disclosure

The 2015 wireless industry challenge to Berkeley’s RF law returned to district court this year after the Supreme Court declined in late 2019 to take up CTIA’s appeal of the 9th U.S. Circuit Court of Appeals ruling for a second time (see 1912090058). The FCC then issued an order on RF safety in December (see 1912040036). “It’s been a little bit of a journey to get here,” said Chen, opening argument.

The U.S. filed a June 22 statement including a letter by FCC General Counsel Thomas Johnson saying the Berkeley law is preempted based on the December RF emissions order (see 2007160034). Arguing for the city, Lessig said the court shouldn’t give deference to a statement by the FCC general counsel because it’s not official policy of the five-member commission, and the agency’s order didn’t clearly preempt the city. CTIA’s outside attorney, Theodore Olson, argued the statement of interest is the commission’s position, particularly since it was filed by the U.S. government, and the commission couldn't be clearer it was preempting local warnings. The FCC declined comment Friday.

The December order seems to show concern about over-warning the public, while leaving for later whether any mandate runs afoul, said Chen. The SOI might be read as applying the policy to Berkeley, but the issue is that the city says the statement isn’t entitled to deference, said the judge. If the court can’t rely on the SOI, Chen wanted to know the legal standard to decide if the order's language that CTIA cited counts as preemption.

Chen “obviously had studied the case carefully,” with the judge saying “exactly what was troubling him” and giving both sides “ample opportunity” to make points and respond during the Zoom-based argument, Lessig said in a Friday interview. Berkeley will file legal citations as requested, he said. “The FCC general counsel may interpret its December order, but it has no force over the judge’s interpretation,” said Lessig: Chevron deference doesn’t apply.

During argument, Olson disagreed with characterizing the SOI as the FCC’s general counsel’s words alone, saying it was filed by the U.S. on behalf of the commission. The FCC’s SOI would be entitled to deference even under a Skidmore standard, he said.

The commission made it explicit that phones sold in the U.S. pose no health risk, with the agency saying so three times since December, said Olson. "They are making it as clear as they possibly could: Don't mess with what we've done here." Any pronouncement at variance with what FCC requires risks "over-warning” the public with inaccurate information and upsetting a balance between public safety and promoting wireless usage, he said, adding it could result in nonuniform policies. CTIA declined comment to us.

Lessig disagrees with “any automatic deference that comes from the fact that it’s filed by the United States,” he told us. The question isn’t only if the general counsel has approval for his statement from at least three commissioners but “whether the notice and comment process has been exhausted to give everybody a chance to participate in the policymaking judgment.” The FCC never sought comment on whether the agency should be the “national speech manager” over RF issues, he said. An SOI could be viewed to function as applying a regulation, if it included some ambiguity about when it applies, Lessig said. But the December order included clear preemption for base stations only, not cellphones, and an “advisory statement or some speculatory language” doesn't count as regulation, he said.

“As long as there’s a pretty strong indication that the agency has considered it thoroughly enough, even if it’s just signed by the general counsel,” then “it’s likely to be granted deference,” said Jeffrey Lubbers, administrative law professor at American University’s Washington College of Law. He cited a 2000 SCOTUS case on fair labor laws, Christensen v. Harris County (case 529 U.S. 576). In a concurring opinion, Justice Antonin Scalia wrote that one Labor Department official’s letter might not be authoritative on its own, but he was persuaded it should get Chevron deference because the Labor Department solicitor co-signed an amicus brief representing that the labor secretary shared the letter’s position.

The SOI recited established policy and should be accorded deference, said Free State Foundation President Randolph May, a former FCC assistant general counsel. “A statement of counsel offered merely as a litigation position, often as a post hoc rationalization in a brief or at oral argument, may not receive Chevron deference under the weight of the precedents,” but the FCC’s SOI doesn’t “seem to be an agency interpretation developed merely as an agency litigating posture after an agency decision but rather a statement reciting authoritative FCC policies duly adopted after public notice and comment,” May emailed. Berkeley’s law should be preempted, he said, given “the FCC’s exclusive authority to regulate RF emissions,” its various actions regarding emission standards and the agency “adopting prescribed consumer notification requirements.”

Preemptions need to be clearly written, local government attorney Ken Fellman emailed. “When Congress intends to preempt a traditional area of state or local legal authority, it has to clearly demonstrate that intent.”