Judge Persuaded by FCC That Berkeley RF Law Warns Too Much
FCC RF safety rules preempt a local law in Berkeley, California, U.S. District Court in San Francisco decided Thursday. Judge Edward Chen granted CTIA’s motion for judgment, saying the FCC was persuasive that the local law could overwarn the public. “Given the specificity of the warning required by the Berkeley ordinance, the implied risk to safety if the warning is not followed (a risk the FCC has concluded does not exist), and the acknowledged” RF safety debate, “the FCC could properly conclude that the Berkeley ordinance -- as worded -- overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC,” he said.
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CTIA agrees Berkeley "cannot force our members to repeat its erroneous opinion about the safety of wireless devices,” wrote General Counsel Tom Power in a statement. “The consensus of the experts -- and the FCC agrees -- is that there are no known health risks from the use of FCC-regulated mobile phones.” Berkeley could appeal the decision to the 9th U.S. Circuit Court of Appeals; the city didn’t comment.
The 2015 wireless industry challenge to Berkeley’s RF law returned to district court this year. The Supreme Court declined in late 2019 to take up CTIA’s appeal of the 9th Circuit denying for a second time the wireless association’s petition for preliminary injunction (see 1912090058). The FCC issued an order on RF safety in December (see 1912040036) and later at the district court filed a statement of interest interpreting its RF safety policy as preempting Berkeley’s law. Chen asked at July's oral argument how much deference to give the SOI (see 2007240063).
The SOI was “a clear statement by the FCC that the Berkeley ordinance specifically constitutes overwarning,” wrote Chen. The Skidmore deference standard applies, and while more “modest” than the Auer standard, it still means the SOI “is entitled to some deference to the extent it has the power to persuade,” he said. Even if the local law is “literally true and not misleading, it does not necessarily follow that there is no risk of ‘overwarning’ -- especially given that the FCC is tasked with balancing the competing objectives of ensuring public health and safety and promoting the development and growth of the telecommunications network and related services.”
It’s “a fair and valid point for the FCC to state that disclosures about RF exposure and safety have the potential to overwarn -- particularly in light of the FCC’s finding that cell phones do not pose a health risk under normal use and the City’s concession that FCC-certified cell phones are safe,” Chen wrote. “It was based on the FCC’s consideration of extensive comments and information received over the span of several years.” And it’s consistent with earlier actions, he said.