Historic Berkeley Cell Phone Warning Ordinance Wins in US Federal Appeals Court

The City of Berkeley won another round, but not the last, against Big Telecom in the 5 year battle to provide simple safety warnings at cell phone point of purchase, informing consumers of potential harms from carrying these devices against the body. It is the same FCC mandated warning buried deep in the manufacturers cell phone manual. On July 1, 2019,  after many appeals, the Ninth Circuit Federal Appeals Court upheld Berkeley’s 2015 cell phone “right to know” law, requiring cell phone retailers to post or hand out a warning to consumers at the point of sale. The original 2015 lawsuit has yet to be heard, however, as industry continues to work the appeals court.

The Berkeley Ordinance Reads,

“The City of Berkeley requires that you be provided the following notice: 

“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.”

Update 7/7/19

The Ninth Circuit Judges Issued the Following Opinion:

July 1, 2019- “The panel affirmed the district court’s denial of CTIA’s request for a preliminary injunction that sought 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.”

” … the panel held that the text of the compelled disclosure was literally true, Berkeley’s required disclosure was uncontroversial within the meaning of NIFLA, and the compelled disclosure was not unduly burdensome. The panel concluded that CTIA had little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance was unconstitutional.”

“Turning to the issue of federal preemption of Berkeley’s ordinance, the panel held that far from conflicting with federal law and policy, the Berkeley ordinance complemented and enforced it. The panel held that Berkeley’s compelled disclosure did no more than alert consumers to the safety disclosures that the Federal Communications Commission required, and directed consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. The panel concluded that CTIA had little likelihood of success based on conflict preemption.”

“The panel held that there was no showing of irreparable harm based on CTIA’s First Amendment claim, or based on the preemption claim. The panel concluded that the balance of the equities favored Berkeley. The panel further held that the ordinance was in the public interest and that an injunction would harm that interest. The panel concluded that the district court did not abuse its discretion in denying preliminary injunctive relief to CTIA.”

Berkeley Battle Since 2014

This all started in 2014, when the historic cell phone “right to know” ordinance was proposed to the Berkeley City Council. The council was provided scientific information regarding potential hazards of cell phone radiation, including literature on brain tumors on the same side of the head cell phones were used, breast tumors in same location as cell phone placed in bra, and evidence of DNA damage from cell phone radiation. Experts spoke before the council, including Dr. Lisa Bailey, past president of the California Division of the American Cancer Society and co-author of an article describing case reports of breast cancers in those who regularly kept their cell phone in their bra. Harvard Law Professor and constitutional law attorney, Lawrence Lessig, helped to draft the ordinance and has defended it pro bono over the years.

Cell Phone Survey Highlights the Need to Educate the Public

In April 2015 a Berkeley cell phone survey, funded by the California Brain Tumor Association, was released. The findings affirmed the need to enact a cell phone ordinance. 82% of adults surveyed wished to have information about the manufacturer’s minimum separation distance of the phone from the user’s body.  This information is required by the FCC and typically buried in the legal fine print of user manuals.  The survey also found:

  • 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.
  • 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.
  • 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.
  • 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.

 

The Ordinance Passes with Only Industry Opposition

In May 2015 the Berkeley ordinance passed unanimously on 9 to 0 vote. The only opposition was CTIA (Cellular Telecommunications Industry Association), which is a 501 (c) 6 non-profit membership organization representing wireless manufacturers, carriers and suppliers. The CTIA Senior Director argued at the City Council meeting that the warning would scare customers. He stated government agencies have determined that “There are no known hazardous effects of cell phone use.”

 Berkeley’s Right to Know Bill

 

A short video documentary with interviews of attorney Larry Lessig was produced after the passage of the Berkeley Cell Phone Right to Know Ordinance  May 12, 2015.

The full text is here- REQUIRING NOTICE CONCERNING RADIO FREQUENCY EXPOSURE OF CELL PHONES. Berkeley Cell Phone Ordinance original draft 2014

CTIA Files a Lawsuit June 2015

A lawsuit as well as a motion for an injunction was filed by CTIA- Wireless Industry Association- June 8, 2015,  less than a month after the ordinance passed to prevent the city from enacting the ordinance. Industry attorneys stated the information was misleading and violated the First Amendment.  The motion for injunction in the Federal District Court in Northern California against the City of Berkeley would apply until final judgement.

The Original Lawsuit is here. CTIA- The Wireless Association vs The City of Berkeley, California

Arguments from CTIA Wireless Association included

  • First Amendment prohibits the City from conscripting those who disagree into
    disseminating those opinions
  • 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
  • The FCC approves for sale in the United States only cell phone models that have been certified as compliant with those standards
  • The message to not place the phone in a pants pocket or bra or it may exceed FCC guidelines “will stoke fear in consumers about the dangers of cell phones”  is not true
  • The City’s infringement on the freedom of speech protected by the First Amendment constitutes per se irreparable injury
  • 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 City of Berkeley challenged CTIA arguing the following:

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.

Federal Judge Upholds Berkeley Right to Know after Deleting 7 Words

September 7, 2015 a Federal Judge ruled in favor of Berkeley after removing this 7 word sentence- “This potential risk is greater for children.”  The judge stated that the FCC does not acknowledge that children’s exposure to cell phone radiation is greater than adults. The City then amended the revised ordinance without the language applying to children.

Attorney Lessig stated in his blog , “”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 Ban on Berkeley Cell Phone Ordinance Lifted January 27, 2016 Followed by Industry Appeal

January 27, 2016 the Federal Court lifted the ban on the Berkeley cell phone ordinance. Dr. Joel Moskowitz who has been a dedicated consultant for this ordinance notes on his blog, “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.”

The Ninth Circuit Court of Appeals Denied CTIA Injunction While Trial Pending

March 23, 2016 the Ninth Circuit Court of Appeals denied another request by CTIA for an injunction preventing Berkeley to enact the Cell Phone Ordinance.  Industry stated there was a free speech violation as the law required them to communicate a message they opposed.  The Berkeley Ordinance has been in effect since March 23, 2016. CTIA again appealed the decision asking for an injunction stopping the ordinance until the formal trial is complete.

Attorney General Kamala Harris and NRDC Write Amicus Briefs In Favor of Berkeley Ordinance

From March 2016 to September 2016 testimony was submitted to the Court of Appeals regarding the CTIA injunction against Berkeley. The city and other interested parties filed briefs to the court. Dr. Moskowitz notes in his blog, “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.” https://www.law360.com/articles/788952

The Court Denied a Request by the CTIA to Block Berkeley’s Landmark Cell Phone “Right to Know” Ordinance

April 21, 2017- After much deliberation the court decided in favor of Berkeley’s right to enact the Cell Phone Right to Know Ordinance while awaiting final trial. The court stated in their opinion, “The 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.  The Court Opinion is here

In January 2018 CTIA filed a petition for the Supreme Court to hear their case.  The Supreme Court sent the case back to the appeals court for further consideration.  The City of Berkeley convened a council meeting and ultimately re-affirmed the city’s commitment to defend the law against the CTIA’s lawsuit.

What is Next in CTIA vs The City of Berkeley?

The original trial from 2015 is still pending as industry continues to file appeals in court to block this simple and factual information to consumers. It is likely they will file yet another appeal of the latest court decision. It could be years before this matter is settled.

PhoneGate: French Government Study Reveals 9 out of 10 phones tested exceed regulatory limits

The Berkeley  Cell Phone Ordinance is important in protecting public health considering the 2015 French  PhoneGate Scandal, where tests were conducted on cell phones in the manner they are used, close to the body. They found that 9 out of 10 phones exceeded the manufacturers reported radiation test levels in that position, and at 3 to 4 times the limit.  CBC Marketplace in 2017 performed a similar study after uncovering the “secret message inside the cellphone”, where buried inside the settings is revealed a manufactures required warning to keep this 5 to 15 mm from the body to keep exposure levels at or below the as tested levels. There is no law requiring manufacturers to produce phones that are within the guidelines when used close to the body.

CBC Investigative Reprot in 2017- Confirms French PhoneGate

The Canadian Broadcast Corporation led an independent investigation into safe exposure levels of cell phones in 2017 and confirmed the original Phone Gate research. Carrying your cell phone in a pants pocket, shirt or bra against the body exceeds FCC limits by up to 4 times in many models of cell phones.

The Secret Inside Your Cellphone. CBC Marketplace Investigation.

 

Special Thanks to Joel Moskowitz, PhD, Director of the Center for Family and Community Health, School of Public Health, UC Berkeley for his continued efforts towards passing this landmark ordinance. He has also educated the public and news media about this issue, keeping a careful historical record at Safer EMR, and which was used to write this blog. https://www.saferemr.com/2014/11/berkeley-cell-phone-right-to-know.html

See also

%d bloggers like this: