A group representing various sectors of the wireless industry has filed a lawsuit in the Northern District of California challenging San Francisco’s new ordinance requiring retailers to disclose radiation levels of the mobile devices they sell. San Francisco Mayor Gavin Newsom signed the “Cell Phone Right-to-Know Ordinance” (“the Ordinance”) into law on July 1, 2010. It will take effect beginning in February 2011. The plaintiff, CTIA—The Wireless Association® (“CTIA”), is a Washington D.C. nonprofit membership organization that advocates for many of the wireless industry’s largest manufacturers and retailers . CTIA initially protested the new ordinance by pledging to move its wireless trade show from San Francisco–the show’s location for five of the past seven years. The lawsuit reflects an even stronger move on the part of the wireless industry to combat local cell phone regulation.
The CTIA Complaint
In its complaint, CTIA asserts in three counts that San Francisco has violated the Supremacy Clause of the U.S. Constitution by attempting to preempt federal law:
• First, CTIA claims that federal law impliedly preempts the Ordinance because the regulatory field of wireless communications belongs exclusively to the federal government.
• Second, CTIA asserts that the Ordinance conflicts with federal law by challenging the FCC’s past determination that FCC-compliant wireless handsets are safe and do not require emission warnings. This claim also states that the Ordinance disrupts Congress’s goal of uniform regulations for wireless communications and upsets the carefully balanced mandated goals of the current standard: (1) to encourage rapid deployment and increased usage of wireless communications within an efficient U.S. telecommunications infrastructure and (2) to protect public health and safety. CTIA argues that the FCC has adopted a safe standard for radio frequency emissions when it set the Specific Absorption Rate limit, and disclosure of already-safe levels would only confuse and mislead consumers.
• Third, CTIA asserts that the Ordinance is in clear violation of the Communications Act because the Act explicitly prohibits States from regulating the “entry of . . . any commercial mobile service.” 47 U.S.C. § 332©(3)(A). This prohibition includes state-imposed warning and label requirements.
CTIA seeks a declaration that the Ordinance violates the Supremacy Clause and is preempted by federal law; an injunction prohibiting San Francisco from implementing, enforcing, or threatening to enforce the Ordinance; and costs, attorneys’ fees, and other expenses.
Recent Cell Phone Safety Trends
San Francisco’s Ordinance arrives in the midst of a recent trend to acknowledge a possible link between cell phone use and health risks. In May, the World Health Organization released its Interphone Study , which analyzed cell phone use and its link to brain cancer. Eleven European nations, Japan, and New Zealand participated in the study. Although the decade-long research did not show a conclusive link between cell phone use and cancer, “suggestions” did exist that heavy cell phone use could increase the risk of brain tumors. Researchers concluded that further research is merited.
In response to the Interphone Study, CTIA issued a statement advocating continued research but verifying the FCC’s currently safe standards. CTIA’s Vice President of Public Affairs John Walls stated, “Interphone’s conclusion of no overall increased risk of brain cancer is consistent with conclusions reached in an already large body of scientific research on this subject.”
Some nations have not waited for definitive results—France has passed legislation that requires cell phones to be sold with an earpiece or headset and forbids advertising to young children or providing cell phones to children under six. In the U.S., both Maine and California have considered legislation requiring warning labels on cell phones.
In June, Ohio Congressman Dennis Kucinich pledged to propose a federal law that would require cell phone warning labels. Kucinich acknowledged the lack of a definitive connection between cell phone use and cancer but claimed that studies funded by the telecommunications industry—like the Interphone Study—were “significantly less likely to find a link between cell phones and health effects.” Kucinich called for a “first-class research program” in the U.S. to find answers and in the meantime a federal labeling law to err on the side of protection.
CTIA’s current lawsuit has the potential to help guide government agencies and legislative bodies in their continued concern about cell phone radiation. With more than 285 million mobile phones in the U.S. and 4.5 billion mobile phones globally , the lawsuit will certainly be an interesting development in the months to come.