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Ninth Circuit Court Upholds Berkeley's 'Cell Phone Right to Know' Law
USA Created: 3 Jul 2019
Today a Federal appeals court upheld the "cell phone right to know" law adopted by the City of Berkeley in May, 2015.

The Ninth Circuit Court of Appeals affirmed Berkeley's right to require cell phone retailers in the city to notify prospective customers about cell phone manufacturers' safety guidelines to ensure consumer safety.

The mandatory notification states:

"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.”

The CTIA--The Wireless Association filed a lawsuit in June, 2015, a month after the law was adopted, to block the ordinance claiming that it violated the Telecom industry's First Amendment rights and that the notification was preempted by Federal law. After the city adopted a minor change in the safety notice, the Federal district court ruled against the industry's request for a preliminary injunction. The law has been in effect in the city since March 21, 2016.

Today on a 2-1 decision, a panel of judges from the Ninth Circuit Court of Appeals issued the following opinion:

"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."

The CTIA can appeal today's ruling by once again requesting an en banc hearing involving 11 judges before the Appeals Court and/or requesting the U.S. Supreme Court to hear the case. Moreover, the issue that has been litigated the past four years is the CTIA's request for a preliminary injunction to temporarily block the ordinance until the Federal courts hear the case and issue a final decision. That the CTIA will employ the same legal arguments in litigating the case portends well in the long run for the City of Berkeley.

See below for a detailed chronology of the ordinance adoption by the City of Berkeley and the ensuing lawsuit filed by the CTIA (CTIA--The Wireless Ass'n. v. City of Berkeley, et al; case number 16-15141).

The appeals court opinion is available at http://bit.ly/CTIAvBerkeley7-2-19.
Click here to view the source article.
Source: SaferEMR, Joel M. Moskowitz, 01 Jul 2019

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