U.S. Supreme Court Declines to Consider Cell-Phone Emissions Preemption Case

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Farina v. Nokia Inc., U.S., No. 10-1064, 10/3/11

Key Development: The Supreme Court denies review of a closely-watched preemption case on cell phone safety.

Potential Impact: A new area of tort and class-action litigation based on an alleged link between wireless emissions and cancer remains a nonstarter for now under the doctrine of federal preemption.

By Martina S. Barash  

The U.S. Supreme Court Oct. 3 denied a request for review in a putative class action over the safety of wireless telephones (Farina v. Nokia Inc., U.S., No. 10-1064, 10/3/11).

The denial of review leaves standing a decision of the U.S. Court of Appeals for the Third Circuit, which held that such claims are preempted by the Federal Communications Commission's radio-frequency (RF) emissions standard.

Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer did not participate in the decision, according to the order, which was otherwise issued without comment.

SG's Advice Taken.

The court followed the advice of Solicitor General Donald B. Verrilli Jr., who recommended in a brief filed Aug. 26 that the court deny petitioner Francis J. Farina's request for a writ of certiorari in his case against a number of cellular telephone manufacturers and retailers. Farina sought to represent a statewide class of Pennsylvania consumers, asserting the companies should not have marketed the phones—without headsets—as safe.

After receiving the parties' briefs, the top court requested the opinion of the United States.

Professor Jean Macchiaroli Eggen of Widener University School of Law in Delaware, who has written about preemption, told BNA Oct. 3, “Going forward, it's pretty clear what the FCC's position is: There is preemption, there is conflict preemption. … It's pretty explicit, as I recall, in the brief.”

She added, “The Solicitor General didn't believe that there is, right now, a conflict between the circuits.” She noted Verrilli's point that the U.S. Court of Appeals for the Fourth Circuit, in a case with a different result, did not have the FCC's views on preemption before it.

“If we take that as one of the major reasons why the court decided to deny cert … it's possible to wait and see what other circuits might do,” she said.

SG: Let It Go.

In his submission to the court, Verrilli discounted three main arguments by Farina: that there is sufficient conflict among appellate courts to warrant resolution; that a savings clause in the Telecommunications Act of 1996 requires clarification; and that the FCC regulation lacks preemptive effect because it was promulgated to meet a procedural obligation under an environmental law.

On the last point, Verrilli said, “Petitioner is … wrong in asserting … that the FCC's RF rules do ‘not impose a substantive standard on wireless phones.' ”

“When it adopted the current RF limits for cell phones … , the Commission anticipated that its RF rules would create ‘a de facto compliance requirement,' ” Verrilli continued.

“The Commission's RF guidelines thus were not simply procedural in nature, but reflected the agency's substantive determination that its standards for wireless phones” would meet its mandate that it balance public-safety considerations with the need for industry to provide efficient, practical wireless services, Verrilli said. State laws that could disrupt the balance are preempted, Verrilli concluded.

Verrilli also made the argument that a savings clause contained in the 1996 Act did not take away the FCC's earlier authority to issue regulations with preemptive effect.

Eggen described Verrilli's argument on the savings clause as “finessing” the issue. “Whether the other Circuits will agree with that view remains to be seen, to see whether there is any kind of conflict going forward among the Circuits.”

“And it may be that another case coming down the line might trigger certiorari at that point,” she said.

Allison M. Zieve and Scott L. Nelson of the Public Citizen Litigation Group in Washington, D.C. along with Kenneth A. Jacobsen, who practices in Wallingford, Pa., represented Farina.

David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, D.C. and others, represented the cell phone companies.

Verrilli and others at the Department of Justice and the FCC in Washington, D.C., submitted the brief on behalf of the United States.