Berkeley Radiation Disclosure Ordinance Mostly Upheld

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By Joseph Wright

Sept. 22 — A municipal ordinance mandating disclosure of FCC-identified radiation findings didn't violate the First Amendment rights of mobile phone retailers, the U.S. District Court for the Northern District of California held Sept. 21.

Judge Edward M. Chen said that compelled commercial speech receives less scrutiny than prohibitions on commercial speech, and that an even less exacting standard applied to the statements at issue because the disclosures were clearly identified as emanating from the city, not the retailers.

The court also found that the ordinance was, mostly, not preempted by Federal Communications Commission guidance because it merely mandated notice of the FCC's standards and didn't threaten the goal of national uniformity. The court nonetheless enjoined the ordinance on the basis of one sentence that the court found overreached the FCC's guidance. The ordinance is enjoined until or unless the sentence is removed.

City of Berkeley spokesperson Matthai Chakko told Bloomberg BNA the city council will hear an amended ordinance without the sentence at issue on Oct. 6. The modified ordinance could get a second reading and be passed as soon as Oct. 13, and if enacted would take effect 30 days from passage.

Energy Exposure Disclosure Mandated

The City of Berkeley, Calif., passed an ordinance requiring mobile phone retailers to give purchasing or leasing consumers information about radiofrequency (RF) energy that mobile devices emit. The information largely tracks FCC exposure guidance issued to the general public about RF energy exposure.

The wireless industry trade group CTIA - The Wireless Association sought an injunction on behalf of retailers to prevent Berkeley from enforcing the ordinance, claiming the ordinance was preempted by the FCC's guidance and that it violated retailers' First Amendment rights against compelled speech.

Compelled Disclosures Less Protected

The court began if First Amendment analysis with the general proposition that commercial speech is less protected than noncommercial speech. Further, within the category of commercial speech, compelled disclosures are less protected than restrictions on speech, under Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626 (U.S. 1985) (plurality op.) .

Because some protected free speech interest was implicated, the court applied what it called a “rational basis plus” standard to the mandated disclosure but found the ordinance would still likely be upheld on that standard. The disclosure, except for one sentence, was “purely factual and uncontroversial” in that it accurately conveyed what the FCC's guidance says. It refused to credit CTIA's contention that the language was over-simplistic, saying the disclosure accurately conveyed the FCC's findings irrespective of any potential imprecision in the wording or limitations of the FCC's own findings. The court also found the disclosure was reasonably related to the government's interest in public safety and didn't present an undue burden on retailers.

CTIA argued that Zauderer analysis is limited to cases in which the government interest is preventing misleading advertising, but the court disagreed, saying disclosures regarding health and public safety fall even more directly within states' traditional police powers than advertising regulation does.

Disclosures Supported Statutory Goals

The court found that nationwide uniformity was recognized as an important interest under the TCA in Farina v. Nokia Inc., 625 F.3d 97 (3d Cir. 2010). Rather than inhibiting uniformity, however, the court found that the Berkeley ordinance was consistent with FCC's guidance under the statute.

The court also found that, with one exception, the ordinance was not preempted by the Telecommunications Act of 1996, because it supported, rather than standing as an obstacle to, accomplishing the purpose of the FCC's rules on radio frequency emission under the statute. While not endorsing any need to limit exposure to RF energy, the FCC guidance mandates that manufacturers include information about maintaining the recommended separation distance between mobile devices and skin in operating manuals.

The ordinance's mandated disclosure did overstep in one place, the court found. Referring to the potential hazards of RF energy exposure, the disclosure said, “This potential risk is greater for children.” The FCC's guidance, at most, recognized a scientific debate over any potential additional risks for children, the court said, and the disclosure didn't acknowledge this by saying there “may” or “might” be an increased risk. That overstep threatens the regulatory balance between promoting development of mobile devices and the need for public safety, the court found.

The court thus enjoined enforcement of the ordinance unless Berkeley modifies the text accordingly.

Gibson Dunn & Crutcher LLP represented CTIA.

To contact the reporter on this story: Joseph Wright in Washington at jwright@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com

Full text at http://www.bloomberglaw.com/public/document/CTIA__The_Wireless_Association_v_City_of_Berkeley_et_al_Docket_No/6