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By Lisa Helem
Sept. 22 — A proposed mobile phone safety ordinance that would require Berkeley, Calif., retailers to warn of the dangers of radiation exposure has been enjoined, for now, thanks to seven words addressing child exposure.
The ordinance would require mobile phone retailers to warn customers that phones carried in pants, shirt pockets or bras while turned on and connected to a wireless network may exceed the federal guidelines for exposure to radiofrequency (RF) radiation, the U.S. District Court for the Northern District of California said.
The ordinance could be enforceable if seven words on childhood safety—“This potential risk is greater for children”—were cut from its language, Judge Edward M. Chen said.
The court said these words were subject to federal preemption, in part because the Federal Communications Commission hasn't ever endorsed special warnings regarding children’s exposure to RF radiation, the court said..
According to the ruling, the ordinance is enjoined “unless and until” the City of Berkeley excises the language about children's safety from the ordinance.
The ordinance's purpose, according to its text, “is to assure that consumers have the information they need to make their own choices about the extent and nature of their exposure to radio frequency radiation.”
The court here considered a motion for preliminary injunction of the ordinance by mobile phone group, CTIA—The Wireless Association in their suit against Berkeley.
Ted Olson, a partner with Gibson Dunn & Crutcher who represents CTIA, was happy with the ruling, he said in a statement e-mailed to Bloomberg BNA Sept. 22.
“We are pleased that the Court has preliminarily blocked enforcement of the Berkeley ordinance as drafted. As the federal government has repeatedly recognized, the overwhelming weight of scientific evidence refutes Berkeley's ill-informed and misleading mandatory warnings about cellphones. We are confident that ultimately the entire ordinance will be struck down,” Olson said.
However, the city could decide to pass an amended, enforceable version as early as next month, Matthai K. Chakko, spokesman for the City of Berkeley, Calif., said on a call with Bloomberg BNA Sept. 22.
“On October 6, the city council will vote on adopting an amended ordinance that will excise that sentence” about child safety and “it will get a first and second reading” over two meetings, he said. “Once the second reading is passed, then it goes into effect roughly 30 days later,” Chakko said.
Lawrence Lessig, counsel for the City of Berkeley, cut to the chase on a call with Bloomberg BNA Sept. 22. “Obviously Ted Olson is a far better lawyer than I am. But I had the law and he didn't,” Lessig said. “I think the law was pretty clear.”
Lessig said that he thought Judge Chen focused on “the narrow question, as the [U.S.] Supreme Court has articulated it, of whether the disclosure requirement in the court's words ‘chills commercial speech.' ” He added that “the obvious answer was ‘no.' ”
Lessig, a Harvard Law School professor, is on leave from the school as he recently announced his candidacy for president of the United States. Olson, a noted U.S. Supreme Court advocate, is also a former U.S. solicitor general.
CTIA's suit alleges that the ordinance, Berkeley Municipal Code Chapter 9.96, “would require CTIA’s members to convey a message that is inaccurate, misleading, and alarmist,” violating members' free speech rights under the First Amendment.
But the court said that it couldn't say CTIA “established a strong likelihood of success on the merits with respect to its First Amendment claim.” Also, the ordinance's disclosure requirement didn't impose an undue burden on CTIA or its members’ First Amendment rights, the court said.
Besides the language about children's safety, the rest of the ordinance was “factual and uncontroversial and is reasonably related to the City’s interest in public health and safety,” the court said.
Considering whether the balance of the ordinance's language was subject to preemption, the court said that the “CTIA has failed to point to any FCC pronouncement suggesting that the agency has any objection to warning consumers about maintaining spacing between the body and a cell phone.”
The ordinance was also consistent with the FCC's requirement that mobile phone manufacturers disclose information and advice about mobile phone spacing to consumers, the court said.
But the court ruled that CTIA did demonstrate a likelihood of success on its claim that the ordinance's warning about childhood safety was preempted. This was, in part, because the FCC has never mandated special warnings regarding children’s exposure to RF radiation from mobile phones.
The “content of the sentence – that the potential risk is indeed greater for children compared to adults – threatens to upset the balance struck by the FCC between encouraging commercial development of all phones and public safety, because the Berkeley warning as worded could materially deter sales on an assumption about safety risks which the FCC has refused to adopt or endorse,” the court said.
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The order is available here http://www.bloomberglaw.com/public/document/Ctia_v_City_of_Berkeley_No_C152529_EMC_2015_BL_305375_ND_Cal_Sept
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