Cell phone industry files suit against Berkeley's warning notice ordinance

Cell phone industry files suit against Berkeley's warning notice ordinance

By Tom Lochner tlochner@bayareanewsgroup.com

POSTED:   06/09/2015 01:31:22 PM PDT2 COMMENTS| UPDATED:   27 DAYS AGO

BERKELEY -- An industry group represented by one of the nation's most prominent attorneys has sued Berkeley in federal court, seeking to topple the city's recently enacted ordinance mandating disclosure of possible radiation hazards associated with use of cellphones.

CTIA -- The Wireless Association, represented by Theodore Olson of Washington, D.C.-based law firm Gibson, Dunn & Crutcher, argues that forcing sellers and lessors of cellphones to warn customers of the supposed radiation hazards of the devices violates retailers' First Amendment rights by "conscripting" them to proclaim a message with which they disagree. Moreover, the suit argues, the ordinance is pre-empted by federal law because it infringes on the federal government's authority to regulate the industry.

The ordinance, unanimously approved by the Berkeley City Council on May 12 and confirmed on May 26, would require a notice to people buying or leasing cellphones that would read in part:

"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 (radio frequency) radiation." 

"This potential risk is greater for children," the notice continues, adding that consumers should check their user manuals for how to use the phones safely.

Berkeley City Attorney Zach Cowan on Tuesday said the city has no comment on pending litigation.

Olson was solicitor general under President George W. Bush from 2001 to 2004. In late 2000, Olson represented then-candidate Bush before the U.S. Supreme Court, which stopped a recount of votes in Florida, effectively delivering victory to Bush in the presidential campaign over Al Gore. Later, Olson challenged California's Proposition 8, which banned same-sex marriage in 2008. Prop. 8 eventually was overturned in U.S. District Court.

The CTIA suit says Berkeley's ordinance amounts to "compelled speech" that "is not only scientifically baseless and alarmist, but ... also contradicts the federal government's determination that cellphones approved for sale in the United States, however worn, are safe for everyone." It warns that if allowed to stand, it will lead to a "crazy-quilt of tens of thousands of inconsistent 'disclosure' obligations around the country."

Councilman Max Anderson, who co-sponsored the ordinance with Councilman Kriss Worthington, said Tuesday that Berkeley anticipated the lawsuit and that the CTIA's First Amendment argument is spurious and without merit.

"The CTIA, like the NRA, will litigate any measures that seek to protect consumers from their product," Anderson said.

Lawrence Lessig, a law professor and director of the Edmund J. Safra Center for Ethics at Harvard University, told the council on May 12 that he is increasingly concerned that the First Amendment is being used by corporations as a bullying tool.

He referred to several recent national and international scientific studies, and an appeal submitted to the United Nations World Health Organization, that raise concern over the effects of increased exposure to electromagnetic fields generated by electric and wireless devices such as cellphones, cordless phones, base stations, Wi-Fi, broadcast antennas, smart meters, baby monitors and other devices that generate an extremely low-frequency electromagnetic field. Lessig has offered to provide legal advice to the city and defend the ordinance pro bono.

Contact Tom Lochner at 510-262-2760. Follow him at Twitter.com/tomlochner.

http://www.contracostatimes.com/breaking-news/ci_28282842/cell-phone-industry-files-suit-against-berkeleys-warning