Court Dismisses Class-Action Cellphone Safety Case, in Win for Wireless Industry
A federal appeals court rejected an effort to revive a class-action lawsuit against wireless carriers and cellphone makers that had been thrown out on grounds it was preempted by FCC regulations. The case in the 3rd U.S. Circuit Court of Appeals in Philadelphia, Farina v. Cellco, had bounced around the courts since April 2001. The 4th Circuit in Richmond, Va., had reached a similar decision two years ago.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
A wireless-industry lawyer said the decision may affect the CTIA’s challenge to a San Francisco ordinance requiring disclosure on cellphones of radiation levels. “If it had gone the other way, it would have been not a very good development for the industry,” the lawyer said.
Francis Farina brought the latest version of the suit on behalf of a class of all past, current and future Pennsylvania purchasers and lessees of cellphones not diagnosed with an injury or illness resulting from cellphone usage. Farina claimed that cellphones are unsafe to use without a headset because the phones expose the user to harmful radio frequency radiation when their antennas are positioned next to the head. Farina argued that marketing of cellphones as safe for use without headsets violates several provisions of Pennsylvania law. Farina claimed that “dozens of peer reviewed research papers” have “raised serious and credible questions” about risks from cellphones.
The decision was written by Judge Anthony Scirica, a Reagan appointee and the former chief judge of the court. He was joined by Thomas Ambro, a Clinton appointee, and Arthur Alarcón, a 9th Circuit judge sitting by designation.
The decision upheld a lower court ruling that FCC regulations governing RF emissions preempt Farina’s claims. “Federal regulation of radio communications can be traced back a century, to the Wireless Ship Act of 1910,” Scirica noted in the decision, and the FCC has regulated human exposure to RF emissions since 1985. “The Supremacy Clause of the United States Constitution … invalidates state law that ‘interferes with or is contrary to federal law,'” he wrote. This preemption “can apply to all forms of state law, including civil actions based on state law.”
Scirica wrote that the court had to balance state versus federal authority in a number of areas. Farina’s arguments rest on allegations that cellphones that follow FCC guidelines remain unsafe to use, he said. “As an agency engaged in rulemaking, the FCC is well positioned to solicit expert opinions and marshal the scientific data to ensure its standards both protect the public and provide for an efficient wireless network,” he wrote. “Allowing juries to perform their own risk utility analysis and second-guess the FCC’s conclusion would disrupt the expert balancing underlying the federal scheme.”
In addition, Scirica said, the court must take into consideration that the wireless network is national. Standards that vary by state would destroy “the uniformity necessary to regulating the wireless network,” he said.