9th Circuit Upholds Berkeley Cellphone Ordinance
A divided 9th U.S. Court of Appeals upheld a Berkeley, California, city ordinance requiring retailers to inform prospective cellphone buyers that carrying their devices in certain ways can cause exposure to RF radiation exceeding federal limits. The ordinance requires retailers…
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to post a notice warning consumers: “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 radiation.” Berkeley's requirement “does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure," wrote Judge William Fletcher in the majority opinion. “Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it." Judge Michelle Friedland partially dissented. The court’s majority “interprets the sentences in Berkeley’s forced disclosure statement one at a time and holds that each is ‘literally true,’” Friedland said. “But consumers would not read those sentences in isolation the way the majority does. Taken as a whole, the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe. Yet Berkeley has not attempted to argue, let alone to prove, that message is true.” A CTIA spokesman said the group is considering its options. “The court of appeals concluded that ‘CTIA is correct’ that there is no evidence of harmful effects caused by cell phones," CTIA said. "We respectfully believe this fact demonstrates why the Berkeley ordinance violates the First Amendment since it necessarily makes Berkeley's ‘warning’ misleading, as Judge Friedland recognized in her dissent.”