A wireless trade association filed suit against Berkeley on Monday, claiming that the city’s new law requiring notification of possible radiation from cellphones is a violation of the First Amendment.
CTIA The Wireless Association filed the federal suit in the Northern District of California court.
“Berkeley’s Ordinance violates the First Amendment because it will require CTIA’s members to convey a message to which they object, and which is factually inaccurate, misleading, and controversial,” the lawsuit contends, according to The Hill, a Washington D.C.-based website that covers Congress, politics, and political campaigns.
One of the attorneys representing the wireless trade group is Theodore B. Olsen, who successfully argued to overturn California’s Prop 8 that banned gay marriage.
Zach Cowan, the Berkeley City Attorney, said in an email that the city has not yet even been officially served with legal papers.
The Berkeley City Council in May adopted an ordinance to require cellphone retailers to provide consumers, with every sale or lease of a phone, with a notice on radio frequency (RF) radiation exposure guidelines. The notice would have to warn consumers that carrying the phone in a pants or shirt pocket, or tucked into a bra, could result in exceeding federal guidelines.
The law, first proposed by council members Max Anderson and Kriss Worthington, was set to go into effect on June 25.
San Francisco had tried to do something similar, passing a so-called “Right to Know” ordinance in 2010, but a lengthy legal battle led its Board of Supervisors to withdraw the law in 2013, after a federal appeals court blocked implementation on First Amendment grounds.
Berkeley’s law was fundamentally different, according to Lawrence Lessig, a law professor at Harvard, who, along with Robert Post, the dean of Yale Law School, helped city staff craft the ordinance.
Lessig has offered to defend the city pro bono since both he and city officials expected the law to be challenged.
Gerald Keegan, a representative from CTIA The Wireless Association, told the council in mid-May that there are no harmful effects from cellphones so the notice “would irresponsibly alarm consumers.”
The lawsuit also contends that if Berkeley’s law is allowed to stand, there will soon be thousands of similar laws around the country, “resulting in a crazy-quilt of tens of thousands of inconsistent “disclosure” obligations across the country.
The new Berkeley law requires the notice to read:
“To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. 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. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”
It requires that the notice be provided on paper not less than 5-by-8 inches in size, in at least 18-point type. If the notice is “prominently displayed” at a point of sale, it must be on a poster not less than 8-1/2-by-11 inches in at least 28-point type.
The lawsuit suggests this required language is inflammatory and incorrect.
The lawsuit states: “By using words and phrases such as “assure safety,” “radiation,” “potential risk,”“children,” and “how to use your phone safely,” the City’s unsubstantiated compelled disclosure is designed to convey a particular message that will stoke fear in consumers about the dangers of cellphones: “Do not carry your cell phone in your pants or shirt pocket, or in your bra, when powered ON and connected to the wireless network, because by doing so, you may absorb more RF radiation than is safe, as determined by the Federal Government. The risk of exposure to unsafe levels of RF energy is greater for children. But CTIA’s members do not wish to convey that message, because it is not true. As explained above, the FCC has stated that even where the RF emissions limit is exceeded, there is “no evidence that this poses any significant health risk.”
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