Court rules for Berkeley in cellphone right to know case

Lawrence Lessig (left) chats with Theodore Olson (right) before the two lawyers battled with each other in Federal District Court. Photo: Lance Knobel — Lawrence Lessig (left) chats with Theodore Olson (right) before the two lawyers battled with each other in Federal District Court in August. Photo: Lance Knobel

The City of Berkeley’s cellphone right to know ordinance, passed in May, largely survived a legal challenge in federal court by the mobile phone industry. The law requires mobile phone retailers to provide consumers with notice of FCC guidelines on cellphone use.

CTIA – The Wireless Association, the plaintiff, had sought a preliminary injunction to stop enforcement of the law, arguing that federal law preempted Berkeley’s law and that First Amendment rights were being violated.

In a ruling issued yesterday, federal district judge Edward Chen granted in part and denied in part the CTIA’s motion. The grant, however, concerned a single sentence of the Berkeley law, referring to greater risk for children. On the central legal argument, whether Berkeley’s law violated the First Amendment, Chen ruled for the city.

Chen wrote that, with the exception of the sentence on risk to children, “the City notice is factual and uncontroversial and is reasonably related to the City’s interest in public health and safety. Moreover, the disclosure requirement does not impose an undue burden on CTIA or its members’ First Amendment rights.”

The ruling is consistent with the probing questions Chen posed to legal stars Lawrence Lessig, acting pro bono for the city, and Theodore Olson, acting for the CTIA, during a hearing in August. At the hearing, Lessig had conceded that the city would agree to drop the sentence concerning children if that was the only matter at issue.

For the law to go into force, Chen’s ruling means the City Council will need to amend the ordinance, striking the sentence on risk to children. According to city attorney Zach Cowan, an amendment will be considered by the council on Oct. 6.

“Once we take the language out, it’s enforceable,” Cowan said.

The CTIA had successfully used First Amendment arguments to stop a San Francisco right to know ordinance in 2010. The Berkeley law was drafted to avoid the legal issues that caused problems for the San Francisco law.

Lessig said that he expected the CTIA to appeal the ruling.

“CTIA’s position is not the law, but of course, the Supreme Court could change the law,” he said. “I expect the balanced approach taken by Berkeley will be followed elsewhere.”

The notice that the Berkeley ordinance would require, before any amendment, reads:

“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 is provided on paper not less than 5-by-8 inches, 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.

Update: Late on Tuesday, the CTIA issued the following statement from its lawyer, Olson:

“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.”

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Lance Knobel