Federal judge upholds Berkeley cellphone warning

The iPhone 4 — Berkeley will soon require cellphone retailers to warn customers about potential radiation dangers. File photo

Berkeley will soon start to require cellphone retailers to warn customers about potential radiation dangers, following a federal judge’s rejection of an industry supported campaign to put a stay on the city’s cellphone right-to-know ordinance.

U.S. District Judge Edward Chen had ruled in September that Berkeley’s ordinance was valid because it was based on Federal Communications Commission’s guidelines. But he also ruled that the city should remove a warning about potentially greater harm to children, which was, Chen ruled, not supported by federal guidelines or scientific consensus.

Berkeley City Council passed the amended ordinance, and, yesterday, Chen allowed the law to go into effect, rejecting the CTIA-The Wireless Association argument that it should be stayed pending an appeal to the federal Ninth Circuit.

“We’re very pleased with the ruling,” said City Attorney Zach Cowan. “I think he pretty much got it right.”

Cowan said the city planned to start enforcement of the law on March 22, which will give the industry time to file its appeal. At the original hearing before Judge Chen in August last year, Theodore Olson, arguing for the CTIA, said he expected the case to work its way to the Supreme Court.

“I think it’s sad it’s taken us this long to get something this simple done,” said Ellie Marks, Executive Director of the California Brain Tumor Association (CABTA). “Unfortunately, it’s about getting corporation’s money out of politics.”

CABTA and other advocates for warnings about cellphone radiation had been frustrated previously when a San Francisco ordinance was struck down by the courts. Berkeley’s ordinance was written to avoid the problems with that earlier effort.

“The attorneys we have representing us are looking forward to the appeal and looking forward to taking it all the way to the Supreme Court, if that happens,” Marks said. Berkeley is represented pro bono by Lawrence Lessig, a legal scholar at Harvard Law School (and brief candidate for the Democratic presidential nomination), and Robert Post, Dean of the Yale Law School.

Marks said that many other cities, including San Francisco, had been following the Berkeley case closely, and were eager to implement their own cellphone right to know laws. Lessig, however, had cautioned CABTA that other ordinances before the appeal would weaken Berkeley’s case.

The notice that the Berkeley ordinance would require 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. 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.

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Lance Knobel