City of Berkeley fends off wireless industry suit over health warning

Judge simply asks to cut a line: “This potential risk is greater for children.”

Cyrus Farivar – Sep 21, 2015 8:04 pm | 107

The City of Berkeley has fended off a lawsuit filed against it by CTIA, the wireless industry trade lobby. In a preliminary injunction today, the city has been asked to change a single sentence of the public health language it hopes to post in local phone shops. The CTIA lawsuit was an attempt to halt this required publication as the city had mandated such notices be posted by retailers or distributed on flyers.

The case, known as CTIA v. City of Berkeley, pitted two giants of the legal world against one another. On the side of the plaintiffs is Ted Olson, a former solicitor general under the George W. Bush administration. Meanwhile, the defendants are armed with presidential hopeful and rock star Harvard law professor Lawrence Lessig.

The specific language was short:

The City of Berkeley requires that customers be provided the following notice:

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.

Berkeley Municipal Code § 9.96.030(A)

The CTIA argued that a government (the City of Berkeley) forced phone retailers to speak in a way that it does not agree with. In so doing, the group argued, the city is compelling speech, which the government is not allowed to do.

But in a 35-page order, United States District Judge Edward Chen essentially found that all the city would need to do would be to strike one sentence: “This potential risk is greater for children.” As Judge Chen wrote in his preliminary injunction order:

On the first preliminary injunction factor, the Court cannot say that CTIA has established a strong likelihood of success on the merits with respect to its First Amendment claim. Nor has it raised serious question on the merits. While the sentence in the Berkeley ordinance regarding the potential risk to children is likely preempted, the remainder of 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.

Lessig, the attorney for the City of Berkeley, told Ars he was pleased.

“The rest of the ordinance survived First Amendment review, which was a very important victory, and I couldn’t find a single sentence in Judge Chen’s opinion that I disagreed with, so I’m quite happy,” he said.

The city ordinance, passed in May 2015, was scheduled to take effect in August 2015, but the legal case attempted to halt it. The CTIA lawsuit was filed in June 2015. Oral arguments occurred before Judge Chen in August as CTIA sought a preliminary injunction.

However, Lessig said that the city will now put forward a revised ordinance before the city council on October 9, which is expected to pass. For its part, CTIA seemed to indicate that it would be pursuing an appeal.

Strangely, CTIA seemed to claim victory after today’s events despite Judge Chen specifically saying CTIA is “not likely to succeed on the remainder of the City notice language.”

“We are pleased that the Court has preliminarily blocked enforcement of the Berkeley ordinance as drafted,” Olson said in an e-mailed statement. “As the federal government has repeatedly recognized, the overwhelming weight of scientific evidence refutes Berkeley’s ill-informed and misleading mandatory warnings about cell phones. We are confident that ultimately the entire ordinance will be struck down.”

The organization did not immediately respond to Ars’ request for comment.

Across the Bay in San Francisco, that city gave up on such public warning stickers in 2013. And it’s important to note that there really isn’t any current science to support the need for the warnings Berkeley is mandating. There’s no well-described mechanism by which non-ionizing radiation can induce long-term biological changes, although it can cause short-term heating of tissues. There are also no clear indications that wireless hardware creates any health risks in the first place, which raises questions of what, exactly, the city’s legislation was supposed to accomplish. At best for cities like Berkeley, large and comprehensive works indicate that any potential risks take decades to be felt, and cell phones simply haven’t been in use long enough for us to know for sure.