In a decision that creates a split of authority among the federal circuits, the U.S. Court of Appeals for the Third Circuit ruled that telecommunications regulations promulgated by the Federal Communications Commission ("FCC") preempted a state law tort action claiming that the radio frequency ("RF") radiation emitted by cell phones in compliance with FCC standards was unsafe.See Farina v. Nokia, No. 08-4034 (3d Cir. Oct. 22, 2010), available at http://www.ca3.uscourts.gov/opinarch/084034p.pdf .
On behalf of a putative class of all past, current, and future Pennsylvania purchasers and lessees of cell phones, the plaintiff brought the action against various cell phone manufacturers and retailers of wireless handheld devices, alleging that they had improperly warranted and marketed their cell phones as safe to operate and had suppressed information regarding the health risks of RF radiation. Farina, Slip. Op. at 12, 20. Asserting several tort theories, the plaintiff claimed that, absent headsets, the phones were unsafe due to RF radiation emitted during their customary use. Id. at 12, 20–21.
Though the defendants asserted multiple theories of preemption, the Third Circuit ultimately affirmed the lower court's dismissal of the plaintiff's lawsuit on conflict preemption grounds. Id. at 55–66. The court found the FCC's guidelines regarding the specific absorption rate ("SAR") ? the maximum amount of RF radiation a device may emit based on the amount absorbed in the body ? represented the FCC's "considered judgment" about how to balance competing objectives. Id. at 62–63. The two primary objectives at issue were: (1) protecting the health and safety of the public; and (2) allowing industry to maintain an efficient and uniform nationwide wireless network. Id.
The court found that allowing juries to perform their own risk-utility analysis to determine whether cell phones in compliance with FCC's SAR guidelines were still unreasonably dangerous would conflict with and "second guess" FCC's regulations. Id. at 64. The court also expressed concern that if tort claims were not preempted, RF radiation standards could vary from state to state and eradicate the uniformity that was necessary to regulate a national wireless network. Id. at 65–66.
The Farina decision creates a split among the Circuit Courts of Appeal regarding whether FCC's RF radiation standards preempt state law actions that, in effect, challenge those standards. In 2005, the Fourth Circuit found that similar state law claims were not preempted and found no evidence of any congressional objective to ensure uniform national RF standards for wireless telephones. See Pinney v. Nokia, Inc., 402 F.3d 430, 458 (4th Cir. 2005).
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