The RF Radiation Issue
Over the years, various claims have been made about potential adverse health impacts from the radiofrequency (RF) radiation emissions of cell phones, which in some instances can cause biological effects by increasing the temperature of tissues. Federal Communications Commission (FCC) rules set RF radiation limits (ceilings) that cell phone manufacturers must meet in order to have the FCC authorize their phones for sale. See 47 C.F.R. §§ 12.1093(d)(1) and 2.907.
But does complying with the FCC's rules protect the manufacturers from state-law claims? A recent Ninth Circuit decision appears to answer that question, holding that held that state-law tort and consumer-fraud claims regarding RF radiation conflicted with the FCC's rules, which strike a careful balance between competing interests that the FCC is charged with addressing under the Communications Act of 1934 (47 U.S.C. §§ 151 et seq.), and were therefore preempted. Cohen v. Apple, Inc., ___ F. 4th ___, 2022 WL3696583 (9th Cir., Aug. 26, 202).
The State-Law Class Action Claims
Stemming from an investigation by the Chicago Tribune, the case began as a putative class action alleging that Apple phones regularly exceed the FCC's RF radiation limit, and that Apple therefore had violated various California tort and consumer-fraud laws by misrepresenting the safety of its phones and failing to disclose RF radiation levels. On appeal, however, the plaintiffs agreed Apple's phones did not exceed the FCC's RF radiation limits, yet argued that they still were dangerous and violated state law. This teed up a clean question of conflict preemption – namely, do the FCC's RF radiation rules preclude state-law claims based on alleged harm from RF radiation that complies with the federal rules?
The Ninth Circuit's Analysis – Conflict Preemption Where the Federal Agency Rules Seek to Balance Competing
The court first held that the Hobbs Act, 28 U.S.C. § 2342(1), did not deprive the district court of jurisdiction. That is because the plaintiffs' claims would not have required the district court to set aside or determine the validity of an FCC final order, but rather only to determine the preemptive effect of the FCC's order. 2022 WL 3696583, at *10-*11.
Turning to preemption, the court first addressed the plaintiffs' claim that the FCC issued its RF radiation rules under the authority of the National Environmental Policy Act (NEPA), which the FCC had cited in it orders over the years adopting and revising the RF radiation rules. The argument was that NEPA is a purely procedural statute, and therefore does not have preemptive effect. The court rejected that claim, noting that while NEPA "constrain[s]" FCC authority, by requiring it to provide "a detailed statement" regarding the "environmental impact of a proposed action," 42 U.S.C. § 4332(2)(C)(i), it does not grant the FCC "affirmative regulatory powers." 2022 WL 3696583, at *12. Rather, the FCC's RF radiation orders and rules issued in 1985, 1996, in 2019, were expressly adopted in furtherance of the FCC's authority under the Communications Act of 1934, specifically sections 4(i) and 303(r) to adopt rules as may be necessary in the execution of its functions and to carry out the provisions of the Act. The FCC's functions include regulating "the kind of apparatus" used for wireless communications "with respect to its external effects." 47 U.S.C. § 303(e).
The plaintiffs next argued that matters of health and safety, such as the effects of cell phone RF radiation, fall within states' historic police powers, and therefore a presumption against preemption should apply. Assuming arguendo that the presumption applied, the court nevertheless found the state law claims preempted.
The court reasoned that even when the presumption applies, state law cannot be allowed to conflict with or impede the achievement of federal goals embodied in federal agency rules. With regard to RF radiation, the Communications Act of 1934 gave the FCC authority to promote deployment and use of wireless communication service, while also promoting safety of wireless communications. This means the FCC also has authority to "promulgate regulations that strike a balance among overlapping and potentially conflicting policies." 2022 WL 3696583, at *13-*14. The FCC's RF radiation regulations, the court found, are intended to strike a balance between promoting widespread wireless service and the safety of such service. Id. Allowing state-law claims regarding cell phone RF radiation levels that do not exceed the ceiling in the FCC's rules would "allow state law to impose a different standard" than federal law, and thus "permit a re-balancing of those considerations" of promoting widespread service and safety, in conflict with the FCC's purposes. Id. at *14 (internal quotation marks omitted).
Finally, the court held that the savings clauses in the Communications Act of 1934 and the federal Telecommunications Act of 1996 did not change the result, because savings clauses cannot be used to abrogate the very federal regulations that a federal statute allows an agency to create and implement. As the court put it, "allowing state tort law to prescribe lower levels of RF radiation and the levels prescribed by the FCC would interfere with a nationwide uniformity of regulation that is the aim of the act, and would render the FCC's statutorily mandated balancing essentially meaningless." Id. at *15.
Perhaps most importantly, this decision is likely to impact any state-law actions regarding RF radiation from cell phones, at least where the radiation is below the FCC's ceiling. (The court did not address the fate of such claims if the RF radiation were above the FCC-allowed level. Id. at *14). Beyond that, the court takes a strong view in favor of conflict preemption where state law or claims could undermine the FCC's balancing of competing objectives by weighing those objectives differently. Given that the FCC must often weigh and balance competing objectives when issuing its orders and rules, this decision is likely be cited frequently.
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