'Essential' That SCOTUS Clarify ‘Preemption Standards’ on Cellphone RF Safety: Amici

The two dozen petitioning iPhone users are “correct” that there’s a profound “circuit split” about how the appellate courts interpret the “law of preemption” as it applies to the FCC and the Telecommunications Act to override state or local enforcement of RF emission safety standards for cellphones, said Berkeley, California's amicus brief (docket 22-698) at the Supreme Court Wednesday in support of the petitioners.

SCOTUS should “first ensure” Congress intended to grant the FCC “preemption powers on the subject at hand,” said a second amicus brief Wednesday, also in support of the petitioners, from Children’s Health Defense (CHD) and eight other nonprofits. The court should then find "preemption by regulation only when the agency has far more clearly expressed an intent to preempt within a rule or order that has been promulgated through appropriate agency proceedings,” said the groups.

The iPhone users’ Jan. 23 cert petition said there are major inconsistencies among the appellate courts over whether certain FCC guidelines “impliedly preempt state-law claims about cellphone safety,” and the Supreme Court has a “golden opportunity” to bring uniformity to the decision-making (see 2301270065). Their petition seeks a reversal of the 9th U.S. Circuit Court of Appeals Aug. 26 opinion affirming the district court’s summary judgment for Apple, based on federal law preemption of the state-law claims. Apple's SCOTUS responding brief is due April 14 (see 2303020033).

Berkeley litigated for five years to defend an ordinance requiring cellphone retailers to give customers a single-page notice about wireless RF exposure that tracked the information the FCC “had long required manufacturers to provide consumers,” said the city. CTIA challenged the ordinance on grounds it was preempted under federal law and invalid under the First Amendment 's free speech clause, it said.

Uncertainty about “the preemptive reach” of FCC regulations forced the city “to bear the costs of defending its regulation for many years,” said Berkeley. Cities like Berkeley don’t have “litigation budgets of the size of national trade organizations like CTIA,” it said. Uncertainty “in the scope of FCC preemption” can chill cities “from exercising the sovereign authority preserved to the states and localities by our federalist structure,” it said.

An FCC general counsel letter asserting “authority to preempt state and local law” was all a lower court needed to decide federal law could “supplant local and historic police power over health and safety,” said Berkeley. “The absurdity of that outcome and the history of that case demonstrate the damage that the uncertainty around FCC preemption law is doing to federalism on the ground,” it said.

It’s “essential” that SCOTUS “clarify the preemption standards” for FCC action, said the city. “As it stands, state and local governments across the country are at the mercy of the slightest whiff of agency consideration, as stated by nothing more than a letter from an agency general counsel,” it said. “Certainly, if the values of federalism are to survive, something more is required to preempt the historic authority of state and local governments.”

There are “two clear lines of authority” interpreting the preemptive power of the FCC, said the city. In the case involving the iPhone users, the 9th Circuit “applied a standard that turns federalism on its head,” it said. SCOTUS should grant review and, at a minimum, “adopt a standard that requires a clear statement in a notice and comment proceeding before the FCC may assert any preemptive effect from its regulation,” it said.

In this case, said CHD and the other nonprofits, the FCC’s intention “to not preempt state tort, consumer and health and safety laws touching emissions from devices other than personal wireless facilities is clear.” The 9th Circuit’s “contrary opinion was erroneous and must be corrected,” they said.

The 9th Circuit wrongly concluded “the regulations in issue have all-encompassing preemptive effect as against injured mobile device users,” said the nonprofits. But the fact is the regulations “merely bind those regulatees who seek Commission action that might affect the environment before any agency action and then again when the agency decides whether to grant or withhold a license or equipment registration under its Title III authority,” they said.

There can be no claim the 1969 National Environmental Policy Act (NEPA) “provides any implied preemptive force,” said the nonprofits. The NEPA is “a purely procedural statute governing how federal agencies are to assess the environmental impact of agency actions,” they said. Rules governing the FCC’s implementation of NEPA “have no other purpose, objective or scope and are not impliedly preemptive,” they said.