None of Walkers’ RF Claims Can ‘Escape’ Federal Preemption: Reply

The Walker family plaintiffs’ Feb. 28 opposition to the cellphone industry’s motion to dismiss their RF radiation complaint (see 2303010001) confirms that federal conflict preemption bars their claims, said the industry’s reply Tuesday (docket 2:21-cv-00923) in U.S. District Court for Western Louisiana in Lake Charles. Their claims are barred because they challenge the FCC’s RF emissions standards and equipment authorization "regime” in defiance of federal statutes, said the reply.

The plaintiffs -- Frank Walker's surviving wife and two sons -- allege the industry covered up information showing many cellphones don’t comply with the FCC’s specific absorption rate limitations for how much RF radiation is absorbed into the human body. They allege this led to Walker’s death from brain cancer. The defendants are AT&T, CTIA, Microsoft, Motorola, the Telecommunications Industry Association and ZTE. Their motion to dismiss is based on the assertion federal law preempts the Walkers’ claims. The Walkers responded that Congress never intended to prohibit state actions for injuries resulting from cellphone use when it enacted the Communications Act and the Telecommunications Act.

The Walkers are “unable to rebut” the “overwhelming authority” for conflict preemption in the Communications Act, and the FCC’s rulemaking under the statute, plus the opinion of “virtually every court to address the issue,” said the industry’s reply. The Walkers must then rely “almost exclusively on cases addressing different statutes and regulatory regimes,” it said.

The Walkers’ preemption analysis “inexplicably focuses on express and field preemption rather than conflict preemption, the only form of preemption at issue” in their case, said the reply. They assert certain “savings clauses” preserve their claims, “but every decision addressing that argument has rejected it,” it said. Under Supreme Court precedent, savings clauses “neither bar the operation of ordinary conflict preemption principles nor save state-law claims that would, as here, alter an agency’s deliberate balancing of competing policy objectives,” it said. Because none of the Walkers’ arguments “has merit,” the court should dismiss their complaint, it said.

Congress and the FCC have “repeatedly emphasized” the importance of uniform technical standards, like the RF standards, “for the proper functioning of a national radio telecommunications system,” said the reply. Uniform standards enable individuals living in one state to use their cellphones when traveling to any other state, it said.

The FCC has consistently said claims challenging the safety of FCC-certified cellphones “conflict with its RF standards and equipment authorization regime,” said the reply. The commission said those claims, if successful, would undermine the agency’s efforts to implement a uniform and reliable process for certifying that cellphones comply with RF limits, it said.

The Walkers’ claims “challenge the safety" of FCC-certified cellphones, said the reply. The “crux of every count” in their complaint is that Frank Walker’s FCC-certified cellphones were unreasonably dangerous, “which directly challenges the FCC’s view that certified phones are safe,” it said. Because the Walkers’ claims depend on the “proposition” that the phones Frank Walker used were noncompliant and unsafe “as a matter of state law despite being compliant and safe as a matter of federal law,” their claims conflict with federal law “and are therefore preempted,” it said.

The Walkers make several arguments in response, but none of them has merit, said the reply. On their assertion there can be no federal preemption without express statutory authority from Congress or the FCC, conflict preemption “does not require an explicit statement of congressional or agency intent to displace state law,” it said. On the Walkers’ argument that their claims complement rather than conflict with the FCC’s enforcement regime, the 3rd Circuit “squarely rejected this argument because it fails to recognize that the FCC’s standards reflect a particular balance of competing policy objectives,” it said.

The Walkers also wrongly argue the FCC’s views aren’t “entitled to deference,” said the reply. “Every court to consider the FCC’s position on preemption has held that the FCC has consistently taken the position that claims challenging the safety of FCC-certified phones conflict with its RF emission standard as well as the testing, certification, and equipment authorization regime,” it said. As for the Walkers’ argument that the two savings clauses in the FCA and two in the TCA help their claims “escape preemption,” none of those provisions can help them “avoid dismissal,” said the reply.