Apple Urges SCOTUS Denial of Cellphone Safety Petition on Preemption Grounds

Two dozen iPhone users petitioned the U.S. Supreme Court to revisit its long-standing FCC preemption doctrine on cellphone RF safety “without offering any reason that would justify such a request,” said Apple’s opposition brief Friday (22-698). SCOTUS “previously declined to take up this exact issue involving the preemptive effect of the FCC’s RF emissions regulations, and nothing has changed in the interim to suggest review is warranted now,” it said.

The iPhone users’ Jan. 23 cert petition argued there's profound inconsistency 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). The 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 Jan. 26 waiver said Apple wouldn’t file a response to the petition unless SCOTUS requested one. The Supreme Court did so Feb. 13 (see 2302140010).

The petitioners’ “purported conflict of authority” is the result of a “single outlier decision” in 2005 in the 4th Circuit in Pinney v. Nokia “that may well be revisited,” said Apple’s opposition brief. In Pinney, the 4th Circuit allowed state-law claims alleging cellphones emit unsafe RF emissions “to go forward,” it said. “The first appellate court decision to address preemption in this area, Pinney has not been followed by any court since,” it said.

It’s not “difficult to see why” the 4th Circuit stands alone on the question of federal preemption, said Apple’s opposition. Pinney “failed to consider whether the FCC’s regulations themselves have preemptive effect,” it said. Pinney also “predated the FCC’s consistent and comprehensive explanation of the preemptive effect of its RF regulations,” it said.

The 4th Circuit hasn’t had the opportunity “to revisit this question in the years since it issued Pinney,” said Apple’s opposition. “Were it to do so, it could reconsider its reasoning with the benefit of the FCC’s views, the growing weight of authority from other circuits, and assessment of the full statutory and regulatory scheme,” it said. There’s no need for SCOTUS “to intervene now,” it said.

The 9th Circuit’s decision granting Apple summary judgment, which the petitioners are now seeking to reverse, “has merely joined every other court to confront the issue by holding that the FCC’s regulations preempt conflicting state standards on RF emissions,” said Apple’s opposition. “That decision is correct,” it said. In promulgating the RF regulations, the FCC “was acting both at the express direction of Congress and within the heartland of its delegated authority to regulate wireless radio communications,” it said.

The FCC set the particular RF thresholds it designated -- incorporating a “50-fold safety margin from any observed effects of RF exposure,” by carefully balancing the objectives Congress charged it with pursuing, said Apple’s opposition. The FCC explained that lower limits would degrade mobile devices’ performance without providing any health benefits, it said. “Allowing juries (not to mention state legislatures and city councils) to subvert that balance by imposing myriad conflicting standards would plainly contravene Congress’s intent, as expressly set forth in the governing statute, to promote an efficient and uniform wireless network,” said Apple: “The petition should be denied.”

The petitioners’ primary argument “is that the lower courts are split on whether the FCC’s RF regulations preempt state-law claims,” said Apple’s opposition. But any such conflict doesn’t “warrant” SCOTUS review, it said. The Supreme Court previously concluded that in 2011 in Farina v. Nokia when it denied a petition “presenting the very same question,” it said.