Judge largely lets Berkeley's cell phone radiation warning ordinance stand, beating back CTIA lawsuit

The city of Berkeley, Calif., largely prevailed in a preliminary legal fight against CTIA over an ordinance that would require retailers selling cell phones to post a notice about safety and health concerns from radiofrequency radiation emitted by phones. A federal judge said the city needed to take out a sentence about the risk to children, but the ordinance was largely upheld by the judge.

The language of the ordinance states: "To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely." 

CTIA had argued when it filed its lawsuit against Berkeley in June that the ordinance would be misleading and give off an impression of harm, and would also violate retailers' First Amendment rights by forcing them to distribute information they might disagree with.  

However, U.S. District Court Judge Edward Chen said the city would just need to strike one sentence from the order: "This potential risk is greater for children."

"On the first preliminary injunction factor, the Court cannot say that CTIA has established a strong likelihood of success on the merits with respect to its First Amendment claim," Chen said in the order. "Nor has it raised serious question on the merits. While the sentence in the Berkeley ordinance regarding the potential risk to children is likely preempted, the remainder of the City notice is factual and uncontroversial and is reasonably related to the City's interest in public health and safety. Moreover, the disclosure requirement does not impose an undue burden on CTIA or its members' First Amendment rights."

CTIA successfully fought against a similar measure in San Francisco. In 2012, a federal appeals court blocked San Francisco from enforcing that ordinance. CTIA has long argued that there is no evidence showing cell phone radiation is harmful. 

Lawrence Lessig, a Harvard law professor representing Berkeley, told Ars Technica he was pleased with the order. "The rest of the ordinance survived First Amendment review, which was a very important victory, and I couldn't find a single sentence in Judge Chen's opinion that I disagreed with, so I'm quite happy," he said.

Lessig told Ars that the city will now put forward a revised ordinance before the City Council on Oct. 6, and it is expected to pass.

Theodore Olson, of the law firm of Gibson Dunn & Crutcher, is representing CTIA in the case and said the trade group is confident the whole ordinance will be stopped. "We are pleased that the Court has preliminarily blocked enforcement of the Berkeley ordinance as drafted," he said in a statement. "As the federal government has repeatedly recognized, the overwhelming weight of scientific evidence refutes Berkeley's ill-informed and misleading mandatory warnings about cell phones. We are confident that ultimately the entire ordinance will be struck down."

CTIA indicated it might appeal. However, Chen said CTIA's claims about violations of the First Amendment are "not likely to succeed on the remainder of the City notice language."

For more:
- see this court order
- see this Ars Technica article 
- see this SF Gate article
- see this SF Bay article
- see this Contra Costa Times article

Related articles:
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FCC launches inquiry into cell phone radiation effects
CTIA mum after court throws out S.F. cell phone radiation ordinance
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CTIA to appeal judge's ruling on San Francisco cell phone radiation ordinance

Correction, Sept. 26, 2015:  This article incorrectly said the city of Berkeley will now put forward a revised ordinance before the City Council on Oct. 9. The revised ordinance will actually be put forward on Oct. 6.

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