Ctia - the Wireless Associatio v. City and County of San Francisco

MEMORANDUM

This is an appeal and cross appeal from the district court’s order preliminarily enjoining, in part, provisions of a San Francisco ordinance requiring cell phone sellers to make certain disclosures to consumers about 'radiofrequency energy emissions from cell phones. S.F. Ordinance 156-11 (1022). Under the standard established in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 , 105 S.Ct. 2265 , 85 L.Ed.2d 652 (1986), any governmentally compelled disclosures to consumers must be “purely factual and uncontroversial.” Id. at 651 , 105 S.Ct. 2265 .

The district court found the factual statements in the revised fact sheet were accurate and not misleading. Appellant CTIA correctly points out, however, that the revised fact sheet contains more than just facts. It also contains San Francisco’s recommendations as to what consumers should do if they want to reduce exposure to radiofrequency energy emissions. This language could prove to be interpreted by consumers as expressing San Francisco’s opinion that using cell phones is dangerous. The FCC, however, has established limits of radiofrequency energy exposure, within which it has concluded using cell phones is safe.…