1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CTIA - THE WIRELESS ASSOCIATION, Case No. 15-cv-02529-EMC

8 Plaintiff,

ORDER GRANTING PLAINTIFF’S

9 v. MOTION FOR JUDGMENT ON THE

PLEADINIGS

10 CITY OF BERKELEY, et al., Docket No. 143 11 Defendants.

12 13 14 In 2015, the City of Berkeley passed an ordinance that “requires cell phone retailers to 15 inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause 16 them to exceed Federal Communications Commission guidelines for exposure to radio-frequency 17 radiation.” CTIA – The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 836 (9th Cir. 2019). 18 Plaintiff CTIA – The Wireless Association previously moved for a preliminary injunction 19 to stay enforcement of the ordinance. CTIA argued that the ordinance violated its First 20 Amendment rights and further was preempted by federal law. This Court initially granted the 21 motion in part because it found certain language in the ordinance problematic. But after the City 22 modified its ordinance to delete that language, the Court dissolved the preliminary injunction. 23 CTIA then appealed. After the Ninth Circuit affirmed on appeal, CTIA sought relief from the 24 Supreme Court. The Supreme Court remanded to the Ninth Circuit, instructing it to consider a 25 recently issued Supreme Court decision. On remand, the Ninth Circuit again affirmed. See id. 26 Currently pending before the Court is CTIA’s motion for judgment on the pleadings. 27 CITA argues that, “in December 2019 [i.e., after the Ninth Circuit’s most recent affirmance], the 1 (‘RF’) emissions that upends the landscape of this case in several important ways, fatally 2 undermining the City’s arguments in defense of the Ordinance and the very basis on which the 3 Ninth Circuit affirmed this Court’s decision.” Mot. at 1 (citing In re Proposed Changes in the 4 Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields, FCC 5 19-126 (Dec. 4, 2019)). 6 Having considered the parties’ briefs, the statement of interest submitted by the United 7 States, and the oral argument of counsel, the Court hereby GRANTS CTIA’s motion. The Court 8 concludes that Berkeley’s ordinance, as drafted, is preempted by the FCC’s regulatory actions. 9 I. FACTUAL & PROCEDURAL BACKGROUND 10 A. City Ordinance 11 The City ordinance at issue provides in relevant part as follows:

12 A Cell phone retailer shall provide to each customer who buys or leases a Cell phone a notice containing the following language: 13 The City of Berkeley requires that you be provided 14 the following notice:

15 To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure 16 guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is 17 ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF 18 radiation. Refer to the instructions in your phone or user manual for information about how to use your 19 phone safely. 20 Docket No. 59-2 (Berkeley Mun. Code § 9.96.030(A)). 21 As the Ninth Circuit noted,

22 [t]he ordinance requires that the compelled disclosure be provided either on a prominently displayed poster no less than 8 1/2 by 11 23 inches with no smaller than 28-point font, or on a handout no less than 5 by 8 inches with no smaller than 18-point font. . . . [A] cell 24 phone retailer may include additional information on the poster or handout if it is clear that the additional information is not part of the 25 compelled disclosure. 26 CTIA, 928 F.3d at 838. 27 CTIA challenges the City ordinance on two grounds: (1) that it is compelled speech that 1 balance struck by the FCC on two federal policies: safeguarding against potential health risks from 2 RF energy emitted from cell phones, on the one hand, and maintaining a robust and efficient, 3 nationwide, wireless communication system (which itself carries significant benefits for 4 consumers and public safety).” Compl. ¶ 139. 5 B. Preliminary Injunction Orders and Ninth Circuit Appeal 6 As noted above, CTIA moved this Court for a preliminary injunction. The Court held that 7 certain language in the ordinance (regarding risk to children) was likely preempted but otherwise 8 there did not appear to be any preemption concerns at the time. The Court further found that 9 CTIA was not likely to succeed on the merits of its First Amendment claim. The Court thus 10 enjoined the ordinance “unless and until the sentence in the City notice regarding children safety is 11 excised from the notice.” CTIA – The Wireless Ass’n v. City of Berkeley, 139 F. Supp. 3d 1048, 12 1075 (N.D. Cal. 2015). 13 Subsequently, the City removed the problematic language from the ordinance, and the 14 Court therefore dissolved the preliminary injunction. CTIA appealed. After the Ninth Circuit 15 affirmed on appeal, CTIA sought relief from the Supreme Court. The Supreme Court remanded to 16 the Ninth Circuit, instructing it to consider a recently issued Supreme Court decision. On remand, 17 the Ninth Circuit again affirmed in a decision issued in July 2019. See generally CTIA, 928 F.3d 18 at 832. Below the Court briefly summarizes the Ninth Circuit’s analysis on the likelihood of 19 success on the merits. 20 1. First Amendment 21 On the First Amendment claim, the Ninth Circuit held that Zauderer v. Office of 22 Disciplinary Counsel, 471 U.S. 626, 651 (1985), provided the governing standard, and not Central 23 Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). 24 “Under Zauderer, . . . the government may compel truthful disclosure in commercial speech as 25 long as the compelled disclosure is ‘reasonably related’ to a substantial governmental interest and 26 involves ‘purely factual and uncontroversial information’ that relates to the service or product 27 provided.” CTIA, 928 F.3d at 842. 1 under Zauderer. First, there was a substantial governmental interest behind the compelled 2 disclosure: “There is no question that protecting the health and safety of consumers is a substantial 3 governmental interest,” and the City ordinance was designed to “further that interest.” Id. at 845. 4 Second, the Ninth Circuit held that the compelled disclosure required by the City’s 5 ordinance was factual and uncontroversial. “The text of the compelled disclosure is literally true.” 6 Id. at 847. And even though “a statement may be literally true but nonetheless misleading,” id., 7 the Ninth Circuit was not persuaded by CTIA’s contention that the ordinance was inflammatory 8 and misleading. For example, the first sentence of the compelled disclosure “tells consumers that 9 cell phones are required to meet federal ‘RF exposure guidelines’ in order ‘[t]o assure safety.’ Far 10 from inflammatory, this statement is largely reassuring” because “[i]t assures consumers that the 11 cell phones they are about to buy or lease meet federally imposed safety guidelines.” Id. 12 The Ninth Circuit also took note that CTIA did not argue that the compelled disclosure was 13 “controversial as a result of disagreement about whether radio-frequency radiation can be 14 dangerous to cell phone users.” Id. at 848 (“We agree with CTIA’s tacit admission that the 15 required disclosure is not controversial on that account.”). The court went on to explain that, in 16 fact, the ordinance was not controversial because

17 [i]t does not force cell phone retailers to take sides in a heated political controversy. The FCC’s required disclosure is no more and 18 no less than a safety warning, and Berkeley’s required disclosure is a short-hand description of the warning the FCC already requires 19 cell phone manufacturers to include in their user manuals. 20 Id. 21 Finally, the Ninth Circuit found that, even though, under Zauderer, unduly burdensome 22 compelled disclosure would not be permitted, CTIA had not shown such a burden in the instant 23 case.

24 [T]he ordinance may be satisfied by a single 8.5 x 11” posted notice of 5 x 8” handout to which the retailer may add additional 25 information so long as that information is distinct from the compelled disclosure. This minimal requirement does not interfere 26 with advertising or threaten to drown out messaging by the cell phone retailers subject to the requirement. 27 1 2. Preemption 2 On the preemption claim, the Ninth Circuit began its analysis by noting that conflict 3 preemption was at issue. “‘Conflict preemption is implicit preemption of state law that occurs 4 where there is an actual conflict between state and federal law.’” Id. at 849. “Conflict preemption 5 arises either when ‘compliance with both federal and state regulations is a physical impossibility 6 . . . or when state law stands as an obstacle to the accomplishment and execution of the full 7 purposes and objectives of Congress.’” Id. Here, CTIA was arguing that “Berkeley’s compelled 8 disclosure . . . requir[es] more disclosure than is required by the FCC,” and thus, obstacle 9 preemption was the focus. Id. 10 Whether there was preemption turned on the intent of Congress. See id. at 850 (stating that 11 “[p]reemption analysis start[s] with the assumption that the historic police powers of the States 12 were not to be superseded by the Federal Act unless that was the clear and manifest purpose of 13 Congress”) (internal quotation marks omitted). With respect to the Telecommunications Act of 14 1996 (the “FCC’s organic statute”),

15 Congress desired “uniform consistent requirements, with adequate safeguards of public health and safety” in nationwide telecom 16 services. The Act delegated to the FCC the authority “to ‘make effective rules regarding the environmental effects of [RF] 17 emissions.’” Specifically, “the FCC was tasked not only with protecting the health and safety of the public, but also with ensuring 18 the rapid development of an efficient and uniform network.” 19 Id. at 850. 20 CTIA argued that the City ordinance was preempted because “the FCC does not compel 21 cell phone manufacturers to provide information to consumers about SAR limits on RF radiation 22 exposure,” id., but the Ninth Circuit was not persuaded. The court noted that, “[b]eginning in 23 October 2015, the FCC required cell phone manufacturers to inform consumers of minimum 24 separation distances in user manuals.” Id. at 850 (citing In re Exposure Procedures and Equipment 25 Authorization Policies for Mobile and Portable Devices, FCC Office of Engineering and 26 Technology Laboratory Division § 4.2.2(d) at 11 (Oct. 23, 2015)). Because of the FCC’s 27 requirement, the court found the preemption argument untenable: to the safety disclosures that the FCC requires, and directs 1 consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive 2 exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it. 3 4 Id. at 851. Accordingly, the ordinance did not stand as an obstacle to the accomplishment and 5 execution of the full purposes and objectives of Congress as implemented by the FCC. 6 C. FCC Orders 7 In December 2019, several months after the Ninth Circuit issued its decision, the FCC 8 issued an order that CTIA now argues impacts the merits of this case. That order shall hereinafter 9 be referred to as the 2019 RF Order. See 2019 RF Order, 2019 WL 6681944 (indicating adoption 10 date of November 27, 2019). 11 To understand the 2019 RF Order, however, the Court must first consider the background 12 to that order – in particular, the 2013 RF Order that preceded it. See 2013 RF Order, 28 F.C.C.R. 13 3498 (adopted on March 27, 2013, and released on March 29, 2013), available at 2013 WL 14 1304134. 15 1. 2013 RF Order 16 The 2013 RF Order had three parts: (1) a Report and Order (i.e., Order), (2) a Further 17 Notice of Proposed Rulemaking (i.e., Further Notice), and (3) a Notice of Inquiry (i.e., Inquiry). 18 The Inquiry is what is relevant to the instant case. 19 The main point of the Inquiry was to “determine whether there is a need for reassessment 20 of the Commission radiofrequency (RF) exposure limits and policies.” Id. at 3501 (¶ 5) (noting 21 that the last time RF exposure limits had been considered was in 1996). However, the Inquiry also 22 covered related topics, such as asking for comment on what information should be provided to the 23 public about RF exposure and safety. See, e.g., id. at 3502 (¶ 7) (asking “whether the Commission 24 should consistently require either disclosure of the maximum SAR value or other more reliable 25 exposure data in a standard format – perhaps in manuals, at point-of-sale, or on a website”); id. at 26 3581 (¶ 231) (noting that information is provided to the public through Bulletins and the FCC 27 website; asking for “comment on what additional information should be provided to consumers 1 (“request[ing] comment in general on the information discussed that would be most useful to 2 provide precautionary guidance to consumers”). 3 2. 2019 RF Order 4 Six years after the 2013 RF Order, the FCC issued the 2019 RF Order. Among other 5 things, the 2019 RF Order “resolv[ed] [the 2013 Inquiry above] that sought public input on, 6 among other issues, whether the Commission should amend its existing RF emission exposure 7 limits.” 2019 RF Order, 2019 WL 6681944, at *2 (¶ 2). On this specific issue, the FCC found

8 no appropriate basis for and thus decline to propose amendments to our existing limits at this time. We take to heart the findings of the 9 Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that “[t]he weight of scientific 10 evidence has not linked cell phones with any health problems.” Despite requests from some to increase and others to decrease the 11 existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of 12 the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established 13 international standards. 14 Id. at *2 (¶ 2). The FCC further found that, “even if certified or otherwise authorized devices 15 produce RF exposure levels in excess of Commission limits under normal use, such exposure 16 would still be well below levels considered to be dangerous, and therefore phones legally sold in 17 the United States pose no health risks.” Id. at *6 (¶ 14); see also id. at *4 (¶ 10) (“[N]o expert 18 health agency expressed concern about the Commission’s RF exposure limits. Rather, agencies’ 19 public statements continue to support the current limits.”); id. at *4 (¶ 11) (“[T]he FDA maintains 20 that ‘[t]he weight of scientific evidence has not linked cell phones with any health problems’ and 21 that ‘the current safety limits for cell phones are acceptable for protecting the public health.’”); id. 22 at *5 (¶ 12) (“[A]s noted by the FDA, there is no evidence to support that adverse health effects in 23 humans are caused by exposures at, under, or even in some cases above, the current RF limits. 24 Indeed, no scientific evidence establishes a causal link between wireless device use and cancer or 25 other illnesses.”). 26 As for the issue of what information should be provided to the public, the FCC noted that it 27 was public. First, the Commission maintains several webpages that 1 provide information about RF exposure to the public. These range from general RF exposure information to information on specific 2 topics, including wireless devices and health concerns. Second, guidance from the FCC Laboratory continue recommending that 3 device manuals include operating instructions and advisory statements for RF exposure compliance. This information allows 4 users to make informed decisions on the type of body-worn accessories and operating configurations that are appropriate for 5 their usage. Third, we make available information on the characterization of typical RF exposure levels emitted from base 6 stations. Relatedly, we note that the World Health Organization (WHO) states that “[f]rom all evidence accumulated so far, no 7 adverse short-or long-term health effects have been shown to occur from the RF signals produced by base stations.” WHO goes on to 8 say that the erroneous public perception of a possible risk from such exposure may, even while unsupported by evidence, still contribute 9 to a feeling of uncertainty or a lack of control. That is why the context and placement of RF exposure information is so important. 10 Given the federal safety determination, the information on the FCC’s websites and in device manuals are both adequate to inform 11 consumers of these issues and do not risk contributing to an erroneous public perception or overwarning of RF emissions from 12 FCC certified or authorized devices. The FCC will continue to evaluate public information materials and update as appropriate. 13 14 Id. at *8 (¶ 16) (emphasis added).1 In short, the FCC determined that it would not require 15 additional disclosures to the public; however, it did not comment explicitly on whether additional 16 disclosures (e.g., if imposed by local government) would be permitted. On the other hand, the 17 FCC did take note of the countervailing concern of “overwarning” consumers. 18 D. FCC Statement of Interest 19 Although, in the 2019 RF Order, the FCC did not address whether additional disclosures 20 required by local government would be permitted, the FCC made an appearance in the instant case 21 to explicitly tender an opinion (more specifically, a Statement of Interest) on whether the Berkeley 22 ordinance at issue here should be allowed. The agency took the express position that the 23 ordinance should not be allowed to require the warnings therein.2 24 1 The City focuses on the sentence “That is why the context and placement of RF exposure 25 information is so important” – arguing that this sentence applies to RF exposure from base stations, not cell phones. See City Resp. to FCC St. at 5. While that may be true, the sentence that 26 follows applies more broadly not just to RF exposure from base stations but also RF exposure from cell phones. This is clear from the reference to “device manuals.” 27 1 According to the FCC, the Berkeley ordinance is subject to preemption because it 2 “conflicts with or undermines [a] policy judgment made” by the agency. FCC St. at 12. “The 3 FCC has acted ‘to ensure that relevant information’ about RF emissions from cell phones ‘is made 4 available to the public” – in particular, on FCC webpages and in cell phone user manuals FCC St. 5 at 12.

6 In December 2019, the FCC concluded that the information about RF exposure on its website and in cell phone user manuals was 7 “adequate to inform consumers” of potential health risks associated with RF emissions from FCC-certified cell phones. 2019 RF Order 8 ¶ 16. Explaining that “the context and placement of RF exposure information is so important,” the Commission found that any 9 additional warnings about RF exposure could create “an erroneous public perception or overwarning of RF emissions from FCC 10 certified or authorized devices” and “contribute to a feeling of uncertainty or a lack of control” among consumers. Ibid. These 11 findings reflect “the FCC’s considered policy judgment regarding how best and in what form to disseminate relevant information 12 about RF exposure to the public.” FCC Statement of Interest, Cohen v. Apple, Attachment at 19. 13 The Berkeley ordinance conflicts with that policy judgment and 14 therefore is preempted. Given the FCC’s calibrated regime regarding RF disclosures and its determination that existing RF 15 exposure information provided on the FCC’s website and in cell phone user manuals is adequate to inform consumers without 16 prompting unwarranted fears about RF emissions, the Berkeley ordinance is not only unnecessary but likely detrimental to the 17 public. On its face, the notice mandated by Berkeley goes beyond what the FCC provides on its website and requires in user manuals, 18 and therefore has the potential to “overwarn” consumers, creating the false impression that FCC-certified cell phones are unsafe when 19 carried against the body. 20 FCC St. at 11-12. 21 The FCC further asserted that the Berkeley ordinance is preempted because the agency has 22 determined that “certified cell phones ‘pose no health risks’” but the ordinance suggests that 23 “certified cell phones could emit unsafe levels of RF energy when carried against the body.” FCC 24 St. at 13. 25 the agency). The Court does not agree. It is true that Mr. Johnson authored the letter that 26 effectively constitutes the Statement of Interest. However, in the letter, Mr. Johnson specifically states that “[t]he Commission respectfully requests that the Department of Justice file a Statement 27 of Interest in this case attaching the letter.” Docket No. 148-1 (Letter at 1) (emphasis added). 1 II. DISCUSSION 2 A. Legal Standard 3 Federal Rule of Civil Procedure 12(c) governs motions for judgment on the pleadings. 4 Under the rule, “[a]fter the pleadings are closed – but early enough not to delay trial – a party 5 may” make such a motion. Fed. R. Civ. P. 12(c). In evaluating a motion for judgment on the 6 pleadings, a court

7 must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party. 8 Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to 9 judgment as a matter of law. 10 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Analysis under Rule 12(c) is 11 ‘substantially identical’ to analysis under Rule 12(b)(6) because, under both rules, ‘a court must 12 determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal 13 remedy.’” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). 14 According to CTIA, it is entitled to judgment on the pleadings, on both its First 15 Amendment claim and its preemption claim. The Court addresses the preemption argument first 16 because, if the ordinance is in fact preempted, then there is no need to consider the First 17 Amendment implications of the ordinance. 18 B. Preemption 19 CTIA asserts that the Berkeley ordinance is preempted for the same two reasons articulated 20 by the FCC in its Statement of Interest: (1) “the [Berkeley] ordinance conflicts with the FCC’s 21 determination that RF emissions from FCC-certified cell phones pose no health risks” and (2) 22 “[t]he Berkeley ordinance conflicts with the FCC’s judgment concerning how best and in what 23 form to provide information about RF exposure to the public.” FCC St. at 14. For purposes of 24 this opinion, the Court need only address the second preemption argument. CTIA’s second 25 preemption argument is predicated on statements made by the FCC in (1) its 2019 RF and (2) its 26 Statement of Interest submitted in conjunction with this litigation. 27 As a preliminary matter, the Court notes that this particular preemption argument was not 1 Order and Statement of Interest both post-date the Ninth Circuit’s decision. CTIA’s preemption 2 argument, however, is similar to its prior preemption argument in that it again relies on conflict 3 preemption. 4 In its opposition brief, the City seems to argue (for the first time) that there can be no 5 conflict preemption because there is a provision in the Telecommunications Act of 1996 (“TCA”) 6 suggesting that preemption must be express and not implied. See Opp’n at 22-23. That provision 7 states as follows: “NO IMPLIED EFFECT. – This Act and the amendments made by this Act shall 8 not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so 9 provided in such Act or amendments.” 110 Stat. 56, 143 (§ 601(c)(1)). 10 The City’s argument, however, is not persuasive for the reasons articulated by the Third 11 Circuit in Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010). In Farina, the plaintiff brought 12 various claims “based on the allegation that cell phones, as currently manufactured, are unsafe to 13 be operated without headsets because the customary manner in which they are used – with the user 14 holding the phone so that the antenna is positioned next to his head – exposes the user to 15 dangerous amounts of radio frequency (‘RF’) radiation.” Id. at 104. In response to a conflict 16 preemption argument made by the defendants, the plaintiff argued that § 601(c)(1) “demonstrates 17 Congress’s intent to limit the preemption of state law to only those situations covered by an 18 express preemption provision.” Id. at 131. The Third Circuit stated that, while this argument was 19 “not without some force,” “it is a general rule in preemption analysis that a savings provision does 20 not ‘bar the ordinary working of conflict pre-emption principles.’” Id. After all, “‘[w]hy . . . 21 would Congress not have wanted ordinary pre-emption principles to apply where an actual conflict 22 with a federal objective is at stake?’” Id.; cf. Ariz. v. United States, 567 U.S. 387, 406 (2012) 23 (stating that “the existence of an express pre-emption provisio[n] does not bar the ordinary 24 working of conflict pre-emption principles or impose a special burden that would make it more 25 difficult to establish the pre-emption of laws falling outside the clause”) (emphasis in original; 26 internal quotation marks omitted). The Court agrees with Farina that the TCA does not displace 27 the application of conventional conflict preemption doctrine, including obstacle preemption. 1 Congress did not intend to displace state law,’” particularly “in fields within the police power of 2 the state.” Id. at 116. Here, CTIA suggests that the police power of the City is not implicated 3 because, at the hearing, Berkeley argued that the “Ordinance is designed to reassure skeptical 4 consumers about the safety of a product that poses no health risks. That interest – if it is a 5 legitimate interest at all – is not a traditional health and safety interest within the historic police 6 powers of the States.” Docket No. 156 (Pl.’s Supp. Br. at 5). This argument is not entirely 7 lacking in merit. Notably, at the hearing, the City conceded that FCC-certified cell phones are 8 safe. Nonetheless, the Court assumes for purposes of this opinion that the presumption against 9 preemption is still significant here – both because health and safety are still involved inasmuch as 10 consumer perception and conduct may be affected. See Opp’n at 4 (arguing that “the notice is 11 designed to inform consumers about how they can use their cell phones without exceeding federal 12 RF exposure limits – if they so choose”).3 Also, a presumption against preemption is not 13 unreasonable given the TCA savings clause referenced above. See 110 Stat. 56, 143 (§ 601(c)(1)) 14 (“This Act and the amendments made by this Act shall not be construed to modify, impair, or 15 supersede Federal, State, or local law unless expressly so provided in such Act or amendments.” 16 110 Stat. 56, 143 (§ 601(c)(1)). 17 That being said, the presumption against preemption is not the only guiding principle in the 18 instant case. As the Third Circuit noted in Farina, “[t]he Supreme Court’s preemption case law 19 indicates that regulatory situations in which an agency is required to strike a balance between 20 competing statutory objectives lend themselves to a finding of conflict preemption.” Farina, 625 21 F.3d at 123.

22 The reason why state law conflicts with federal law in these balancing situations is plain. When Congress charges an agency 23 with balancing competing objectives, it intends the agency to use its reasoned judgment to weigh the relevant considerations and 24 determine how best to prioritize between these objectives. Allowing state law to impose a different standard permits a re-balancing of 25 those considerations. A state-law standard that is more protective of one objective may result in a standard that is less protective of 26

27 3 See also Docket No. 33 (Opp’n at 9-10) (arguing that the purpose of the ordinance “is to assure others. 1 2 Id. (emphasis added). 3 In the instant case, there is no dispute that the FCC has been tasked with accommodating 4 competing objectives. Under the Federal Communications Act (“FCA”), “the FCC was tasked not 5 only with protecting the health and safety of the public, but also with ensuring the rapid 6 development of an efficient and uniform [telecommunications] network, one that provides 7 effective and widely accessible service at a reasonable cost.” 4 Id. at 125. Similarly, under the 8 TCA (which amended the FCA), the FCC was again “tasked not only with protecting health and 9 safety of the public, but also with ensuring rapid development of an efficient and uniform 10 network.”5 CTIA, 928 F.3d at 850. And by being tasked with the development and deployment of 11 an efficient and uniform telecommunications network, it may reasonably be inferred that this task 12 encompassed promoting the growth of that network and related services. This evidently is what 13 underpins the FCC’s concern in the 2019 RF Order of “overwarning” consumers. 14 CTIA contends that the FCC’s 2019 RF Order and its Statement of Interest submitted in 15 this litigation express the FCC’s balancing of the above competing objectives. CTIA further 16 argues that the City ordinance, by emphasizing the risk of wearing cell phones closer than that 17 addressed in the user device manuals and implying that doing so creates a health risk, upsets that 18 balance. As stated above, neither this Court (in its earlier ruling in denying preliminary 19 injunction) nor the Ninth Circuit (on appeal) addressed the conflict preemption argument now 20 presented as a result of the FCC’s 2019 RF Order and Statement of Interest. 21 The Court begins with the 2019 RF Order. As noted above, in the 2019 RF Order, the 22

23 4 See, e.g., 47 U.S.C. § 151 (indicating the goal of “mak[ing] available . . . a rapid, efficient, nationwide, and world-wide wire and radio communication service”; id. § 157 (stating that “[i]t 24 shall be the policy of the United States to encourage the provision of new technologies and services to the public”); id. § 332 (providing that, with respect to private mobile services, the FCC 25 shall consider whether its actions “promote the safety of life and property” and “provide services to the largest feasible number of users”). 26

5 See, e.g., 110 Stat. 56 (1996) (indicating that one purpose for the TCA is to “encourage the rapid 27 deployment of new telecommunications technologies”); see also Reno v. ACLU, 521 U.S. 844, 1 FCC stated that it was

2 continu[ing] to ensure that relevant information is available to the public. First, the Commission maintains several webpages that 3 provide information about RF exposure to the public. These range from general RF exposure information to information on specific 4 topics, including wireless devices and health concerns. Second, guidance from the FCC Laboratory continue recommending that 5 device manuals include operating instructions and advisory statements for RF exposure compliance. This information allows 6 users to make informed decisions on the type of body-worn accessories and operating configurations that are appropriate for 7 their usage. Third, we make available information on the characterization of typical RF exposure levels emitted from base 8 stations. Relatedly, we note that the World Health Organization (WHO) states that “[f]rom all evidence accumulated so far, no 9 adverse short-or long-term health effects have been shown to occur from the RF signals produced by base stations.” WHO goes on to 10 say that the erroneous public perception of a possible risk from such exposure may, even while unsupported by evidence, still contribute 11 to a feeling of uncertainty or a lack of control. That is why the context and placement of RF exposure information is so important. 12 Given the federal safety determination, the information on the FCC’s websites and in device manuals are both adequate to inform 13 consumers of these issues and do not risk contributing to an erroneous public perception or overwarning of RF emissions from 14 FCC certified or authorized devices. The FCC will continue to evaluate public information materials and update as appropriate. 15 16 2019 RF Order, 2019 WL 6681944, at *8 (¶ 16). 17 As an initial matter, the Court acknowledges the parties’ dispute over whether this passage 18 from the 2019 RF Order is simply a policy statement (the City’s position) or something more akin 19 to a rule or regulation (CTIA’s position). If the former, less deference would be afforded to the 20 agency; if the latter, more deference. Cf. Christensen v. Harris County, 529 U.S. 576, 587 (2000) 21 (noting that an interpretation expressed in an agency opinion letter is different from one arrived at 22 after formal notice-and-comment rulemaking; it is “like interpretations contained in policy 23 statements, agency manuals, and enforcement guidelines, all of which lack the force of law [and] 24 do not warrant Chevron-style deference”6 but rather are subject to Skidmore deference7). The 25 Court, however, need not resolve this dispute because the 2019 RF Order does not state what 26

27 6 See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 437 U.S. 837 (1984). 1 CTIA (or the FCC) claims it does. That is, as noted above, the 2019 RF Order on its face simply 2 indicates that additional disclosures about RF exposure and safety are not required but that does 3 not address whether additional disclosures are permitted. It simply embodies the FCC’s 4 recognition that there are competing interests with which it must contend. 5 But assuming that the passage above from the 2019 RF Order were entitled to Skidmore 6 deference only, see Skidmore, 323 U.S. at 140 (noting that deference would depend on “the 7 thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency 8 with earlier and later pronouncements, and all those factors which give it power to persuade”), the 9 Court finds that it is entitled to modest weight. It is consistent with the overarching statutes which 10 recognizes the varying interests at stake. And it is a fair and valid point for the FCC to state that 11 disclosures about RF exposure and safety have the potential to overwarn – particularly in light of 12 the FCC’s finding that cell phones do not pose a health risk under normal use and the City’s 13 concession that FCC-certified cell phones are safe. It was based on the FCC’s consideration of 14 extensive comments and information received over the span of several years. Furthermore, the 15 FCC’s position here is consistent with its earlier actions in providing information to the public 16 about RF exposure and safety in limited ways.8 17 The Court therefore turns to the FCC Statement of Interest which directly addresses the 18 matter at issue herein. The Statement is a clear statement by the FCC that the Berkeley ordinance 19 specifically constitutes overwarning.9 According to CTIA, the Statement is entitled to a high level 20 8 In its papers, the City has argued that, if the 2019 RF Order was intended to preempt local 21 regulation, then the FCC should have had to comply with the notice-and-comment procedures provided for in 47 U.S.C. § 253(d). The Court need not address this argument because, as 22 discussed above, it has concluded that the 2019 RF Order does not address whether and what kind of additional disclosures, if imposed by a local government, are permitted. (The City did not 23 argue that the Section 253(d) notice and comment procedure should have applied to the FCC’s filing of the Statement of Interest discussed below. Had Berkeley so argued, it is notable that the 24 ability to obtain such notice and comment in the midst of litigation would seem highly problematic, and it may be contended that Berkeley’s ability to respond to and oppose the 25 Statement is functionally similar to a notice and comment process.) The Court also notes that the lack of a notice-and-comment process is a factor that informs the degree of deference to the FCC’s 26 order under Skidmore. As noted herein, the degree of deference afforded in this case is modest.

27 9 The FCC goes further, of course, to say that the Berkeley ordinance is preempted by federal law. 1 of deference under Auer v. Robbins, 519 U.S. 452 (1997). Under Auer deference, “where an 2 agency interprets its own regulation, even if through an informal process, its interpretation . . . is 3 controlling . . . unless ‘plainly erroneous or inconsistent with the regulation.’” Bassiri v. Xerox, 4 463 F.3d 927, 930 (9th Cir. 2006). CTIA’s contention that Auer deference applies assumes that 5 the 2019 RF Order amounts to a rule or regulation – such that the Statement of Interest constitutes 6 an interpretation of that rule/regulation and thereby should be deemed controlling absent plain 7 error or inconsistency. The City, however, as noted above, disputes that the 2019 RF order is 8 effectively a rule or regulation, contending that the order constitutes a policy statement and 9 nothing more. But similar to above, the Court need not resolve this dispute. For purposes of this 10 opinion, the Court assumes that the 2019 RF Order is essentially a policy statement and therefore 11 only modest Skidmore deference should be applied to the Statement of Interest. The problem for 12 the City is that, even under Skidmore, the Statement of Interest is entitled to some deference to the 13 extent it has the power to persuade. 14 The Statement of Interest is consistent with the 2019 RF Order in recognizing that 15 additional disclosures pose a risk of overwarning. Furthermore, even if the Berkeley ordinance 16 specifically is (as the Ninth Circuit indicated) literally true and not misleading, it does not 17 necessarily follow that there is no risk of “overwarning” – especially given that the FCC is tasked 18 with balancing the competing objectives of ensuring public health and safety and promoting the 19 development and growth of the telecommunications network and related services. The City 20 contends that its ordinance “simply complements the FCC’s own regulations to ‘protect the health 21 and safety of the public’” and thus cannot be an obstacle to the accomplishment of a federal 22 objective. Opp’n at 15. But the FCC’s objective here is not singularly focused on health and 23 safety, but to balance that with the other objective of promoting industry growth. See Farina, 625 24 and the relevant history and background are complex and extensive’ [a court] defer[s] to ‘an 25 agency’s explanation of how state law affects the regulatory scheme.” Farina, 625 F.3d at 126; see also Wyeth v. Levine, 555 U.S. 555, 576-77 (2009) (stating that “we have given ‘some weight’ 26 to an agency’s views about the impact of tort law on federal objectives when ‘the subject matter is technica[l] and the relevant history and background are complex and extensive’” but “we have not 27 deferred to any agency’s conclusion that state law is pre-empted”) (emphasis in original). “‘The 1 F.3d at 125; see also id. at 130 (distinguishing the Supreme Court case, Wyeth, 555 U.S. at 555, 2 which considered whether state law claims were preempted by the FDA’s approval of a drug label, 3 because “Wyeth was not a balancing case[;] [s]tate-law actions seeking to impose liability for 4 inadequate warnings would not conflict with the FDA’s labeling approval because both were 5 designed to serve the same objective – protecting the public safety”). The Court cannot conclude 6 the FCC’s position stated in the Statement of Interest is not persuasive, at least in the context of 7 this competing objective and the content of the required disclosure in this case. Given the 8 specificity of the warning required by the Berkeley ordinance, the implied risk to safety if the 9 warning is not followed (a risk the FCC has concluded does not exist), and the acknowledged 10 “controversy concerning whether radio-frequency radiation from cell phones can be dangerous if 11 the phones are kept too close to a user’s body over a sustained period,” CTIA, 928 F.3d at 848, the 12 FCC could properly conclude that the Berkeley ordinance – as worded – overwarns and stands as 13 an obstacle to the accomplishment of balancing federal objectives by the FCC.10 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 10 This is so even if the ordinance for First Amendment purposes concerns a purely factual and 25 uncontroversial matter under Zauderer, a matter determined by the Court and not the FCC. The Court acknowledges that the agency did not offer, in the context of the First Amendment analysis, 26 any specific evidence “showing how Berkeley consumers have understood the compelled disclosure, or evidence showing that sales of cell phones in Berkeley were, or are likely to be, 27 depressed as a result.” CTIA, 928 F.3d at 848. But that is not dispositive to the preemption 1 III. CONCLUSION 2 For the foregoing reasons, the Court grants CTIA’s motion for judgment on the pleadings. 3 The Court holds, in view of the 2019 RF Order and FCC Statement of Interest, that the Berkeley 4 ordinance as drafted is preempted.11 Because the Court finds preemption, it need not address 5 CTIA’s argument that the ordinance also violates the First Amendment. 6 The Clerk of the Court is instructed to enter a final judgment in accordance with this order 7 and close the file in this case. 8 This order disposes of Docket No. 143. 9 10 IT IS SO ORDERED. 11 12 Dated: September 17, 2020 13 14 ______________________________________

EDWARD M. CHEN

15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27