A federal judge says Berkeley cannot require cell-phone retailers to warn customers about possible radiation dangers from holding phones close to their bodies, a ruling based on the Federal Communications Commission’s assessment that the warnings are unneeded and would hurt business.

Courts had previously rejected arguments that the Berkeley ordinance, which took effect in 2016, violated cell-phone companies’ freedom of speech by requiring them to post a message with which they disagreed. But the outcome changed after the FCC, whose members were appointed by President Trump, filed arguments supporting the industry’s challenge to the ordinance.

In a ruling Thursday, U.S. District Judge Edward Chen of San Francisco deferred to the commission’s conclusion that Berkeley’s law would harm the public by promoting unwarranted fears about cell-phone radiation.

“The FCC is tasked with balancing the competing objectives of ensuring public health and safety and promoting the development and growth of the telecommunications network and related services,” Chen said. He said the commission “could properly conclude” that the ordinance “over warns” consumers, and that Berkeley was interfering with federal oversight of the industry.

Federal judge rules Berkeley can’t require extra radiation warning on cell phones https://www.sfchronicle.com/bayarea/article/Federal-judge-rules-Berkeley-can-t-require-15578987.php

Federal Judge Rules Against City’s Cellphone Radiation Warning Law https://www.courthousenews.com/federal-judge-rules-against-citys-cellphone-radiation-warning-law/amp/

Background: Electromagnetic Radiation Safety – Berkeley Cell Phone “Right to Know” Ordinance https://www.saferemr.com/2014/11/berkeley-cell-phone-right-to-know.html

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By Mark Leno and Ellie Marks July 21, 2020

In 2015, the city of Berkeley passed an ordinance requiring cell phone retailers to advise consumers, in a flyer at the point of sale, that keeping a cell phone in their pocket or near their body could expose them to wireless radiation above Federal Communications Commission safety levels. Councilmembers understood that manufacturers deceptively hide this federally mandated information deep within user manuals or in the phone that few ever see. The council also understood that cell phones are allowed to be tested for compliance away from the body— not as used.

A survey of Berkeley residents found overwhelming support for Berkeley’s ordinance. Eight-five percent of residents never saw recommendations from manufacturers about how to best protect against overexposure to cell phone radiation and 82% want this information at the point of sale.

America’s trade association representing the wireless communications industry (CTIA) challenged this ordinance all the way to the United States Supreme Court twice and lost every step of the way. Now this well-funded industry, along with support from the FCC, is again fighting to prevent the public from simple truthful information. Despite losing, the industry has now asked a federal court in California to rehear the case. Industry is repeating its failed argument that the FCC claims cell phones are safe no matter how used. A federal district court hearing is set in San Francisco for Thursday, July 23, on this motion.

Read more at: https://www.sfchronicle.com/opinion/openforum/article/Government-and-industry-combine-to-downplay-the-15421230.php

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Last year, he won a James Madison Freedom of Information Award for his work that culminated in the state of California publishing the cell phone radiation safety guidelines.

The transcript can be viewed at the link below:

Berkeley Talks transcript: Joel Moskowitz on the health risks of cell phone radiation

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On February 27, 2019, Joel Moskowitz, Ph.D., delivered the keynote presentation, “Cell Phones, Cell Towers & Wireless Safety” for the “Balancing Technology” series offered by University Health Services (UHS) at the University of California, Berkeley. The presentation provides a nontechnical overview of wireless radiation research and policy developments including 5G.

http://bit.ly/UCBoverview or https://www.saferemr.com/2019/03/cellphones-cell-towers-wireless.html

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“To assure safety, the Federal Government requires that cell phones meet radiofrequency (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. Refer to the instructions in your phone or user manual for information about how to use your phone safely.”

The three judges who heard the case on September 13, 2016 for the Ninth Circuit Court of Appeals upheld the district court’s denial of the industry association’s request for a preliminary injunction. The panel determined that “there was no irreparable harm based on the First Amendment or preemption, that the balance of equities tipped in Berkeley’s favor, that the ordinance was in the public interest, and that an injunction would harm that interest.”

Although the federal appeals court hearing only addresses the industry’s request for a preliminary injunction, the ruling bodes well for the City because the industry’s argument in the overall case for killing the ordinance is based upon the First Amendment and federal preemption. The court rejected those arguments stating that that the ordinance is in the public interest as it complements and reinforces existing Federal law and policy.

The ruling by the U.S. Court of Appeals for the Ninth Circuit can be downloaded from https://drive.google.com/file/d/0B14R6QNkmaXuSm9PZ0lsM1pKeEE/view

Statement by Dr. Devra Davis on the Landmark California Court Ruling Upholding the Berkeley Cell Phone Ordinance:

In a clear victory for the public right to know with a landmark court decision, the US Circuit Court of Appeals for the Ninth Circuit has upheld the City of Berkeley’s ordinance requiring phone sellers make public typically hidden advice about distances used for cell phone testing. In an April 21, 2017 filing, the Court decisively rejected the industry argument that making that advice public deprived them of their First Amendment rights.

First Amendment scholar and Harvard Professor Lawrence Lessig argued the case for the City of Berkeley, pro bono, pointing out that the City only required that hidden information about tested distances be made publicly accessible.

In its decision, the court noted that specific FCC tests require that phones be placed about an inch off the body and are generally not known by the public, quoting the FCC requirement:

All supported body-worn accessory operating configurations must be clearly disclosed to users, through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided.

Dr. Devra Davis, President of Environmental Health Trust, added: “This is a great day for the American public and for all those concerned with preventing harm and protecting our children. People have a right to know that phones are tested away from a large adult male body, and some distance from the head. A recent Canadian Broadcasting Corporation independent evaluation showed that phone radiation limits can be 3-4 times over approved levels when phones are tested as they are used– directly next to the head or body.”

Further judicial support for the need to reduce exposure to cellphones comes from a recent landmark court ruling in Italy granting monthly worker compensation to a man who developed a brain tumor that caused him to go deaf after he was required to use his phone regularly for work http://www.nydailynews.com/newswires/news/national/cell-phones-brain-tumors-italian-court-rules-article-1.3080304

Recently the Israeli Health Ministry advised that both students and teachers not be permitted to use microwave radiating phones in schools, noting growing scientific evidence of harms from such exposures. Source: EHT https://ehtrust.org/statement-by-dr-devra-davis-on-the-landmark-california-court-ruling-upholding-the-berkeley-cell-phone-ordinance/

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“Berkeley is the first city in the country to get stores to post warnings. It’s a small step, but it’s an important step,” said Joel Moskowitz, PhD, director of UC Berkeley’s Center for Family and Community Health at the University’s School of Public Health.

In 2009, Moskowitz turned his focus from scientific research on the health effects of tobacco to cellphones after a visiting scholar from the National Cancer Center in South Korea exposed him to scientific literature looking at whether mobile phone use increased the risk of tumors.

“The cellphone manufacturers want you to keep a minimum distance away from your body and you should find out what that distance is,” Moskowitz said. “If you keep the device by your body you will exceed the safety limits provided by the FCC.”

That message is what Berkeley officials say is the purpose behind the city’s “Right to Know” ordinance: To educate the public that information on radiation exposure from mobile devices can be found in phone, tablet and laptop manuals.

“We’re just saying let’s take the information that’s buried in your cellphone and buried in the manual, and put it where someone might have a chance to read it,” said Berkeley councilman Kriss Worthington, who co-sponsored the ordinance with former councilman Max Anderson.

The city council voted unanimously to pass the ordinance in May 2015. That law now has the city in the middle of a federal lawsuit brought by the CTIA, The Wireless Association.

The CTIA is a Washington, D.C.-based trade group that represents the cellphone industry and is fighting in court to stop retailers from displaying the warnings.

A spokesman for the CTIA said the signs violate their First Amendment rights by compelling them to say something they don’t agree with.

“It sort of still surprises me that it could become the subject of a federal lawsuit and have so much money spent against it,” Worthington said. “We’re not trying to tell the cellphone companies to say something horrible about themselves. And the information isn’t even horrible, it’s basically saying be prudent, be careful.”

Read more at the link and watch the video http://www.kcra.com/article/how-this-sign-put-berkeley-in-the-center-of-the-cellphone-safety-debate/9171064

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SILENCE BERKELEY’S “RIGHT TO KNOW”?

The long battle over cell phone consumer labels, with a hidden twist of legal super heroes and questions about a Ninth Circuit Court judge’s failure to recuse herself.

A battle over free speech in Berkeley, California has pitted the city of Berkeley against the mighty telecommunications trade group, CTIA – The Wireless Association. Berkeley stands on the First Amendment argument they have a right to inform consumers of certain precautions the FCC already requires in the back of cell phone user’s manuals.

A verdict is expected shortly from the Ninth Circuit Court of Appeals, and proponents of Berkeley’s Right to Know consumer notices are growing increasingly concerned about Judge Michelle T. Friedland’s circuitous connection to the CTIA. Supporters of the Right to Know ordinance worry the judge’s husband, Dan Kelly, has links to four members of the CTIA that could jeopardize Berkeley’s fight for the right to speak freely.

Berkeley’s City Council has fought for six years for the right to inform consumers in Berkeley about cell phone usage safety information. Until Berkeley’s unanimous passage of the Right to Know ordinance on May 12, 2015, this information about keeping distance between the cell phone and the body had been hidden in small print in owner’s manuals, or deep within the phone.

The passage of this consumer notice in easy to understand language triggered a forceful response from the CTIA which has threatened legal action against every city and state over the past seven years that has attempted to pass similar right to know legislation.

In the CTIA’s corner is former solicitor general Theodore Olson, the man widely credited with helping George W. Bush win the White House. See link for more: BREAKING NEWS by Susan Foster on Conflict of Interest in the Berkeley’s “right to know”

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