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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“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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As new science fuels the debate about cellphone safety, we take a closer look at a little known message inside your cellphone’s settings and manual telling you to keep the device 5 to 15 mm away from your body. We ask why this message exists, why it’s so hidden, and whether Health Canada is doing enough to protect us.

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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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