SAN FRANCISCO -- A judge this week cleared the way for Berkeley to enforce an ordinance mandating disclosure of possible radiation hazards of cellphones to buyers.
A cellphone industry group, CTIA -- The Wireless Association, had brought suit in federal district court, arguing that the ordinance violates retailers' First Amendment rights by forcing them to proclaim a message with which they disagree.
On Wednesday, Judge Edward M. Chen of the U.S. District Court, Northern District of California, lifted a preliminary injunction he had issued in September against enforcement of the ordinance, which was conceived by Councilman Max Anderson and co-sponsored by Councilman Kriss Worthington.
The ordinance, approved by the Berkeley City Council in May, mandates a notice to people buying and leasing cellphones in the city that reads in part: "To assure safety, the Federal Government requires that cellphones 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."
A subsequent sentence in the ordinance, "This potential risk is greater for children," did not pass muster with Chen. He granted an injunction in September against enforcement of the ordinance pending the sentence's removal, noting that the Federal Communications Commission had not made any finding that there is a greater potential risk for children. In October, the City Council removed the offending sentence and passed an amended ordinance with the rest of the message intact, clearing the way for this week's court ruling.
CTIA also had argued that Berkeley's ordinance is pre-empted by federal law, because it infringes on the federal government's authority to regulate the cellphone industry. But Chen noted in September that the federal government itself raised safety issues when it imposed radiation limits on cellphones.
"We believe Judge Chen has created new law in this case that dramatically weakens First Amendment protections and contradicts binding decisions of the Ninth Circuit Court of Appeals as well as the Supreme Court," CTIA said in a statement. "In fact, the Ninth Circuit previously invalidated a very similar cellphone ordinance in San Francisco. That is why we will respectfully be appealing Judge Chen's ruling to the Ninth Circuit. The overwhelming scientific evidence refutes Berkeley's ill-informed and misleading mandatory warnings about cellphones, according to the FCC and other experts. With these realities on our side, we are confident that we will prevail in our appeal."
Contact Tom Lochner at 510-262-2760. Follow him at Twitter.com/tomlochner.