Berkeley ends effort to require warnings for cellphones

Berkeley won't require cellphone retailers to warn customers about possible radiation dangers of holding phones too close to their bodies, ending a five-year legal battle over the first-of-its-kind ordinance.

Attorneys for the city agreed not to appeal a federal judge's ruling issued last month finding that Berkeley was interfering with federal oversight by enforcing the measure in exchange for plaintiff Cellular Telecommunications Industry Association agreeing not to pursue attorneys fees, according to a court filing.

The Berkeley City Attorney's Office declined to comment.

CTIA President Meredith Attwell Baker said in a statement the end to the litigation is an "extremely important victory for American consumers and the nation's economy."

"The court got it right, correctly affirming the FCC's authority to establish reasonable guardrails to guide both the wireless industry and local governments in their shared goals of speeding the deployment of next-generation wireless networks and maintaining U.S. leadership in the emerging 5G economy."

The ordinance, passed in 2015, required retailers to inform consumers that cellphones emit radiation that can exceed limits set by the Federal Communications Commission if they carry them in a certain way.

"To assure safety, the Federal Government requires that cellphones meet radio-frequency exposure guidelines," the warning stated. "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."

The CTIA immediately challenged the regulation, alleging it's preempted by federal law and that it violated First Amendment protections by restricting retailers' commercial speech since the disclosures mislead consumers about the safety of cellphones. CTIA -- The Wireless Association v. City of Berkeley, 15-cv-02529 (N.D. Cal., filed June 8, 2015).

The case went up to the 9th U.S. Circuit Court of Appeals, which affirmed U.S. District Judge Edward Chen's ruling declining to block enforcement of the ordinance. It found that the disputed public health issues were substantial and that the "text of the Berkeley notice was literally correct."

The U.S. Supreme Court denied review but forced the appellate court to revisit the matter after it issued a ruling limiting the power of state governments to compel speech objectionable to certain industries and business owners. After it reaffirmed its prior ruling, the Federal Communications Commission took the rare step of intervening in the case to support the wireless industry's challenge to the ordinance.

Commission general counsel Thomas Johnson argued the regulation "inaccurately describes the safety of cellphones and may inhibit the broad availability of safe wireless communications devices." He claimed its preempted by federal law.

Chen deferred to the federal agency. He wrote that it "could properly conclude that the Berkeley ordinance -- as worded -- overwarns and stands as an obstacle to the accomplishment of balancing federal objectives by the FCC."

CTIA attorneys did not immediately respond to requests for comment.

In June, the Environmental Health Trust sued the Federal Communications Commission alleging the agency did not consider substantial evidence when it decided that its radio-frequency exposure limits are still adequate. It also claimed the agency colluded with industry groups to halt the Berkeley ordinance.

Berkeley could reopen its case if the commission were to re-evaluate the measure and assesses it more favorably.