CTIA - The Wireless Association v. City of Berkeley

Background

The City of Berkeley enacted an ordinance requiring cell-phone retailers to provide customers with a specified notice. The notice stated that federal law requires phones to meet radio-frequency exposure guidelines and warned that carrying or using a phone in a pants or shirt pocket, or tucked into a bra, while the phone was on and connected to a wireless network, could result in exposure exceeding federal guidelines. Retailers had to display the notice on a poster or provide it in a handout, subject to specified size and font requirements.

CTIA challenged the ordinance on two grounds: compelled commercial speech under the First Amendment and federal preemption. In earlier proceedings, this court issued a preliminary injunction based on language concerning children, the City removed that language, and the injunction was dissolved. The Ninth Circuit later affirmed. The motion decided in this opinion concerned the effect of the Federal Communications Commission’s 2019 action and its Statement of Interest in this litigation.

Motion and Legal Standard

CTIA moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). That motion may be granted when the pleadings show no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. The court must accept the complaint’s factual allegations as true and view them favorably to the nonmoving party.

Preemption Analysis

The court addressed preemption first because finding the ordinance preempted would make it unnecessary to decide the First Amendment issue. Conflict preemption is a form of federal preemption that occurs when state or local law conflicts with federal law, including when the local law obstructs federal objectives. The City argued that the Telecommunications Act of 1996 allowed preemption only when Congress expressly provided for it. The court rejected that argument, concluding that the Act’s savings clause did not displace ordinary conflict-preemption principles.

The court recognized that the Federal Communications Commission had been assigned competing objectives: protecting public health and safety while also promoting a rapid, efficient, uniform, and widely accessible nationwide communications network. When Congress assigns an agency the task of balancing competing objectives, the court explained, a different state or local standard can improperly rebalance those interests.

The FCC’s 2019 RF Order stated that existing information on FCC webpages and in cell-phone user manuals was adequate to inform consumers and did not risk creating an erroneous public perception or “overwarning” about radio-frequency emissions from certified or authorized devices. The order did not expressly decide whether local governments could require additional disclosures. The court therefore gave the order only modest persuasive weight rather than resolving whether it had the force of a rule or regulation.

The FCC’s Statement of Interest directly addressed Berkeley’s ordinance and stated that the ordinance was preempted because it conflicted with the FCC’s policy judgment about how and in what form information about radio-frequency exposure should be provided. The court found that position persuasive even under the modest level of deference it applied. In the court’s view, the ordinance’s specific warning implied that a health risk existed if consumers did not follow it, although the FCC had concluded that legally sold phones posed no health risks under normal use. The court held that the ordinance therefore risked overwarning consumers and obstructed the FCC’s effort to balance safety concerns with the development and growth of the telecommunications network.

Disposition

The court granted CTIA’s motion for judgment on the pleadings and held that Berkeley’s ordinance, as drafted, was preempted in light of the 2019 RF Order and the FCC’s Statement of Interest. Because it found preemption, the court did not address CTIA’s First Amendment argument. The clerk was instructed to enter final judgment and close the case.