9th Circuit Judges Side with CTIA on San Francisco’s Cellphone Labeling Law

CTIA won another round of its fight against San Francisco’s cellphone labeling law. A panel of three federal appeals judges sided with the association in ruling on the cross appeals of a lower court’s injunction against the ordinance (http://xrl.us/bno8ej). The appeals stemmed from a city ordinance that would require cellphone retailers to provide information about phones’ RF emissions and information about how to limit exposure to such emissions. A lower court had approved a revised version of a fact-sheet the city could require to be distributed where cellphones are sold, but the 9th U.S. Court of Appeals disagreed Monday. The 9th Circuit’s jurists signaled they wouldn’t rule for the city, at oral argument last month (CD Aug 10 p1). A CTIA spokeswoman declined to comment. A spokesman for the San Francisco Mayor’s Office referred our query to the City Attorney’s Office, which did not immediately respond.

"Appellant CTIA correctly points out, however, that the revised fact sheet contains more than just facts,” a memorandum from the court said. “It also contains San Francisco’s recommendations as to what consumers should do if they want to reduce exposure to radiofrequency emissions. This language could prove to be interpreted by consumers as expressing San Francisco’s opinion that using cell phones is dangerous.”

The FCC has its own RF exposure limits, the memo said. “We cannot say on the basis of this record that the fact sheet, as modified by the district court, is both ‘purely factual and uncontroversial,” 9th Circuit said. “The court therefore erred in holding the city could compel distribution of the revised fact sheet.”

The decision is “an important affirmation of retailers’ First Amendment Rights,” said Robert Schwartz, a lawyer representing consumer electronics manufacturers at Constantine Cannon and counsel to the Consumer Electronics Retailers Coalition, which filed an amicus brief in support of CTIA. “The San Francisco Ordinance challenged by CTIA -- The Wireless Association would have commandeered local retail facilities for the expression of controversial opinions rather than facts,” he said. “The opinions were unsupported by and contrary to the research and guidance of the Federal Communications Commission."

The court affirmed a district court’s order preliminarily enjoining enforcement of the order, and vacated its subsequent order modifying the injunction, the memo said in remanding the case to U.S. District Court in San Francisco.