Berkeley Opposes Supreme Court Review of RF Ordinance

Berkeley may mandate RF disclosures just like the FCC, the California city said Monday at the Supreme Court in case 17-976. Berkeley opposed CTIA’s petition for high court review of the mandate that retailers inform prospective cellphone buyers that carrying their devices in certain ways can cause exposure to radiation exceeding federal limits (see 1802270045). The city may compel truthful disclosure in commercial speech because it’s reasonably related to the FCC’s interest, it said. “Berkeley’s interest in mandating this disclosure is precisely the same as the FCC’s: to give its residents the facts they would need to avoid exceeding the federal RF exposure limits -- if they so choose,” wrote the city’s attorney, Lawrence Lessig. “The ordinance is supremely ordinary. … Like nutrition and ingredient labels, drug side-effect and interaction disclosures, or elevator safety warnings, Berkeley’s ordinance gives consumers information that consumers could reasonably want to know.” The court shouldn’t hear the case because there’s “no split among the circuits upon any issue material to the disposition,” Lessig said. “The radical change in law that Petitioner advocates would impose substantial burdens on federal, state and local regulators while serving no genuine First Amendment interests.” Review is premature because the 9th U.S. Circuit Court of Appeals is reviewing en banc a similar case about soda health effects, American Beverage Association v. San Francisco, he said.