La. RF Radiation Case Is Federally Preempted, Argues Cellphone Industry

A complaint in U.S. District Court for the Western District of Louisiana against CTIA and numerous cellphone manufacturers -- including Motorola, AT&T Mobility and Cricket Wireless -- over a pastor’s death from brain cancer should be dismissed because it is preempted by federal law, the trade group and companies said in a joint motion Monday in docket 2:21-cv-0092. The plaintiffs have argued the FCC safety certification process is based on inaccurate information provided by cellphone makers, and so shouldn’t preempt the case. Other defendants, such as TIA and Chinese company ZTE, argued Monday in separate filings that the court had no jurisdiction over them.

“Allowing juries to decide whether cell phones are compliant would undermine ‘an essential element of an efficient wireless network’ -- uniformity,” said the joint motion from CTIA, Motorola and Cricket. The claim by plaintiff April Walker -- wife of deceased pastor Frank Walker -- would lead to “a patchwork of state-required testing procedures” and run counter to “the FCC’s long-standing, well-seasoned position that claims like Plaintiffs’ frustrate the agency’s objectives,” said the joint motion.

Walker’s children are also plaintiffs in the case, and the group Children’s Health Defense said in a news release that its chair, Robert Kennedy, is part of their legal team, though the court filings don't list him. Children’s Health Defense has been involved in previous cases on the harm of RF radiation, including an unsuccessful challenge to the FCC’s 2021 changes to over-the-air reception devices in the U.S. Court of Appeals for the D.C. Circuit (see 2202110059). The Walkers' attorney, Hunter Lundy, didn't comment.

The complaint, filed in April 2021, argues that the cellphone industry has worked to conceal and suppress information showing that many cellphones don’t comply with the FCC’s specific absorption rate (SAR) limitations for how much RF radiation is absorbed by phone users, and that this led to Frank Walker’s death from brain cancer. “Mr. Walker would not have purchased the cell phones he used or taken the risk of extensively using and continuing to use such cell phones” if the industry had “disclosed the truth,” the complaint said. The plaintiffs are seeking punitive damages.

Although several previous RF cases in other circuits have fallen victim to federal preemption rules, Children’s Health Defense attorney Scott McCullough said the Walker case could succeed. “At some point these courts are going to realize these cases shouldn’t be preempted,” he said. “We’ve got to do something, people are dying out there.” Preemption should apply only when it's impossible to comply with both the FCC guidelines and more specific state-level rulings, McCullough said.

Walker “consistently and continuously” used cellphones from 1995 until his death in 2020, the complaint said. SAR testing is performed by the cellular manufacturers and is inaccurate and “easily manipulated,” the complaint said. CTIA is “complicit” because it disseminated “misinformation” about cellphone safety and test accuracy when Tom Wheeler, who later became FCC chairman, ran the association.

The plaintiffs are arguing that the cellphones aren’t compliant with FCC rules in order to “plead around” federal preemption rules, said the joint industry motion. “Congress has charged the FCC with investigating all complaints questioning the compliance of certified phones. Under settled U.S. Supreme Court precedent, the FCC’s investigative authority preempts allegations of fraud on the agency.” The FCC didn’t comment.

The FCC “rigorously enforces the RF standards,” and has repeatedly filed in opposition in prior cases arguing that cellphones weren’t in compliance with agency standards, the industry joint motion said. “State laws that would impose competing standards for RF emissions necessarily conflict with the FCC’s objectives,” the joint motion said.

TIA and Chinese phone manufacturer ZTE each filed separate motions to dismiss in the case. Both companies said they don’t do business in Louisiana and TIA said it “does not manufacture, design or sell any telephones, and it does not provide any telephone service.” Though the Walkers’ complaint mentions a ZTE phone owned by Frank Walker, ZTE said it could not have been purchased directly from ZTE and so the court doesn’t have jurisdiction. “ZTE Corporation has no ‘continuous and systematic” contacts with Louisiana sufficient to subject it to general jurisdiction,” the filing said.