Berkeley, Cellphone Retailers Brawl Over Warning Law

SAN FRANCISCO (CN) - A federal judge on Thursday suggested that part of a contested Berkeley ordinance requiring retailers to warn customers about the potential health risks of cellphones may be too broad to be constitutional.

U.S. District Judge Edward Chen heard 90 minutes of arguments from the city of Berkeley and the CTIA - The Wireless Association during a preliminary injunction hearing on Aug. 20.

CTIA, a non-profit trade group for the wireless industry, sued Berkeley and city manager Christine Daniel on June 8, claiming the ordinance violates the First Amendment of the U.S. Constitution.

The ordinance titled "Requiring Notice Concerning Radio Frequency Exposure on Cellphones" was approved unanimously by the Berkeley City Council on May 26.

During the hearing, Chen zeroed in on a specific phrase in Berkeley's ordinance, which states the "potential risk" of exposure to radio frequency (RF) radiation "is greater for children."

"It seems to me that statement is broad and suggests inherent greater risk," Chen said. "How can you say that's universally true? It has a broader connotation."

Berkeley's attorney, Harvard Law School professor Lester Lessig III, argued that because children use cellphones differently than adults, the risk of exposure is greater. He added that CTIA has offered no evidence to rebut that assertion.

However, Chen said the statement could be misconstrued as implying the risk is inherently greater for children due to their younger stage of cell development.

Lessig said the city of Berkeley "would be happy to remove or clarify" that line if the judge deemed it necessary.

CTIA's attorney, Theodore Olson, called the ordinance a clear violation of his client's First Amendment rights.

"It's them saying to a private citizen you must carry a governmental message," Olson said. "This is being forced down the throat of cellphone retailers of the city of Berkeley."

Lessig countered that the ordinance simply reinforces the FCC's established safety guidelines on exposure to RF emissions, which are required to appear in manuals for new cellphones.

Lessig added unlike an ordinance San Francisco adopted in 2010 that required retailers to warn customers about the cancer-causing potential of cellphone radiation, the Berkeley warning makes no such claims about any carcinogenic risks.

"The Berkeley ordinance was carefully crafted in light of what San Francisco has done," said Lessig. "We are not challenging the potential harms that many people believe exist with cell phones."

In 2013, San Francisco abandoned its cellphone warning ordinance as part of a settlement agreement with CTIA after a three-year legal battle with the wireless trade group.

Although Berkeley makes no specific claims that cellphone radiation may cause cancer, Olson argued the warning omits facts and misleads customers into thinking that exceeding the FCC standards for exposure poses a danger to human health.

Chen pointed out that nothing in the ordinance prevents cellphone retailers from presenting their own message to counter Berkeley's required warning.

Olson countered that placing the burden on retailers to correct the city's misleading information was in essence chilling the speech and First Amendment rights of private citizens.

"Is it chilling speech or does it further the marketplace of ideas because more speech is better?" Chen asked in response.

After 90 minutes of back and forth debate, Chen ended the hearing without making a decision on CTIA's request for a preliminary injunction against the ordinance.

Follow @NicholasIovino

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