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Cellphone Warning Fight Goes to Ninth Circuit

SAN FRANCISCO (CN) - The veracity of a safety warning Berkeley requires cellphone retailers to show consumers became the focal point of a Ninth Circuit hearing on Tuesday.

Two circuit judges appeared to split on whether the safety disclosure, required as part of a Berkeley city ordinance passed in May 2015, contains a truthful message.

The message warns consumers that they may exceed the Federal Communications Commission's safety guidelines if they keep a wireless-connected cellphone close to their bodies.

The Cellular Telephone Industries Association sued the city in June last year, claiming its ordinance violates the First Amendment by requiring retailers to spread a misleading, government-crafted message.

U.S. District Judge Edward Chen put the law on hold last year, finding one line about a greater risk of exposure to cellphone radiation for children was baseless and unscientific.

After Berkeley removed that line from the message, Chen lifted his ban in January. The Wireless Association quickly appealed, urging a three-judge panel to reverse the judge's ruling during a hearing Tuesday.

"This is intended to persuade and change the conduct of consumers," CTIA attorney Theodore Olson, who served as U.S. solicitor general under President George W. Bush, told the panel. "It's not a disclosure. It's a point of view."

Berkeley's attorney, Harvard law professor Lester Lessig III, responded that the warning cites established FCC guidelines and therefore cannot be considered false or misleading.

Still, one circuit judge questioned the veracity of the city's required disclosure.

"I see this as saying cellphones are unsafe if you put them in your pocket, but you haven't shown that's true," U.S. Circuit Judge Michelle Friedland said.

Circuit Judge William Fletcher took a different view, saying he sees the warning as basically true because it points specifically to FCC safety guidelines. But Fletcher added the bigger question is one of tone and implication.

"There's at least a plausible argument that a person reading this is going to say, 'You know what? There may be a real problem, and I may be threatening all kinds of health hazards to myself."

Olson argued that the FCC bases its guidelines on "wide margins of safety" and that no FCC-approved research has established a link between cellphone usage and any illness or health hazard.

Friedland suggested the language of the warning could be altered to more accurately describe FCC findings on cellphone safety.

"Your warning could say when the FCC tests cellphones, it assumes they will be away from the body," Friedland said. "That would be factually true."

Lessig countered that there is no point in quibbling over the precise language of the disclosure because the warning serves a legitimate government purpose and therefore should not be subject to heightened scrutiny.

A ruling against the ordinance would make it nearly impossible for governments to require safety disclosures, Lessig said, forcing them to face the extreme burden of proving in federal court the significance of risks, even when they are supported by a federal agency's guidelines.

Friedman indicated that there was "a downside to having unsupported warnings" and asked if any government warning would be prohibited under Lessig's analysis.

Lessig answered if the FCC found no risk from cellphone radiation, then Berkeley's warning would be untrue and could be struck down.

Delivering his final plea to the panel, Olson argued the words "safety" and "radiation" in the warning give an unfair impression to consumers.

Circuit Judge Morgan Christen asked Olson if anything prevents his clients from adding a line before or after the message stating, "The FCC has never found cellphone usage unsafe."

Olson conceded nothing prohibits that, but argued the ordinance places a "significant burden on speech" by forcing retailers to either "acquiesce by their silence" or engage in a debate they never chose to enter.

In a district court hearing last year, Lessig said Berkeley left out references to the potential cancer-causing effects of cellphone radiation to avoid the same fate as a San Francisco ordinance, which was struck down by a federal judge in 2011.

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

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