Based on a review of available scientific evidence, the FCC's 2019 RF Order reaffirmed that certified cell phones pose no health risk. Yet, a City of Berkeley, California ordinance would require retailers in Berkeley to provide specific notice at the point of sale that warns against radio frequency (RF) emissions by those phones. This ordinance is the subject of a pending legal challenge in CTIA v. City of Berkeley. On June 22, the U.S. Department of Justice filed a statement of interest in the case that incorporates a letter by FCC General Counsel Thomas M. Johnson.
In his letter, the General Counsel rightly explains: "The notice mandated by the Berkeley ordinance inaccurately suggests that cell phones are unsafe. Thus, it has the potential to 'overwarn' consumers and impede the accomplishment of the FCC's goal of fostering a safe and robust wireless communication system."
The letter's cites to court precedents regarding federal agency preemption, including precedents regarding federal policy interests in preventing state regualtions that result in "overwarning." As the General Counsel correctly concludes, Berkeley's ordinance is preempted federal law.
Regarding certified cell phone safety, the General Counsel's letter quotes the FCC's 2013 notice, which states that the agency's limits on RF emissions:
[A]re set at a level on the order of 50 times below the level at which adverse biological effects have been observed in laboratory animals as a result of tissue heating resulting from RF exposure. This "safety factor can well accommodate ... the potential for exposures to occur in excess of [the FCC's RF] limits without posing a health hazard to humans."
The General Counsel's letter is sensible and it succinctly sums up both the FCC's findings and its policy concerning the safety of certified cell phones. Certainly, Berkeley's ordinance appears unsupportable as a matter of fact and of law. Hopefully, the U.S. District Judge in CTIA v. City Berkeley will dismiss the case anon.
In the event that local governments field concerns from citizens about RF emissions from cell phones, local officials should carefully consult the General Counsel's letter. And I wrote in a December 2019 blog post, they also should consult the 2019 RF Order. Local governments should be mindful of the FCC's findings that certified cell phones pose no health risk, and they should refrain from taking actions that run contrary to federal law and policy.
Regarding the safety of 5G networks, I also commend FCC General Counsel Thomas Johnson's June 4 op-ed in the Washington Post titled "5G Conspiracy Theories Threaten the U.S. Recovery."
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