On October 29, the U.S. District Court for the Northern District of California ruled that the FCC's radio frequency (RF) emissions regulations preempt disclosure-related tort and consumer fraud claims. In Cohen v. Apple, District Judge William Alsup issued an order on summary judgment that dismissed putative class action claims that Apple marketed iPhones for use on or in close proximity to the body but failed to disclose that such use would allegedly expose consumers to RF radiation levels above federal standards and also failed to disclose the alleged risks from that exposure.
According to a statement filed with the District Court by FCC General Counsel Thomas Johnson: "if plaintiffs were to prevail in that challenge, they would undermine the FCC's efforts to create and implement a uniform and reliable process for certifying that cell phones comply with RF limits."
Applying preemption precedents such as Geier v. American Honda Motor Company (2000), the District Court agreed with the Commission:
The equipment-authorization regime represents a "deliberate choice" to establish uniform technical standards embodying a careful balance between safety and efficiency. If successful, plaintiffs' claims could set the stage for a patchwork of state-required testing procedures, increasing the burden on manufacturers and thereby upsetting the efficiency that the uniform standards and testing procedures provide. Geier, 529 U.S. [861] at 879–81; Buckman [Co. v. Plaintiffs' Legal Comm., 531 U.S. [341] at 353 [(2001)]. As it stated, "[l]awsuits like this one would needlessly disrupt the Commission's certification process and improperly impede the marketing of cell phones that the FCC has found to be safe" (FCC Statement at 16). Even though plaintiffs' state-law claims "attempt[ ] to achieve one of the same goals as federal law" — namely, safety — the enforcement of the equipment-authorization regime by state tort suits such as plaintiffs' would upset the balance struck by the regulations and must fall aside. Arizona [v. U.S.], 567 U.S. [387] at 406 [(2012)].
The District Court was unpersuaded that plaintiffs' claims that the iPhones exceeded the Commission's safety standards and thereby avoided any conflict with federal objectives. As the District Court observed: "The Commission is amply empowered to investigate complaints and petitions calling into question the continued compliance of certified devices with its technical standards." And the court noted that the FCC Lab investigated the Chicago Tribune story about supposed iPhone noncompliance with the Commission's RF standards that prompted the putative class action lawsuit. Wrote the court:
The FCC Lab tested commercially-available iPhones as well as a model iPhone provided by Apple, and each demonstrated compliance when tested at the test separation distances used in their original certification filing (not at two millimeters, as the Tribune additionally had) and consistent with OED's parameters. The Lab found no evidence of violations of the technical standards. Apple’s iPhones have thus demonstrated compliance with its exposure limits not once but twice (Dkt. No. 104-11). Allowing a federal jury to now second-guess the agency determinations would interfere with the balance struck in the equipment-authorization program. The federal regulations must displace plaintiffs' claims.
Additionally, the District Court pointed out that plaintiffs and would-be plaintiffs are not left without remedies: "Aside from enforcement bureau actions as described, which are triggered by complaints or petitions filed with the Commission, plaintiffs may also challenge agency rulemaking directly." The court referred to the pending legal challenge to the Commission's 2019 RF Order, which is pending at the D.C. Circuit in Environmental Health Trust v. FCC.
The District Court's ruling appears sound and consistent with preemption precedents. My blog post from September 21 discussed a decision by the Northern District of California that the City of Berkeley's ordinance overwarned against the dangers of RF emissions and is preempted by FCC regulation.
Cohen v. Apple provides a useful example of a court applying the Supreme Court's decision in Geier to conflicting state law claims. In his September 2020 Perspectives from FSF Scholars paper "Day of Reckoning Approaches for California Net Neutrality Law," Professor and Free State Foundation Board of Academic Advisors Member Daniel Lyons discusses Geier and conflict preemption in the context of the legal challenge to California's net neutrality regulation law in U.S. v. California – a case now pending before the Eastern District of California.
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