FCC's General Counsel Sums Up Commission's Courtroom Successes

At the FCC's public meeting on January 13, the Commission's General Counsel Thomas Johnson presented on the accomplishments of the Office of the General Counsel during the past four years. As General Johnson sums things up in his presentation:  

Our Litigation team… won in whole or in substantial part 28 out of 31 appeals (or 90%) filed against the agency. We achieved these results despite being challenged on several of this administration's highest-profile items. When we restored a light-touch regulatory framework to broadband in the Restoring Internet Freedom Order, we were challenged in court. Yet, after our defense of the Order—in which I participated in a marathon 5 1⁄2 hour oral argument on a snowy February day following a government shutdown—the D.C. Circuit upheld our reclassification of broadband as a Title I information service. When we modernized our approach to state and local infrastructure siting requirements to accelerate American leadership in 5G deployment, we were challenged in court. But after no fewer than three of my attorneys defended our 5G infrastructure orders before the Ninth Circuit, the court upheld nearly all of our reforms. When we took an innovative and thoughtful approach to reallocating critical "C-Band" spectrum for 5G services, we again were challenged in court. But the D.C. Circuit in short order rejected all legal challenges to our C-Band Order, clearing the way for a record-breaking auction of the spectrum. 

Slides of the presentation are available here.

 

Prior FCC administrations have had notably less success in defending their policy agendas in court. The Commission's legal victories during the last four years demonstrates Chairman Ajit Pai's commitment to the rule of law as well as the able advocacy of General Johnson and his team. Congratulations to General Johnson and the Office for a job well done. 

Court Rules that the Commission's RF Rules Preempt State Law Claims

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. 

FCC Orders on Broadband Infrastructure Withstand Further Legal Challenges

On October 22, the U.S. Court of Appeals for the 9th Circuit issued an order denying en banc review of the August 2020 decision in City of Portland v. U.S. In that earlier decision, a panel of the 9th Circuit upheld FCC orders that reformed the agency's rules regarding broadband infrastructure siting and pole attachments. Among other things, the court's decision upheld most of the Commission's Small Cell Order, which clears away barriers to installing antennas that are crucial for 5G network services.  

The City of Portland v. U.S. decision was the subject of my blog post on September 2. 

Incidentally, FCC General Counsel Thomas Johnson's October 2020 legal opinion on the authority of the Commission to interpret Section 230 of the Communications Act cited the court's decision. His opinion touched on the court's holding regarding the Commission's authority to interpret of ambiguous statutory provisions and the preemptive effect of such interpretations: 

[I]n City of Portland v. FCC, 969 F.3d 1020 (9th Cir. 2020), the U.S. Court of Appeals for the Ninth Circuit earlier this year largely affirmed two FCC orders clarifying the scope of a preemption provision in the Communications Act that provides that states and localities may not take actions that "have the effect of prohibiting" telecommunications service. Citing City of Arlington, the court said that "[w]here terms of the Telecommunications Act are ambiguous, we defer to the FCC's reasonable interpretations."

General Counsel Johnson went on to write that "City of Arlington [v. FCC, 569 U.S. 290 (2013)] and City of Portland make clear that the FCC can clarify even those ambiguous statutory provisions within the Act that are arguably directed toward courts—such as preemption or jurisdictional provisions."

Media Advisory: FSF Agrees with FCC General Counsel's Legal Analysis of FCC's Authority to Construe Section 230

The following statement may be attributed to Free State Foundation President Randolph May:

I've reviewed the analysis of the FCC's General Counsel regarding the FCC's authority to conduct a proceeding to clarify the meaning of certain ambiguous terms in Section 230, and I agree with his legal analysis. Indeed, his analysis, relying on Section 201(b) of the Communications Act, is fully consistent with the comments and reply comments that FSF filed with the Commission. See the excerpts below and the attached comments and reply comments.

 

The General Counsel's determination that the Commission possesses authority to conduct a proceeding to clarify the meaning of Section 230's ambiguous terms does not mean that the courts necessarily will agree that any Commissions interpretations are correct, only that courts reviewing the agency’s action will accord the agency’s interpretation substantial deference.

 

I hope, if the Commission does conduct a proceeding to clarify the meaning of Section 230's provisions, that those participating, regardless of their political persuasion, will not let politics and reflexive preconceptions trump sound legal analysis. And it is important to keep foremost in mind, given that Section 230 is now a quarter-century old, and today's Internet ecosystem bears little or no resemblance to that which existed at the time of Section 230's adoption, Congress, ultimately, may choose to revise or not revise the law as it sees fit.

.     .     .     .     .

 

Here are brief excerpts from the Free State Foundation's submissions co-authored by me and FSF Senior Fellow and Director of Policy Studies Seth Cooper:

 

FSF Comments: "Section 230 is part of the Communications Act of 1934, as amended. And the Commission has authority pursuant to Section 201(b) to 'prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter.'"

 

FSF Reply Comments: "[I]t is worth noting that the Court relied on a grant of authority in Section 201(b) as empowering the Commission to issue a declaratory ruling clarifying the meaning of certain wireless siting provisions in Section 332 of the Communications Act."

FCC's General Counsel: Federal Law Preempts Berkeley's "Overwarning" Ordinance

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."

Audio of Conversation on the FCC, Broadcast Journalism, and the First Amendment

Audio is now available for Free State Foundation President Randolph J. May's Federalist Society teleforum conversation with FCC General Counsel Thomas M. Johnson, Jr. on broadcast journalism and the First Amendment. In the teleforum, they discuss the agency's response to the emergency petition filed by Free Press that sought to investigate and censor broadcasters covering presidential press conferences and offering commentary on COVID-19. Tune in to hear an insightful exchange regarding First Amerndment principles and the FCC's approach to free speech issues. The audio is available for streaming and for download at the Federalist Society's website.

FCC Officials Defend Free Speech from (un)Free Press Petition

On April 6, FCC Media Bureau Chief Michelle Cary and General Counsel Thomas Johnson issued a commendable letter defending First Amendment freedom of speech and rejecting an emergency petition by the unsuitably-named advocacy group Free Press that sought a federal investigation of broadcasters and to effectively censor presidential news conferences and public commentary related to COVID-19. The letter, which is worth reading in full, is a gratifying instance of public officials defending liberty and sensibly discharging their responsibilities rather than twisting them for dangerous ends and under the cover of public emergency. It would be wrong for the FCC to use its public interest and other powers to selectively imposes its own views on broadcasters and it would be equally wrong for the agency to do the same through Internet or other communications platforms.