The (court) case against San Francisco's cell phone radiation law

By Matthew Lasar

San Francisco mayor Gavin Newsom is putting a brave face on the news that big wireless is suing the city over its new cell phone radiation labeling ordinance.

"I am disappointed that the association representing the wireless communication industry has decided to challenge our landmark consumer information law in court," Newsom declared on Friday, calling it "a modest, common sense measure which merely takes information already made available by these companies and makes it more accessible and easier to find by the point-of-sale consumer."

As we've reported, in June San Francisco's Board of Supervisors almost unanimously passed a bill requiring cell phone retailers post the radiation levels of the mobile devices they're selling. Displays at cell phone stores must publicize the Specific Absorption Rate (SAR) of these gadgets somewhere next to the sample device. These SARs max out at 1.6 watts per kilogram (1.6 W/kg), the highest rate permitted by the Federal Communications Commission.

Research on the actual health dangers of cell phones is a work-in-progress. Even a top environmental group which supports the law says "the science is far from settled about whether long-term use of wireless devices causes brain tumors." The FCC's relevant page cites studies suggesting "no increased health risk" to consumers.

But San Francisco's "just-to-be-on-the-safe-side" legislation received quick national attention. The wireless industry "should be sending Mayor Newsom a bottle of good California wine for caring about whether kids' brains get fried," declared Maureen Dowd of the New York Times, "not leaving him worried about whether they'll avenge themselves in his campaign for lieutenant governor."

That was just after CTIA - The Wireless Association immediate had announced that, in protest, they would no longer hold their big annual trade show in the city. Now the group has the cool gray city of love in court over the move.

Writing from the San Francisco uplink for the Ars Orbiting HQ, we sympathize with CTIA's critique of the ordinance, but we're also wondering about this lawsuit.

Be meaningful

CTIA isn't impressed with Newsom's pushback that all the city is doing is publicizing the FCC's SARs data. The association's objection "is that displaying a phone's SAR value at the point-of-sale suggests to the consumer that there is a meaningful safety distinction between FCC-compliant devices with different SAR levels," explains CTIA Vice President John Walls.

That's right. Since the FCC has already established a safety ceiling on SARs (1.6 W/kg) and determined that all cell phones must comply with its rules, what the heck are consumers going to do with the multitude of SARs numbers they're going to see next to display phones in retail stores?

For example, here's the FCC's SAR report for a 2008 edition of the iPhone. Depending on at which frequency range the device is getting a signal, and on which part of the body the gizmo is being worn, it clocks in at SARs rates that range from 0.521 through 1.388 W/kg.

So which of these figures will be posted over at one of my favorite window shopping stops, the Apple Store just off Market Street, downtown? One number? All of them?

And how are consumers supposed to grok this data? The ordinance tasks San Francisco's Department of the Environment to develop a "supplemental factsheet" regarding SAR values, "consistent with the relevant information provided by the FCC or other federal agencies having jurisdiction over cell phones."

But based on what? That already mentioned FCC data? Or the U.S. Food and Drug Administration's relevant page, which declares that there is "No Evidence Linking Cell Phone Use to Risk of Brain Tumors"?

The implementation of this law will send consumers "the false message that there is a safety difference between wireless devices that comply with the FCC's stringent standards," CTIA protests.

Don't trench on me

But CTIA's legal action goes way beyond exposing the intellectual frailty of this ordinance. It invokes Article Six of the United States Constitution, the Supremacy Clause, to back the FCC's final authority on this issue.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Thus San Francisco's action "trenches unlawfully on a regulatory field reserved exclusively to and occupied exclusively by the federal government"—that is, the regulation of cellular phone services.

Sure enough, it would be dumb to let cities, counties, and states issue their own spectrum licenses or radio frequency emissions standards. But how far does the FCC's authority really reach?

In various decisions, the agency has invoked "primacy" over three key areas of cell phone regulation: "public need, technical standards, and competitive market structure." But does that give the Commission or CTIA preemptive powers over a simple city law requiring the far more accessible disclosure of the agency's own data?

Next, CTIA says the San Francisco ordinance conflicts with federal law by "challenging, directly or indirectly, the FCC's determination that all FCC-compliant wireless handsets are safe."

But will it really conflict? If San Francisco's ordinance is enacted as it is written, all it will do is make retailers post a bunch of SAR numbers next to their display mobiles with a note adding that the federal government says they're good to go, safety-wise. That will certainly be confusing to consumers, but will it really challenge federal regulatory authority?

Last, CTIA insists that the city law is preempted by Section 332(c)(3)(A) of the Communications Act.

But does it? Here's the relevant language of that Section:

No State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.

How does this local rule regulate entry or rates? Retailers can still sell all the FCC approved mobiles they want at the prices they care to charge. San Francisco consumers will look at the SAR numbers and by various astrological or dreamcatcher systems decide what to do, or more likely just buy the handset they really like, anyway.

Based on this initial reading of the suit, it's unclear what its prospects are before Northern California's United States District Court. But the action will probably scare other cities from enacting similar measures anytime soon. Maybe that's the real point.

<no... the real point is that there is not yet any scientific evidence that this is even a serious issue, much less a problem, and aside from all the various issues above, the government, whichever part, is simply putting their noses in where they aren't needed and therefore don't belong>