Case 3:15-cv-02529-EMC Document 148 Filed 06/22/20 Page 1 of 2 1 JOSEPH H. HUNT Assistant Attorney General 2 ERIC WOMACK Assistant Branch Director 3 JUSTIN M. SANDBERG (IL Bar No. 6278377) 4 Senior Trial Counsel Civil Division, Federal Programs Branch 5 1100 L. St. NW, Room 11004 Washington, DC 20005 6 Phone: (202) 514-5838 Email. Justin.sandberg@usdoj.gov 7 Attorneys for United States 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 ______________________________________ ) 13 ) Case No.: 3:15-cv-2529-EMC CTIA  THE WIRELESS ASSOCIATION, ) 14 Plaintiff, ) ) STATEMENT OF INTEREST OF THE 15 ) UNITED STATES v. ) 16 ) THE CITY OF BERKELEY, CALIFORNIA, ) 17 et al., ) ) 18 Defendants. ) ) 19 ) 20 21 The United States respectfully submits a Statement of Interest on behalf of the Federal 22 Communications Commission, pursuant to 28 U.S.C. § 517,1 to set forth its views concerning the 23 above-captioned case. The Statement of Interest is set forth in the attached letter from the Federal 24 Communications Commission. 25 26 1 Pursuant to 28 U.S.C. § 517,  [t]he Solicitor General, or any officer of the Department of Justice, may 27 be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to 28 attend to any other interest of the United States. 1 STATEMENT OF INTEREST Case No.: 3:15-cv-2529 Case 3:15-cv-02529-EMC Document 148 Filed 06/22/20 Page 2 of 2 1 Dated: June 22, 2020 Respectfully submitted, 2 3 JOSEPH H. HUNT Assistant Attorney General 4 THOMAS M. JOHNSON, JR. ERIC WOMACK General Counsel Assistant Branch Director 5 ASHLEY S. BOIZELLE Deputy General Counsel /s/ Justin M. Sandberg 6 JACOB M. LEWIS JUSTIN M. SANDBERG 7 Associate General Counsel Senior Trial Counsel JAMES M. CARR Civil Division, Federal Programs Branch 8 Attorney U.S. Department of Justice Federal Communications Commission 1100 L Street, N.W., Room 11004 9 445 12th Street, S.W. Washington, D.C. 20005 Washington, D.C. 20554 Telephone: (202) 514-5838 10 Telephone: (202) 418-1762 Email: Justin.Sandberg@usdoj.gov 11 Fax: (202) 418-2819 Email: james.carr@fcc.gov 12 Counsel for the United States 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 STATEMENT OF INTEREST Case No.: 3:15-cv-2529 Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 1 of 15 EXHIBIT 1 Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 2 of 15 Federal Communications Commission Washington, D.C. 20554 June 22, 2020 Joseph H. Hunt Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 RE: CTIA The Wireless Association v. City of Berkeley, No. 3:15-cv-02529 (N.D. Cal.) Dear Mr. Hunt: The above referenced case involves a challenge to an ordinance adopted by the City of Berkeley, California. The ordinance requires cell phone retailers located in the City of Berkeley to provide consumers who buy or lease cell phones with a specific notice at the point of sale concerning the radiofrequency (RF) energy emitted by those phones. The plaintiff in this case, CTIA (a trade association of providers of wireless telecommunications service), has moved for judgment on the pleadings on two separate grounds: (1) the ordinance violates the First Amendment; and (2) the ordinance is preempted by federal law. The Commission wishes to participate in this case to provide its views on why the Berkeley ordinance should be deemed preempted. We note that the Department of Justice recently filed a Statement of Interest on the FCC s behalf addressing this issue in another case in the same district court. See Statement of Interest, Cohen v. Apple, Inc., No. C 19-05322 WHA (N.D. Cal.) (filed Apr. 13, 2020). The Commission respectfully requests that the Department of Justice file a Statement of Interest in this case attaching this letter. INTRODUCTION AND SUMMARY In the Communications Act of 1934, Congress conferred on the FCC comprehensive authority to regulate the provision of wireless telecommunications Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 3 of 15 Joseph H. Hunt June 22, 2020 Page 2 of 14 services. As part of this mandate, the Act expressly authorizes the Commission to adopt limits on radiofrequency emissions for mobile devices, including cell phones. See 47 U.S.C. § 303(e). The Commission s radiofrequency emission standards and testing parameters reflect the agency s expert judgment in advancing the goal of safeguarding the health of American consumers, while facilitating broad deployment of wireless telecommunications technology. Under the FCC s rules, a cell phone manufacturer is not permitted to sell cell phones in the United States until the FCC certifies that they comply with all applicable rules and regulations, including the FCC s RF limits. To obtain this certification, the manufacturer must test its cell phones in accordance with FCC procedures and submit the test results to the Commission. If the test results demonstrate that the phones comply with the FCC s RF limits, and the manufacturer further demonstrates that its phones comply with all other applicable rules and regulations, the Commission certifies the cell phones for sale in the United States. The Commission has found that RF emissions from FCC-certified cell phones pose no health risks. The FCC has also determined that the information on its website and in cell phone user manuals about RF exposure is adequate to inform consumers of this issue without overwarning or creating the false impression that RF emissions from FCC-certified cell phones are unsafe. See Proposed Changes in the Commission s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields, 34 FCC Rcd 11687, 11697 ¶ 16 (2019) (2019 RF Order). As the Commission has explained, these statements reflect the agency s  considered policy judgment regarding how best and in what form to disseminate relevant information about RF exposure to the public. See FCC Statement of Interest, Cohen v. Apple, Attachment at 19. The Berkeley ordinance conflicts with the FCC s determination that the information provided on its website and in cell phone user manuals is sufficient to inform consumers about the risk of RF exposure, and that additional notices risk  overwarning and misleading consumers into believing that RF emissions from FCC-certified cell phones are unsafe. In addition, the notice mandated by Berkeley informs consumers that, when the phones are carried against the body, consumers may experience unsafe levels of RF exposure. That statement inaccurately describes the safety of cell phones and may inhibit the broad Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 4 of 15 Joseph H. Hunt June 22, 2020 Page 3 of 14 availability of safe wireless communications devices. For these reasons, the Berkeley ordinance conflicts with, and is preempted by, federal law. BACKGROUND The FCC s Regulatory Authority. Under the Communications Act of 1934 (Communications Act or Act), the FCC is the  centraliz[ed] authority for regulating radio communications and is charged with  mak[ing] available & to all the people of the United States & a rapid, efficient, Nation-wide, and world-wide wire and radio communication service. 47 U.S.C. § 151. To achieve this objective,  Congress endowed the FCC  with comprehensive powers to promote and realize the vast potentialities of radio. Nat l Broad. Co. v. FCC, 319 U.S. 190, 217 (1943). Among other things, the Communications Act empowers the Commission to regulate  the kind of apparatus to be used for wireless radio communications and  the emissions that such equipment may produce. 47 U.S.C. § 303(e). The Supreme Court has recognized that  the Commission s jurisdiction over such  technical matters & is clearly exclusive. Head v. New Mexico Bd. of Exam rs in Optometry, 374 U.S. 424, 430 n.6 (1963). FCC Regulation of Radiofrequency Emissions. In establishing technical standards for radio communications, the FCC has taken into account its obligations under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., which  requires agencies of the Federal Government to evaluate the effects of their actions on the quality of the human environment. Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 FCC Rcd 15123, 15125 ¶ 5 (1996) (1996 RF Order). In accordance with NEPA, the FCC has promulgated regulations to limit human exposure to radiofrequency (RF) energy from all transmitting facilities, operations, and devices it regulates. See 47 C.F.R. §§ 1.1307, 1.1310, 2.1091, 2.1093. The agency adopted such restrictions in response to scientific findings that exposure to high levels of RF energy can result in the overheating of human tissue. See RF Safety FAQ, Question 5, available at https://www.fcc.gov/engineering-technology/electromagnetic-compatibility- division/radio-frequency-safety/faq/rf-safety#Q5. The Commission declined to  adopt stricter standards based on  controversial and unsubstantiated claims that RF energy at the relevant frequencies causes  non-thermal biological effects. Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 5 of 15 Joseph H. Hunt June 22, 2020 Page 4 of 14 Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 12 FCC Rcd 13494, 13505 ¶ 31 (1997) (1997 RF Order). Nearly every form of wireless communications from television, radio, and cell phones to dispatch systems for police and fire departments uses RF electromagnetic waves to send and receive signals. See RF Safety FAQ, Question 3, available at https://www.fcc.gov/engineering-technology/electromagnetic- compatibility-division/radio-frequency-safety/faq/rf-safety#Q3. Cell phones use RF waves to connect calls  using a system of base stations also known as cell sites that relay calls between telecommunications networks. FCC, Consumer and Governmental Affairs Bureau, Understanding Wireless Telephone Coverage, Consumer Guide, available at https://www.fcc.gov/consumers/guides/ understanding-wireless-telephone-coverage-areas. Unlike radio and television broadcast stations, which generate high levels of RF energy  because of their relatively high operating power, 1996 RF Order ¶ 6, cell phones are  low-power devices designed to be used in the immediate vicinity of the body, and they emit relatively low levels of RF energy. Id. ¶ 46. The FCC first adopted RF rules in the 1980s, based on safety guidelines adopted by the American National Standards Institute (ANSI) in 1982. At that time, the Commission decided  to exclude cellular phones and low-power devices  from routine environmental evaluation with respect to RF radiation because it determined that such devices did not present  significant exposure hazards. Responsibility of the Federal Communications Commission to Consider Biological Effects of Radiofrequency Radiation When Authorizing the Use of Radiofrequency Devices, 2 FCC Rcd 2064, 2065 ¶¶ 14, 16 (1987). In 1992, ANSI adopted a new RF exposure standard (ANSI/IEEE C95.1- 1992) that was  generally more stringent in the evaluation of low-power devices than its previous standard. 1996 RF Order ¶ 9. The following year, the FCC commenced a rulemaking proposing to revise its rules to adopt the new ANSI/IEEE RF standard in part. Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 8 FCC Rcd 2849 (1993). That proceeding was still pending when Congress enacted the Telecommunications Act of 1996 (1996 Act), Pub. L. No. 104-104, 110 Stat. 56. Section 704 of the 1996 Act directed the FCC to  complete action within 180 days on its pending proceeding  to prescribe and make effective rules regarding the environmental effects of radio frequency emissions. 110 Stat. 152. Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 6 of 15 Joseph H. Hunt June 22, 2020 Page 5 of 14 The House Commerce Committee, which drafted Section 704(b), stated that the FCC should adopt uniform federal RF standards that strike  an appropriate balance between  adequate safeguards of the public health and  speed[y] deployment & of competitive wireless telecommunications services. H.R. Rep. No. 204, 104th Cong., 1st Sess. Pt. 1, at 94 (1995) (House Report No. 104-204). The Committee explained that  [a] high quality national wireless telecommunications network cannot exist if each of its component[s] must meet different RF standards in each community. Id. at 95. Therefore, the Committee concluded,  [n]o State or local government, solely on the basis of RF emissions, should block the construction of sites and facilities or installation of equipment which comply with the [FCC s] RF standards. Ibid. That legislative admonition was codified in section 332(c)(7) of the Act, which provides that  [n]o State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. 47 U.S.C. § 332(c)(7)(B)(iv). In compliance with the deadline set by the 1996 Act, the FCC in August 1996 issued an order adopting new RF exposure guidelines. 1996 RF Order ¶ 1. The new guidelines were  based substantially on the recommendations of & the federal agencies responsible for matters relating to the public safety and health, including the U.S. Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA). Id. ¶ 2. Consistent with the 1992 ANSI/IEEE standard, the Commission for the first time adopted RF exposure limits for cellular telephones and other portable low-power devices. See id. ¶¶ 63-64. Those limits were set to reflect a level of  safe [RF] exposure from low-power devices designed to be used in the immediate vicinity of the body. Id. ¶ 62. The FCC concluded that its revised RF regulations reflected  the best scientific thought and were  sufficient to protect the public health. 1996 RF Order ¶ 168. In response to a petition for reconsideration, the Commission affirmed its rules, finding that the revised  RF exposure limits provide a proper balance between the need to protect the public and workers from exposure to excessive RF electromagnetic fields and the need to allow communications services to readily address growing marketplace demands. 1997 RF Order ¶ 29. Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 7 of 15 Joseph H. Hunt June 22, 2020 Page 6 of 14 On review, the Second Circuit upheld the FCC s revised RF rules. Cellular Phone Taskforce v. FCC, 205 F.3d 82, 88-97 (2d Cir. 2000). Observing that the establishment of  safety margins is  a policy question, not a legal one, the court held that the FCC had acted reasonably in setting RF standards that, while sufficient to protect the public, would not unduly impede the provision of wireless  telecommunications services to the public in the most efficient and practical manner possible. Id. at 91-92 (internal quotation marks omitted). The court noted that  [a]ll of the expert agencies consulted by the FCC on this issue  found the FCC s approach to be satisfactory. Id. at 90; see also EMR Network v. FCC, 291 F.3d 269, 273 (D.C. Cir. 2004) (affirming Commission s denial of petition for rulemaking to revisit RF standards and upholding the agency s reliance on the views of expert agencies). In 2013, the FCC launched an inquiry to assess whether it should amend its RF exposure standards. Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies, 28 FCC Rcd 3498, 3570-89 ¶¶ 205- 252 (2013) (2013 Notice of Inquiry). After reviewing the latest scientific research on the subject, the Commission concluded in an order issued in December 2019 that its existing RF limits  reflect the best available information concerning safe levels of RF exposure for workers and members of the general public. 2019 RF Order ¶ 2. The agency found no  data in the record to support modifying [the] existing exposure limits, and  no expert public health agency expressed concern about them. Id. ¶ 10. To the contrary, the FDA s  public statements continue to support the current limits. Ibid. Accordingly, the FCC terminated its RF inquiry in 2019 and  decline[d] to initiate a rulemaking to reevaluate the existing RF exposure limits. Ibid.1 FCC Rules and Procedures Governing the Evaluation of Radiofrequency Emissions by Cell Phones. Before any entity is permitted to sell cell phones in the United States, it must submit an application for equipment authorization to an FCC-authorized Telecommunication Certification Body. See 47 C.F.R. § 2.911. The applicant must demonstrate that its phones comply with the FCC s RF exposure limits by submitting with its application the results of testing  performed 1 The 2019 RF Order is the subject of pending petitions for review. See Environmental Health Trust v. FCC, D.C. Cir. No. 20-1025 (consolidated with Children s Health Defense v. FCC, D.C. Cir. No. 20-1138). Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 8 of 15 Joseph H. Hunt June 22, 2020 Page 7 of 14 by an FCC-recognized accredited testing laboratory and consistent with FCC specifications concerning the testing protocol. See FCC, Equipment Authorization Procedures, available at https://www.fcc.gov/general/equipment-authorization- procedures. The applicable RF limits are  quantified in terms of specific absorption rate (SAR), a measure of the rate of RF energy absorption. 1996 RF Order ¶ 3; see 47 C.F.R. § 1.1310(a). The SAR limits for RF emissions from cell phones are 0.08 watts per kilogram averaged over the whole body and 1.6 watts per kilogram (averaged over one gram of tissue) for localized exposure to areas such as the head  averaged over a time period not to exceed 30 minutes. 47 C.F.R. § 2.1093(d)(2).  Compliance with SAR limits can be demonstrated by either laboratory measurement techniques or by computational modeling. 47 C.F.R. § 2.1093(d)(3).  Guidance regarding SAR measurement techniques can be found in the [FCC s] Office of Engineering and Technology (OET) Laboratory Division Knowledge Database (KDB). Ibid.  Current evaluation procedures require that cell phones  be tested at maximum power under normal use conditions. 2019 RF Order ¶ 14. To account for the different ways in which cell phones are used, RF testing for the devices is conducted both  against the head, representing normal use during a phone call, and at a separation distance of up to 2.5 centimeters (about one inch) from the body, ibid., reflecting other types of phone use, like  operation of a phone  using a headset while the device is in [the user s] pocket. 2013 Notice of Inquiry, 28 FCC Rcd at 3587 n.441 (distinguishing between use of the phone against the head and  body-worn usage configurations); see also KDB Publication 447498 D01 General RF Exposure Guidance v06,  RF Exposure Procedures and Equipment Authorization Policies for Mobile and Portable Devices (Oct. 2015), at 10-11, available at https://apps.fcc.gov/kdb/GetAttachment.html?id=f8IQgJxTTL5y0oRi0cpAuA%3D %3D&desc=447498%20D01%20General%20RF%20Exposure%20Guidance%20v 06&tracking_number=20676. For many modern cell phones, the required testing separation distance from the body is less than 2.5 centimeters.  For example, phones with tethering capabilities (i.e.,  hotspot mode ) are tested at a maximum separation distance from the human body of 1 [centimeter] and are tested both in and out of hotspot mode at that distance. 2019 RF Order ¶ 14; see KDB Publication 941225 D06 Hot Spot Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 9 of 15 Joseph H. Hunt June 22, 2020 Page 8 of 14 SAR v02r01,  SAR Evaluation Procedures for Portable Devices with Wireless Router Capabilities (Oct. 2015), at 2, available at https://apps.fcc.gov/kdb/GetAttachment.html?id=I99UsWMxKw2Y756AxzqjJw% 3D%3D&desc=941225%20D06%20Hotspot%20Mode%20v02r01&tracking_num ber=26930. And if cell phones that are held against the head during phone calls are also  designed to operate on the body of users when used for other purposes, those phones  must be tested for SAR compliance using a conservative maximum test separation distance of 0.5 centimeters  to support compliance. KDB Publication 447498 D01, General RF Exposure Guidelines v06, at 11. The FCC has explained that the 0.5 centimeter distance from the body is appropriate because: (1) cell phones are  tested against the head without any separation distance ; (2) testing is currently performed at maximum power,  under more extreme conditions than a user would normally encounter ; and (3) the  existing exposure limits are set with a large safety margin, well below the threshold for unacceptable rises in human tissue temperature. 2019 RF Order ¶ 14. Taking these factors into account, the FCC has found it  unnecessary to  require [RF] testing with a  zero spacing against the body. Ibid. After the FCC-authorized Telecommunication Certification Body reviews the exhibits and test data submitted by an applicant for equipment authorization and determines that the applicant s cell phones comply with all applicable technical standards (including RF exposure limits), the FCC issues a certification authorizing sale of the cell phones. 47 C.F.R. § 2.907(a). Certification is  the most rigorous approval process for RF devices. FCC, Equipment Authorization Procedures, available at https://www.fcc.gov/general/equipment-authorization- procedures. To obtain FCC certification, cell phones must be tested  at maximum power, that is,  under more extreme conditions than a user would normally encounter. 2019 RF Order ¶ 14. Moreover, the FCC s RF  exposure limits are set with a large safety margin. Ibid.  ALL cell phones must meet the FCC s RF exposure standard, which is set at a level well below that at which laboratory testing indicates, and medical and biological experts generally agree, adverse health effects could occur. FCC, Consumer and Governmental Affairs Bureau, Specific Absorption Rate (SAR) for Cell Phones: What It Means for You, Consumer Guides, available at https://www.fcc.gov/consumers/guides/specific- absorption-rate-sar-cell-phones-what-it-means-you. The FCC s RF limits  are 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 Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 10 of 15 Joseph H. Hunt June 22, 2020 Page 9 of 14 potential for exposures to occur in excess of [the FCC s RF] limits without posing a health hazard to humans. 2013 Notice of Inquiry, 28 FCC Rcd at 3582 ¶ 236. In view of these safeguards built into its testing and certification procedures, the Commission has found that  phones legally sold in the United States (i.e., FCC-certified phones)  pose no health risks. 2019 RF Order ¶ 14. The Commission also concluded in December 2019 that the information already provided on its website and in cell phone user manuals regarding the RF emissions of FCC-certified cell phones is  adequate to inform consumers about RF exposure issues and does  not risk contributing to an erroneous public perception or overwarning of RF emissions from FCC certified or authorized devices. Id. ¶16. The Berkeley Ordinance and CTIA s Complaint. In 2015, the City of Berkeley passed an ordinance requiring cell phone retailers to provide consumers who buy or lease cell phones with the following notice: The City of Berkeley requires that you be provided the following notice: To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely. See CTIA The Wireless Ass n v. City of Berkeley, 139 F. Supp. 3d 1048, 1051 (N.D. Cal. 2015). (The third sentence, regarding the potential risk to children, was later deleted.) CTIA, a trade association representing the wireless telecommunications industry, challenged this ordinance in a lawsuit filed against the City of Berkeley in the United States District Court for the Northern District of California. CTIA, 139 F. Supp. 3d at 1050-51. On April 24, 2020, CTIA filed with the district court a motion for judgment on the pleadings, arguing that the Berkeley ordinance violates the First Amendment and is preempted by federal law. In support of its preemption argument, CTIA cited the FCC s 2019 RF Order and the statement of interest filed by the Commission in Cohen. See CTIA Motion at 2-3, 22-25. CTIA asserted that the Commission made a  clear pronouncement in the 2019 RF Order Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 11 of 15 Joseph H. Hunt June 22, 2020 Page 10 of 14  objecting to warnings outside the  context and placement of existing information on the FCC s website and in cell phone user manuals. Id. at 23 (quoting 2019 RF Order ¶ 16). According to CTIA,  Berkeley s Ordinance undermines the Commission s regulatory regime  by compelling a warning that the FCC does not require or endorse. Ibid. Citing the FCC s statement of interest in Cohen, CTIA maintained that  requiring warnings like the Berkeley Ordinance would  conflict with the FCC s considered policy judgment  about how best to disseminate information regarding RF exposure to the public. Id. at 24 (quoting FCC Statement of Interest, Cohen v. Apple, Attachment at 19). DISCUSSION I. THE BERKELEY ORDINANCE IS PREEMPTED BECAUSE IT CONFLICTS WITH THE FCC S POLICY JUDGMENT REGARDING THE PROPER CONTEXT AND PLACEMENT OF INFORMATION REGARDING RF EXPOSURE Federal law preempts state law when,  under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hughes v. Talen Energy Marketing, LLC, 136 S. Ct. 1288, 1297 (2016) (internal quotation marks omitted).  Federal regulations have no less preemptive effect than federal statutes. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984) (internal quotation marks omitted). A state law stands as an obstacle to the implementation of a federal regulatory scheme if it conflicts with or undermines the policy judgment made by the federal agency. See, e.g., Geier v. American Honda Motor Co., 529 U.S. 862, 881 (2000) (a state mandate requiring auto manufacturers to install air bags would present  an obstacle to the variety and mix of [passive restraint] devices that [a] federal regulation sought and  the gradual passive restraint phase-in that the federal regulation deliberately imposed ).2  The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof. City of New York v. FCC, 486 U.S. 57, 64 (1988). 2 See also Fidelity Fed. Sav. & Loan Ass n v. de la Cuesta, 458 U.S. 141, 156 (1982) (finding conflict preemption where a state law  limit[ed] the availability of an option [the federal regulator] considers essential to the economic soundness of the regulated industry). Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 12 of 15 Joseph H. Hunt June 22, 2020 Page 11 of 14 The FCC has acted  to ensure that relevant information about RF emissions from cell phones  is made available to the public. 2019 RF Order ¶ 16. Among other things, the FCC Laboratory has stated that cell phone user manuals must include  [s]pecific information & to enable users to select body-worn accessories that meet the minimum test separation distance requirements. KDB 447498 D01, at 11. In addition, to supplement and place in context the information on RF emissions that appears in device manuals,  the Commission maintains several webpages that provide information about RF exposure to the public. 2019 RF Order ¶ 16. One of those webpages informs  consumers who are skeptical of the science underlying the FCC s RF guidelines about  simple steps [they] can take to reduce [their] exposure to RF energy from wireless phones, while at the same time emphasizing that the Commission  does not endorse the need for such measures. Id. ¶ 16 n.56 (citing FCC, Consumer and Governmental Affairs Bureau, Wireless Devices and Health Concerns, Consumer Guide, available at https://www.fcc.gov/consumers/guides/wireless-devices-and-health-concerns). Pursuant to guidance from the FCC Laboratory, the operating manuals for cell phones provide similar information. See 2019 RF Order ¶ 16. For example, the manual for Apple s iPhone 11 informs users that the iPhone meets applicable RF limits, and it describes the testing procedures used to determine the iPhone s compliance. The manual also advises users that they can  reduce exposure to RF energy by  us[ing] a hands-free option, such as the built-in speakerphone, the supplied headphones, or other similar accessories, and that  [c]ases with metal parts may change the RF performance of the device, including its compliance with RF exposure guidelines, in a manner that has not been tested or certified. See https://www.apple.com/legal/rfexposure/iphone12,1/en/. In December 2019, the FCC concluded that the information about RF exposure on its website and in cell phone user manuals was  adequate to inform consumers of potential health risks associated with RF emissions from FCC- certified cell phones. 2019 RF Order ¶ 16. Explaining that  the context and placement of RF exposure information is so important, the Commission found that any additional warnings about RF exposure could create  an erroneous public perception or overwarning of RF emissions from FCC certified or authorized devices and  contribute to a feeling of uncertainty or a lack of control among consumers. Ibid. These findings reflect  the FCC s considered policy judgment regarding how best and in what form to disseminate relevant information about RF Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 13 of 15 Joseph H. Hunt June 22, 2020 Page 12 of 14 exposure to the public. FCC Statement of Interest, Cohen v. Apple, Attachment at 19. The Berkeley ordinance conflicts with that policy judgment and therefore is preempted. Given the FCC s calibrated regime regarding RF disclosures and its determination that existing RF exposure information provided on the FCC s website and in cell phone user manuals is adequate to inform consumers without prompting unwarranted fears about RF emissions, the Berkeley ordinance is not only unnecessary but likely detrimental to the public. On its face, the notice mandated by Berkeley goes beyond what the FCC provides on its website and requires in user manuals, and therefore has the potential to  overwarn consumers, creating the false impression that FCC-certified cell phones are unsafe when carried against the body. State disclosure requirements that stand as an obstacle to the implementation of federal disclosure rules are preempted by federal law. Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1135-36 (9th Cir. 2005) (holding that federal disclosure rules preempt disclosure requirements imposed by the California Ethics Standards). More specifically, courts have recognized that federal concerns about  overwarning provide a valid basis for preempting state regulations. See, e.g., Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1673 (2019) (FDA regulation of drug labeling  is designed to prevent overwarning in order  to exclude [e]xaggeration of risk, or inclusion of speculative or hypothetical risks, which  could discourage appropriate use of a beneficial drug ) (internal quotation marks omitted); Mason v. SmithKline Beecham Corp., 596 F.3d 387, 392 (7th Cir. 2010) ( overwarning can deter potentially beneficial uses of [a] drug by making it seem riskier than warranted and can dilute the effectiveness of valid warnings ); Monzon v. United States, 253 F.3d 567, 572 (11th Cir. 2001) (it was reasonable for the National Weather Service to adopt  a general  don t overwarn policy that  strives for the highest rate of severe weather detection while maintaining the lowest possible false alarm rate in the issuance of warnings ) (internal quotation marks omitted). Here, the FCC has a legitimate interest in guarding against  overwarning about the potential dangers of a product sold to consumers. The Berkeley ordinance conflicts with the FCC s judgment about how best to convey RF exposure information to the public. Because the ordinance stands as an obstacle to the implementation of federal policy, it is preempted. Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 14 of 15 Joseph H. Hunt June 22, 2020 Page 13 of 14 II. THE BERKELEY ORDINANCE IS PREEMPTED, DUE TO CONFLICT WITH THE FCC S RF REGULATIONS, BECAUSE THE REQUIRED NOTICE INACCURATELY SUGGESTS THAT CELL PHONES ARE UNSAFE 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. Accordingly, Berkeley s ordinance is preempted. See, e.g., Merck Sharp & Dohme Corp., 139 S. Ct. at 1673. The required notice suggests that an RF emission, at a distance of zero spacing from the body, might exceed the FCC s limits set at other distances, as previously described, and, therefore, poses a threat to human health. But the FCC s RF limits  are 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. 2013 Notice of Inquiry, 28 FCC Rcd at 3582 ¶ 236. In an earlier phase of CTIA s litigation with Berkeley, the Ninth Circuit described the FCC s adoption of this substantial safety margin as  a better-safe-than-sorry policy. CTIA The Wireless Ass n v. City of Berkeley, 928 F.3d 832, 839 (9th Cir. 2019). Against this backdrop, the FCC has declared that RF emissions from certified cell phones  pose no health risks. 2019 RF Order ¶ 14. In reaching that conclusion, the Commission explained that  even if certified or otherwise authorized devices might  produce RF exposure levels in excess of Commission limits under normal use when used against the body, any  such exposure would still be well below levels considered to be dangerous because the RF limits  are set with a large safety margin. Ibid.; see also FCC Statement of Interest, Cohen v. Apple, Attachment at 17. By implying that FCC-certified cell phones could emit unsafe levels of RF energy when carried against the body, the Berkeley notice could create  the erroneous public perception of a possible risk from [RF] exposure that is  unsupported by evidence. 2019 RF Order ¶ 16. The Ordinance, thus, is an Case 3:15-cv-02529-EMC Document 148-1 Filed 06/22/20 Page 15 of 15 Joseph H. Hunt June 22, 2020 Page 14 of 14 obstacle to the FCC s fostering of a widely available and safe wireless communications system, and is preempted for this additional reason. CONCLUSION The FCC has made a carefully considered judgment about how best to disseminate information to the public regarding the potential risks associated with RF emissions from cell phones. In the Commission s view, the information provided on the FCC s website and in cell phone user manuals is sufficient to inform consumers on this subject, and additional warnings at the point of sale may create an erroneous perception that RF emissions from FCC-certified phones are unsafe. The Berkeley ordinance conflicts with the FCC s judgment concerning how best and in what form to provide information about RF exposure to the public. The ordinance also implies that RF emissions from FCC-certified cell phones are unsafe when the phones are carried at zero spacing from the body. In that respect, the ordinance conflicts with the FCC s determination that RF emissions from FCC- certified cell phones pose no health risks. For these reasons, the Commission agrees with CTIA that the Berkeley ordinance is preempted by federal law. Respectfully submitted, /s/ Thomas M. Johnson, Jr. Thomas M. Johnson, Jr. General Counsel Federal Communications Commission