Ninth Circuit Holds FCC Cell Phone Radiofrequency (RF) Radiation Rules Preempt State-Law Claims Against Apple and Samsung

The RF Radiation Issue

Over the years, various claims have been made about potential adverse health impacts from the radiofrequency (RF) radiation emissions of cell phones, which in some instances can cause biological effects by increasing the temperature of tissues.  Federal Communications Commission (FCC) rules set RF radiation limits (ceilings) that cell phone manufacturers must meet in order to have the FCC authorize their phones for sale.  See 47 C.F.R. §§ 12.1093(d)(1) and 2.907.

But does complying with the FCC’s rules protect the manufacturers from state-law claims?  A recent Ninth Circuit decision appears to answer that question, holding that held that state-law tort and consumer-fraud claims regarding RF radiation conflicted with the FCC’s rules, which strike a careful balance between competing interests that the FCC is charged with addressing under the Communications Act of 1934 (47 U.S.C. §§ 151 et seq.), and were therefore preempted. Cohen v. Apple, Inc., ___ F. 4th ___, 2022 WL3696583 (9th Cir., Aug. 26, 202).

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Telecom Decision – Preemption – Internet Trade Groups Seek Ninth Circuit Rehearing on California’s Net-Neutrality Rules

In several states there is an ongoing battle over whether or how states can regulate broadband internet access service in the wake of the D.C. Circuit’s Mozilla v. FCC decision (940 F.3d 1).  The California case is leading the pack, and last Friday the leading internet trade associations asked the Ninth Circuit for rehearing en banc of its decision upholding a California statute, SB-822, that imposes the same “net-neutrality” obligations on broadband providers that the FCC revoked.  ACA Connects v. Bonta, No. 21-15430 (9th Cir. Jan. 28, 2022).

Background.  In 2018, the FCC decided to remove its net-neutrality requirements in order to better promote broadband investment, deployment, and competition, goals toward which federal and state governments today are devoting billions of dollars.  While core policy concerns drove its decision, the FCC removed its net-neutrality rules by reclassifying broadband internet service as an “information service” under Title I of the federal Communications Act rather than a “telecommunications service” under Title II, which freed broadband internet service from common carrier-type regulation (and the prior net-neutrality requirements).

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Telecom Preemption – Ninth Circuit Upholds California Net-Neutrality Law

The Ninth Circuit Court of Appeals has issued a much-anticipated decision on California’s state “net-neutrality” law, which reimposes the net-neutrality requirements the FCC removed back in 2018.  ACA Connects v. Bonta, No. 21-15430 (9th Cir., Jan. 28, 20222).  The California law is viewed as a template for other states interested in that sort of legislation, and this case served as the lead trial balloon as industry associations challenged the statute on preemption grounds.

As quick background, in 2015 the FCC established net-neutrality rules that prohibited broadband internet service providers from blocking access to websites, slowing certain customers’ internet access (“throttling”), or prioritizing access to some websites over others.  But in 2018 the FCC reversed itself and removed those rules (relying instead on a “transparency” requirement) by reclassifying broadband internet service as an “information service” under Title I of the federal Communications Act, rather than a “telecommunications” service under Title II of that Act.  The purpose in switching to Title I was to subject broadband internet service to only the light-touch regulation that applies to Title I services.  The FCC also expressly preempted state laws that were inconsistent with its deregulatory approach, or that would effectively reimpose the net-neutrality rules it repealed.  The D.C. Circuit upheld the FCC’s reclassification of broadband internet service in 2019, but overturned the express preemption mandate.  Mozilla v. FCC, 940 F.3d 1 (D.C. Cir. 2019).  It left open the question whether, after the FCC’s decision, state net-neutrality requirements could be defeated by other types of preemption.

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