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 – D.C. Circuit Upholds FCC Antenna Rule Aimed at Promoting Wireless Broadband

Expanding the availability of broadband internet service is among the hottest telecommunications policy topics of the day, especially as the federal and state governments funnel billions of dollars toward more deployment and higher speeds.  Last week the D.C. Circuit upheld an FCC rule aimed at that goal, which allows commercial-grade wireless internet antennas in residential areas, a move sought by wireless internet providers.

As technology has changed over time, the FCC has adopted and amended its rules that allow antennas to be placed on private dwellings.  The original 1996 regulation allowed for installation of antennas on private property to receive services like satellite and cable television, and  preempted state and local restrictions.  A 2004 amendment allowed such antennas to serve multiple customers in a single location, provided the antennas were not used primarily as “hubs for the distribution of service.”  And in 2021, the FCC amended the rule to allow such antennas to be used as hubs for the distribution of service, paving the way for commercial-grade equipment for, among other things, wireless internet service.  Children’s Health Defense (CHD) and others appealed, concerned about the health effects of such antennas on nearby residents with radiofrequency sensitivity.  The court’s decision, however, deals mainly with fine legal points of rejecting CHD’s challenges.  Children’s Health Defense v. FCC, No. 21-1075 (D.C. Cir. Feb. 11, 2022).

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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