Landmark Court Ruling Upholds the Berkeley’s “Right To Know” About Cell Phone Radiation Ordinance
California District Court denies wireless industry association’s request for a preliminary injunction.
Press Release: Hailed as a “clear victory for the public right to know,” in a landmark court decision, the US Circuit Court of Appeals for the Ninth Circuit has upheld Berkeley’s landmark cell phone “right to know” ordinance requiring phone retailers to publicly post information about cell phone radiofrequency radiation—specifically, manufacturers’ instructions on minimum separation distances required between the phone and body to avoid exceeding radiation limits. On April 21, 2017, the Court rejected the industry argument that making this advice public deprived them of their First Amendment rights. The Court denied the request by the CTIA-The Wireless Association to block Berkeley’s ordinance and upheld the District Court’s denial of the industry association’s request for a preliminary injunction.
In effect since March 21, 2016, phone retailers in Berkeley are required to post this 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. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
On September 13, 2016 in the United States Court of Appeals for the Ninth Circuit Lawrence Lessig, Harvard Constitutional Law Professor, defended (pro bono) the Berkeley Cell Phone Right to Know ordinance against CTIA’s counsel Theodore Olson who previously represented Tobacco Companies and was past Solicitor General under George W. Bush. First Amendment scholar Lessig pointed out that the City only required that hidden information about tested distances be made publicly accessible.
In its decision, the Court noted that specific FCC tests require that phones be placed about an inch off the body and are generally not known by the public, quoting the FCC requirement:
“All supported body-worn accessory operating configurations must be clearly disclosed to users, through conspicuous instructions in the user guide and user manual, to ensure unsupported operations are avoided.”
The Court affirmed Berkeley’s Ordinance, “We agree with the district court that an injunction would injure the public interest in having a free flow of accurate information.”
Dr. Devra Davis, President of Environmental Health Trust, added: “This is a great day for the American public and for all those concerned with preventing harm and protecting our children. People have a right to know that phones are tested away from a large adult male body, and some distance from the head. A recent Canadian Broadcasting Corporation independent evaluation showed that phone radiation limits can be three to four times higher than government allowable radiation limits when phones are tested as they are used—directly next to the head or body.”
This ruling comes on the heels of another landmark court ruling in Italy granting lifetime compensation to a man who developed a brain tumor that caused him to lose hearing after he used his phone regularly for work for fifteen years. Davis points out that the Israeli Health Ministry advised that both students and teachers not be permitted to use microwave radiating phones in schools, and has noted the growing scientific evidence of harms from such wireless exposures.
Dr. Davis noted: “These developments should send a wake up call to schools and employers around the world. Before requiring students and workers to use these devices, institute simple programs of safety. Minimize exposure to children, as the American Academy of Pediatrics, Belgium, France, and Israel are doing now. Download software and then switch to airplane mode, to keep exposures as low as reasonably achievable. Schools should move to wired computer instruction, as pediatricians and public health experts with the Governor’s Maryland State Children’s Health Advisory Council recently urged.”
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