harold_frRothGuest Commentary

By Harold Furchtgott-Roth and Arielle Roth, The Hudson Institute*

In a victory for pseudo-science and a loss for the First Amendment, federal judge Edward Chen recently upheld a regulation by the City of Berkeley compelling retailers to warn customers about the supposed risks of wireless radiation. CTIA-The Wireless Ass’n v. The City of Berkeley.

The ordinance requires that cell phone retailers inform customers of the following:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.

The statement misleadingly suggests that the federal government has singled out cell phones for safety concerns. This is not the case. The FCC’s guidelines on RF exposure (including these in 2013 and these in 2003) apply to a wide range of devices, not just cell phones. Nor has it been shown that in the absence of FCC regulations, cell phones would be unsafe. The FCC, which takes safety very seriously, has never concluded anything of the sort.

The warning continues:

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.

But the federal government has never found evidence to support these claims, and Judge Chen erred in claiming that the Berkeley warning merely restated FCC policy. While the FCC has inquired into the safety of keeping a wireless device close to one’s body, it has never found these risks to be more than theoretical. And even Judge Chen, who upheld the ordinance, ruled that the reference to children is not supported by FCC statements. Contra the warning’s suggestion, the FCC has also never found that radiation risk is higher when a device is connected to a wireless network, nor do its RF rules pertain to this question.

It is noteworthy that while the FCC’s good name is exploited by the City of Berkeley, the agency been ominously silent on the ordinance. The FCC has never shied away from criticizing state and local telecommunications regulations, nor has the Commission ever been hesitant to preempt state or local regulations that it opposes. That is exactly what the Commission did last March in preempting the states of North Carolina and Tennessee from regulating the broadband activities of state-chartered municipalities. However, unlike in the latter instance of preemption, Berkeley’s safety warnings may well be prohibited by federal law, which recognizes the exclusive authority of the FCC over such safety matters, in 47 U.S.C. § 332(a) and § 332(c)(7)(b)(iv).

The City of Berkeley has long been associated with the free-speech movement. Sadly, by compelling wireless companies to make inaccurate and misleading statements to customers, Berkeley tramples on this legacy. If Berkeley is permitted to compel these false warnings, a very dangerous precedent will be set in authorizing other municipalities to embrace Luddite views and unproven science. And carriers and manufacturers may decline to serve areas whose governments falsely indict wireless products. The ultimate losers of Berkeley-style regulations will not be wireless carriers or equipment manufacturers, but the American public, which has reaped enormous benefits from wireless services over the past several decades.

For the sake of free speech, legality, and scientific accuracy, the FCC could put a stop to the excesses of Berkeley. FCC has picked the wrong time to be uncharacteristically silent.

*Harold Furchtgott-Roth is Director of The Hudson Institute’s Center for the Economics of the Internet. He serves on WLF’s Legal Policy Advisory Board. Arielle Roth is a Legal Fellow with the Center for the Economics of the Internet.