Wireless industry sues Berkeley over phone radiation ordinance

A trade group for the wireless industry is suing the city of Berkeley, Calif., over a recently passed ordinance that would require retailers to warn customers about mobile phone radiation. 

CTIA - The Wireless Association on Monday asked a U.S. federal court in California to strike the ordinance down, on the grounds that it violates the First Amendment and preempts federal law. 

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“Berkeley’s Ordinance violates the First Amendment because it will require CTIA’s members to convey a message to which they object, and which is factually inaccurate, misleading, and controversial,” lawyers for the group wrote in a lawsuit in a federal court in the Northern District of California. 

The Berkeley City Council approved the ordinance in May, and it is slated to take effect on June 25. It would require retailers to pass along information about radio frequency (RF) exposure when a customer buys a phone. 

Those warnings would not explicitly reference any harm, but would note that the federal government sets guidelines on exposure, which can be exceeded if a person carries their phone close to their body while it is connected to wi-fi.

“To assure safety, the Federal Government requires that cell phones meet radio frequency (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,” according to the warning that would have to be handed out to customers. 

The wireless industry claims the warning gives off an inaccurate impression of harm. It argues that forcing retailers to hand out information that they disagree with would violate their First Amendment rights. 

“The Ordinance is designed to have the effect, and has the effect, of conveying to an average consumer that exposure to RF energy from a cell phone in excess of the federal guideline creates a safety concern,” according to the trade group. 

The trade group successfully killed a similar 2010 law in San Francisco. But advocates of the Berkeley ordinance say the current proposal does not go as far as San Fransisco. They also note that the decision in the San Francisco case is unpublished and does not have jurisdiction over the Berkeley ordinance. 

The government says it does not know if there is risk from exposure to radio frequency emitted by mobile phones and research is ongoing. The FCC notes there is currently no scientific evidence that overexposure can cause cancer, headaches, dizziness or memory loss.

If there are risks, the FCC predicts they are small. The amount of radio frequency to be absorbed into the head of a person using a mobile phone is at called the Specific Absorption Rate. The FCC sets that limit at 1.6 watts per kilogram.

The Government Accountability Office in 2012 found that those limits might not reflect the latest research and may not address exposure limits to the body, for example, when someone carries their phone in their pocket while using headphones.