Cohen v. Apple Inc.
| Decision Date | 26 August 2022 |
| Docket Number | 20-17307 |
| Citation | 46 F.4th 1012 |
| Parties | Andrew COHEN; Timothy Hornick; Kaleah C. Allen; Kimberly Benjamin; Mark Weiler ; Matt Koppin; Scott Cischke; Paul Coletti; Krystle Faeryn; Rodolfo Cabrera ; Brandy Davis; William Zide; David Hedicker; Nancy Maekawa; Catherin Goodwin; Kathleen Boggs; Mark Kunze; Ariana Ryan; Becky Wellington; M. Gail Sundell; Victor Perlman; Zachary Gomolekoff; Glenn Jacobs ; June A. Hall, Plaintiffs-Appellants, v. APPLE INC., Defendant-Appellee, and Samsung Electronic America, Inc., Defendant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Matthew W.H. Wessler (argued) and Linnet Davis-Stermitz, Gupta Wessler PLLC, Washington, D.C.; Elizabeth A. Fegan and Jessica H. Meeder, Fegan Scott LLC, Chicago, Illinois; for Plaintiffs-Appellants.
Joseph R. Palmore (argued) and Adam L. Sorensen, Morrison & Foerster LLP, Washington, D.C.; William F. Tarantino and James R. Sigel, Morrison & Foerster LLP, San Francisco, California; for Defendant-Appellee.
Leah M. Nicholls, Public Justice P.C., Washington, D.C., for Amicus Curiae Public Justice.
Scott L. Nelson and Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen.
Joshua S. Turner, Megan L. Brown, and William K. Lane III, Wiley Rein LLP, Washington, D.C.; Paul V. Lettow and Stephanie A. Maloney, U.S. Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.
Terrence J. Dee and Jessica J. Thomas, McDermott Will & Emery LLP, Chicago, Illinois, for Amicus Curiae CTIA—The Wireless Association.
Before: William A. Fletcher, Johnnie B. Rawlinson, and John B. Owens, Circuit Judges.
Cell phones emit radiofrequency ("RF") radiation in the course of their ordinary operation. Pursuant to the Communications Act of 1934 and the Telecommunications Act of 1996 ("twin Communications Acts"), the Federal Communications Commission ("FCC") has promulgated regulations establishing RF radiation standards for cell phones.
Plaintiffs-appellants ("plaintiffs") Andrew Cohen and other individuals are users of iPhones manufactured by defendant-appellee Apple Inc. Plaintiffs brought suit against Apple in the district court, alleging that Apple breached state tort and consumer-fraud laws by misrepresenting and failing to disclose the amount of RF radiation emitted by iPhones. The district court entered summary judgment for Apple, holding that the plaintiffs' state-law claims are preempted by federal law.
We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that the district court had subject matter jurisdiction and that plaintiffs' claims are preempted.
We begin with an overview of RF radiation, of the relevant statutory structure, and of FCC regulation of devices that emit RF radiation.
Like radios and televisions, cell phones rely on radiofrequency electromagnetic waves, otherwise known as RF radiation, to receive signals. Cell phones also emit RF radiation to send signals. RF radiation is a subset of electromagnetic radiation. There are two forms of electromagnetic radiation: ionizing and non-ionizing. Ionizing radiation can be extremely dangerous. Among other things, it can alter a person's DNA. Non-ionizing radiation is much less dangerous and is incapable of damaging DNA. However, high levels of non-ionizing RF radiation can cause biological effects by increasing the temperature of tissues. Federal Communications Commission, RF Safety FAQ , https://www.fcc.gov/engineering-technology/electromagnetic-compatibility-division/radio-frequency-safety/faq/rf-safety [https://perma.cc/DD6C-3SGM] (last visited July 18, 2022). For example, RF radiation is used to heat food in microwave ovens. Id. Cell phones emit non-ionizing RF radiation, but not at high enough levels to cause thermal effects. Id.
The effects of non-thermal RF radiation on human health are controverted. Id. While some studies have described adverse biological effects resulting from exposure to low levels of RF radiation at levels emitted by cell phones, many of these effects could not be replicated in later studies. Id. Current FCC regulations for cell phones set RF radiation limits far below the level at which adverse biological effects in laboratory animals have been observed.
Congress created the FCC through the Communications Act of 1934 ("1934 Act"), Pub. L. No. 73-416, 48 Stat. 1064 (). The 1934 Act, as amended, instructed the FCC "to make available ... a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges," for three purposes: (1) national defense, (2) "promoting safety of life and property through the use of wire and radio communications," and (3) "securing a more effective execution of this policy by centralizing authority" previously granted to multiple agencies and "granting additional authority with respect to interstate and foreign commerce in wire and radio communication." 47 U.S.C. § 151. The 1934 Act, as amended, declared it a national policy "to encourage the provision of new technologies and services to the public." Id. § 157(a).
The 1934 Act "endowed the [FCC] with comprehensive powers to promote and realize the vast potentialities of radio." Nat'l Broad. Co. v. United States , 319 U.S. 190, 217, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). The Act, as amended, authorized the FCC to "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the [statutory] provisions." 47 U.S.C. § 303(r) ; see also id. § 154(i) (). The 1934 Act also authorized the FCC, "as public convenience, interest, or necessity requires," to "[r]egulate the kind of [radio] apparatus to be used with respect to its external effects and the purity and sharpness of the emissions from each station and from the apparatus therein." Id. § 303(e).
The 1934 Act contains a general savings clause. It provides: "Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." Id. § 414.
In 1996, Congress passed the Telecommunications Act ("1996 Act"). Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. When the 1996 Act was passed, the FCC had initiated but had not completed a rulemaking proceeding concerning RF radiation. The 1996 Act directed the FCC to "complete action ... to prescribe and make effective rules regarding the environmental effects of radio frequency emissions" within 180 days after the enactment of the Act. Id. § 704(b), 110 Stat. at 152.
The 1996 Act limits the FCC's authority where its regulations would conflict with state and local land-use regulations. A specific savings clause provides, "[N]othing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A). The Conference Report of the 1996 Act describes § 332(c)(7) as "prevent[ing FCC] preemption of local and State land use decisions and preserv[ing] the authority of State and local governments over zoning and land use matters." H.R. Rep. No. 104-458, at 207–08 (1996) (Conf. Rep.). That is, the limitation placed on the FCC's preemptive powers by § 332(c)(7) "relate[s] to local land use regulations and [is] not intended to limit or affect the Commission's general authority over radio telecommunications, including the authority to regulate the construction, modification and operation of radio facilities." Id. at 209.
The 1996 Act also contains a general savings clause. It provides: "This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or amendments." 1996 Act § 601(c)(1), 110 Stat. at 143. The savings clause is not codified in the United States Code, but is included as part of the notes to 47 U.S.C. § 152.
The Hobbs Act governs judicial review of FCC final orders. Under the Hobbs Act, federal courts of appeals (except the Federal Circuit) have "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of," inter alia , "all final orders of the Federal Communications Commission made reviewable by [ 47 U.S.C. § 402(a) ]." 28 U.S.C. § 2342 ; see also 47 U.S.C. § 402(a) ().
FCC regulatory actions are subject to the National Environmental Policy Act ("NEPA"). For "[f]ederal actions significantly affecting the quality of the human environment," NEPA requires federal agencies to include "a detailed statement" regarding the "environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C)(i). NEPA "does not mandate particular results" but "imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756–57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (). Because the licensing of equipment that emits RF radiation may significantly affect the environment, NEPA obligates the FCC in such...
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