Ctia the Wireless Ass'n v. City of Berkeley

• Decision Date: 02 July 2019
• Docket Number: No. 16-15141,16-15141
• Citation: 928 F.3d 832
• Parties: CTIA - THE WIRELESS ASSOCIATION, Plaintiff-Appellant, v. CITY OF BERKELEY, CALIFORNIA; Christine Daniel, City Manager of Berkeley, California, in her official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

928 F.3d 832

CTIA - THE WIRELESS ASSOCIATION, Plaintiff-Appellant,

v.CITY OF BERKELEY, CALIFORNIA; Christine Daniel, City Manager of Berkeley, California, in her official capacity, Defendants-Appellees.

No. 16-15141

United States Court of Appeals, Ninth Circuit.

Filed July 2, 2019

OPINION

W. FLETCHER, Circuit Judge:

A City of Berkeley ordinance requires cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation. CTIA, a trade association formerly known as Cellular Telephone Industries Association, challenges the ordinance on two grounds. First, it argues that the ordinance violates the First Amendment. Second, it argues that the ordinance is preempted.

CTIA requested a preliminary injunction staying enforcement of the ordinance. The district court denied CTIA's request, and CTIA filed an interlocutory appeal. We affirmed the district court in a published opinion. See CTIA–The Wireless Ass'n v. City of Berkeley , 854 F.3d 1105 (9th Cir. 2017) (" CTIA "). CTIA then filed a petition for writ of certiorari. The Supreme Court granted the petition, vacated our opinion, and remanded for further consideration in light of its decision in National Institute of Family and Life Advocates v. Becerra , ––– U.S. ––––, 138 S. Ct. 2361, 201 L.Ed.2d 835 (2018) (" NIFLA "). CTIA–The Wireless Ass'n v. City of Berkeley , ––– U.S. ––––, 138 S. Ct. 2708, 201 L.Ed.2d 1092 (2018) (mem.).

Following remand, our three-judge panel requested supplemental briefing from the parties regarding the effect of NIFLA on CTIA's First Amendment claims. We waited for an en banc panel of our court to address a similar issue in a separate case. In American Beverage Ass'n v. City and County of San Francisco , 916 F.3d 749 (9th Cir. 2019) (en banc) (" American Beverage "), the en banc panel "reaffirm[ed] our reasoning and conclusion in CTIA that [ Zauderer v. Office of Disciplinary Counsel , 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) ] provides the appropriate framework to analyze a First Amendment claim involving compelled commercial speech." Id . at 756. In light of our en banc decision in American Beverage , and having considered the parties’ supplemental briefing on NIFLA , we again affirm the district court's decision. Our amended opinion addresses NIFLA 's clarification of the Zauderer framework. See Section IV.A.1, infra .

I. Factual and Procedural Background

In May 2015, the City of Berkeley passed an ordinance requiring cell phone retailers to disclose information to prospective cell phone purchasers about the federal government's radio-frequency radiation exposure guidelines relevant to cell phone use. Under "Findings and Purpose," the ordinance provided:

A. Requirements for the testing of cell phones were established by the federal government in 1996.

B. These requirements established "Specific Absorption Rates" (SAR) for cell phones.

C. The protocols for testing the SAR for cell phones carried on a person's body assumed that they would be carried a small distance away from the body, e.g., in a holster or belt clip, which was the common practice at that time. Testing of cell phones under these protocols has generally been conducted based on an assumed separation of 10–15 millimeters.

D. To protect the safety of their consumers, manufacturers recommend that their cell phones be carried away from the body, or be used in conjunction with hands-free devices.

E. Consumers are not generally aware of these safety recommendations.

F. Currently, it is much more common for cell phones to be carried in pockets or other locations rather than holsters or belt clips, resulting in much smaller separation distances than the safety recommendations specify.

G. Some consumers may change their behavior to better protect themselves and their children if they were aware of these safety recommendations.

H. While the disclosures and warnings that accompany cell phones generally advise consumers not to wear them against their bodies, e.g., in pockets, waistbands, etc., these disclosures and warnings are often buried in fine print, are not written in easily understood language, or are accessible only by looking for the information on the device itself.

I. The purpose of this Chapter is to assure that consumers have the information they need to make their own choices about the extent and nature of their exposure to radio-frequency radiation.

Berkeley Mun. Code § 9.96.010 (2015).

CTIA challenged the compelled disclosure provision of the ordinance, arguing that it violated the First Amendment and was preempted. One sentence of the compelled disclosure stated, "The potential risk is greater for children." The district court held that this sentence was preempted, and it issued a preliminary injunction against enforcement of the ordinance. In December 2015, Berkeley re-passed the ordinance without the offending sentence. In its current form, the compelled disclosure provision provides:

A. A Cell phone retailer shall provide to each customer who buys or leases a Cell phone a notice containing the following language:

The City of Berkeley requires that you be provided the following notice:

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. Refer to the instructions in your phone or user manual for information about how to use your phone safely.

Berkeley Mun. Code § 9.96.030(A) (2015).

The ordinance requires that the compelled disclosure be provided either on a prominently displayed poster no less than 8½ by 11 inches with no smaller than 28-point font, or on a handout no less than 5 by 8 inches with no smaller than 18-point font. The logo of the City of Berkeley must be placed on the poster and handout. The ordinance provides that a cell phone retailer may include additional information on the poster or handout if it is clear that the additional information is not part of the compelled disclosure. § 9.96.030(B) ("The paper on which the notice is printed may contain other information in the discretion of the Cell phone retailer, as long as that information is distinct from the notice language required by subdivision (A) of this Section.").

CTIA challenged the current ordinance, arguing, as it had before, that the ordinance violates the First Amendment and is preempted. The district court noted that the preempted sentence had been removed from the ordinance, dissolved its previously entered injunction, and denied CTIA's request for a new preliminary injunction. CTIA filed an interlocutory appeal.

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1292. We review a denial of a preliminary injunction for abuse of discretion. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y , 725 F.3d 940, 944 (9th Cir. 2013). "An abuse of discretion occurs when the district court based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Friends of the Wild Swan v. Weber , 767 F.3d 936, 942 (9th Cir. 2014) (citation and internal quotation marks omitted). We will not reverse the district court where it "got the law right," even if we "would have arrived at a different result," so long as the district court did not clearly err in its factual determinations. Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) (en banc).

III. Regulatory Background

The Federal Communications Commission ("FCC") has regulatory jurisdiction over transmitting services in the United States. In 1996, after extensive consultation with other agencies, the FCC issued a rule designed to limit the Specific Absorption Rate ("SAR") of radio-frequency ("RF") radiation from FCC-regulated transmitters, including cell phones:

1. By this action, we are amending our rules to adopt new guidelines and methods for evaluating the environmental effects of radio-frequency (RF) radiation from FCC-regulated transmitters. We are adopting Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters operating at frequencies from 300 kHz to 100 GHz ... We are also adopting limits for localized ("partial body") absorption that will apply to certain portable transmitting devices ... We believe that the guidelines we are adopting will protect the public and workers from exposure to potentially harmful RF fields.

2. In reaching our decision on the adoption of new RF exposure guidelines we have carefully considered the large number of comments submitted in this proceeding, and particularly those submitted by the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA) and other federal health and safety agencies. The new guidelines we are adopting are based substantially on the recommendations of those agencies, and we believe that these guidelines represent a consensus view of the federal agencies responsible for matters relating to the public safety and health.

In re Guidelines for Evaluating the Environmental Effects of Radio-frequency Radiation, 61 Fed. Reg. 41006, 41006–07 (Aug. 7, 1996) (emphases added).

Out of concern for the safety of cell phone users, the FCC rejected an industry proposal to exclude "low-power devices" such as cell phones from the rule adopting SAR limits:

Most commenting parties, including Federal health and safety agencies, support the use of the ANSI/IEEE [American National Standards Institute/ Institute of Electrical and Electronic Engineers] SAR limits for localized (partial body) exposure for evaluating low-power devices designed to be used in the immediate vicinity of the body. ... Therefore, in view of the consensus and the scientific support

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