EDWARD M. CHEN, United States District Judge.
As alleged in its complaint, Plaintiff CTIA — The Wireless Association ("CTIA") is a not-for-profit corporation that "represents all sectors of the wireless industry, including but not limited to manufacturers of cell phones and accessories, providers of wireless services, and sellers of wireless services, handsets, and accessories." Compl. ¶ 18. Included among CTIA's members are cell phone retailers. See Compl. ¶ 19. CTIA has filed suit against the City of Berkeley and its City Manager in her official capacity (collectively "City"
RF energy is "`a form of electromagnetic radiation that is emitted by cell phones.'" In re Reassessment of FCC Radiofrequency Exposure Limits & Policies, 28 F.C.C. Red. 3498, 3585 (Mar. 29, 2013) [hereinafter "2013 FCC Reassessment"]. The City ordinance at issue concerns RF energy emitted by cell phones.
The ordinance at issue is found in Chapter 9.96 of the Berkeley Municipal Code. It provides in relevant part as follows:
Berkeley Mun. Code § 9.96.030.
Berkeley Mun. Code § 9.96.010.
Prior to issuing the ordinance, the City conducted a telephone survey on the topic of cell phones. Data was collected from 459 Berkeley registered voters. See Jensen Decl. ¶ 6. Seventy percent of those surveyed were not "aware that the government's radiation tests to assure the safety of cell phones assume that a cell phone would not be carried against your body, but would instead be held at least 1- to 15 millimeters from your body." Jensen Decl., Ex. A (survey and results).
As indicated by the above, the FCC has set RF energy exposure standards for cell phones. The present RF energy exposure limits were established in 1996. See generally FCC Consumer Guide, Wireless Devices and Health Concerns, available at https://www.fcc.gov/guides/wireless-devices-and-health-concerns (last visited September 17, 2015) [hereinafter "FCC Consumer Guide"]. This was done pursuant to a provision in the Telecommunications Act of 1996 ("TCA") that instructed the agency "to prescribe and make effective rules regarding the environmental effects of radio frequency emissions." 104 P.L. 104 (1996).
Compl. ¶ 75; see also 2013 FCC Reassessment, 28 F.C.C. Rcd. 3498, 3587 (stating that "[m]anufacturers have been encouraged since 2001 to include information in device manuals to make consumers aware of the need to maintain the body-worn distance — by using appropriate accessories if they want to ensure that their actual exposure does not exceed the SAR measurement obtained during testing").
FCC KDB, No. 447498, General RF Exposure Guidelines, § 4.2.2(4), available at https://apps.fcc.gov/oetcf/kdb/forms/FTSSearchResultPage.cfm?switch=P&id=20676 (last visited September 17, 2015).
The FCC currently has a FCC Consumer Guide regarding wireless devices and health concerns. In the FCC Consumer Guide, the agency states, inter alia, as follows:
Finally, in 2013, the FCC issued its Reassessment. See generally 2013 FCC Reassessment, 28 F.C.C. Red. 3498. One of the components of the Reassessment was a Notice of Inquiry, "request[ing] comment to determine whether our RF exposure limits and policies need to be reassessed." Id. at 3500.
Id. at 3501.
"`A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (quoting Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (rejecting the position that, "when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a `possibility' of irreparable harm")). The Ninth Circuit has held that the "serious questions" approach survives Winter when applied as part of the four-element Winter test. In other words, "serious questions going to the merits" and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met. See Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir.2011).
As noted above, the thrust of CTIA's complaint is twofold: (1) the Berkeley ordinance is preempted by federal law and (2) the ordinance violates the First Amendment. Thus, the Court must evaluate the likelihood of success as to each contention.
The specific preemption argument raised by CTIA is conflict preemption.
Here, CTIA puts at issue only obstacle preemption, not impossibility preemption. Under Supreme Court law, "[w]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). "`If the purpose of the [federal] act cannot otherwise be accomplished — if its operation within its chosen field must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power.'" Id.
The Court agrees with CTIA that Farina is an instructive case with respect to the purposes underlying the above TCA provision. In Farina, the plaintiff sued on the ground that "cell phones, as currently manufactured, are unsafe to be operated without headsets because the customary manner in which they are used — with the user holding the phone so that the antenna is positioned next to his head — exposes the user to dangerous amounts of radio frequency (`RF') radiation." Id. at 104. The Third Circuit held that the plaintiff's lawsuit was subject to obstacle preemption. The court noted first that, "although [the plaintiff] disavow[ed] any challenge to the FCC's RF standards, that is the essence of his complaint.... In order for [the plaintiff] to succeed, he necessarily must establish that cell phones abiding by the FCC's SAR guidelines are unsafe to operate without a headset." Id. at 122. The court then concluded that there was obstacle preemption, particularly because "regulatory situations in which an agency is required to strike a balance between competing statutory objectives lend themselves to a finding of conflict preemption." Id. at 123.
Id. The FCC was tasked with a balancing act — not only to "protect[] the health and safety of the public, but also [to] ensur[e] the rapid development of an efficient and uniform network, one that provides effective and widely accessible service at a reasonable cost." Id. at 125. "Were the FCC's standards to constitute only a regulatory floor upon which state law can build, juries could re-balance the FCC's statutory objectives and inhibit the provision of quality nationwide service." Id.
Moreover, in Farina, the Third Circuit also stated that uniformity was one of the purposes underlying the TCA:
Id. at 126.
Finally, as noted in Farina, the legislative history for the TCA, which instructed the FCC to "to prescribe and make effective rules regarding the environmental effects
H.R. Rep. No. 104-204, at 94 (1996).
But even though Farina persuasively identifies the purposes underlying the TCA provision at issue, the limited disclosure mandated by the Berkeley ordinance does not, with one exception, impose an obstacle to those purposes. As noted above, the notice required by the City ordinance states as follows:
Berkeley Mun. Code § 9.96.030(A). This disclosure, for the most part, simply refers consumers to the fact that there are FCC standards on RF energy exposure — standards which assume a minimum spacing of the cell phone away from the body — and advises consumers to refer to their' manuals regarding maintenance of such spacing. The disclosure mandated by the Berkeley ordinance is consistent with the FCC's statements and testing procedures regarding spacing. See, e.g., FCC Consumer Guide (advising "on some simple steps that you can take to reduce your exposure to RF energy from cell phones[;] [f]or example, wireless devices only emit RF energy when you are using them and, the closer the device is to you, the more energy you will absorb"); 2013 FCC Reassessment, 28 F.C.C. Red. at 3588 (stating that "Commission calculations ... suggest that some devices may not be compliant with our exposure limits without the use of some spacer to maintain a separation distance when body-worn, although this conclusion is not verifiable for individual devices since a test without a spacer has not been routinely performed during the body-worn testing for equipment authorization").
There is, however, one portion of the notice required by the City ordinance that is subject to obstacle preemption — namely, the sentence "This potential risk is greater for children." Berkeley Mun. Code § 9.96.030(A). Notably, this sentence does not say that the potential risk may be greater for children; rather, the sentence states that the potential risk is greater. But whether the potential risk is, in fact, greater for children is a matter of scientific debate. The City has taken the position in this lawsuit that its notice is simply designed to reinforce a message that the FCC already requires and make consumers aware of FCC instructions and mandates, see, e.g., Opp'n at 1, 4, but the FCC has never made any pronouncement that there is a greater potential risk for children, and, certainly, the FCC has not imposed different RF energy exposure limits that are applicable to children specifically. At most, the FCC has taken note that there is a scientific debate about whether children are potentially at greater risk. See, e.g., FCC Consumer Guide ("Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses."); 2013 FCC Reassessment, 28 F.C.C. Red. at 3501 ("[T]he Commission invites health and safety agencies and the public to comment on the propriety of our general present limits and whether additional precautions may be appropriate in some cases, for example with respect to children."). Importantly, however, the FCC has not imposed different exposure limits for children nor does it mandate special warnings regarding children's exposure to RF radiation from cell phones. Thus, the content of the sentence — that the potential risk is indeed greater for children compared to adults — threatens to upset the balance struck by the FCC between encouraging commercial development of all phones and public safety, because the Berkeley warning as worded could materially deter sales on an assumption about safety risks which the FCC has refused to adopt or endorse.
Having determined that the required statement, "This potential risk is greater for children," is likely preempted by federal law, the Court now addresses CTIA's likelihood of success with respect to its First Amendment challenge to the remainder of the notice.
With respect to CTIA's First Amendment claim, the Court must first determine what First Amendment test should be used to evaluate the ordinance at issue. CTIA contends that strict scrutiny must be applied because the ordinance is neither content nor viewpoint neutral. See Reed v. Town of Gilbert, ___ U.S. ___, 135 S.Ct. 2218, 2228, 2230, 192 L.Ed.2d 236 (2015) (stating that "strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based"; adding that "[g]overnment discrimination among viewpoints... is a `more blatant' and `egregious form of content discrimination'"). But in making this argument, CTIA completely ignores the fact that the speech rights at issue here are its members' commercial speech rights. See Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir.2011) (stating that "[c]ommercial speech is `defined as speech that does no more than propose a commercial transaction'"; "`strong support' that the speech should be characterized as commercial speech is found where the speech is an advertisement, the speech refers to a particular product, and the speaker has an economic motivation"). The Supreme Court has clearly made a distinction between commercial speech and non-commercial speech, see, e.g., Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (stating that "[t]he Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression"); see also Nat'l Ass'n of Mfrs. v. SEC, 800 F.3d 518, 533 (D.C.Cir.2015) (noting that, "as the Supreme Court has emphasized, the starting premise in all commercial speech cases is the same: the First Amendment values commercial speech for different reasons than non-commercial speech"), and nothing in its recent opinions, including Reed, even comes close to suggesting that that well-established distinction is no longer valid.
CTIA contends that, even if the commercial speech rubric is applied, the ordinance should be subject to at least intermediate scrutiny, pursuant to Central Hudson:
Central Hudson, 447 U.S. at 564, 100 S.Ct. 2343. But as indicated by the above language, Central Hudson was addressing restrictions on commercial speech. Here, the Court is not confronted with any restrictions on CTIA members' commercial speech; rather, the issue is related to compelled disclosure of commercial speech. The Supreme Court has treated restrictions on commercial speech differently from compelled disclosure of such speech. This difference in treatment was first articulated in the plurality decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), and subsequently affirmed by the majority opinion in Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010).
Because Zauderer is a critical opinion, the Court briefly discusses its holding. The plaintiff in Zauderer was an attorney. He ran an advertisement in which he "publiciz[ed] his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device." Id. at 630, 105 S.Ct. 2265. In the advertisement, the plaintiff stated that "`[t]he case are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients.'" Id. at 631, 105 S.Ct. 2265. Based on the advertisement, the state Office of Disciplinary Counsel filed a complaint against the plaintiff, alleging that the plaintiff had violated a disciplinary rule because the advertisement "fail[ed] to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful" and therefore was deceptive. Id. at 633, 105 S.Ct. 2265. The state supreme court agreed with the state Office of Disciplinary Counsel. The plaintiff appealed, asserting that his First Amendment rights had been violated.
In resolving the issue, the plurality began by noting that
Id. at 638, 105 S.Ct. 2265.
The plurality pointed out, however, that there are "material differences between disclosure requirements and outright prohibitions on speech." Id. at 650, 105 S.Ct. 2265. While, "in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech," that is not always the case. Id. Here, the state was not "`prescrib[ing] what shall be orthodox in politics, religion, [etc].'"; rather,
Id. at 651, 105 S.Ct. 2265 (emphasis added).
The plurality then held that this standard was satisfied in the case at hand.
Id. at 652-53, 105 S.Ct. 2265. Accordingly, Zauderer suggests that compelled disclosure of commercial speech, unlike suppression or restriction of such speech, is subject to rational basis review rather than intermediate scrutiny.
Approximately fifteen years later, a majority of the Supreme Court addressed Zauderer in Milavetz. Milavetz concerned the constitutionality of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). The act regulated the conduct of debt relief agencies, i.e., "professionals who provide bankruptcy assistance to consumer debtors." Milavetz, 559 U.S. at 232, 130 S.Ct. 1324. Part of the act required debt relief agencies to make certain disclosures in their advertisements. See id. at 233, 130 S.Ct. 1324. The parties disagreed as to whether Central Hudson or Zauderer provided the applicable standard in evaluating the statute.
Id. at 250, 130 S.Ct. 1324. The Court then determined that "§ 528's requirements that [the petitioner] identify itself as a debt relief agency and include information about its bankruptcy-assistance an related services are `reasonably related to the [Government's] interest in preventing deception of consumers.'" Id. at 252-53, 130 S.Ct. 1324. Accordingly, it "upheld those provisions as applied to [the petitioner]." Id. at 253, 130 S.Ct. 1324.
Since Zauderer and Milavetz, circuit courts have essentially characterized the Zauderer test as a rational basis or rational review test. See, e.g., Nat'l Ass'n, 800 F.3d at *55 (stating that "[t]he Supreme Court has stated that rational basis review applies to certain disclosures of `purely factual and uncontroversial information'"; quoting Zauderer); King v. Governor of N.J., 767 F.3d 216, 236 (3d Cir.2014) (stating that Zauderer "outlin[ed] the `material differences between disclosure requirements and outright prohibitions on speech' and subject[ed] a disclosure requirement to rational basis review"); Safelite Group v. Jepsen, 764 F.3d 258, 259 (2d Cir.2014) (characterizing Zauderer as "rational basis review"); Centro Tepeyac v. Montgomery County, 722 F.3d 184, 189 (4th Cir.2013) (noting that, under Zauderer, "disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny"); Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 559 n. 8 (6th Cir.2012) (characterizing Zauderer as a "rational-basis rule"); see also Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 316 (1st Cir.2005) (Boudin, J., concurring) (stating that "[t]he idea that these thousands of routine regulations require an extensive First Amendment analysis is mistaken" because Zauderer is in essence a rational basis test). This is consistent with the underlying theory of the First Amendment. As the Second Circuit has noted, "mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests" — indeed, "disclosure further, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the `marketplace of ideas.'" Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 114 (2d Cir.2001).
CTIA protests that, even if Zauderer makes a distinction between restrictions on commercial speech and compelled disclosure, the more lenient test articulated in Zauderer is applicable only where the governmental interest at issue is the prevention of consumer deception, and that, here, the governmental interest is in public health or safety, not consumer deception. But tellingly, no court has expressly held that Zauderer is limited as CTIA proposes. In fact, several circuit courts have held to the contrary. For example, in American Meat Institute v. United States Department of Agriculture., 760 F.3d 18 (D.C.Cir. 2014), the D.C. Circuit, sitting en banc, considered a regulation of the Secretary of
Id. at 21-22.
In National Electrical, the Second Circuit also rejected a reading of Zauderer as being limited to a situation where the government's interest is prevention of consumer deception. The case concerned a Vermont statute that "require[d] manufacturers of some mercury-containing products to label their products and packaging to inform consumers that the products contain mercury and, on disposal, should be recycled or disposed of as hazardous waste." Nat'l Elec., 272 F.3d at 107. The court acknowledged that
Id. at 115; see also N.Y. St. Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114, 133 (2d Cir.2009) (stating that "Zauderer's holding was broad enough to encompass nonmisleading disclosure requirements").
The First and Sixth Circuits are in accord with the D.C. and Second Circuits. See Pharm. Care, 429 F.3d at 310 n. 8 (noting that "we have found no cases limiting Zauderer [to potentially deceptive advertising directed at consumers]"); Disc. Tobacco, 674 F.3d at 556-57 (discussing National Electrical approvingly); cf. Pharm. Care, 429 F.3d at 316 (Boudin, J., concurring) (stating that "[t]he idea that these thousands of routine regulations require an extensive First Amendment analysis is mistaken" because Zauderer is in essence a rational basis test). Furthermore, in an unpublished decision, the Ninth Circuit addressed a San Francisco ordinance which also imposed a notice requirement on cell phone retailers (based on RF energy emission), but the court did not hold that Zauderer was limited to circumstances in which a state or local government was trying to prevent potentially misleading advertising. See generally CTIA — The Wireless Ass'n v. City & County of San Francisco, 494 Fed.Appx. 752 (9th Cir.2012). The court assumed Zauderer applied to mandatory disclosures directed at health and safety, not consumer deception.
The circuit authority cited above is persuasive, and thus the Court disagrees with CTIA's interpretation of Zauderer as being limited to preventing consumer deception. Indeed, it would make little sense to conclude that the government has greater power to regulate commercial speech in order to prevent deception than to protect public health and safety, a core function of the historic police powers of the states. See, e.g., Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (stating that "[it] is a traditional exercise of the States' `police powers to protect the health and safety of their citizens'"); Barnes v. Glen Theatre, 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting that "[t]he traditional police power of the States is defined as the authority to provide for the public health, safety, and morals").
Moreover, there is a persuasive argument that, where, as here, the compelled disclosure is that of clearly identified government
To be sure, there are First Amendment limits to the government's ability to require that a speaker carry a hostile or inconsistent message of a third party, at least in the context of noncommercial speech. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (holding that First Amendment rights of a parade organizer and council were violated when they were required to include a gay rights organization in their parade); Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality decision) (concluding that the First Amendment rights of privately owned utility company were violated by an order from the California Public Utilities Commission that required the company to include in its billing envelopes speech of a third party with which the company disagreed); Miami Herald Pub'g Co. v. Tornillo, 418 U.S. 241, 243, 256, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (holding that "a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press"; noting that the "statute exacts a penalty on the basis of the content of a newspaper" and also "intru[des] into the function of editors"). But, as stated above, these cases involved noncommercial speech, not commercial speech as here. See, e.g., PG&E, 475 U.S. at 9, 106 S.Ct. 903 (noting that company's newsletter, which was included in the billing envelopes, covered a wide range of topics, "from energy-saving tips to stories about wildlife conservation, and from billing information to recipes," and thus "extend[ed] well beyond speech that [simply] proposes a business transaction"; citing Zauderer and Central Hudson). This is a significant distinction, particularly because First Amendment analysis in the commercial speech
Moreover, Miami Herald can be distinguished on an additional ground. More specifically, in Miami Herald, the primary concern was the chilling of speech by the entity subject to the disclosure requirement as a consequence of the challenged law. See Miami Herald, 418 U.S. at 257, 94 S.Ct. 2831 (noting that, "[f]aced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy"). In contrast to Miami Herald, here, there is no real claim that the retailer's speech is chilled by the Berkeley ordinance; in fact, as indicated above, the ordinance expressly allows retailers to add "other information" at the retailer's discretion. Berkeley Mun. Code § 9.96.030(B).
While CTIA has argued that being forced to engage in counter-speech (i.e., speech in response to the City notice) is, in and of itself, a First Amendment burden (as indicated in PG&E), that is not necessarily true where commercial speech is at issue. As the City points out, Zauderer spoke only in terms of chilling speech as a First Amendment burden in the context of commercial speech. See Zauderer, 471 U.S. at 651, 105 S.Ct. 2265 (stating that "unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech"); see also Am. Meat, 760 F.3d at 27 (acknowledging the same; also stating that "Zauderer cannot justify a disclosure so burdensome that it essentially operates as a restriction on constitutionally protected speech"). This makes sense as the value of commercial speech comes from the information it provides — i.e., more speech, not less. That being said, even if CTIA were correct that the right not to speak had some application to commercial speech, he need for counter-speech — at least in the circumstances presented herein — are minimal, as discussed infra.
Thus, there is good reason to conclude that the First Amendment test applicable in this case should be even more deferential to the government than the test in Zauderer. More particularly, the rational basis test applicable to compelled display of government speech need not be cabined by the Zauderer's requirement that the compelled disclosure be "purely factual and uncontroversial." Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. In Zauderer, it made sense that the Supreme Court imposed the baseline requirement that the compelled speech be purely factual and uncontroversial because, where speech is in fact purely factual and uncontroversial, then the speaker's interest in countering such information is minimal. The Zauderer test thus insures any First Amendment interest against compelled speech is minimal. But where there is attribution of the compelled speech to someone other than the speaker — in particular, the government — the Zauderer factual-and-uncontroversial requirement is not needed to minimize the intrusion upon the plaintiff's First Amendment interest.
Instead, under more general rational basis principles, the challenged law must be
For purposes of this opinion, the Court shall evaluate the Berkeley ordinance under the the more rigorous rational basis review as well as the Zauderer test. As discussed below, both of these standards have been met in the instant case.
In identifying the government interest supporting the notice required by the ordinance, Berkeley argues that it simply seeks to insure fuller consumer awareness of the FCC's SAR testing procedures and directive to manufacturers to disclose the spacing requirements used to insured SAR does not exceed stated levels. Promoting consumer awareness of the government's testing procedures and guidelines obviously is a legitimate governmental interest. Compare Sorrell v. IMS Health Inc., 564 U.S. 552, 131 S.Ct. 2653, 2672, 180 L.Ed.2d 544 (2011) (stating that "the government's legitimate interest in protecting consumers from `commercial harms' explains `why commercial speech can be subject to greater governmental regulation than noncommercial speech'"), with Int'l Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 74 (2d Cir.1996) (stating that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement in a commercial context"). And the mandated notice (apart from the warning about risk to children) furthers and is reasonably
CTIA argues that framing the governmental interest as insuring consumer awareness begs the question and misses the real mark. It contends that the real asserted interest here is purported public safety and that the mandated notice is misleading because it suggests a substantial risk to health that does not in fact exist. To the extent the true ultimate governmental interest for the ordinance is public health and safety (since the purpose of referring consumers to the user manual is so that consumers will know how to "use your phone safely"), such an interest undoubtedly is a legitimate public interest. See, e.g., Hispanic Taco Vendors v. Pasco, 994 F.2d 676, 680 (9th Cir.1993) (finding ordinance that regulated itinerant vending and imposed licensing fees supported by legitimate governmental interests in, e.g., health and safety). The question then is whether the ordinance is reasonably related to such interest. Notwithstanding CTIA's argument to the contrary, the Court concludes that it is.
While there is scientific uncertainty as to the relationship between SAR levels and the risk of, e.g., cancer, and there is scientific debate about whether nonthermal as well as thermal effects of RF radiation may pose health risks, there is a reasonable scientific basis to believe that RF radiation at some levels can and do present health risks. The SAR limits were established by the FCC in the interests of safety in view of the potential risks of RF radiation exposure. Although current maximum SAR levels set by the FCC were designed to provide a comfortable margin, at least with respect to risks posed by the thermal effect of RF radiation, the FCC has in fact established specific limits to SAR exposure and uses those limits in the testing and approval of cell phones for sale to the public. And testing procedures governed by FCC rules incorporating those SAR limits assume a minimal amount of spacing of the cell phone from the body, without which SAR levels may exceed the established guidelines. See CTIA, 827 F.Supp.2d at 1062 (noting that "the FCC has implicitly recognized that excessive RF radiation is potentially dangerous[;] [i]t did so when it `balanced' that risk against the need for a practical nationwide cell phone system," and "[t]he FCC has never said that RF radiation poses no danger at all, only that RF radiation can be set at acceptable levels"), rev'd on other grounds, 494 Fed.Appx. 752 (9th Cir.2012). Unless the Court were to find that the FCC guidelines themselves are scientifically baseless and hence irrational — which no one has asked this Court to do — the mandated notice here, being predicated on the FCC's guidelines, is reasonably related to a legitimate governmental interest.
Even if the ordinance is subject to the more specific Zauderer test,
For example, a good case can be made that a court should tread carefully before deeming compelled speech controversial for Zauderer purposes. As the Sixth Circuit has noted, facts alone "can disconcert, displease, provoke an emotional response, spark controversy, and even overwhelm reason"; thus, the court rejected "the underlying premise that a disclosure that provokes a visceral response must fall out-side Zauderer's ambit." Disc. Tobacco, 674 F.3d at 569 (adding that "whether a disclosure is scrutinized under Zauderer turns on whether the disclosure conveys factual information or an opinion, not on whether the disclosure emotionally affects its audience or incites controversy"). The Sixth Circuit also made the point that the use of the word "uncontroversial" appeared only once in Zauderer and that elsewhere the Zauderer plurality simply "refer[red] to a commercial speaker disclosing `factual information' and `accurate information.'" Id. at 559 n. 8 (citing Zauderer, 471 U.S. at 651 & n.14, 105 S.Ct. 2265). Furthermore, in Milavetz, the Supreme Court did not repeat the use of the term and instead "use[d] the language required factual information and only an accurate statement when describing the characteristics of a disclosure that, is scrutinized for a rational basis." Id. (emphasis in original; citing Milavetz, 1130 S. Ct. at 1339-40). Accordingly, this Court agrees with the Sixth Circuit that the term "uncontroversial" should generally be equated with the term "accurate."
As for the requirement that the compelled speech be factual (or accurate), in any given case, it is easy to conceive of an argument that, even if the compelled speech is technically accurate, (1) it is still suggestive of an opinion or (2) it is misleading. For example, on the former, one could contend that the mere fact that the government is compelling the speech in the first place indicates that it is the government's opinion that there is a point of concern for the public. One could also argue that the compelled speech is misleading because it omits more Specific information.
But Zauderer cannot be read to establish a "factual and uncontroversial" requirement that can be so easily manipulated that it would effectively bar any compelled disclosure by the government. This is particularly true where public health and safety are at issue, as in the instant case. Any time there is an element
Turning to the City ordinance at issue here, the Court finds that the factual-and-uncontroversial predicate requirement has likely been met, particularly as the Court has now found the sentence regarding children preempted. With that sentence excised, the ordinance provides in relevant part as follows:
Berkeley Mun. Code § 9.96.030(A).
The notice contains accurate and uncontroversial information — i.e., that the FCC has put limits on RF energy emission with respect to cell phones and that wearing a cell phone against the body (without any spacer) may lead the wearer to exceed the limits. This is consistent with the FCC's directive to cell phone manufacturers to advise consumers about minimum spacing to be maintained between the body and a cell phone, and although there is in fact a good safety margin (at least for thermal effects of RF radiation), nothing indicates that the FCC objects to informing consumers about spacing the phone away from the body.
CTIA takes issue with the use of the words "safety" and "radiation," but the use of both words is accurate and uncontroversial. Regarding "safety," the FCC clearly imposed limits because of safety concerns. The limits that the agency ultimately chose reflected a balancing of the risk to public health and safety against the need for a practical nationwide cell phone system, but it cannot be denied that safety was a part of that calculus. See CTIA, 827 F.Supp.2d at 1062 (in the San Francisco ordinance case, noting that, "[e]ven the FCC has implicitly recognized that excessive RF radiation is potentially dangerous" because it "`balanced' that risk against the need for a practical nationwide cell phone system[;] [t]he FCC has never said that RF radiation poses no danger at all, only that RF radiation can be set at acceptable levels"), rev'd on other grounds, 494 Fed.Appx. 752 (9th Cir.2012). As for the term "radiation," RF energy is undisputedly a form of radiation. See 2013 FCC Reassessment, 28 F.C.C. Red. at 3585 (stating that RF energy is "`a form of electromagnetic radiation that is emitted by cell phones'"). That the
Finally, CTIA protests that the notice is misleading because, even if a cell phone is worn against the body, it is unlikely that the federal guidelines for SAR will be exceeded. See Mot. at 15-16 (arguing that "this may be possible only `with the device transmitting continuously and at maximum power [such as might happen during a call with a handset and the phone in the user's pocket at the fringe of a reception area],' and that `using a device against the body without a spacer will generally result in an actual SAR below the maximum SAR testing'"). But as indicated above, the Court is wary about any contention that a compelled disclosure — particularly where the message in the disclosure is attributed to the government — is misleading simply because the disclosure, does not describe with precision the magnitude of the risk; the point remains that the FCC established certain limits regarding SAR, limits which have not been challenged as illegal. The mandated disclosure truthfully states that federal guidelines may be exceeded where spacing is not observed, just as the FDA accurately warns that "Tobacco `smoke can harm your children." More importantly, the sentence criticized by CTIA is tempered by the following sentence: "Refer to the instructions in your phone or user manual for information about how to use your phone safely." That is the upshot of the disclosure — users are advised to consult the manual wherein the FCC itself mandates disclosures about maintaining spacing. See FCC KDB, No. 447498, General RF Exposure Guidelines, § 4.2.2(4). This is, in essence, factual in nature for purposes of Zauderer.
For the foregoing reasons, the Court finds that the City notice, with the sentence regarding children excised from the text on preemption grounds, likely meets the Zauderer factual-and-uncontroversial predicate requirement.
As indicated above, under the Zauderer test, if the disclosure requirement is factual and uncontroversial, then it does not violate the First Amendment so long as it is reasonably related to the governmental interest. This test has been met, for largely the reasons articulated above in discussing the traditional rational review test. Given the fact that the spacing requirements employed by the FCC were established to insure maximum specific levels of SAR are not exceeded and the FCC acknowledges there is a connection between SAR and safety, even if the precise parameters and limits are matters of scientific debate, the ordinance appears "reasonably related" to a legitimate government interest.
Finally, CTIA contends that the disclosure requirement here cannot be upheld because it still violates the First Amendment as it is unduly burdensome. But for this argument to succeed, CTIA cannot show just any kind of burden; rather, it must show a First Amendment burden, i.e., a burden on speech.
CTIA has not made any argument that the City ordinance would chill its or its members' speech; rather, it contends that there is a burden on its or its members'
On the first preliminary injunction factor, the Court cannot say that CTIA has established a strong likelihood of success on the merits with respect to its First Amendment claim. Nor has it raised serious question on the merits. While the sentence in the Berkeley ordinance regarding the potential risk to children is likely preempted, the remainder of the City notice is factual and uncontroversial and is reasonably related to the City's interest in public health and safety. Moreover, the disclosure requirement does not impose an undue burden on CTIA or its members' First Amendment rights.
CTIA's argument on both the likelihood of irreparable harm and the balancing of equities largely depends on there being preemption or a First Amendment violation in the first place.
Finally, the fourth preliminary injunction factor does not weigh in CTIA's favor — again because of the weakness of its claims on the merits. CTIA contends that the public interest does not weigh in favor of the City because "accurate and balanced disclosures regarding RF energy are already available," Mot. at 23 (emphasis in original), but the City has a fair point that, in spite of the availability, there is evidence that the public does not know about those disclosures. See, e.g., Jensen Decl., Ex. A (survey) (reflecting that a majority of persons surveyed were, e.g., not "aware that the government's radiation tests to assure the safety of cell phones assume that a cell phone would not be carried
For the foregoing reasons, the Court grants in part and denies in part CTIA's motion for a preliminary injunction. The motion is granted to the extent the Court finds a likely successful preemption claim with respect to the sentence in the City notice regarding children's safety. The motion is denied to the extent the Court finds that a First Amendment claim and preemption claim are not likely to succeed on the remainder of the City notice language.
The Berkeley ordinance is enjoined, unless and until the sentence in the City notice regarding children safety is excised from the notice.
This order disposes of Docket Nos. 4 and 36.
IT IS SO ORDERED.
