CTIA—The Wireless Ass'n v. City & County of San Francisco
827 F. Supp. 2d 1054
N.D. Cal.2011Background
- CTIA challenges San Francisco's Cell Phone Disclosure Requirements as First Amendment and preemption issues.
- The revised ordinance removes SAR disclosures and references to “radiation,” focusing on posters, fact-sheets, and display stickers.
- The ordinance requires an in-store poster, free fact-sheet to customers, and display stickers with three informational statements.
- Regulations were issued after public process; compliance date was postponed pending this motion.
- CTIA seeks a preliminary injunction to enjoin portions of the ordinance while permitting corrections to the materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption conflict present? | CTIA argues conflict preemption blocks local disclosures. | SF asserts no conflict with federal law or FCC rules. | No conflict preemption; no federal bar to disclosures. |
| First Amendment viability of disclosures? | CTIA contends disclosures are compelled, potentially misleading, and unconstitutional. | SF argues public health interest justifies disclosures. | Fact-sheet corrections allowed; poster and sticker unconstitutional; partial First Amendment sustains with corrections. |
| Stickers/poster constitutionality as compelled speech? | Retailers’ own speech should not be overridden by municipal sticker/poster. | Municipal disclosures serve public health goals. | Stickers and large poster unconstitutional; corrections required to be permissible. |
| Irreparable injury and balance of equities for injunction? | Enjoining the entire ordinance would cause irreparable harm; correction reduces risk. | Disclosures serve public health; economic impact minimal. | Irreparable harm presumed; balance favors relief with corrected materials; stay through Nov. 30 for appellate adjustment. |
Key Cases Cited
- Rumsfeld v. FAIR, 547 U.S. 47 (U.S. 2006) (governmental disclosures may be allowed for accurate, uncontroversial facts)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (U.S. 1985) (reasonable disclosures related to preventing deception; minimal scrutiny)
- Pacific Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1 (U.S. 1986) (commercial disclosures allowed; related to public health safety)
- Int'l Dairy Food Ass'n v. Amestoy, 92 F.3d 67 (2d Cir. 1996) (non-deceptive disclosures evaluated for First Amendment impact)
- Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (establishes standards for preliminary injunctions)