Ctia - the Wireless Ass'n v. City of Berkeley
854 F.3d 1105
| 9th Cir. | 2017Background
- Berkeley enacted an ordinance requiring cell-phone retailers to give a printed notice warning that carrying a phone in a pants/shirt pocket or tucked in a bra "may exceed" federal RF exposure guidelines and directing consumers to user manuals for safety instructions.
- The original ordinance included an additional sentence about greater risk to children; that sentence was struck as preempted and the ordinance was reenacted without it.
- The notice must be posted in large type or handed out; retailers may add other material provided the required text is distinct.
- CTIA (trade association for wireless industry) sued seeking a preliminary injunction, arguing the disclosure violates the First Amendment and is preempted by federal law.
- The district court denied the preliminary injunction; CTIA appealed. The Ninth Circuit panel affirmed, applying Zauderer-style review and rejecting conflict preemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Berkeley’s compelled retail notice violates the First Amendment | CTIA: notice is misleading/inflammatory and not purely factual; chills speech | Berkeley: notice conveys truthful, factual FCC-based safety information and directs to user manuals | Court: Unlikely to succeed — Zauderer applies; notice is purely factual and reasonably related to consumer safety interest |
| Proper constitutional test for compelled commercial disclosures (Central Hudson v. Zauderer) | CTIA: Zauderer shouldn't apply beyond preventing deception; Central Hudson stricter | Berkeley: Zauderer covers compelled factual disclosures that further substantial interests | Court: Zauderer applies to compelled factual commercial disclosures so long as they’re reasonably related to a substantial interest |
| Conflict preemption with federal telecom/FCC regime | CTIA: Berkeley’s notice conflicts with FCC/Telecom Act and intrudes on federal uniformity | Berkeley: ordinance complements FCC rules by summarizing FCC-required manual disclosures and directing consumers to manuals | Court: Unlikely to succeed — no obstacle; FCC requires manufacturers to disclose minimum separation distances in manuals, so Berkeley reinforces federal policy |
| Preliminary-injunction factors (irreparable harm, balance, public interest) | CTIA: First Amendment injury, economic harm, and burden on members justify injunction | Berkeley: public interest favors disclosure; CTIA offered no evidence of sales harm or coercive pressure | Held: CTIA failed to show irreparable harm or imbalance; public interest favors accurate information — injunction denial affirmed |
Key Cases Cited
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (establishes intermediate scrutiny for restrictions on commercial speech)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (permits compelled factual disclosures reasonably related to a substantial governmental interest)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (standards for preliminary injunction)
- Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (applies Zauderer to compelled disclosures)
- Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (First Amendment limits on compelled or misleading disclosures)
- American Meat Institute v. U.S. Dep’t of Agriculture, 760 F.3d 18 (Zauderer scope — compelled disclosures need not be limited to preventing deception)
- Farina v. Nokia Inc., 625 F.3d 97 (discusses FCC delegation and federal interest in uniform RF regulation)