Ctia - the Wireless Ass'n v. City of Berkeley
928 F.3d 832
| 9th Cir. | 2019Background
- In 2015 Berkeley enacted an ordinance requiring cell-phone retailers to give purchasers a printed notice summarizing FCC RF-exposure guidance and advising that carrying a phone in a pocket or bra "may exceed" federal guidelines; the notice must be prominent and may include retailer-added text distinct from the required language.
- CTIA (industry trade association) sued, seeking a preliminary injunction arguing the compelled disclosure violates the First Amendment and is preempted by federal law; earlier district court denied relief, this court affirmed, the Supreme Court vacated and remanded for NIFLA consideration, and the Ninth Circuit reconsidered after en banc American Beverage.
- FCC has long-established Specific Absorption Rate (SAR) limits for RF exposure, requires manufacturers to disclose minimum body-separation distances in user manuals, and states its limits include large safety margins (exceeding the SAR limit does not necessarily imply unsafe operation).
- Berkeley’s notice is a short summary of information the FCC requires in user manuals; Berkeley found consumers are generally unaware of the manual disclosures and sought to increase point-of-sale awareness.
- The Ninth Circuit majority applied Zauderer (compelled commercial disclosure) as refined by NIFLA and American Beverage, holding Berkeley’s notice is truthful, factual, uncontroversial, reasonably related to a substantial public-health interest, and not unduly burdensome; it also held no conflict preemption.
- A partial dissent argued the notice, read as a whole, misleadingly implies pocket-carrying is unsafe and therefore likely violates the First Amendment; the dissent would have enjoined enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) First Amendment standard (Central Hudson v. Zauderer) | CTIA: Zauderer shouldn't apply absent deception rationale; otherwise Central Hudson stricter review applies | Berkeley: Zauderer governs compelled commercial disclosures of factual safety information; public-health interest suffices | Zauderer applies to compelled factual, uncontroversial commercial disclosures furthering a substantial interest (per NIFLA and American Beverage) |
| 2) Whether the compelled text is "purely factual and uncontroversial" | CTIA: The notice is misleading/inflammatory ("radiation", implies danger) and therefore controversial | Berkeley: Text mirrors FCC terminology and user-manual disclosures; literal statements are true and noninflammatory | Court: Notice is factual, not misleading, relates to the product, and is uncontroversial under NIFLA |
| 3) Unduly burdensome / chilling | CTIA: Format and prominence could drown out retailers’ speech and chill expression | Berkeley: Notice is brief, can be supplemented by retailer text, minimal burden (poster or handout) | Court: Not unduly burdensome; retailers may add distinct information; differs from American Beverage’s heavier formatting requirement |
| 4) Federal preemption (conflict/obstacle) | CTIA: Berkeley’s ordinance conflicts with FCC authority and national uniformity, imposes different/extra requirements | Berkeley: Ordinance merely summarizes and reinforces FCC-mandated user-manual disclosures and advances same safety goals | Court: Low likelihood of success on preemption; FCC already requires manufacturer disclosures about separation distances, so Berkeley’s notice complements federal scheme |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (compelled commercial disclosures of purely factual, noncontroversial information may be subject to relaxed review)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (intermediate scrutiny for restrictions on commercial speech)
- Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (followed Zauderer on compelled disclosures)
- American Beverage Ass'n v. City & County of San Francisco, 916 F.3d 749 (9th Cir. en banc) (applied Zauderer framework to compelled warnings and clarified burdens)
- Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir.) (government may not compel false or misleading statements)