CTIA - The Wireless Association v. City of Berkeley, 487 F.Supp.3d 821

In 2015 Berkeley adopted an ordinance requiring cell‑phone retailers to give customers a printed notice warning that carrying a phone in a pocket or bra while the phone is on "may exceed" federal RF exposure guidelines and directing consumers to the phone manual.
CTIA sued, arguing the ordinance violated the First Amendment (compelled commercial speech) and was preempted by federal law; the district court initially enjoined a portion of the notice, the city revised the ordinance, and the injunction was dissolved.
The Ninth Circuit upheld the ordinance, applying Zauderer for compelled disclosures and rejecting CTIA’s earlier preemption claim because the FCC already required certain manual disclosures.
After the Ninth Circuit decision, the FCC issued a 2019 RF Order declining to change RF limits and stating that FCC website content and device manuals provide adequate public information and that additional warnings risk "overwarning."
The FCC also filed a Statement of Interest in this litigation asserting the Berkeley notice conflicts with the FCC’s policy judgment and thus is preempted.
The district court granted CTIA’s Rule 12(c) motion, holding that, in light of the 2019 RF Order and the FCC Statement of Interest, the Berkeley ordinance as drafted is preempted and entering final judgment for CTIA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Conflict preemption: Does Berkeley’s notice stand as an obstacle to FCC’s regulatory objectives?	FCC’s 2019 Order and Statement show the FCC balanced dissemination and growth objectives; Berkeley’s notice upsets that balance and risks overwarning, so it is preempted.	Berkeley: ordinance complements FCC safety goals; TCA’s savings clause bars implied preemption; FCC materials are policy not a bar to local disclosures.	Court: Ordinance preempted—FCC’s considered balancing (and Statement) persuasive that the specific Berkeley disclosure would "overwarn" and impede federal objectives.
First Amendment (compelled commercial speech under Zauderer): Is the compelled notice permissible?	CTIA argued compelled disclosure is misleading/controversial and may be unduly burdensome.	Berkeley: disclosure is factual, uncontroversial, minimal burden, and aligned with Zauderer.	Court did not decide on the First Amendment because it resolved the case on preemption.
Deference to FCC pronouncements (Auer/Skidmore): What weight to afford FCC Order and Statement?	CTIA: FCC views merit deference (Auer) or at least Skidmore persuasive weight.	Berkeley: FCC statements are policy/unenacted and not controlling; limited deference warranted.	Court: Applied modest Skidmore deference to the 2019 RF Order and the Statement of Interest and found them persuasive enough to support preemption.

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (standard allowing compelled disclosures of factual, noncontroversial commercial information).
Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech).
CTIA — The Wireless Ass'n v. City of Berkeley, 928 F.3d 832 (9th Cir. 2019) (Ninth Circuit decision upholding Berkeley ordinance under Zauderer and rejecting prior preemption argument).
Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010) (agency balancing of competing objectives supports conflict preemption in regulatory contexts).
Wyeth v. Levine, 555 U.S. 555 (2009) (agency views get some weight on preemption but do not automatically preempt state law).
Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency’s interpretation of its own regulation).
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations entitled to weight proportional to their persuasiveness).