CTIA - The Wireless Association v. City of BerkeleyCTIA - The Wireless Association v. City of Berkeley
Case Information
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CTIA - THE WIRELESS ASSOCIATION, Case No. 15-cv-02529-EMC Plaintiff, ORDER GRANTING PLAINTIFF’S v. MOTION FOR JUDGMENT ON THE
PLEADINIGS CITY OF BERKELEY, et al., Docket No. 143 Defendants.
In 2015, the City of Berkeley passed an ordinance that “requires cell phone retailers to
inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause
them to exceed Federal Communications Commission guidelines for exposure to radio-frequency
radiation.”
CTIA – The Wireless Ass’n v. City of Berkeley
,
Currently pending before the Court is CTIA’s motion for judgment on the pleadings. CITA argues that, “in December 2019 [ i.e. , after the Ninth Circuit’s most recent affirmance], the Federal Communications Commission (‘FCC’) issued an Opinion and Order on radiofrequency (‘RF’) emissions that upends the landscape of this case in several important ways, fatally undermining the City’s arguments in defense of the Ordinance and the very basis on which the Ninth Circuit affirmed this Court’s decision.” Mot. at 1 (citing In re Proposed Changes in the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields , FCC 19-126 (Dec. 4, 2019)).
Having considered the parties’ briefs, the statement of interest submitted by the United States, and the oral argument of counsel, the Court hereby GRANTS CTIA’s motion. The Court concludes that Berkeley’s ordinance, as drafted, is preempted by the FCC’s regulatory actions. I. FACTUAL & PROCEDURAL BACKGROUND A. City Ordinance The City ordinance at issue provides in relevant part as follows: A Cell phone retailer shall provide to each customer who buys or leases a Cell phone a notice containing the following language: The City of Berkeley requires that you be provided the following notice: To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
Docket No. 59-2 (Berkeley Mun. Code § 9.96.030(A)).
As the Ninth Circuit noted,
[t]he ordinance requires that the compelled disclosure be provided
either on a prominently displayed poster no less than 8 1/2 by 11
inches with no smaller than 28-point font, or on a handout no less
than 5 by 8 inches with no smaller than 18-point font. . . . [A] cell
phone retailer may include additional information on the poster or
handout if it is clear that the additional information is not part of the
compelled disclosure.
CTIA
,
CTIA challenges the City ordinance on two grounds: (1) that it is compelled speech that violates the First Amendment and (2) that it is preempted “because it stands as an obstacle to the balance struck by the FCC on two federal policies: safeguarding against potential health risks from RF energy emitted from cell phones, on the one hand, and maintaining a robust and efficient, nationwide, wireless communication system (which itself carries significant benefits for consumers and public safety).” Compl. ¶ 139.
B. Preliminary Injunction Orders and Ninth Circuit Appeal
As noted above, CTIA moved this Court for a preliminary injunction. The Court held that
certain language in the ordinance (regarding risk to children) was likely preempted but otherwise
there did not appear to be any preemption concerns at the time. The Court further found that
CTIA was not likely to succeed on the merits of its First Amendment claim. The Court thus
enjoined the ordinance “unless and until the sentence in the City notice regarding children safety is
excised from the notice.”
CTIA – The Wireless Ass’n v. City of Berkeley
,
1. First Amendment
On the First Amendment claim, the Ninth Circuit held that
Zauderer v. Office of
Disciplinary Counsel
,
The Ninth Circuit held that CTIA was not likely to succeed on its First Amendment claim under Zauderer . First, there was a substantial governmental interest behind the compelled disclosure: “There is no question that protecting the health and safety of consumers is a substantial governmental interest,” and the City ordinance was designed to “further that interest.” Id. at 845.
Second, the Ninth Circuit held that the compelled disclosure required by the City’s ordinance was factual and uncontroversial. “The text of the compelled disclosure is literally true.” Id. at 847. And even though “a statement may be literally true but nonetheless misleading,” id. , the Ninth Circuit was not persuaded by CTIA’s contention that the ordinance was inflammatory and misleading. For example, the first sentence of the compelled disclosure “tells consumers that cell phones are required to meet federal ‘RF exposure guidelines’ in order ‘[t]o assure safety.’ Far from inflammatory, this statement is largely reassuring” because “[i]t assures consumers that the cell phones they are about to buy or lease meet federally imposed safety guidelines.” Id. The Ninth Circuit also took note that CTIA did not argue that the compelled disclosure was “controversial as a result of disagreement about whether radio-frequency radiation can be dangerous to cell phone users.” Id. at 848 (“We agree with CTIA’s tacit admission that the required disclosure is not controversial on that account.”). The court went on to explain that, in fact, the ordinance was not controversial because [i]t does not force cell phone retailers to take sides in a heated political controversy. The FCC’s required disclosure is no more and no less than a safety warning, and Berkeley’s required disclosure is
a short-hand description of the warning the FCC already requires cell phone manufacturers to include in their user manuals. Id.
Finally, the Ninth Circuit found that, even though, under Zauderer , unduly burdensome compelled disclosure would not be permitted, CTIA had not shown such a burden in the instant case.
[T]he ordinance may be satisfied by a single 8.5 x 11” posted notice of 5 x 8” handout to which the retailer may add additional information so long as that information is distinct from the compelled disclosure. This minimal requirement does not interfere with advertising or threaten to drown out messaging by the cell phone retailers subject to the requirement. at 849.
2. Preemption
On the preemption claim, the Ninth Circuit began its analysis by noting that conflict preemption was at issue. “‘Conflict preemption is implicit preemption of state law that occurs where there is an actual conflict between state and federal law.’” Id. at 849. “Conflict preemption arises either when ‘compliance with both federal and state regulations is a physical impossibility . . . or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Id. Here, CTIA was arguing that “Berkeley’s compelled disclosure . . . requir[es] more disclosure than is required by the FCC,” and thus, obstacle preemption was the focus. Id.
Whether there was preemption turned on the intent of Congress. See id. at 850 (stating that “[p]reemption analysis start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress”) (internal quotation marks omitted). With respect to the Telecommunications Act of 1996 (the “FCC’s organic statute”), Congress desired “uniform consistent requirements, with adequate safeguards of public health and safety” in nationwide telecom services. The Act delegated to the FCC the authority “to ‘make effective rules regarding the environmental effects of [RF] emissions.’” Specifically, “the FCC was tasked not only with protecting the health and safety of the public, but also with ensuring the rapid development of an efficient and uniform network.” Id. at 850.
CTIA argued that the City ordinance was preempted because “the FCC does not compel cell phone manufacturers to provide information to consumers about SAR limits on RF radiation exposure,” id. , but the Ninth Circuit was not persuaded. The court noted that, “[b]eginning in October 2015, the FCC required cell phone manufacturers to inform consumers of minimum separation distances in user manuals.” at 850 (citing In re Exposure Procedures and Equipment Authorization Policies for Mobile and Portable Devices, FCC Office of Engineering and Technology Laboratory Division § 4.2.2(d) at 11 (Oct. 23, 2015)). Because of the FCC’s requirement, the court found the preemption argument untenable:
Berkeley’s compelled disclosure does no more than alert consumers to the safety disclosures that the FCC requires, and directs consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.
Id. at 851. Accordingly, the ordinance did not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress as implemented by the FCC.
C. FCC Orders
In December 2019, several months after the Ninth Circuit issued its decision, the FCC
issued an order that CTIA now argues impacts the merits of this case. That order shall hereinafter
be referred to as the 2019 RF Order.
See
2019 RF Order,
To understand the 2019 RF Order, however, the Court must first consider the background to that order – in particular, the 2013 RF Order that preceded it. See 2013 RF Order, 28 F.C.C.R. 3498 (adopted on March 27, 2013, and released on March 29, 2013), available at 2013 WL 1304134. 1. 2013 RF Order The 2013 RF Order had three parts: (1) a Report and Order ( i.e. , Order), (2) a Further Notice of Proposed Rulemaking ( i.e. , Further Notice), and (3) a Notice of Inquiry ( i.e. , Inquiry). The Inquiry is what is relevant to the instant case.
The main point of the Inquiry was to “determine whether there is a need for reassessment of the Commission radiofrequency (RF) exposure limits and policies.” at 3501 (¶ 5) (noting that the last time RF exposure limits had been considered was in 1996). However, the Inquiry also covered related topics, such as asking for comment on what information should be provided to the public about RF exposure and safety. See, e.g. , id. at 3502 (¶ 7) (asking “whether the Commission should consistently require either disclosure of the maximum SAR value or other more reliable exposure data in a standard format – perhaps in manuals, at point-of-sale, or on a website”); id. at 3581 (¶ 231) (noting that information is provided to the public through Bulletins and the FCC website; asking for “comment on what additional information should be provided to consumers and in what format to assist in making decisions about reducing exposure”); id. at 3582 (¶ 235) (“request[ing] comment in general on the information discussed that would be most useful to provide precautionary guidance to consumers”).
2. 2019 RF Order
Six years after the 2013 RF Order, the FCC issued the 2019 RF Order. Among other
things, the 2019 RF Order “resolv[ed] [the 2013 Inquiry above] that sought public input on,
among other issues, whether the Commission should amend its existing RF emission exposure
limits.” 2019 RF Order,
no appropriate basis for and thus decline to propose amendments to our existing limits at this time. We take to heart the findings of the Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that “[t]he weight of scientific evidence has not linked cell phones with any health problems.” Despite requests from some to increase and others to decrease the existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established international standards. Id. at *2 (¶ 2). The FCC further found that, “even if certified or otherwise authorized devices produce RF exposure levels in excess of Commission limits under normal use, such exposure would still be well below levels considered to be dangerous, and therefore phones legally sold in the United States pose no health risks.” at *6 (¶ 14); see also id. at *4 (¶ 10) (“[N]o expert health agency expressed concern about the Commission’s RF exposure limits. Rather, agencies’ public statements continue to support the current limits.”); id. at *4 (¶ 11) (“[T]he FDA maintains that ‘[t]he weight of scientific evidence has not linked cell phones with any health problems’ and that ‘the current safety limits for cell phones are acceptable for protecting the public health.’”); id. at *5 (¶ 12) (“[A]s noted by the FDA, there is no evidence to support that adverse health effects in humans are caused by exposures at, under, or even in some cases above, the current RF limits. Indeed, no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses.”).
As for the issue of what information should be provided to the public, the FCC noted that it was
continu[ing] to ensure that relevant information is available to the public. First, the Commission maintains several webpages that provide information about RF exposure to the public. These range from general RF exposure information to information on specific topics, including wireless devices and health concerns. Second, guidance from the FCC Laboratory continue recommending that device manuals include operating instructions and advisory statements for RF exposure compliance. This information allows users to make informed decisions on the type of body-worn accessories and operating configurations that are appropriate for their usage. Third, we make available information on the characterization of typical RF exposure levels emitted from base stations. Relatedly, we note that the World Health Organization (WHO) states that “[f]rom all evidence accumulated so far, no adverse short-or long-term health effects have been shown to occur from the RF signals produced by base stations.” WHO goes on to say that the erroneous public perception of a possible risk from such exposure may, even while unsupported by evidence, still contribute to a feeling of uncertainty or a lack of control. That is why the context and placement of RF exposure information is so important. Given the federal safety determination, the information on the FCC’s websites and in device manuals are both adequate to inform consumers of these issues and do not risk contributing to an at *8 (¶ 16) (emphasis added). [1] e.g. disclosures ( additional disclosures to the public; however, it did not comment explicitly on whether additional require In short, the FCC determined that it would not permitted , if imposed by local government) would be . On the other hand, the FCC did take note of the countervailing concern of “overwarning” consumers. D. FCC Statement of Interest evaluate public information materials and update as appropriate. The FCC will continue to FCC certified or authorized devices. of RF emissions from erroneous public perception or overwarning Although, in the 2019 RF Order, the FCC did not address whether additional disclosures required by local government would be permitted, the FCC made an appearance in the instant case to explicitly tender an opinion (more specifically, a Statement of Interest) on whether the Berkeley ordinance at issue here should be allowed. The agency took the express position that the ordinance should not be allowed to require the warnings therein. [2]
According to the FCC, the Berkeley ordinance is subject to preemption because it “conflicts with or undermines [a] policy judgment made” by the agency. FCC St. at 12. “The FCC has acted ‘to ensure that relevant information’ about RF emissions from cell phones ‘is made available to the public” – in particular, on FCC webpages and in cell phone user manuals FCC St. at 12.
In December 2019, the FCC concluded that the information about RF exposure on its website and in cell phone user manuals was “adequate to inform consumers” of potential health risks associated with RF emissions from FCC-certified cell phones. 2019 RF Order ¶ 16. Explaining that “the context and placement of RF exposure information is so important,” the Commission found that any additional warnings about RF exposure could create “an erroneous public perception or overwarning of RF emissions from FCC certified or authorized devices” and “contribute to a feeling of uncertainty or a lack of control” among consumers. Ibid. These findings reflect “the FCC’s considered policy judgment regarding how best and in what form to disseminate relevant information about RF exposure to the public.” FCC Statement of Interest, Cohen v. Apple , Attachment at 19. The Berkeley ordinance conflicts with that policy judgment and therefore is preempted. Given the FCC’s calibrated regime regarding RF disclosures and its determination that existing RF exposure information provided on the FCC’s website and in cell phone user manuals is adequate to inform consumers without prompting unwarranted fears about RF emissions, the Berkeley ordinance is not only unnecessary but likely detrimental to the public. On its face, the notice mandated by Berkeley goes beyond what the FCC provides on its website and requires in user manuals, and therefore has the potential to “overwarn” consumers, creating the false impression that FCC-certified cell phones are unsafe when carried against the body. FCC St. at 11-12.
The FCC further asserted that the Berkeley ordinance is preempted because the agency has determined that “certified cell phones ‘pose no health risks’” but the ordinance suggests that “certified cell phones could emit unsafe levels of RF energy when carried against the body.” FCC St. at 13.
the agency). The Court does not agree. It is true that Mr. Johnson authored the letter that effectively constitutes the Statement of Interest. However, in the letter, Mr. Johnson specifically states that “[t]he Commission respectfully requests that the Department of Justice file a Statement of Interest in this case attaching the letter.” Docket No. 148-1 (Letter at 1) (emphasis added). There is nothing to indicate that Mr. Johnson’s representation was not accurate and authorized by the Commission.
II. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 12(c) governs motions for judgment on the pleadings. Under the rule, “[a]fter the pleadings are closed – but early enough not to delay trial – a party may” make such a motion. Fed. R. Civ. P. 12(c). In evaluating a motion for judgment on the pleadings, a court
must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.
Fleming v. Pickard
,
CTIA asserts that the Berkeley ordinance is preempted for the same two reasons articulated by the FCC in its Statement of Interest: (1) “the [Berkeley] ordinance conflicts with the FCC’s determination that RF emissions from FCC-certified cell phones pose no health risks” and (2) “[t]he Berkeley ordinance conflicts with the FCC’s judgment concerning how best and in what form to provide information about RF exposure to the public.” FCC St. at 14. For purposes of this opinion, the Court need only address the second preemption argument. CTIA’s second preemption argument is predicated on statements made by the FCC in (1) its 2019 RF and (2) its Statement of Interest submitted in conjunction with this litigation.
As a preliminary matter, the Court notes that this particular preemption argument was not addressed by the Ninth Circuit in its prior order – nor could it have been given that the 2019 RF Order and Statement of Interest both post-date the Ninth Circuit’s decision. CTIA’s preemption argument, however, is similar to its prior preemption argument in that it again relies on conflict preemption.
In its opposition brief, the City seems to argue (for the first time) that there can be no conflict preemption because there is a provision in the Telecommunications Act of 1996 (“TCA”) suggesting that preemption must be express and not implied. See Opp’n at 22-23. That provision states as follows: “NO IMPLIED EFFECT. – This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or amendments.” 110 Stat. 56, 143 (§ 601(c)(1)).
The City’s argument, however, is not persuasive for the reasons articulated by the Third
Circuit in
Farina v. Nokia, Inc.
,
Under a conflict preemption analysis, the Court begins with the “‘presumption that Congress did not intend to displace state law,’” particularly “in fields within the police power of the state.” at 116. Here, CTIA suggests that the police power of the City is not implicated because, at the hearing, Berkeley argued that the “Ordinance is designed to reassure skeptical consumers about the safety of a product that poses no health risks. That interest – if it is a legitimate interest at all – is not a traditional health and safety interest within the historic police powers of the States.” Docket No. 156 (Pl.’s Supp. Br. at 5). This argument is not entirely lacking in merit. Notably, at the hearing, the City conceded that FCC-certified cell phones are safe. Nonetheless, the Court assumes for purposes of this opinion that the presumption against preemption is still significant here – both because health and safety are still involved inasmuch as consumer perception and conduct may be affected. See Opp’n at 4 (arguing that “the notice is designed to inform consumers about how they can use their cell phones without exceeding federal RF exposure limits – if they so choose”). [3] Also, a presumption against preemption is not unreasonable given the TCA savings clause referenced above. See 110 Stat. 56, 143 (§ 601(c)(1)) (“This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or amendments.” 110 Stat. 56, 143 (§ 601(c)(1)). instant case. As the Third Circuit noted in Farina , “[t]he Supreme Court’s preemption case law That being said, the presumption against preemption is not the only guiding principle in the indicates that regulatory situations in which an agency is required to strike a balance between competing statutory objectives lend themselves to a finding of conflict preemption.” Farina , 625 F.3d at 123.
The reason why state law conflicts with federal law in these balancing situations is plain. When Congress charges an agency with balancing competing objectives, it intends the agency to use its reasoned judgment to weigh the relevant considerations and determine how best to prioritize between these objectives. Allowing state law to impose a different standard permits a re-balancing of those considerations. A state-law standard that is more protective of one objective may result in a standard that is less protective of others.
Id. (emphasis added).
In the instant case, there is no dispute that the FCC has been tasked with accommodating
competing objectives. Under the Federal Communications Act (“FCA”), “the FCC was tasked not
only with protecting the health and safety of the public, but also with ensuring the rapid
development of an efficient and uniform [telecommunications] network, one that provides
effective and widely accessible service at a reasonable cost.”
[4]
at 125. Similarly, under the
TCA (which amended the FCA), the FCC was again “tasked not only with protecting health and
safety of the public, but also with ensuring rapid development of an efficient and uniform
network.”
[5]
CTIA
,
The Court begins with the 2019 RF Order. As noted above, in the 2019 RF Order, the FCC stated that it was
continu[ing] to ensure that relevant information is available to the
public. First, the Commission maintains several webpages that
provide information about RF exposure to the public. These range
from general RF exposure information to information on specific
topics, including wireless devices and health concerns. Second,
guidance from the FCC Laboratory continue recommending that
device manuals include operating instructions and advisory
statements for RF exposure compliance. This information allows
users to make informed decisions on the type of body-worn
accessories and operating configurations that are appropriate for
their usage. Third, we make available information on the
characterization of typical RF exposure levels emitted from base
stations. Relatedly, we note that the World Health Organization
(WHO) states that “[f]rom all evidence accumulated so far, no
adverse short-or long-term health effects have been shown to occur
from the RF signals produced by base stations.” WHO goes on to
say that the erroneous public perception of a possible risk from such
exposure may, even while unsupported by evidence, still contribute
to a feeling of uncertainty or a lack of control. That is why the
context and placement of RF exposure information is so important. Given the federal safety determination, the information on the
FCC’s websites and in device manuals are both adequate to inform
consumers of these issues and do not risk contributing to an
erroneous public perception or overwarning of RF emissions from
FCC certified or authorized devices. The FCC will continue to
evaluate public information materials and update as appropriate.
2019 RF Order,
But assuming that the passage above from the 2019 RF Order were entitled to
Skidmore
deference only,
see Skidmore
,
///
///
///
///
III. CONCLUSION For the foregoing reasons, the Court grants CTIA’s motion for judgment on the pleadings.
The Court holds, in view of the 2019 RF Order and FCC Statement of Interest, that the Berkeley ordinance as drafted is preempted. [11] Because the Court finds preemption, it need not address CTIA’s argument that the ordinance also violates the First Amendment.
The Clerk of the Court is instructed to enter a final judgment in accordance with this order and close the file in this case.
This order disposes of Docket No. 143.
IT IS SO ORDERED .
Dated: September 17, 2020 ______________________________________ EDWARD M. CHEN United States District Judge
Notes
[1] The City focuses on the sentence “That is why the context and placement of RF exposure 25 information is so important” – arguing that this sentence applies to RF exposure from base stations, not cell phones. See City Resp. to FCC St. at 5. While that may be true, the sentence that 26 follows applies more broadly not just to RF exposure from base stations but also RF exposure from cell phones. This is clear from the reference to “device manuals.” 27
[2] The City contends that the Statement of Interest simply represents the views of the FCC’s 28 General Counsel, and not the views of the FCC itself ( i.e. , those of the Commissioners who direct
[3] See also Docket No. 33 (Opp’n at 9-10) (arguing that the purpose of the ordinance “is to assure that ‘consumers have the information they need to make their own choices about the extent and nature of their exposure to radio frequency radiation’”).
[4] See, e.g. , 47 U.S.C. § 151 (indicating the goal of “mak[ing] available . . . a rapid, efficient, nationwide, and world-wide wire and radio communication service”; id. § 157 (stating that “[i]t shall be the policy of the United States to encourage the provision of new technologies and services to the public”); id. § 332 (providing that, with respect to private mobile services, the FCC shall consider whether its actions “promote the safety of life and property” and “provide services to the largest feasible number of users”).
[5]
See, e.g.
, 110 Stat. 56 (1996) (indicating that one purpose for the TCA is to “encourage the rapid
27
deployment of new telecommunications technologies”);
see also Reno v. ACLU
,
[6]
See Chevron U.S.A. Inc. v. Natural Resources Defense Council
,
[7]
See Skidmore v. Swift & Co.
,
[8] In its papers, the City has argued that, if the 2019 RF Order was intended to preempt local 21 regulation, then the FCC should have had to comply with the notice-and-comment procedures provided for in 47 U.S.C. § 253(d). The Court need not address this argument because, as 22 discussed above, it has concluded that the 2019 RF Order does not address whether and what kind of additional disclosures, if imposed by a local government, are permitted. (The City did not 23 argue that the Section 253(d) notice and comment procedure should have applied to the FCC’s filing of the Statement of Interest discussed below. Had Berkeley so argued, it is notable that the 24 ability to obtain such notice and comment in the midst of litigation would seem highly problematic, and it may be contended that Berkeley’s ability to respond to and oppose the 25 Statement is functionally similar to a notice and comment process.) The Court also notes that the lack of a notice-and-comment process is a factor that informs the degree of deference to the FCC’s 26 order under Skidmore . As noted herein, the degree of deference afforded in this case is modest. 27
[9] The FCC goes further, of course, to say that the Berkeley ordinance is preempted by federal law.
See
FCC St. at 14. But the Court affords no deference to an agency’s legal conclusion of
28
preemption.
See Farina
,
[10] This is so even if the ordinance for First Amendment purposes concerns a purely factual and
25
uncontroversial matter under
Zauderer
, a matter determined by the Court and not the FCC. The
Court acknowledges that the agency did not offer, in the context of the First Amendment analysis,
26
any specific evidence “showing how Berkeley consumers have understood the compelled
disclosure, or evidence showing that sales of cell phones in Berkeley were, or are likely to be,
27
depressed as a result.”
CTIA
,
[11] The Court does not opine whether an ordinance stripped of any implication about public safety 28 would be preempted.