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U n i t e d S t a t e s D i s t r i c t C o u r t

F o r t h e N o r t h e r n D i s t r i c t o f C a l i f o r n i a

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIACTIA – THE WIRELESS ASSOCIATION®,Plaintiff,v.THE CITY OF BERKELEY, CALIFORNIA,

et al.

,Defendants. ___________________________________/ No. C-15-2529 EMC

ORDER GRANTING IN PART ANDDENYING IN PART PLAINTIFF’SMOTION FOR PRELIMINARYINJUNCTION; AND GRANTING

NRDC’S MOTION FOR LEAVE TOFILE AMICUS BRIEF(Docket Nos. 4, 36)

As alleged in its complaint, Plaintiff CTIA – The Wireless Association (“CTIA”) is a not-for-profit corporation that “represents all sectors of the wireless industry, including but not limited to manufacturers of cell phones and accessories, providers of wireless services, and sellers of wireless services, handsets, and accessories.” Compl. ¶ 18. Included among CTIA’s members arecell phone retailers.

See

Compl. ¶ 19. CTIA has filed suit against the City of Berkeley and its CityManager in her official capacity (collectively “City” or “Berkeley”), challenging a City ordinancethat requires cell phone retailers to provide a certain notice regarding radiofrequency (“RF”) energyemitted by cell phones to any customer who buys or leases a cell phone. According to CTIA, theordinance is preempted by federal law and further violates the First Amendment. Currently pending before the Court is CTIA’s motion for a preliminary injunction in which it seeks to enjoinenforcement of the ordinance. Having considered the parties’ briefs and accompanying submissions,

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page1 of 35



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The National Resources Defense Council (“NRDC”) has filed a motion for leave to file anamicus brief in conjunction with the preliminary injunction proceedings. This motion is hereby

GRANTED

. CTIA has failed to show that it would be prejudiced by the Court’s consideration of the brief, particularly because CTIA had sufficient time to submit a proposed opposition to NRDC’s proposed amicus brief.2as well as the oral argument of counsel, the Court hereby

GRANTS

in part and

DENIES

in part themotion.

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I. FACTUAL & PROCEDURAL BACKGROUND

A.City OrdinanceRF energy is “‘a form of electromagnetic radiation that is emitted by cell phones.’”

In re Reassessment of FCC Radiofrequency Exposure Limits & Policies

, 28 F.C.C. Rcd. 3498, 3585 (Mar.29, 2013) [hereinafter “2013 FCC Reassessment”]. The City ordinance at issue concerns RF energyemitted by cell phones. The ordinance at issue is found in Chapter 9.96 of the Berkeley Municipal Code. It providesin relevant part as follows:A.A Cell phone retailer shall provide to each customer who buysor leases a Cell phone a notice containing the followinglanguage:The City of Berkeley requires that you be provided thefollowing notice:To assure safety, the Federal Government requires thatcell phones meet radio frequency (RF) exposureguidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ONand connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to theinstructions in your phone or user manual for information about how to use your phone safely.B.The notice required by this Section shall either be provided toeach customer who buys or leases a Cell phone or shall be prominently displayed at any point of sale where Cell phonesare purchased or leased. If provided to the customer, the noticeshall include the City’s logo, shall be printed on paper that isno less than 5 inches by 8 inches in size, and shall be printed inno smaller than a 18-point font. The paper on which the noticeis printed may contain other information in the discretion of theCell phone retailer, as long as that information is distinct fromthe notice language required by subdivision (A) of this Section. If prominently displayed at a point of sale, the notice shall




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SAR is “a measure of the amount of RF energy absorbed by the body from cell phones.”

CTIA – The Wireless Ass’n v. City & County of San Francisco

, 827 F. Supp. 2d 1054, 1056 (N.D.Cal. 2011) (Alsup, J.).

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See

47 C.F.R. § 2.1093 (setting RF energy exposure limits).3include the City’s logo, be printed on a poster no less than8-1/2 by 11 inches in size, and shall be printed in no small thana 28-point font. The City shall make its logo available to beincorporated in such notices.Berkeley Mun. Code § 9.96.030. The stated findings and purpose behind the notice requirement are as follows:A.Requirements for the testing of cell phones were established bythe federal government [

i.e.

, the Federal CommunicationsCommission (“FCC”)] in 1996.B. These requirements established “Specific Absorption Rates”(SAR[

2

]) for cell phones.[

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]C. The protocols for testing the SAR for cell phones carried on a person’s body assumed that they would be carried a smalldistance away from the body, e.g., in a holster or belt clip,which was the common practice at that time. Testing of cell phones under these protocols has generally been conducted based on an assumed separation of 10-15 millimeters.D. To protect the safety of their consumers, manufacturersrecommend that their cell phones be carried away from the body, or be used in conjunction with hands-free devices.E. Consumers are not generally aware of these safetyrecommendations.F. Currently, it is much more common for cell phones to becarried in pockets or other locations rather than holsters or beltclips, resulting in much smaller separation distances than thesafety recommendations specify.G. Some consumers may change their behavior to better protectthemselves and their children if they were aware of these safetyrecommendations.H. While the disclosures and warnings that accompany cell phones generally advise consumers not to wear them againsttheir bodies, e.g., in pockets, waistbands, etc., these disclosuresand warnings are often buried in fine print, are not written ineasily understood language, or are accessible only by lookingfor the information on the device itself.
