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USA: Berkeley Cell Phone ''Right to Know'' Ordinance
Bron 1: www.saferemr.com/2014/11/berkeley-cell-phone-right-to-know.html
21 april 2017
To see media coverage about the Berkeley cell phone ''right to know'' ordinance
and the CTIA's lawsuit: bit.ly/berkeleymedia
Today the city of Berkeley won a major decision in a federal appeals court. The court denied a request by the CTIA-The Wireless Association to block Berkeley’s landmark cell phone “right to know” ordinance.
Berkeley’s ordinance which has been in effect since March 21 of last year requires cellphone retailers in the city to provide consumers with the following notification:
“To assure safety, the Federal Government requires that cell phones meet radiofrequency (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.”
The three judges who heard the case on September 13, 2016 for the Ninth Circuit Court of Appeals upheld the district court’s denial of the industry association’s request for a preliminary injunction. The panel determined that “there was no irreparable harm based on the First Amendment or preemption, that the balance of equities tipped in Berkeley’s favor, that the ordinance was in the public interest, and that an injunction would harm that interest.”
Although the federal appeals court hearing only addresses the industry's request for a preliminary injunction, the ruling bodes well for the City because the industry’s argument in the overall case for killing the ordinance is based upon the First Amendment and federal preemption. The court rejected those arguments stating that that the ordinance is in the public interest as it complements and reinforces existing Federal law and policy.
More information about the ordinance and the lawsuit appears below. For links to media coverage see: Berkeley Cell Phone ''Right to Know'' Ordinance: Media Coverage.
The ruling by the U.S. Court of Appeals for the Ninth Circuit can be downloaded from bit.ly/CTIABkly042117.
A summary of the ruling follows:
“The panel affirmed the district court’s order denying a request for a preliminary injunction seeking to stay enforcement of a City of Berkeley ordinance requiring 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 ….
… the panel held that the City’s compelled disclosure of commercial speech complied with the First Amendment because the information in the disclosure was reasonably related to a substantial governmental interest and was purely factual. Accordingly, the panel concluded that plaintiff had little likelihood of success on its First Amendment claim that the disclosure compelled by the Berkeley ordinance was unconstitutional.
The panel determined that there was little likelihood of success on plaintiff’s contention that the Berkeley ordinance was preempted. The panel held that Berkeley’s compelled disclosure did no more than alert consumers to the safety disclosures that the Federal Communication Commission requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. The panel held that far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.
In affirming the denial of a preliminary injunction, the panel further determined that there was no irreparable harm based on the First Amendment or preemption, that the balance of equities tipped in Berkeley’s favor, that the ordinance was in the public interest, and that an injunction would harm that interest.
Dissenting in part, Judge Friedland stated that Berkeley’s ordinance likely violates the First Amendment and therefore should have been preliminarily enjoined. She stated that taken as a whole, the most natural reading of the Berkeley disclosure warns that carrying a cell phone in one’s pocket is unsafe. Yet Berkeley had not attempted to argue, let alone to prove, that message was true.”
Zie de link bovenaan voor eerdere artikelen over dit onderwerp.
Bron 2: sanfrancisco.cbslocal.com/2017/10/11/appeals-court-wont-reconsider-challenge-to-berkeley-cellphone-warnings-law/
11 okt. 2017
Appeals Court Won’t Reconsider Challenge To Berkeley Cellphone Warnings Law
SAN FRANCISCO (CBS SF) — A federal appeals court in San Francisco Wednesday turned down an industry group’s bid for reconsideration of the group’s challenge to a Berkeley cellphone warning law.
The 9th U.S. Circuit Court of Appeals declined to grant a rare rehearing by an 11-judge panel on an appeal by a group known as CTIA-The Wireless Association.
In April, a three-judge panel of the appeals court by a 2-1 vote declined to block the law. The court majority said the warning was “purely factual” and “reasonably related to the health and safety of consumers.”
The city law, which took effect last year, requires retailers to warn cellphone customers that wearing their device next to the body could result in exposure to radiofrequency radiation exceeding federal guidelines.
The message adds, “Refer to the instructions in your phone or user manual for information about how to use your phone safely.”
Cellphone retailers must either post the message or give a paper copy to people who buy or lease phones.
After losing before the three-judge panel, the cellphone association appealed for a rehearing by an expanded panel, and was turned down Wednesday.
The Washington, D.C.-based association contends there is no evidence that cellphones are harmful. It claims the law violates the free speech rights of retailers by forcing them to provide a message they don’t agree with.
The appeal for reconsideration was submitted to the 29 active judges on the circuit court. The court never reveals the vote on such appeals, but its order today indicated that two judges favored rehearing the case.
Weer een nederlaag voor de telecom-industrie.
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