San Francisco Promises Appeal of Defeat at CTIA’s Hands on Cellphone-Radiation Disclosure
San Francisco’s city attorney said he will appeal a decision shredding an ordinance to require cellphone retailers to distribute city-written disclosures raising health questions about radiation from handsets and offering suggestions for minimizing exposure. Late last week, U.S. District Judge William Alsup threw out the ordinance as violating the First Amendment -- apart from a duty on merchants to give shoppers information sheets, which he required major changes in. He told the city to hold off on enforcement through Nov. 30, to give the sides time to file for appeals of his order granting CTIA a preliminary injunction. City Attorney Dennis Herrera said he'll ask the 9th U.S. Circuit Court of Appeals to reverse the parts of the ruling that went against the ordinance.
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The city’s Department of the Environment said it will be ready with revised information sheets for retailers to start distributing at the beginning of December. Department Director Melanie Nutter said: “Although we disagree with portions of Judge Alsup’s ruling today, we are pleased that the City will be able to provide consumers with information on cell phone safety.” She said the department “will work closely with local retailers to help them comply with the new requirements.”
Alsup is requiring in the information sheet, in his words, “a statement to the effect, ‘All cell phones sold in the United States must comply with RF safety limits set by the FCC’ or, if San Francisco would prefer, ‘Although all cell phones sold in the United States must comply with RF safety limits set by the FCC, no safety study has ever ruled out the possibility of human harm from RF exposure.'” RF is short for “radiofrequency emissions.” The judge said the sheet also would be unacceptable unless it adds, “RF Energy has been classified by the World Health Organization as a possible carcinogen rather than as a known carcinogen or a probable carcinogen and studies continue to assess the potential health effects of cell phones.” And silhouettes of the human body shown “with RF beaming into the head and hips … must be deleted” as “too much opinion and too little fact,” since they can easily be seen as indicating that cellphones are dangerous, Alsup said.
The judge told the sides to agree by Friday on new wording or file their own proposed versions of the sheets. CTIA said it’s considering whether to appeal Alsup’s permission for the city to require distribution of information sheets even with the change he specified. The association declined to comment on the ruling. The judge rejected CTIA’s contention that the ordinance was preempted by conflicting FCC action. He said the commission has never declared cellphones unquestionably safe as the association contended.
The use of acceptable information sheets would leave “no reasonable cause for requiring retailers to convert their walls to billboards for the municipal message,” through enforcement of a provision in the ordinance that they display posters provided by the city, Alsup said. City stickers to be attached to marketing displays for handsets are impermissible because constitutionally, “San Francisco cannot paste its municipal message over the message of the retailers,” he ruled.