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    1308: Cell Phone Liability Lawsuits Pre-empted by FCC

    From Magda Havas:

    Cell Phone Liability Lawsuits Pre-empted by FCC, 3rd Circuit Rules
    Suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations

    Shannon P. Duffy

    The Legal Intelligencer
    http://www.law.com/jsp/article.jsp?id=1202473833523&Cell_Phone_Liability
    _Lawsuits_Preempted_by_FCC_rd_Circuit_Rules

    October 25, 2010

    The recurring question of whether cell phones pose health hazards must be sorted out by the Federal Communications Commission and not through products liability suits in court because Congress has designed a regulatory scheme that gives the FCC exclusive power to regulate all aspects of the cell phone industry.

    That’s the central holding in a decision handed down Friday by the 3rd U.S. Circuit Court of Appeals in Farina v. Nokia.

    The ruling is a major victory for cell phone manufacturers and service providers, and holds that consumers cannot be allowed to sue over possible biological hazards allegedly caused by cell phone radio emissions because such suits would interfere with the FCC’s exclusive power to regulate the industry.

    U.S. Circuit Judge Anthony J. Scirica found that allowing a suit over the alleged hazards of the radio frequency, or RF, emissions of cell phones would effectively “permit juries to second-guess the FCC’s balance of its competing objectives.”

    The FCC, Scirica said, “is in a better position to monitor and assess the science behind RF radiation than juries in individual cases.” The opinion was joined by 3rd Circuit Judge Thomas L. Ambro and visiting 9th Circuit Senior Judge Arthur Alarcon.

    Plaintiffs lawyers argued that their claims should be permitted because they weren’t seeking any changes to RF emission standards. Instead, they said, the proposed class of Pennsylvania consumers was demanding only that manufacturers and sellers be ordered to provide a headset with every phone as a safety device.

    Lead plaintiffs attorney Kenneth Jacobsen argued that the expert evidence showed that RF emissions cause biological hazards only when a cell phone is in close proximity to human tissue, and that headsets could eliminate much of that alleged hazard.

    But the 3rd Circuit concluded that the case must still be pre-empted.

    “Although [plaintiff Francis J.] Farina attempts to characterize his suit as setting a headset requirement, this misapprehends the effect a finding of liability would have in this kind of suit,” Scirica wrote.

    When a jury reaches a verdict, Scirica said, its decision “is not to prescribe a specific prospective remedy.” Instead, Scirica said, the verdict would say only whether cell phones are safe or unsafe, and it would be left to the manufacturers and sellers to decide how to ensure safety in the cell phones sold in the future.

    “Whether they complied by reducing RF emissions or by bundling headsets with phones — or by some other means — would be irrelevant for the purposes of the new state-law standard,” Scirica found.

    Scirica found that the complicated task of regulating radio emissions must be left to the FCC — and not to juries.

    “Regulatory assessments and rulemaking call upon a myriad of empirical and scientific data and medical and scientific opinion, especially in a case, such as RF radiation, where the science remains inconclusive,” Scirica wrote.

    But Scirica noted that while the ruling would leave the plaintiff class with no access to the courts, they would not be without options.

    “Though we foreclose relief for the members of this putative class, this does not render them devoid of protection. The FCC has pledged to serve an ongoing role in the regulation of RF radiation and to monitor the science in order to ensure its regulations remain adequate to protect the public,” Scirica wrote.

    The 3rd Circuit’s ruling upholds a September 2008 decision by U.S. District Judge John R. Padova that said the suit was pre-empted because its allegations “unquestionably trample upon the FCC’s authority to determine the maximum standard for RF emissions.”

    The suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations: Nokia Inc.; Ericsson Wireless Communications Inc.; Motorola Inc.; Sprint PCS; Audiovox Communications Corp.; Nextel Communications; Panasonic Corp.; Philips Electronics North America Corp.; Qualcomm Inc.; Sanyo North America; Sony Electronics Inc.; AT&T Wireless Services Inc.; Verizon Wireless; Southwestern Bell Mobile Systems Inc.; Cellular One; VoiceStream Wireless; LG Electronics Mobilecomm Inc.; Cellular Telecommunication Industry Association; and Telecommunications Industry Association.

    On appeal, attorney David C. Frederick of Kellogg Huber Hansen Todd Evans & Figel in Washington, D.C., argued for all of the cell phone manufacturers and providers and insisted that Padova was correct in holding that the suit was pre-empted because radio frequencies are “an instrumentality of interstate commerce” that simply “cannot be defined by state borders.”

    If Jacobsen’s argument were accepted, Frederick said, the Pennsylvania plaintiffs would be asking a jury to declare that cell phones suffer from a defect that renders them “unreasonably dangerous.”

    Such a proceeding, Frederick argued, would put the courts on a “collision course” with the FCC’s carefully balanced regulatory scheme.

    Now the 3rd Circuit has adopted that argument, finding that the FCC’s jurisdiction extends to wireless telephone service, and that the agency’s authority over the technical aspects of radio communications is “exclusive.”

    Scirica found that the FCC was charged with fostering the development of an efficient wireless network, and that “an essential characteristic of an efficient network is nationwide accessibility and compatibility.”

    In carrying out that mission, Scirica noted, the FCC “has long asserted that uniformity in the technical standards governing wireless services is necessary to ensure an efficient nationwide system.”

    Scirica also found that Congress didn’t hesitate in granting exclusive power to the FCC in the area of the wireless infrastructure — effectively pushing aside states and municipalities so that a uniform set of federal regulations would govern.

    Likewise, Scirica said, Congress clearly intended that the FCC have exclusive power to regulate the phones themselves.

    “Cell phones are as integral to the wireless network as the infrastructure, and regulations of phones can have similar effects on the effectiveness of wireless service as regulations of the infrastructure,” Scirica wrote.

    “We think Congress would be equally concerned with state regulations of cell phones that could impose similar limitations on the range and efficiency of the wireless network.”

    Jacobsen could not be reached immediately for comment on the ruling.

    Frederick said he was “gratified by the court’s very comprehensive treatment of the issues.”

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