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Apple wants the U.S. Supreme Court to stay out of a lawsuit that would decide if the Federal Communication Commission’s (FCC) cellphone radiation guidelines preempt state safety and health laws.

The plaintiffs in the lawsuit, Andrew Cohen et al. v. Apple Inc., allege that Apple’s iPhone emitted radiofrequency (RF) radiation that regularly exceeded the federal exposure limit and that Apple violated state health and safety law by failing to warn consumers about the health and safety risks of holding the device close to the body.

However, the U.S. Court of Appeals for the 9th Circuit on Aug. 26, 2022, ruled the plaintiffs’ claims were invalid because the FCC’s federal guidance “impliedly preempted” state health and safety law.

The plaintiffs responded with a Jan. 23, 2023, petition for a writ of certiorari — or “cert” request — asking the Supreme Court to hear the case.

According to the petition, the 9th Circuit made “inference upon inference” in its ruling and the Supreme Court has the opportunity to “set things right” by clarifying that unelected federal bureaucrats cannot override state health and safety law.

Children’s Health Defense (CHD) last month filed an amicus brief in support of the plaintiffs’ cert request.

An amicus brief is filed by non-parties to litigation to provide information that has bearing on the issues and to assist the court in reaching the correct decision. It comes from the Latin words amicus curiae, which means “friend of the court.”

Apple’s lawyers responded on April 14 by filing a brief in opposition to the plaintiffs’ petition, arguing the FCC rules preempt state health and safety laws.

In its brief, Apple made multiple references to CHD’s filing — prompting CHD’s lead litigator for electromagnetic radiation (EMR) cases to suggest that CHD had a “big impact” and “hurt” Apple’s argument.

“You don’t respond to amici unless they really hurt,” W. Scott McCollough told The Defender. McCollough is a former Texas assistant attorney general and telecom and administrative law attorney.

The plaintiffs have the right to reply to Apple’s brief of opposition. After that, the case will head to the Supreme Court.

Matthew Wessler, one of the case’s main litigators, told The Defender he anticipates the court to render its decision in May or early June.

CHD’s historic 2021 FCC case ‘hurt’ Apple’s legal arguments

CHD’s amicus brief pointed out CHD’s historic win against the FCC in which the U.S. Court of Appeals for the District of Columbia Circuit ruled the FCC failed to consider the non-cancer evidence of adverse health effects related to wireless technology when the agency in 2019 determined its 1996 health and safety guidelines regarding wireless-based technologies adequately protected public health.

According to McCollough’s analysis of Apple’s response, the company’s main argument was that the FCC’s 2019 decision that the current guidelines adequately protect public health represents a careful balancing of benefits and burdens.

Although the response was “well composed,” he said, “they could not get around the inconvenient fact that the U.S. Court of Appeals for the D.C. Circuit sided with CHD in 2021,” and ruled that the FCC had “failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer” and have “inadequately justified its refusal to modify its testing procedures for devices like Apple’s iPhone.”

“This destroys Apple’s main defense,” he said.

McCollough also noted that Apple admitted that the FCC “has not been consistent” when pressed legally to clarify whether the agency had actually ruled its guidelines preempt state and local law.

CHD’s amicus brief went into “excruciating detail” on this point by showing how the FCC in its official orders “expressly refused” to preempt state law over consumer devices on several occasions when members of the telecommunications industry asked the FCC to step in and eliminate people’s rights.

Apple’s response was that the agency claimed preemption through its lawyers in private lawsuits not involving the FCC.

“Only their [the FCC’s] lawyers in other cases and only through the equivalent of an amicus or a statement have they claimed preemption,” McCollough said.

According to administrative law, litigation statements by counsel are “trumped” by orders, he said, adding:

“The only way an agency is supposed to speak in a binding fashion is through an order. Strategic litigation statements and private actions — while useful for what they’re worth — don’t carry the same weight as a decision in an order.

“The only official FCC pronouncements on this topic say their emissions guidelines do not preempt state law, except in one specific context that does not apply to the case before the court.”

The FCC expressly preempted local zoning from regulating radiofrequency for personal wireless service — as in, the placement of cell towers — but that does not apply to end-user devices like cellphones, he said.

Apple issues ‘specific’ health warning for pacemakers but ignores other health risk issues

Apple recently put out an updated warning to wireless Apple device users who have pacemakers or other implanted medical devices saying they should keep the devices at least six inches away from their chests.

The new warning was an update to warnings the company issued in 2020 concerning products interfering with medical implants.

A few months later, researchers with the American Heart Association concluded that people with pacemakers or other implants “should not be near electronic devices that have magnets or produce electromagnetic waves because they can interfere with the cardiac device’s functions.”

Commenting on Apple’s updated warning about pacemakers, Wessler said, “I think that the risk here is that by having a very narrow warning that’s targeted to a very specific problem, you can lead users to think that there aren’t any other problems associated with the phones.”

“That’s at the heart of the litigation we’re involved in,” Wessler, counsel of record for the plaintiff’s request, said. “The plaintiffs’ claims are focused on Apple’s decision to market and represent its phones as safe for use when held close to the body for extended periods of time.”

“And there’s just no sound science to support that claim,” he added.

It’s a ‘dead zone’ when it comes to regulating cellphone safety

There is “no serious government oversight over the potential safety effects of these phones,” according to Wessler.

Manufacturers are left to “sort of self-regulate themselves and issue warnings when they think it’s justified — but they’re in almost total control over what they do and how they do it,” he said.

Most other consumer products are overseen by a regulatory agency that is charged with safeguarding people’s use of the products by making sure they are safe before hitting the market — but such oversight doesn’t exist for cellphones and other similar devices.

“That, in some sense, is the real problem,” Wessler said.

The federal agency ostensibly charged with regulating cellphone safety is the FCC — but it’s not a health and safety agency and has “completely disavowed any desire or ability to actually address health and safety issues related to cellphones,” he said.

Since some manufacturers misrepresent their products as having been proven safe, you have individuals themselves “trying to police what manufacturers are doing” by suing the company for violating the health and safety laws in their state.

But states can only assist people in this way if there isn’t a “doctrine of preemption” that “stands in their way and tries to shut it down — which is what has happened when it comes to the FCC and cellphones.”

The doctrine of FCC preemption over state and local law creates a “real dead zone,” Wessler said, adding:

“You have states being blocked from doing anything — either through their own regulations or through private enforcement.

“And then you have the manufacturers that aren’t incentivized or obligated to do anything because the [federal] agency hasn’t said that they have to — and they don’t have to worry about what states are going to do.”

McCollough agreed, adding that the situation was even more dire since the FCC rules’ — “outdated and inadequate as they are,” he said — are based on the agency’s concept of “an average man.”

“To the FCC, everybody is the average guy — and I mean it in a gender sense,” McCollough said. “They don’t recognize small children. They don’t recognize women who generally have smaller statures. They don’t recognize issues with regard to reproduction.”

The agency has no RF-specific emission rules for individuals with a pacemaker, or for children who have smaller heads and have been shown to be more vulnerable to RF radiation or for pregnant women.

McCollough said:

“You would think that the FDA [U.S. Food and Drug Administration] would have something to say on this subject because that’s directly in their remit.

“We have been arguing with the FDA for a very long time because they have regulatory jurisdiction over all electronic products and have the ability to issue standards for them, but have chosen to focus only on medical devices in that remit … and those rules, generally speaking, just restate the FCC rules.”

The FCC and FDA are aware of these holes in their guidelines, he said, and have “chosen to proceed” regardless.

By “purposefully blinding themselves,” the agencies are allowing “non-average” people to be “sacrificed in the name of wireless ubiquity,” he added.