LESSIG Blog, v2

Just back from the oral argument in CTIA v. Berkeley — the case I’ve been working on representing the City of Berkeley. As this case always excites frustration and anger in certain corners of then net — because it said to be (1) against science and (2) against the First Amendment — in the spirit of the First Amendment, I offer some reflections on why it is neither. 

The panel (Judges Fletcher, Christen, and Friedland) was incredibly well prepared. They seemed puzzled, however, by our decision not to litigate the case (or the ordinance) on the science. Judge Fletcher opened the argument by referencing recent studies by the NTP that find a non-thermal health effect from non-ionizing radiation. Didn’t that show, his questions pressed, that there really was a safety issue here?

(BTW: this is the ordinance: The City of Berkeley requires that you be provided the following notice: To assure safety, the Federal Government requires that cell phones meet radio frequency (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.)

But that question really draws into focus what (at least I believe) this case is really about. Because we did not rest the regulation on that contentious and costly-to-fight question. We rested the regulation on the FCC’s own mandates. (The FCC limits the RF energy from cell phones. It requires manufacturers to inform consumers about how to use a cell phone so as to avoid exceeding those RF energy levels. Berkeley discovered its residents had no knowledge of those limits, or how to use their phone consistent with those limits. Its ordinance aims at informing them in just the way cell phone manuals are intended to inform.)

The reason we did this was to focus on the real dynamic at play here — the effort by corporations to use the First Amendment to block the ability of localities to regulate. It should be enough for a local jurisdiction to say “for the same reasons as the FCC” for it to have the right to require disclosures of factual information related to that regulation. Put another way: If a locality would have to engage in an expensive enterprise of proof to defend disclosure laws, it could not afford to regulate. 

And that’s precisely the purpose of lawsuits like CTIA’s: to raise the cost of regulating, so localities stop regulating. Even with free legal support, a city like Berkeley faces significant exposure from a lawsuit like this. If we lose, CTIA can ask the court to award CTIA costs and legal fees. Those costs would be extraordinary for a city of 113k to bear. So the risk that they’d bear them would lead most to avoid the regulation. 

This is why we’ve said that this is the ghost of Lochner here in the guise of the First Amendment. As Justice Rehnquist (when he was not the Chief Justice) wrote in dissent in Central Hudson. The danger is: 

the Court in so doing returns to the bygone era of Lochner … in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies.

And if every time a jurisdiction wanted to mandate a safety warning, it faced the risk of this sort of lawsuit, that would be a pretty effective way to block economic regulations that at least some corporations are opposed to. Not a heckler’s veto, but a multi-national corporate veto on the ability of localities to regulate. 

This would be a huge change in the law. The standard that has governed for more that 30 years has secured to governments the right to require commercial actors to disclose facts — without suffering the burden of “heightened First Amendment review.” 

So not in any real order, thoughts and reactions from the argument: 

• It seemed clear the Court was not inclined to follow the truly radical path sketched by CTIA — to declare that such disclosures must be tested under heightened scrutiny. CTIA has tried to push this line; the judges seemed pretty clear that the case would be decided under Zauderer — which has been interpreted to apply a rational basis analysis to mandatory disclosures. This was good news. 
  
• But it also seemed clear that the court was concerned that the ordinance was misleading. The judges didn’t seem to believe it was false. They did seem concerned that it created a misimpression — that cell phones were not safe if carried against the body. And at least some seemed to suggest that that misimpression was a reason to find the ordinance was not “factual.”
  
• It was clear that at least part of that impression that the ordinance created a misimpression was generated by CTIA’s reply brief. That brief had stated that the FCC has found that cell phones are safe “no matter how carried” or “regardless of how it is held.” But the FCC has plainly not made those findings — at least at the places CTIA had cited. CTIA had cited the FCC’s website and ¶251 of the Reassessment. The website makes no such claim, and while ¶251 is quite sanguine about any potential risk from cell phones, ¶252 explicitly asks for comment about whether “the potential number of occurrences resulting from inattention to manual instruction and the extent of resulting exposure constitute a health hazard?” If the FCC had concluded there could be no “health hazard” it would not be asking for information about whether there was a “health hazard.” 
  
• Still, at least one judge on the panel seemed convinced the ordinance was creating the impression that cell phones are unsafe if held against the body, and that that view was false. (Where she drew that factual conclusion from wasn’t clear, but whatever). And that drove home the hardest question: How should a court evaluate the “fact-i-ness” of the “facts” said to justify a mandatory disclosure. 
  
• This is a hard question because the Supreme Court has not been good about guiding lower courts. It has treated compelled disclosures as meriting a kind of “rational basis” review, but it hasn’t been clear about what level of review should govern the question: is this a fact? I tried to argue that the court shouldn’t smuggle heightened review in through the fact back door. But I was surprised by the seeming willingness of the judges to consider a regime that would impose massive costs on cities trying to regulate. 
  
• Specifically, the court asked about consumer surveys about the meaning of the ordinance — did we prove, through such surveys, that the ordinance was not misleading. Shouldn’t we have to? CTIA insisted it was our burden to conduct such studies, and offer them as evidence that the ordinance was factual. It was surprising that it wasn’t obvious just how radical a change in the law that would be. 
  
• For after all, we’re in California, in the 30th year of Prop 65 (which is the cancer warning proposition). No one has ever thought that California would have to prove that the particular line they draw for assessing the risk of some potentially cancer-causing agent would also require them to prove that the public wouldn’t wrongly believe that crossing that line would make a product unsafe. If that were the burden, there could not be such regulation (which again for some is exactly the purpose of this fight). 
  
• I was happy to have the chance to negate the claim by CTIA that the FCC has said cell phones are safe however they are held. I was frustrated not to get more of a chance to address the other truly incredible claim they make in their reply brief — that the FCC doesn’t require manufacturers to include information in their manuals about how to use the phone without exceeding RF limits. This is an incredible claim. 
  
• As anyone who knows anything about the FCC knows, the FCC has effectively outsourced the process of certifying devices to TCBs — Telecommunication Certification Bodies. Those TCBs evaluate products and determine whether they should be approved for sale. As the Reassessment makes clear, the TCBs take their direction from an online database of instructions — something called the KDB: as ¶39 of the Reassessment states (the KDB ”provides the framework and guidelines for Telecommunications Certification Bodies (TCBs) to approve evolving products and technologies).” 
  
• The KDB, in turn, specifies “The guidance in this document and the published RF exposure KDB procedures must be applied for equipment approval unless further guidance provided by the FCC is applied.” And §4.2.2(d) states that “Specific information must be included in the operating manuals to enable users to select body-worn accessories that meet the minimum test separation distance requirements.” Based on this requirement, we had argued that the FCC mandates manufacturer disclosures, so why can’t Berkeley. 
  
• In the reply brief (and for the first time in the whole litigation), CTIA argued that was false. That the requirements of the KDB were voluntary, and hence the FCC wasn’t regulating anything. 
  
• But to support that claim, CTIA had to engage in some pretty fancy selective quoting. They cited 47 C.F.R. § 2.1093(d)(3) to state: “[t]he staff guidance provided in the KDB … is not binding on the Commission or any interested party.” Here’s what that section actually says: 
  

“Guidance regarding SAR measurement techniques can be found in the Office of Engineering and Technology (OET) Laboratory Division Knowledge Database (KDB). The staff guidance provided in the KDB does not necessarily represent the only acceptable methods for measuring RF exposure or emissions, and is not binding on the Commission or any interested party.”

• What this is saying is that companies are allowed to use any scientific method they want for measuring SAR levels. What it is not saying is that nothing in the KDB is mandatory. And indeed, as you can see at this link, there are close to 4,600 examples of the TCBs conditioning a grant on the promise that 
  
• “End-users must be informed of the body-worn operating requirements for satisfying RF exposure compliance.”
  
• The idea that CTIA would say this is not a “regulation” is extraordinary. If the KDB said the TCBs could only approve cell phones if the cell phone had a sticker that said “this may cause cancer,” would CTIA accept the argument that such was not a “regulation”? It is black letter law that if you condition a privilege on the uttering or not of some speech, that is a regulation of that speech (whether justified or not). 
  

Ok, maybe more later. I’ve got to get back to a million other things, but I’m sure there will be a million corrections and tweaks that I’ll provide later on.