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Supreme Court to Decide Whether to Review Appellate Decision Finding Cell Phone Radiation Claims Preempted

Beveridge & Diamond, P.C., May 27, 2011

This week, the United States Supreme Court will consider whether to grant a petition for certiorari to review the October 2010 decision by the U.S. Court of Appeals for the Third Circuit holding that federal telecommunications regulations preempted a state law tort action claiming damages based on the radio frequency (“RF”) radiation emitted by cell phones.  See Farina v. Nokia, 625 F. 3d 97 (3d Cir. 2010).

In the underlying action, the petitioner brought suit against various cell phone manufacturers and retailers of wireless handheld devices on behalf of a putative class of all past, current, and future Pennsylvania purchasers and lessees of cell phones.  Id. at 107.  Under several tort theories, the petitioner alleged that the respondent cell phone manufacturers and retailers had improperly warranted and marketed their cell phones as safe to operate, had suppressed information regarding the health risks of RF radiation, and that respondents’ phones, absent headsets, were unsafe due to RF radiation emitted during a phone’s customary use.  Id. at 104, 107-109.

The Third Circuit affirmed the lower court’s dismissal of the petitioner’s lawsuit on conflict preemption grounds, ruling that the FCC regulations regarding the specific absorption rate (“SAR”) — the maximum amount of RF radiation a device may emit based on the amount absorbed in the body — represented the FCC’s “considered judgment’ about how to balance competing objectives of protecting the health and safety of the public and allowing industry to maintain an efficient and uniform nationwide wireless network.  Id. at 125.  The Third Circuit found that allowing juries to perform their own risk-utility analysis to determine whether cell phones in compliance with FCC standards were nevertheless unreasonably dangerous would conflict with and “second guess” FCC regulations.  Id.  The court also expressed concern that if tort claims were not preempted, RF radiation standards could vary from state to state and eradicate the uniformity that was necessary to regulate a national wireless network.  Id. at 126.

The Third Circuit’s decision created an apparent split among Circuit Courts of Appeal regarding the preemptive effect of the FCC regulations.  In 2005, the Fourth Circuit found that similar state law claims were not preempted and found no evidence of any congressional objective to ensure uniform national RF radiation standards for cell phones.  See Pinney v. Nokia, 402 F.3d 430, 458 (4th Cir. 2005).

Seizing upon this conflict, the petitioner, in his appeal of the Third Circuit ruling, asks the Supreme Court to consider whether state law claims premised on cell phone companies’ alleged misrepresentations regarding the safety of their products are impliedly preempted because they would frustrate the purpose of the FCC’s RF radiation standard.  See Farina v. Nokia, U.S. No. 10-1064, Petition for a Writ of Certiorari, at i (filed Feb. 22, 2011), available at http://www.scotusblog.com/case-files/cases/farina-v-nokia-inc/.  On the principal substantive issue, the petitioner contends that the FCC regulations impose no substantive standards on a cell phone’s RF radiation emissions but merely define the level of emissions that triggers the FCC’s obligation to conduct an environmental analysis under the National Environmental Policy Act.  Id. at 22-25.  Given that the FCC guidelines constitute mere procedural requirements, the petitioner questions the preemptive effect they can have on state health, safety, and consumer-protection laws.  Id. at 24-25.  Additionally, the petitioner points to a “savings clause” in the statutory authority under which the FCC regulations at issue were promulgated which purportedly disclaims any preemptive effect over state laws.  Id. at 17-22.

In opposition to the petition, the respondent cell phone manufacturers and retailers (including but not limited to Motorola, Inc., Nokia Inc. and Sony Electronics, Inc.) dispute the petitioner’s characterization of the RF standards as merely procedural, asserting that the FCC promulgated its rules as substantive ones grounded in the FCC’s long-established and broad rulemaking authority to regulate communications.  See Farina v. Nokia, U.S. No. 10-1064, Brief in Opposition for Respondents, at 18-19 (filed April 29, 2011), available at http://www.scotusblog.com/case-files/cases/farina-v-nokia-inc/.  Further, respondents also contest the effect of the savings clause, contending that Congress would have never charged the FCC with adopting rules on RF standards only to render the regulations a nullity in the face of conflicting state law.  Id. at 20.   Respondents also note that the Court has declined to give broad effect to savings clauses where doing so would upset regulatory schemes established by federal law.  Id. at 19.

This is not the first time the Supreme Court has been asked to review a Circuit Court’s decision related to the preemptive effect of federal telecommunications regulations related to FCC’s RF standards.  In 2005, the Court denied a certiorari petition brought by cell phone manufacturers and retailers, which asked the Court to reverse the Fourth Circuit’s decision reinstating five class action lawsuits (including Farina) involving the same claims.  See Pinney v. Nokia, 402 F. 3d 430 (4th Cir. 2005).  That petition was denied.   See Nokia v. Naquin, 546 U.S. 998 (2005).

Given that the success rate for certiorari petitions before the Supreme Court is approximately 1.1%, it is statistically unlikely that Plaintiff’s petition will be granted.  Nevertheless, given that two federal circuit courts have come to opposite conclusions on this issue, the possibility that the Court may grant certiorari is at least somewhat higher.  If the Court does vote to grant review, it will likely announce the decision next week.

May 31, 2011 Update:  The Supreme Court on May 31st invited the Acting Solicitor General to file a brief in the case expressing the view of the United States.  The Court has not yet set a new conference date for this matter, accordingly, it is not clear when it will next consider the certiorari petition.  Given the Court’s request for further briefing, the possibility that the Court may grant the petition now appears to be somewhat higher. 

For more information, please contact Daniel Krainin at dkrainin@bdlaw.com, Paul Hagen at phagen@bdlaw.com or Ryan Tacorda at rtacorda@bdlaw.com.

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