and Submitted September 13, 2016 San Francisco, California
from the United States District Court for the Northern
District of California, D.C. No. 3:15-cv-02529-EMC Edward M.
Chen, District Judge, Presiding
Theodore B. Olson (argued), Helgi C. Walker, Michael R.
Huston, and Jacob T. Spencer, Gibson Dunn & Crutcher LLP,
Washington, D.C.; Joshua S. Lipshutz and Joshua D. Dick,
Gibson Dunn & Crutcher LLP, San Francisco, California;
Lawrence Lessig, III (argued), Cambridge, Massachusetts;
Amana Shanor, New Haven, Connecticut; Savith Iyengar, Deputy
City Attorney; Zach Cowan, City Attorney; Berkeley City
Attorney's Office, Berkeley, California; for
Corn-Revere and Ronald G. London, Davis Wright Tremaine LLP,
Washington, D.C., for Amicus Curiae The Association of
National Advertisers, Inc.
Kyle, Chicago, Illinois; Aaron Colangelo, Washington, D.C.;
as and for Amicus Curiae Natural Resources Defense Council.
Matthew Wise, Deputy Attorney General; Mark R. Beckington,
Supervising Deputy Attorney General; Douglas J. Woods, Senior
Assistant Attorney General; Kathleen A. Kenealy, Chief
Assistant Attorney General; Sacramento, California; as and
for Amicus Curiae Attorney General of California.
Before: William A. Fletcher, Morgan B. Christen, and Michelle
T. Friedland, Circuit Judges.
panel affirmed the district court's order denying a
request for a preliminary injunction seeking to stay
enforcement of a City of Berkeley ordinance requiring cell
phone retailers to inform prospective cell phone purchasers
that carrying a cell phone in certain ways may cause them to
exceed Federal Communications Commission guidelines for
exposure to radio-frequency radiation.
Zauderer v. Office of Disciplinary Counsel of the Supreme
Court of Ohio, 471 U.S. 626 (1985), the panel held that
the City's compelled disclosure of commercial speech
complied with the First Amendment because the information in
the disclosure was reasonably related to a substantial
governmental interest and was purely factual. Accordingly,
the panel concluded that plaintiff had little likelihood of
success on its First Amendment claim that the disclosure
compelled by the Berkeley ordinance was unconstitutional.
panel determined that there was little likelihood of success
on plaintiff's contention that the Berkeley ordinance was
preempted. The panel held that Berkeley's compelled
disclosure did no more than alert consumers to the safety
disclosures that the Federal Communication Commission
requires, and to direct consumers to federally compelled
instructions in their user manuals providing specific
information about how to avoid excessive exposure. The panel
held that far from conflicting with federal law and policy,
the Berkeley ordinance complements and reinforces it.
affirming the denial of a preliminary injunction, the panel
further determined that there was no irreparable harm based
on the First Amendment or preemption, that the balance of
equities tipped in Berkeley's favor, that the ordinance
was in the public interest, and that an injunction would harm
in part, Judge Friedland stated that Berkeley's ordinance
likely violates the First Amendment and therefore should have
been preliminarily enjoined. She stated that taken as a
whole, the most natural reading of the Berkeley disclosure
warns that carrying a cell phone in one's pocket is
unsafe. Yet Berkeley had not attempted to argue, let alone to
prove, that message was true.
FLETCHER, Circuit Judge:
of Berkeley ordinance requires cell phone retailers to inform
prospective cell phone purchasers that carrying a cell phone
in certain ways may cause them to exceed Federal
Communications Commission guidelines for exposure to
radio-frequency radiation. CTIA, a trade association formerly
known as Cellular Telephone Industries Association,
challenges the ordinance on two grounds. First, it argues
that the ordinance violates the First Amendment. Second, it
argues that the ordinance is preempted.
requested a preliminary injunction staying enforcement of the
ordinance. The district court denied CTIA's request, and
CTIA filed an interlocutory appeal. We affirm and remand for
Factual and Procedural Background
2015, the City of Berkeley passed an ordinance requiring cell
phone retailers to disclose information to prospective cell
phone purchasers about the federal government's
radio-frequency radiation exposure guidelines relevant to
cell phone use. Under "Findings and Purpose, " the
A. Requirements for the testing of cell phones were
established by the federal government in 1996.
B. These requirements established "Specific Absorption
Rates" (SAR) for cell phones.
C. The protocols for testing the SAR for cell phones carried
on a person's body assumed that they would be carried a
small distance away from the body, e.g., in a holster or belt
clip, which was the common practice at that time. Testing of
cell phones under these protocols has generally been
conducted based on an assumed separation of 10-15
D. To protect the safety of their consumers, manufacturers
recommend that their cell phones be carried away from the
body, or be used in conjunction with hands-free devices.
E. Consumers are not generally aware of these safety
F. Currently, it is much more common for cell phones to be
carried in pockets or other locations rather than holsters or
belt clips, resulting in much smaller separation distances
than the safety recommendations specify.
G. Some consumers may change their behavior to better protect
themselves and their children if they were aware of these
H. While the disclosures and warnings that accompany cell
phones generally advise consumers not to wear them against
their bodies, e.g., in pockets, waistbands, etc., these
disclosures and warnings are often buried in fine print, are
not written in easily understood language, or are accessible
only by looking for the information on the device itself.
I. The purpose of this Chapter is to assure that consumers
have the information they need to make their own choices
about the extent and nature of their exposure to
Berkeley Mun. Code § 9.96.010 (2015).
challenged the compelled disclosure provision of the
ordinance, arguing that it violated the First Amendment and
was preempted. One sentence of the compelled disclosure
stated, "The potential risk is greater for
children." The district court held that this sentence
was preempted, and it issued a preliminary injunction against
enforcement of the ordinance. In December 2015, Berkeley
re-passed the ordinance without the offending sentence. In
its current form, the compelled disclosure provision
A. A Cell phone retailer shall provide to each customer who
buys or leases a Cell phone a notice containing the following
The City of Berkeley requires that you be provided the
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
Berkeley Mun. Code § 9.96.030(A) (2015).
ordinance requires that the compelled disclosure be provided
either on a prominently displayed poster no less than
8½ by 11 inches with no smaller than 28-point font, or
on a handout no less than 5 by 8 inches with no smaller than
18-point font. The logo of the City of Berkeley must be
placed on the poster and handout. The ordinance provides that
a cell phone retailer may include additional information on
the poster or handout if it is clear that the additional
information is not part of the compelled disclosure. §
9.96.030(B) ("The paper on which the notice is printed
may contain other information in the discretion of the Cell
phone retailer, as long as that information is distinct from
the notice language required by subdivision (A) of this
challenged the current ordinance, arguing, as it had before,
that the ordinance violates the First Amendment and is
preempted. The district court noted that the preempted
sentence had been removed from the ordinance, dissolved its
previously entered injunction, and denied CTIA's request
for a new preliminary injunction. CTIA filed an interlocutory
Jurisdiction and Standard of Review
jurisdiction under 28 U.S.C. § 1292. We review a denial
of a preliminary injunction for abuse of discretion.
Inst. of Cetacean Research v. Sea Shepherd Conservation
Soc'y, 725 F.3d 940, 944 (9th Cir. 2013). "An
abuse of discretion occurs when the district court based its
ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence." Friends of
the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir.
2014) (citation and internal quotation marks omitted). We
will not reverse the district court where it "got the
law right, " even if we "would have arrived at a
different result, " so long as the district court did
not clearly err in its factual determinations. Lands
Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en
Federal Communications Commission ("FCC") has
regulatory jurisdiction over transmitting services in the
United States. In 1996, after extensive consultation with
other agencies, the FCC issued a rule designed to limit the
Specific Absorption Rate ("SAR") of radio-frequency
("RF") radiation from FCC-regulated transmitters,
including cell phones:
1. By this action, we are amending our rules to adopt new
guidelines and methods for evaluating the environmental
effects of radio-frequency (RF) radiation from
FCC-regulated transmitters. We are adopting Maximum
Permissible Exposure (MPE) limits for electric and magnetic
field strength and power density for transmitters operating
at frequencies from 300 kHz to 100 GHz . . . We are also
adopting limits for localized ("partial body")
absorption that will apply to certain portable transmitting
devices . . . We believe that the guidelines we are adopting
will protect the public and workers from exposure to
potentially harmful RF fields.
2. In reaching our decision on the adoption of new RF
exposure guidelines we have carefully considered the large
number of comments submitted in this proceeding, and
particularly those submitted by the U.S. Environmental
Protection Agency (EPA), the Food and Drug Administration
(FDA) and other federal health and safety agencies. The new
guidelines we are adopting are based substantially on the
recommendations of those agencies, and we believe that
these guidelines represent a consensus view of the federal
agencies responsible for matters relating to the public
safety and health.
Guidelines for Evaluating the Environmental Effects of
Radio-frequency Radiation, 61 Fed. Reg. 41006, 41006-07 (Aug.
7, 1996) (emphases added).
concern for the safety of cell phone users, the FCC rejected
an industry proposal to exclude "low-power devices"
such as cell phones from the rule adopting SAR limits:
Most commenting parties, including Federal health and safety
agencies, support the use of the ANSI/IEEE [American National
Standards Institute/ Institute of Electrical and Electronic
Engineers] SAR limits for localized (partial body) exposure
for evaluating low-power devices designed to be used in the
immediate vicinity of the body. . . . Therefore, in view
of the consensus and the scientific support in the record, we
are adopting the SAR limits for the determination of safe
exposure from low-power devices designed to be used in the
immediate vicinity of the body based upon the 1992
ANSI/IEEE guidelines. . . .
The SAR limits we are adopting will generally apply to
portable devices . . . that are designed to be used with any
part of the radiating structure of the device in direct
contact with the body of the user or within 20 cm of the body
under normal conditions of use. For example, this
definition would apply to hand-held cellular telephones.
. . .
Guidelines for Evaluating the Environmental Effects of
Radio-frequency Radiation ("FCC Guidelines for
Radio-frequency Radiation"), FCC 96-326, ...