Amicus Curiae Brief — Andrew Cohen, et al., Petitioners v. Apple Inc.
Supreme Court briefMar 15, 2023
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No. 22-698
_______________________________________________
IN THE
Supreme Court of
the United States
ANDREW COHEN, ET AL.,
Petitioners
v.
APPLE, INC.,
Respondent.
_______________________________________________
On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
_______________________________________________
BRIEF FOR CHILDREN’S HEALTH DEFENSE
AS AMICUS CURIAE IN SUPPORT
OF PETITIONERS
Mary S. Holland
President & General Counsel, Children’s Health
Defense
852 Franklin Ave., #511
Franklin Lakes, NJ 07417
(202) 854-1310
mary.holland@childrenshealthdefense.org
Counsel of Record
Risa Evans
Staff Attorney, Children’s Health Defense
852 Franklin Ave., #511
Franklin Lakes, NJ 07417
Leslie L. Lewis
Legal Fellow, Children’s Health Defense
852 Franklin Ave., #511
Franklin Lakes, NJ 07417
W. Scott McCollough
McCollough Law Firm PC
2290 Gatlin Creek Rd.
Dripping Springs, TX 78620
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................... ii
INTEREST OF AMICI CURIAE ............................1
SUMMARY OF ARGUMENT ..................................4
ARGUMENT ............................................................4
I.
How to Analyze Implied Obstacle
Conflict Preemption .................................................4
A. Statutory Preemption ....................................6
B. Implied Agency Regulation
Preemption..........................................................7
II.
The Regulations in Issue ...............................8
A. NEPA Rules ...................................................8
B. Equipment Rules ......................................... 10
C. Ninth Circuit Looked Past the Rules
and Applicable Orders ...................................... 12
III. The 1996 Congress Granted
Preemption for Personal Wireless Service
Facilities but Not Mobile Devices .......................... 13
IV.
The FCC Has Repeatedly Refused to
Preempt State Law for Injury From Mobile
Devices ................................................................... 15
V.
This Court Should Clarify that an
Agency’s Intent to Preempt Must Be Sourced
From Explicit Statements in OfficiallyPromulgated Agency Regulations and Orders ...... 23
CONCLUSION ....................................................... 27
ii
TABLE OF AUTHORITIES
Federal Cases
Auer v. Robbins, 519 U.S. 452, 461-462
(1997) ..................................................................... 7
Fidelity Federal Sav. And Loan Ass’n v. de
la Cuesta, 458 U.S. 141 (1982) ........................... 23
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ................... 7
Rice v. Santa Fe Elevator Corp., 331 U.S.
218 (1947) ............................................................ 12
Silkwood v. Kerr-McGee Corp., 464 U.S.
238 (1984) ............................................................ 12
United Construction Workers v. Laburnum
Construction Corp., 347 U.S. 656 (1954) ........... 12
Wyeth v. Levine, 555 U.S. 555 (2009) ............. 24, 25
Federal Statutes
47 U.S.C. § 301 ....................................................... 10
47 U.S.C. § 303(e) ................................................... 10
47 U.S.C. § 332 ....................................................... 17
47 U.S.C. § 332(c)(7)(B)(iv) ........................ 14, 17, 18
5 U.S.C. § 551(4) ....................................................... 5
5 U.S.C. § 553(b) ..................................................... 24
5 U.S.C. § 553(c) ..................................................... 24
5 U.S.C. § 555(e) ..................................................... 24
5 U.S.C. § 556 ......................................................... 25
Administrative Procedure Act, 5 U.S.C. §
551 et seq ......................................................... 7, 23
Communications Act, 47 U.S.C. § 151 et
seq .............................................. 5, 6, 11, 13, 25, 27
National Environmental Policy Act
(NEPA), 42 U.S.C. § 4321, et seq ......... 5, 6, 10, 14
iii
Pub. L. 104–104, title II, § 207, Feb. 8,
1996, 110 Stat. 114 ............................................. 15
Telecommunications Act of 1996, 110 Stat.
56, 152, 104 P.L. 104, Sec. 704 (codified
in 47 U.S.C. § 332, note) ..................................... 14
Other Authorities
H.R. Rep. No. 104-204, 94-95 (1996) ..................... 14
Federal Administrative Rules
47 C.F.R. § 1.1301 .................................................... 9
47 C.F.R. § 1.1303 .................................................... 9
47 C.F.R. § 1.1306 .................................................... 9
47 C.F.R. § 1.1307 .......................................... 8, 9, 15
47 C.F.R. § 1.1308 .................................................. 10
47 C.F.R. § 1.1310 .................................................... 8
47 C.F.R. § 1.3 ........................................................ 11
47 C.F.R. § 1.4000 .................................................. 15
47 C.F.R. § 2.1091 .................................................. 11
47 C.F.R. § 2.901 .................................................... 11
Federal Agency Decisions
In re Guidelines for Evaluating the
Environmental Effects of Radiofrequency
Radiation, 11 FCC Rcd 15123 (1996) 15, 20, 21, 23
In re National Association of Broadcasters
Petition for Issuance of a Declaratory
Ruling to Preempt State and Local
Regulation of RF Radiation Standards
that Affect Communications Services to
the Public, 5 FCC Rcd 486 (1990)....................... 20
In re Petition of Cingular Wireless L.L.C.
for a Declaratory Ruling that Provisions
of the Anne Arundel County Zoning
iv
Ordinance are Preempted as
Impermissible Regulation of Radio
Frequency Interference Reserved
Exclusively to the Federal
Communications Commission, 18 FCC
Rcd 13126 (2003) ........................................... 25, 26
In re Procedures for Reviewing Requests
for Relief From State and Local
Regulations Pursuant to Section
332(c)(7)(B)(v) of the Communications
Act of 1934; Guidelines for Evaluating
the Environmental Effects of
Radiofrequency Radiation; Petition for
Rulemaking of the Cellular
Telecommunications Industry
Association Concerning Amendment of
the Commission’s Rules to Preempt State
and Local Regulation of Commercial
Mobile Radio Service Transmitting
Facilities, 12 FCC Rcd 13494 (1997) ............ 16, 21
In re Proposed Changes in the
Commission’s Rules Regarding Human
Exposure to Radiofrequency
Electromagnetic Fields; Reassessment of
Federal Communications Commission
Radiofrequency Exposure Limits and
Policies; Targeted Changes to the
Commission’s Rules Regarding Human
Exposure to Radiofrequency
Electromagnetic Fields, 34 FCC Rcd
11687 (2019) ........................................................ 22
In re Reassessment of Federal
Communications Commission
v
Radiofrequency Exposure Limits and
Policies, 28 FCC Rcd 3498 (2013) ....................... 22
In re Responsibility of the Federal
Communications Commission to Consider
Biological Effects of Radiofrequency
Radiation when Authorizing the Use of
Radiofrequency Devices, 89 FCC 2d 214
(1982) ................................................................... 18
In re Responsibility of the Federal
Communications Commission to Consider
Biological Effects of radiofrequency
radiation when authorizing the use of
radiofrequency devices, Report and
Order, 100 FCC 2d 558 (1985) ............................ 19
In re the Responsibility of the Federal
Communications Commission to Consider
Biological Effects of Radio Frequency
Radiation When Authorizing the Use of
Radio Frequency Devices, 72 F.C.C.2d
482 (1971) ............................................................ 18
In the Matter of Implementation of Section
207 of the Telecommunications Act of
1996; Restrictions on Over-the-Air
Reception Devices: Television Broadcast
Service and Multichannel Multipoint
Distribution Service, 13 FCC Rcd 18962
(1998) ................................................................... 16
In the Matter of Wireless Consumers
Alliance, Inc.; Petition for a Declaratory
Ruling Concerning Whether the
Provisions of the Communications Act of
1934, as Amended, or the Jurisdiction of
the Federal Communications
vi
Commission Thereunder, Serve to
Preempt State Courts from Awarding
Monetary Relief Against Commercial
Mobile Radio Service (CMRS) Providers
(a) for Violating State Consumer
Protection Laws Prohibiting False
Advertising and Other Fraudulent
Business Practices, and/or (b) in the
Context of Contractual Disputes and Tort
Actions Adjudicated Under State
Contract and Tort Laws, 15 FCC Rcd
17021 (2000), recon denied, 16 FCC Rcd
5618 (2001) .......................................................... 17
1
INTEREST OF AMICI CURIAE 1
Children’s Health Defense (CHD) is a
national non-profit 501(c)(3) organization. CHD has
no parent corporation. No publicly held company
has a ten percent or greater ownership interest in
CHD. CHD’s mission is to end the epidemic of
children’s chronic health conditions by working to
eliminate harmful exposures to environmental
toxins, obtain justice for those already injured, and
promote protective safeguards. CHD is involved in
litigation before state and federal courts where
implied federal agency regulation preemption over
state health, safety and consumer laws is a
significant issue.
The California Brain Tumor Association is a
national non-profit 501(c)(3) organization.
California Brain Tumor Association HD has no
parent corporation. No publicly held company has a
ten percent or greater ownership interest in
California Brain Tumor Association. California
Brain Tumor Association’s mission is to prevent
primary brain tumors through dissemination of
information on causation, including those caused by
wireless devices.
Wired Broadband, Inc. (WBI) is a 501(c)(3)
non-profit corporation. WBI has no parent
corporation. No publicly held company has a ten
percent or greater ownership interest in WBI.
1 Counsel certifies that amici curiae gave notice of intent to
submit this brief at least 10 days prior to filing. No person or
entity other than the named amicus, their members or
counsel has (1) paid in whole or in part for the preparation of
this brief; or (2) authored in whole or in part this brief.
2
WBI’s mission is to advocate safe technology for the
public, for wired solutions for broadband data
transfer, and in support of fiber optics and its
proven performance as the fastest, most secure,
cost effective, energy efficient, and environmentally
safe means of providing increased capacity of
broadband to the public, public schools, business,
government, medical facilities and industry.
Consumers for Safe Cell Phones (CSCP) is a
501(c)(3) organization that educates consumers as
to ways to reduce microwave radio frequency
radiation (RFR) exposure from cell phones, tablets,
WIFI routers and other wireless devices. CSCP has
no parent corporation. No publicly held company
has a ten percent or greater ownership interest in
CSCP. CSCP’s work centers on the fact that cell
phones and associated cellular infrastructure emit
non-ionizing RFR that has been shown by
thousands of peer-reviewed studies to pose
biological risks, including cancer, at or below the
FCC’s exposure limits.
Connecticut for Responsible Technology
(CTRT) is a grassroots unincorporated not-for-profit
organization, whose mission is to educate and
promote safe technology through town and
municipal awareness, legislative actions to limit
the excessive exposures to EMF/EMR in our
communities and schools.
Coloradoans for Safe Technology is an
unincorporated not-for-profit organization that
seeks to educate the public, and public
representatives about the risks and downsides of
3
wireless technology and to promote the
implementation of safe, efficient, alternatives.
National Health Federation (NHF) is a
national non-profit 501(c)(4) organization. NHF has
no parent corporation. No publicly-held company
has a ten percent or greater ownership interest in
NHF. The Mission of the National Health
Federation includes protecting the health rights
and freedom of individuals and healthcare
practitioners.
The Alliance for Microwave Radiation
Accountability, Inc., a non-profit organization
working on behalf of the victims of Microwave
Radiation Syndrome. We are registered as a
corporation in the State of New York. We do not
have 501(c)(3 )status. We have no parent
corporations or other ownership.
MocosafeG.org is a group of Montgomery
County, MD residents who value safer technology,
safer Internet access, and safer cell phone service
for people who people who live, work, shop, or visit
our County. We research, support, and promote
wired and fiber technology infrastructure and
devices. We encourage critical evaluation about
how 4G and 5G cell antennas, cell poles, and cell
towers are placed in environments where all living
things exist and co-exist. We also strive for wireless
facility zoning and code compliance that reflect
maximum protections and provisions.
4
SUMMARY OF ARGUMENT
This case presents an important recurring
question of federal law that requires resolution by
the Court. The Petition should be granted.
Courts should first ensure Congress intended
to grant agency preemption powers on the subject
at hand, and then find preemption by regulation
only when the agency has far more clearly
expressed an intent to preempt within a rule or
order that has been promulgated through
appropriate agency proceedings.
In this case, the FCC’s intention to not
preempt state tort, consumer and health and safety
laws touching emissions from devices other than
personal wireless facilities is clear. The Ninth
Circuit’s contrary opinion was erroneous and must
be corrected.
ARGUMENT
I.
How to Analyze Implied Obstacle Conflict
Preemption
All parties agree that this matter is about
“implied obstacle conflict preemption.” See App.
27a (“the conflict between the FCC’s RF radiation
regulations and plaintiffs’ state law claims poses a
sufficient obstacle to the full accomplishment of the
FCC’s objectives).2 Petitioners refer to the issue as
“purposes-and-objectives” preemption. Petitioners
state that this case presents “a golden opportunity
to resolve a deeper divide at the intersection of our
2 Amici will therefore not address express, field or
“impossibility” preemption doctrines.
5
federalism and the separation of powers—a divide
over whose intent counts for preemption and how
judges should discern that intent.” Petition p. 1.
The Court should require that lower courts first
ensure Congress intended to grant agency
preemption powers on the subject at hand, and
then find implied preemption by regulation only
when the agency clearly expressed an intent to
preempt as part of a rule or order that has been
promulgated through appropriate agency
proceedings.
Petitioners correctly state that for agency
regulation purposes-and-objectives preemption, the
principal guiding source of authority is
Congressional intent expressed through the “text
and context of the law in question.” Petition at 1, 4.
Here, the “law in question” has component parts:
two statutes (the Communications Act of 1934, as
amended,3 and the National Environmental Policy
Act4), and two sets of interrelated FCCpromulgated “rules,”5 one embodied in 47 C.F.R.
Part 1, subpart I, which institute “Procedures
Implementing the National Environmental Policy
Act of 1969,” and the other, in 47 C.F.R. Part 2,
subpart J, setting out equipment authorization
rules.
3 Communications Act, 47 U.S.C. § 151 et seq.
4 National Environmental Policy Act (NEPA), 42 U.S.C. §
4321, et seq.
5
See 5 U.S.C. § 551(4).
6
A.
Statutory Preemption
The first step is a statutory analysis, in this
case as to NEPA and the 1934 Communications Act
as amended in pertinent part in 1996. Do the
statutes convey an intent to preempt? What are the
“purposes and objectives” set forth in the statute?
What is the stated scope? To the extent there
remains ambiguity, what assistance does
legislative history, such as committee and
conference reports and floor debate offer? What is
the context behind the legislation? These are
reliable guideposts for determining the thenCongress’ legislative intent years after passage.
There can be no claim that NEPA provides
any implied preemptive force. All agree: NEPA is
procedural. Assuming arguendo that the pre-1996
Communications Act impliedly granted preemptive
power to the Commission regarding RF-related
health and safety, a position Amici do not concede,
the question then is whether FCC’s regulations in
issue were promulgated pursuant to the
Commission’s substantive pre-1996 47 U.S.C. Title
III authority. Then there is the question of the
expressly and impliedly preemptive scope of the
1996 amendments about state health, safety and
consumer laws.6
6 There are substantial arguments that the pre-1996
Communications Act did not grant implied preemptive
authority in this area, and Amici reserve the right to make
those arguments during the merits phase. Amici demonstrate
below that the 1996 amendatory statute did not expressly or
impliedly preempt state laws as to devices other than
personal wireless service facilities.
7
B.
Implied Agency Regulation
Preemption
Any judicial “purposes-and-objectives
preemption” analysis for an agency’s legislative
rule must, as with a statute, start and end with the
regulation. If there is ambiguity, then the agency’s
promulgating order can serve the same function as
legislative history. The agency’s contemporaneous
decisions interpreting and applying the regulation
may also shed light, using post-Kisor7 Auer
deference.8
Agencies rationalize, justify and promulgate
regulations using the narrative and analysis in an
order, but their quasi-legislative action manifests
only through the actual rules. It is the regulation,
not the promulgating order, that has preemptive
effect, and it is the regulation that should be the
primary object of analysis when, as here, the court
case is not a facial challenge to the regulation
pursuant to the Administrative Procedure Act
(APA)9 but instead involves the affirmative defense
of preemption in private litigation. App. 20a-21a. In
this context the promulgating order in a
rulemaking proceeding is merely legislative history
and a secondary resource. To the extent the
promulgating order does not speak to the
preemption question, contemporary interpretive
orders applying the regulation in an adjudication
7
8
Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
Auer v. Robbins, 519 U.S. 452, 461-62 (1997).
9 Administrative Procedure Act, 5 U.S.C. § 551 et seq.
8
also may be useful, and even entitled to Auer
deference, when appropriate.
II.
The Regulations in Issue
The Ninth Circuit concluded, erroneously,
that the regulations in issue have all-encompassing
preemptive effect as against injured mobile device
users, when in fact the regulations merely bind
those regulatees who seek Commission action that
might affect the environment before any agency
action and then again when the agency decides
whether to grant or withhold a license or
equipment registration under its Title III
authority.
A.
NEPA Rules
The environmental processing rules do not
directly control whether the FCC will ultimately
grant or deny an application; they merely ensure
that the Commission is aware of the environmental
consequences of contemplated action, whatever
that may be. Indeed, on their face they do not
determine “safety” or even set a floor or ceiling for
emissions. Regulatees can seek Commission action
by way of equipment approval of devices that emit
at lower and even higher levels than those stated in
47 C.F.R. §§ 1.1307 and 1.1310; it is just that if the
emissions exceed the stated levels, then an
Environmental Assessment (EA), Finding of No
Significant Impact (FONSI) or Environmental
Impact Statement (EIS) will be required before the
Commission will take action and consider the
application. The FCC can then decide whether to
approve the equipment registration application
despite the excess. App. 13a-14a. The levels are
9
there to determine whether a categorical exemption
applies or if, instead, an EA or EIS must be
performed. They are permissive but also
presumptive for this purpose. They are not,
however, definitive for either NEPA or equipment
approval purposes.
The NEPA regulations appear in 47 C.F.R.
Part 1 (“Practice and Procedure”), Subpart I
(“Procedures Implementing the National
Environmental Policy Act of 1969”). They are
procedural on their face, as they are found in the
Commission’s procedural rules. 47 C.F.R. § 1.1301
(Basis and Purpose) state the purpose: to
“… implement Subchapter I of [NEPA].”10 47 C.F.R.
§ 1.1303 (Scope) also could not be clearer about
what the regulations address: “… all Commission
actions that may or will have a significant impact
on the quality of the human environment.”
(Emphasis added).
The remaining 47 C.F.R. Part 1, Subpart I
rules set out the “Commission actions … which are
categorically excluded from environmental
processing.” (47 C.F.R. § 1.1306), the Commission
actions “that may have a significant environmental
effect, for which Environmental Assessments (EAs)
must be prepared” (47 C.F.R. § 1.1307), how the
Commission will assess those actions that “may
10 As the Ninth Circuit noted, NEPA does not mandate
particular results but imposes only procedural requirements
on federal agencies with a particular focus on requiring
agencies to undertake analyses of the environmental impact
of their proposals and actions. App. 7a, 45a (quotation marks
removed).
10
have a significant environmental effect” using the
environmental assessment to decide whether to
issue a “Finding of No Significant Impact” (and
therefore end environmental processing) or to
require an Environmental Impact Statement (47
C.F.R. § 1.1308) before it will take any Commission
action.
These rules are about the FCC’s
implementation of NEPA, a purely procedural
statute governing how federal agencies are to
assess the environmental impact of agency actions.
They have no other purpose, objective or scope and
are not impliedly preemptive.
B.
Equipment Rules
The twist is that the FCC imported its NEPA
Part 1, Subpart I “exposure evaluation” principles
into the equipment authorization rules. The Ninth
Circuit did not express this well, but the
“substance,” and the place where the FCC is
exercising its organic and substantive
Congressional authority,11 appears in the
11 Equipment registration grants do serve as a 47 U.S.C. § 301
“License for radio communications or transmission of energy.”
It is indeed an aspect of the Commission’s § 303(e) authority
to “[r]egulate the kind of apparatus to be used with respect to
its external effects and the purity and sharpness of the
emissions from each station and from the apparatus therein.”
App. 5a, 22a. Nothing in §§ 301 or 303(e), however, claim
preemptive effect over health, safety, consumer, or tort laws
relating to claims of injury, nor is it obvious that such state
laws could present an obstacle to achievement of their
purposes-and-objectives. That is why the FCC has historically
refused to preempt state laws when asked to do so, both
before and after 1996. Part IV, infra.
11
Commission’s equipment authorization rules.
These regulations are in a different part of 47
C.F.R.: Part 2, Subpart J (“Equipment
Authorization Procedures”), which address a host of
issues beyond emissions levels.
The Part 2 equipment registration
regulations have an express basis and purpose
statement, in 47 C.F.R. § 2.901: “In order to carry
out its responsibilities under the Communications
Act and the various treaties and international
regulations, and in order to promote efficient use of
the radio spectrum ….”
The “exposure evaluation” rules for mobile
devices are in 47 C.F.R. § 2.1091. They do not even
mention consumer health or safety and, as noted,
they are permissive and presumptive but not
definitive. Regulatees can seek Commission
equipment approval of devices that emit at higher
levels. To do so they would perform a NEPA EIS
(App. 14a) and seek a “good cause” waiver from the
presumptive levels pursuant to 47 C.F.R. § 1.3
(“Suspension, amendment, or waiver of rules”).
The rules regulate permittees, but they do
not purport to regulate the public that uses
registered devices in a manner that would limit
users’ state-law personal rights. Facially, they do
not appear to have either the purpose or objective
of eliminating the public’s common law or state law
rights and remedies.12 Nor does any FCC rule
12 The courts have held that state and local jurisdictions may
not regulate “interference” but that is because the state/local
entity is regulating a conflict between two emitting devices.
Here, the claim is that the regulations deprive users of their
12
provide any method for recompense for past
personal injury or economic damages. The lack of a
commensurate federal remedy strongly argues
against preemption of a state-level remedy.
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251
(1984); United Construction Workers v. Laburnum
Construction Corp., 347 U.S. 656, 663-64 (1954);
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947).
C.
Ninth Circuit Looked Past the Rules
and Applicable Orders
The Ninth Circuit nonetheless found that the
FCC’s “emissions” regulations impliedly preempt
state health and safety laws governing cell phone
(radio frequency) radiation emission levels. It did so
even though the very order promulgating the Part 1
and Part 2 regulations in 1996 and 1997 expressly
refused to preempt state law over consumer devices
after requests that the agency do so, and
contemporaneous orders thereafter also disclaimed
any intent to preempt. It did so even though the
FCC has—before and after the 1996 amendments—
consistently declined to preempt state health and
safety laws for consumer devices except when given
express preemptive power. It did so even though no
statute or agency regulation provides any remedy
to users for damages they suffer.
The question, according to the Ninth Circuit,
is whether the federal agency “meant to preempt
state law rights relating to injury from the device, i.e., that
the regulation regulates non-regulated parties by stripping
their state law right to damages for injuries they sustain.
13
the state law.” App. 26a. To answer this, the court
resorted to inference-drawing to determine whether
the FCC impliedly invoked substantive implied
preemptive authority by trying to infer agency
intention not expressed in the purposes, objectives
or scope of the regulation or the agency orders
promulgating and/or interpreting the regulation.
The lower court held that the Petitioners’ claims
would “disrupt the balance between public safety
and the public’s access to new telecommunications”
that the FCC had “struck” in its NEPA and
equipment registration/authorization rules, App.
28a, and thus “found” preemption, even though the
relevant and contemporaneous agency orders
expressly disclaimed an intention to preempt in
this area.
III. The 1996 Congress Granted Preemption for
Personal Wireless Service Facilities but Not Mobile
Devices
Any preemptive intent must be discerned
through the legislative vehicle and—if necessary—
the purposes-and-objectives stated in related
legislative history surrounding the law. Here,
Congress intentionally inserted multiple savings
clauses in the Communications Act, both before
1996 and then again in 1996. App. 5a, 6a. These
clauses, while not determinative, cannot be
casually disregarded. Nor can the fact that
Congress has taken care to specifically list discrete
preemptive powers when it wanted the Commission
to have them.
For example, Congress expressly prohibited
state and local zoning authorities from
14
“regulat[ing] the placement, construction, and
modification of personal wireless service facilities
on the basis of the environmental effects of radio
frequency emissions to the extent that such
facilities comply with the Commission’s regulations
concerning such emissions.” 47 U.S.C.
§ 332(c)(7)(B)(iv)(emphasis added). This subsection
was added to § 332(c)(7) by Sec. 704(a) of the
Telecommunications Act of 1996, 110 Stat. 56, 152,
104 P.L. 104. Sec. 704(b) (codified in 47 U.S.C.
§ 332, note), then required the FCC to complete its
then-ongoing proceeding “to prescribe and make
effective rules regarding the environmental effects
of radio frequency emissions.” Sections 704(a) and
(b) worked in tandem: Subsection (b) required the
FCC to finish its NEPA emissions rulemaking, and
(a) preempted local zoning-based emissions
regulation inconsistent with those rules for
personal wireless facilities only.
The noscitur a sociis rule of construction tells
us that Section 704(b) was not intended to lead to
“implied obstacle conflict preemption” through the
FCC emissions regulations for all devices. It was
the foundation for the express preemption in
Section 704(a), which applies only to local zoningbased emissions regulation over personal wireless
facilities. This is confirmed by H.R. Rep. No. 104204, 94-95 (1996), where Section 704(a) and (b) are
discussed in tandem and the only “equipment” that
is mentioned is “personal wireless facilities.”
The 1996 Congress also granted express
preemptive powers relating to state-level public
and private restrictions of “over-the-air receiving
15
devices” (“OTARD,” which are end-user non-mobile
transmitting and receiving devices) in Pub. L. 104–
104, title II, § 207, Feb. 8, 1996, 110 Stat. 114.13
The 1996 Congress gave express preemption
powers over personal wireless service facilities, but
it did not go farther and include the “mobile
devices” that connect to personal wireless service
facilities. This, in combination with the multiple
savings clauses, strongly implies no preemptive
intent for mobile devices.
IV. The FCC Has Repeatedly Refused to
Preempt State Law for Injury From Mobile Devices
The difference in treatment Congress gave to
personal wireless service facilities one the one hand
and other mobile devices on the other surely gave
pause to the FCC, because when the industry asked
for preemption of state law for equipment other
than personal wireless facilities, and separately
sought state tort law preemption over end-user
“OTARD” antennas, the Commission said no.
Several times, before and after 1996.
The FCC so declined in the 1996 RF Order
that rests at the heart of the Ninth Circuit’s
decision. See In re Guidelines for Evaluating the
Environmental Effects of Radiofrequency
Radiation, 11 FCC Rcd 15123, 15183, ¶¶ 164-168
(1996) (“1996 Order”). One of the commercial
parties sought reconsideration of this refusal and
the Commission again said no for any equipment
other than personal wireless service facilities. See
13 The FCC soon thereafter implemented these restrictions in
its own rules. See, 47 C.F.R. §§ 1.1307(e), 1.4000.
16
In re Procedures for Reviewing Requests for Relief
From State and Local Regulations Pursuant to
Section 332(c)(7)(B)(v) of the Communications Act
of 1934; Guidelines for Evaluating the
Environmental Effects of Radiofrequency
Radiation; Petition for Rulemaking of the Cellular
Telecommunications Industry Association
Concerning Amendment of the Commission’s Rules
to Preempt State and Local Regulation of
Commercial Mobile Radio Service Transmitting
Facilities, 12 FCC Rcd 13494, 13529, ¶¶ 88, 90
(1997) (1997 RF Order). The Ninth Circuit ignored
these statements so it could nonetheless conclude
there is preemption. App. 11a-13a.
Similarly, the FCC refused to preempt state
tort and consumer law remedies for “OTARD”
antennas. In the Matter of Implementation of
Section 207 of the Telecommunications Act of 1996;
Restrictions on Over-the-Air Reception Devices:
Television Broadcast Service and Multichannel
Multipoint Distribution Service, 13 FCC Rcd 18962,
18971, ¶ 15 (1998).14
14 … If we did not permit private safety-based restrictions, we
would effectively be preempting portions of state tort
liability law. Tort law provides property managers and
their insurance carriers with a legitimate interest in safety
matters and gives them an incentive to be professional in
the imposition of restrictions. Safety standards associated
with the insurance process are a traditional and respected
means of protecting the public. Because homeowners’
associations by definition are focused on the problems that
face a particular area or development, we believe that they
are in a unique position to assess the safety needs of their
individual communities.
17
The Commission later found that 47 U.S.C.
§ 332 does not “generally preempt state court
award of monetary damages based on state
contract or consumer protection laws” in the
context of a class action suit alleging false
advertising, even for the personal wireless service
that benefits from the restriction in
§ 332(c)(7)(B)(iv). In the Matter of Wireless
Consumers Alliance, Inc.; Petition for a Declaratory
Ruling Concerning Whether the Provisions of the
Communications Act of 1934, as Amended, or the
Jurisdiction of the Federal Communications
Commission Thereunder, Serve to Preempt State
Courts from Awarding Monetary Relief Against
Commercial Mobile Radio Service (CMRS)
Providers (a) for Violating State Consumer
Protection Laws Prohibiting False Advertising and
Other Fraudulent Business Practices, and/or (b) in
the Context of Contractual Disputes and Tort
Actions Adjudicated Under State Contract and Tort
Laws, 15 FCC Rcd 17021 (2000), recon denied, 16
FCC Rcd 5618 (2001).
The FCC has consistently recognized the
important role of the states in protecting health
and safety and its own lack of expertise with
respect to health matters. That is why the FCC, in
its implementing and interpreting orders, has
consistently refused formal requests for an order or
rule preempting state law in connection with
exposure related matters, except when Congress
itself specifically inserted pre-emptive authority
(Notes omitted).
18
like it did for personal wireless service facilities in
47 U.S.C. § 332(c)(7)(b)(iv), a provision all agree is
inapplicable here.
The agency’s official reluctance to preempt
state law predates the 1996 amendment, and this
indicates the Commission did not intend to
preempt under its 1934 act Title III authority
either. The FCC noted in a 1979 Notice of Inquiry,
“[w]e emphasize that the information we request …
is not for the purpose of our promulgating radio
frequency radiation health and safety standards.
That is a function of the health and safety
agencies.” In re the Responsibility of the Federal
Communications Commission to Consider
Biological Effects of Radio Frequency Radiation
When Authorizing the Use of Radio Frequency
Devices, 72 FCC 2d 482, 495, ¶ 33 (1979)(emphasis
added). The Ninth Circuit cites this order, but it
somehow still concludes the regulation impliedly
preempts. App. 28a.
In a related 1984 Notice of Proposed
Rulemaking, the FCC emphasized its own lack of
expertise in this area, stating, “we would like to
stress that the Commission has neither the
expertise nor the primary jurisdiction to
promulgate health and safety standards for RF and
microwave radiation.” In re Responsibility of the
Federal Communications Commission to Consider
Biological Effects of Radiofrequency Radiation
when Authorizing the Use of Radiofrequency
Devices, 89 FCC 2d 214, 251, ¶ 183 (1982)
(emphasis added). The Commission went on to add,
19
We are aware of the adoption of
regulations in this area by local and
state authorities, particularly in view
of the present lack of a federal
standard for exposure of the general
population to RF radiation. In most
cases we see no significant conflict
between local standards of which we
are aware and our responsibility ‘to
make available . . . a rapid, efficient . .
. wire and radio communication
service . . .’.
89 FCC 2d at 253, ¶ 188 (internal citation omitted;
emphasis added). The lower court cited to this
order, but claims it supports implied preemption.
App. 8a, 23a.
In the 1985 report and order that followed,
the FCC dismissed commentators’ concerns about
varied state and local RF exposure standards and
refused to preempt such standards. See In re
Responsibility of the Federal Communications
Commission to Consider Biological Effects of
radiofrequency radiation when authorizing the use
of radiofrequency devices, Report and Order, 100
FCC 2d 558 at ¶¶ 42-43 (1985) (“1985 RF Order”).
The Commission wrote,
The issue of federal preemption of
such local and state RF standards was
a recurring theme in many of the
comments. Several of the respondents
stressed the need for a federal
radiation standard to preempt
possibly inconsistent and nonuniform
20
state and local regulation of RF
radiation. Others called for the
issuance of a Commission policy
statement on federal preemption of
state and local RF exposure standards
that may adversely affect operations
and public availability of interstate
telecommunications services.
We have reviewed these comments
closely and given the matter serious
consideration. However, we do not
believe it is necessary at this time to
resolve the issue of federal preemption
of state and local RF radiation
standards…
Id. (emphasis added). The court below cites this
order as supporting the proposition preemption had
already occurred. App. 9a, 10a, 23a, 24a.
In a related 1990 order, the FCC again
denied a request to preempt state and local
regulation of RF radiation standards affecting
communications services to the public. In re
National Association of Broadcasters Petition for
Issuance of a Declaratory Ruling to Preempt State
and Local Regulation of RF Radiation Standards
that Affect Communications Services to the Public,
5 FCC Rcd 486 (1990). The Commission noted,
“Any specific problems warranting action by the
Commission can be brought to our attention on a
case-by-case basis.” Id. at ¶ 3.
In 1996, the FCC issued the 1996 Order at
the heart of this case, adopting new RF radiation
standards. See 1996 Order. The Commission
21
considered comments from more than 100 parties,
many of whom requested that the Commission
establish “[f]ederal preemption of state and local
regulations concerning RF radiation exposure.”
1996 Order at ¶ 164 and Appendix D.
The portion of the 1996 Order titled Federal
Preemption notes, “[i]n the past, parties have
requested that the Commission preempt state and
local authority over RF exposure matters. To date
the Commission has declined to preempt on health
and safety matters.” 1996 Order at ¶ 164 (emphasis
added). The 1996 Order continues, “the
Commission has hesitated to intrude on the ability
of states and localities to make regulations
affecting health and safety.” 11 FCC Rcd 15182, ¶
166; see also ¶ 167. The Order concludes by
denying petitions that requested a broad-based
preemption policy to cover all transmitting sources.
11 FCC Rcd at 15183, ¶ 168.
In 1997, responding to petitions to reconsider
aspects of the 1996 order—including requests to
“broaden [the FCC’s] authority to preempt state
and local regulations concerning RF exposure”—the
FCC again declined to preempt. 1997 RF Order, 12
FCC Rcd at 13529, ¶¶ 4, 88, 90. Rejecting an
argument that the Commission should “specify a
federal rule of liability for torts related to RF
emissions,” the 1997 RF Order states, “we believe
that such action is beyond the scope of this
proceeding and we question whether such an
action, which would preempt too broad a scope of
legal actions, would otherwise be appropriate.”
1997 RF Order at ¶ 90 (emphasis added). The
22
Ninth Circuit somehow reads this express
preemption refusal as an implied preemption
indicator. App. 11a-13a.
FCC orders issued after 1997 in connection
with RF emissions rules continue this theme. In
2013, the FCC issued a notice of inquiry soliciting
public comments about whether the RF emissions
rules in the 1996 Order should be reassessed. In re
Reassessment of Federal Communications
Commission Radiofrequency Exposure Limits and
Policies, 28 FCC Rcd 3498 (2013). Notably, the
notice did not raise the question of preemption, and
the Order that was issued to resolve the notice left
the Commission’s prior orders on preemption
intact. See In re Proposed Changes in the
Commission’s Rules Regarding Human Exposure to
Radiofrequency Electromagnetic Fields;
Reassessment of Federal Communications
Commission Radiofrequency Exposure Limits and
Policies; Targeted Changes to the Commission’s
Rules Regarding Human Exposure to
Radiofrequency Electromagnetic Fields, 34 FCC
Rcd 11687 (2019). The 2019 order clearly expressed
that states are preempted from regulating personal
wireless service facilities based on RF emission
considerations. 34 FCC Rcd at 11740, ¶ 114. The
FCC, however, did not disturb its previous orders
rejecting state law preemption in connection with
RF emissions for all matters other than personal
wireless service facilities. Nonetheless, the court
below thought this non-action in 2013 and 2019
represented an implied statement of already-
23
existing implied preemption. App. 14a-17a, 23a24a, 28a.
The Ninth Circuit decided—on little more
than intuition—that the FCC did not mean what it
said when it promulgated its emission regulations,
and, in fact, had a secret but exactly opposite intent
all along. The lower courts’ disregard of the FCC’s
multiple refusals to preempt (including within the
1996 Order itself) suggests that courts are in
critical need of this Court’s definitive guidance.
V.
This Court Should Clarify that an Agency’s
Intent to Preempt Must Be Sourced From Explicit
Statements in Officially-Promulgated Agency
Regulations and Orders
To find that the FCC “meant” to preempt
state law in its 1996 Order, the Ninth Circuit
ignored the long history of unambiguous FCC
orders against preemption and relied in part on the
artful statement prepared by the FCC for litigation
purposes in this case. App. 18a-19a. This post-hoc
search for hidden intent was misplaced.
An agency regulation promulgated through
an agency proceeding conducted pursuant to the
Administrative Procedure Act, or other authorizing
statute, at least arguably qualifies as being “made
in pursuance” of the U.S. Constitution. See Fidelity
Federal Sav. And Loan Ass’n v. de la Cuesta, 458
U.S. 141, 154 (1982) (“Federal regulations have no
less preemptive effect than federal statutes.”). And
the orders that promulgate the rule after APAconsistent procedures have some standing; they are
akin to the legislative history behind a statute and
provide the rationale and substantial evidence
24
basis for the adopted rule. From both a
constitutional perspective and a policy perspective,
an express statement of the intent to preempt (or,
as here, an intent to not preempt) made as part of
the actual order promulgating the rule offers
foundation for finding whether an agency “meant”
to preempt state law. In other words, the regulation
may sometimes not expressly state a preemptive
intent, but the promulgating order should. At
minimum, there should be some contemporaneous
interpretation that clearly provides preemptive
effect.
Intention clearly derived from the legislative
rule itself or an express statement to preempt in an
order provides a clear, textual basis upon which a
court may find an agency’s intent to preempt, thus
reducing the risk that a court will displace state
law based on speculations or inferences about an
agency’s intent. Wyeth v. Levine, 555 U.S. 555, 588
(2009) (Thomas, J., concurring) (warning against
finding preemption based on “freewheeling,
extratextual, and broad evaluations” of the
purposes-and-objectives of federal law, and noting
that to comply with the constitution, evidence of
preemptive purpose must be sought in the text and
structure of the provision at issue). Additionally, a
rule or order promulgated under the APA is
surrounded by procedural protections15 that help to
See generally, 5 U.S.C. § 553(c) (requiring agency to
consider views and arguments of interested persons in
rulemaking); 5 U.S.C. § 553(b) (describing notice
requirements for formal rulemaking); 5 U.S.C. § 555(e)
(requiring agency to explain denials of requests in agency
15
25
ensure the weighty decision to displace state law is
well-considered. Wyeth, 555 U.S. at 577 (“The
weight we accord [an] agency’s explanation of state
law’s impact on the federal scheme depends on its
thoroughness, consistency, and persuasiveness”).
Further instructive as to how and why a
formal agency rule or order is a more substantial
foundation for a court finding of preemption is the
2003 FCC order dealing with preemption of a
county zoning ordinance. See In re Petition of
Cingular Wireless L.L.C. for a Declaratory Ruling
that Provisions of the Anne Arundel County Zoning
Ordinance are Preempted as Impermissible
Regulation of Radio Frequency Interference
Reserved Exclusively to the Federal
Communications Commission, 18 FCC Rcd 13126
(2003) (“2003 Cingular Preemption Order”). The
2003 Cingular Preemption Order held, using field
preemption analysis, that specific sections of the
Communications Act of 1934 preempted a county
ordinance requiring, as a condition of receiving a
zoning certificate, that owners and users of
telecommunications facilities show that their
facilities would not interfere with county public
safety communications systems. Id. at ¶¶ 1, 27.
Before issuing the order, the Commission
received thirteen comments and four reply
comments, as well as filings by four local
governments and the Local and State Government
Advisory Committee. Id. at ¶ 9. The Order recites
proceedings); 5 U.S.C. § 556 (requiring agency to maintain a
full record of the proceedings that underlie its rulemaking
decisions).
26
the history of the conflict leading up to the petition,
see id. at ¶¶ 3-8, canvasses Commission and federal
court decisions regarding federal preemption of
state and local regulation of radio frequency
interference, see id. at ¶¶ 12-17 and considers the
county ordinance considering this precedent. Id. at
¶ 18. The Order describes and addresses in detail
the county’s arguments against preemption. Id. at
¶¶ 19-22. The Order discusses the ways the
county’s ordinance actually impedes wireless
service in the county, id. at ¶ 24, and the ways the
practical concerns raised by the county might be
addressed despite a finding of preemption. Id. ¶¶
25-26. In sum, the order demonstrates a depth of
consideration and analysis that sets out the
agency’s justification for exercising implied
preemptive authority.
If the rule is ambiguous the courts should
require clear and direct indications of intent to
preempt from agencies within their orders. We
have that here, and all the signs point to nonpreemption. The Ninth Circuit searched the FCC’s
orders trying to find preemptive mice when all it
needed to do was recognize the anti-preemptive
elephant-sized statements in those same orders.
The Court should establish that clear statements
are necessary and when they exist the courts
should rely on those, not launch a purposes-andobjectives snipe hunt like that below.
27
CONCLUSION
The Court should grant the petition for
certiorari in this case in order to provide essential
guidance, so that in the future, lower courts first
ensure Congress intended to grant agency
preemption powers on the subject at hand, and
then find preemption by regulation only when the
agency has far more clearly expressed an intent to
preempt within a rule or order that has been
promulgated through appropriate agency
proceedings.
In this case the FCC’s intention to not
preempt state tort, consumer and health and safety
laws touching emissions from devices other than
personal wireless facilities, consistent with the
same distinction in the Communications Act is
clear. The Ninth Circuit’s divination exercise that
led to a contrary opinion was erroneous and must
be corrected.
Respectfully Submitted,
Mary S. Holland
President & General Counsel, Children’s Health
Defense
852 Franklin Ave., #511
Franklin Lakes, NJ 07417
(202) 854-1310
mary.holland@childrenshealthdefense.org
Counsel of Record
28
Risa Evans
Staff Attorney, Children’s Health Defense
852 Franklin Ave., #511
Franklin Lakes, NJ 07417
Leslie L. Lewis
Legal Fellow, Children’s Health Defense
852 Franklin Ave., #511
Franklin Lakes, NJ 07417
W. Scott McCollough
McCollough Law Firm PC
2290 Gatlin Creek Rd.
Dripping Springs, TX 78620
March 15, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.