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9th Circuit Court of Appeals Hears CTIA vs. SF Cell Phone Disclosure Case:

"Must See TV"

Video of oral arguments

Your blogger surprised the CTIA legal team on Thursday by showing up at the Federal Courthouse in San Francisco to hear the oral arguments before the 9th Circuit of Appeals on the litigation captioned CTIA - The Wireless Association v. The City & County of S.F. as well as a countersuit. (Actually I was in San Francisco on an unrelated technical matter and had free time in the morning and the oral argument seemed the best free show in town.) The case was argued before Judges Schoeder, Callahan, and Korman by CTIA’s Andrew McBride of Wiley Rein and Deputy City Attorney Vince Chhabria represented San Francisco.

If you are interested in the pleadings, CTIA has posted one recent pleading. The other side has 2 pleadings available on their website: San Francisco's opening 9th Circuit brief (Jan. 25, 2012);Francisco's opening 9th Circuit brief (April 4, 2012) Complete pleadings of all parties are available on the court’s PACER system but registration is needed and fees must be paid if you download more than 150 pages/quarter. (If you use PACER, the case numbers are Nos. 11-17707, 11-17773 ). I will post links to more pleadings if the parties supply them.

On the eve of the oral arguments, GAO released a new report on the cell phone health issue. The SF City Attorney then used this for a press release:

Just two days before a key federal appeals court hearing was set to get under way in the mobile phone lobby's legal challenge to San Francisco's cell phone consumer information ordinance, the U.S. Government Accountability Office released a report expressing concern that the Federal Communications Commission has failed to keep up with scientific developments on the possible link between cell phone radiation and cancer. The report by the GAO -- the independent, nonpartisan auditing agency that works for Congress -- was commissioned a year ago to review FCC standards after a panel of 31 leading scientists from the World Health Organization concluded that the radiofrequency energy exposure from cell phones is "possibly carcinogenic." The report is titled, "Exposure and Testing Requirements for Mobile Phones Should be Reassessed."

At issue is a fact sheet that has been revised by the first judge to hear the case (available here at p. 68) and now includes the following statements:

"Although all cell phones sold in the United States must comply with radio-frequency safety limits set by the Federal Communications Commission, no safety study has ever ruled out the possibility of human harm from RF exposure.

"RF energy has been classified by the World Health Organization as a possible carcinogen (rather than as a known carcinogen or a probable carcinogen) and studies continue to assess the potential health effects of cell phones"

The pending SF fact sheet is amazingly similar to a brochure that comes with all French cell phones and SIM cards as was discussed previously here. The brochure comes from FFT, the French counterpart of CTIA, and the content is shown on their website. Lest you think FFT is a wimp compared to CTIA in defending cellular interests on this issue, here is a recent letter from FFT to France Télévisions, the French counterpart of BBC, complaining about a TV documentary program on the RF safety issue.

CNET.com wrote that McBride said San Francisco's attempt at educating the public about cell phone radiation was "laughable”. CNET went on to write “Chhabria pointed to California's Prop. 65, which requires the state to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. Businesses must label products or post warnings if a businesses knows or thinks that a listed chemical has been used.” The discussion between distinguished counsels and the 3 judge panel went on to discuss mandated Prop. 65 warning in Starbuck’s in California. I believe 2 of the 3 judges had never seen this warning and it is clear it was not affecting their coffee drinking habits.

StarbucksSF P 65
As a service to SpectrumTalk readers, your blogger promptly went to a local Starbucks and found the sign in question. (The Starbucks was mobbed giving some evidence that Prop. 65 signs had not killed business.) Here is what the Prop. 65 warning next to the cash register in Starbucks says:

“Chemicals known to the State of California to cause cancer and reproductive toxicity, including acrylamide, are present in coffee, baked goods, and other foods or beverages sold here. Acrylamide is not added to our products, but resulted from cooking, such as when coffee beans are roasted or baked goods are baked. As a result, acrylamide is present in our brewed coffee, including coffee made at home or elsewhere from our beans, ground, or instant coffee, baked goods or other foods sold here, in grocery stores or other locations.”

Mr. Chhabria pointed out that the language of Prop. 65 only applies to chemicals and thus does not apply to cell phones. However, he also pointed out that Pro. 65 requires such warnings for all chemicals identified by WHO as “possible carcinogens”, the same classification that cell phones are now in. Mr. McBride pointed out that if ink was a possible carcinogen, then all printed documents would have to be labeled under this concept. However, he did not address the point that WHO so classifies cell phones not ink.

Nevertheless there is not evidence that cell phones cause any pathology in their users and your blogger is puzzled by the “antis” and their focus on “malignant brain tumors”. If a pathology is ever proven, it could well be something entirely different! Or there could be no pathologies since there is not present understanding of how RF at typical levels could cause any pathology.

The James R. Browning U.S. Court of Appeals Building where the oral arguments were held was built in 1905 and reopened in 1910 after the 1906 earthquake. It is listed in the National Register of Historic Places. Here is a beautiful mosaic mural in the court room where the arguments were held.

SF courtroom

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