The Third Circuit Court of Appeals held on October 22nd that the recurring question of whether cell phones pose health hazards must be sorted out by the Federal Communications Commission and not through product liability suits. Congress has designed a regulatory scheme that gives the FCC exclusive power to regulate all aspects of the cell phone industry, including a remedy sought by a prospective consumer class that would have required distribution of headsets to cell phone owners. Farina v. Nokia.
The ruling is a major victory for cell phone manufacturers and service providers, and holds that consumers cannot be allowed to sue over possible biological hazards allegedly caused by cell phone radio emissions because such suits would interfere with the FCC's exclusive power to regulate the industry. The 3rd Circuit's ruling upholds a September 2008 decision by U.S. District Judge John R. Padova that said the suit was pre-empted because its allegations "unquestionably trample upon the FCC's authority to determine the maximum standard for RF emissions."
The suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations: Nokia Inc.; Ericsson Wireless Communications Inc.; Motorola Inc.; Sprint PCS; Audiovox Communications Corp.; Nextel Communications; Panasonic Corp.; Philips Electronics North America Corp.; Qualcomm Inc.; Sanyo North America; Sony Electronics Inc.; AT&T Wireless Services Inc.; Verizon Wireless; Southwestern Bell Mobile Systems Inc.; Cellular One; VoiceStream Wireless; LG Electronics Mobilecomm Inc.; Cellular Telecommunication Industry Association; and Telecommunications Industry Association.
U.S. Circuit Judge Anthony J. Scirica found that allowing a suit over the alleged hazards of the radio frequency, or RF, emissions of cell phones would effectively "permit juries to second-guess the FCC's balance of its competing objectives." The FCC, Scirica said, "is in a better position to monitor and assess the science behind RF radiation than juries in individual cases." The opinion was joined by 3rd Circuit Judge Thomas L. Ambro and visiting 9th Circuit Senior Judge Arthur Alarcon.
Plaintiffs lawyers argued that their claims should be permitted because they weren't seeking any changes to RF emission standards. Instead, they said, the proposed class of Pennsylvania consumers was demanding only that manufacturers and sellers be ordered to provide a headset with every phone as a safety device. Plaintiffs argued that the expert evidence showed that RF emissions cause biological hazards only when a cell phone is in close proximity to human tissue, and that headsets could eliminate much of that alleged hazard.
But the 3rd Circuit concluded that the case must still be pre-empted. "Although [plaintiff Francis J.] Farina attempts to characterize his suit as setting a headset requirement, this misapprehends the effect a finding of liability would have in this kind of suit," Scirica wrote. When a jury reaches a verdict, Scirica said, its decision "is not to prescribe a specific prospective remedy." Instead, Scirica said, the verdict would say only whether cell phones are safe or unsafe, and it would be left to the manufacturers and sellers to decide how to ensure safety in the cell phones sold in the future. "Whether they complied by reducing RF emissions or by bundling headsets with phones — or by some other means — would be irrelevant for the purposes of the new state-law standard," Scirica found. Scirica found that the complicated task of regulating radio emissions must be left to the FCC — and not to juries. "Regulatory assessments and rulemaking call upon a myriad of empirical and scientific data and medical and scientific opinion, especially in a case, such as RF radiation, where the science remains inconclusive," Scirica wrote.
