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Farina v. Nokia, No. 10-1064 (Sup. Ct.)

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Released: August 26, 2011

No. 10-1064

In the Supreme Court of the United States
FRANCIS J. FARINA, PETITIONER
v.
NOKIA, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DONALD B. VERRILLI, JR.
AUSTIN C. SCHLICK
Solicitor General
General Counsel
Counsel of Record
P
M
ETER KARANJIA
ALCOLM L. STEWART
Deputy General Counsel
Deputy Solicitor General
R
E
ICHARD K. WELCH
RIC D. MILLER
Deputy Associate General
Assistant to the Solicitor
Counsel
General
J
Department of Justice
AMES M. CARR
Counsel
Washington, D.C. 20530-0001
Federal Communications
SupremeCtBriefs@usdoj.gov
Commission
(202) 514-2217
Washington, D.C. 20554

QUESTION PRESENTED

Whether petitioner’s state-law tort claims, which are
based on the alleged harmfulness of cellular telephones
that comply with the Federal Communications Commis-
sion’s regulations setting standards for radiofrequency
radiation, are preempted by federal law.
(I)

TABLE OF CONTENTS

Page
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. There is no conflict among the courts of appeals
that warrants this Court’s intervention at this time . . 10
B. The 1996 Act did not divest the FCC of its pre-
existing authority to promulgate regulations
having preemptive effect . . . . . . . . . . . . . . . . . . . . . . . . . 16
C. The fact that the FCC’s RF regulations serve in
part to carry out the agency’s NEPA obligations
does not prevent the regulations from having
preemptive effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TABLE OF AUTHORITIES

Cases:
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S.
341 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20
Cellular Phone Taskforce v. FCC, 205 F.3d 82
(2d Cir. 2000), cert. denied, 531 U.S. 1070 (2001) . . . . . . 7
Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871
(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
City of New York v. FCC, 486 U.S. 57 (1988) . . . . . . . . . . . 11
Department of Transp. v. Public Citizen, 541 U.S. 752
(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EMR Network v. FCC, 391 F.3d 269 (D.C. Cir. 2004) . . . . 7
Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,
458 U.S. 141 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Geier v. American Honda Motor Co., 529 U.S. 861
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 20
(III)

IV
Cases—Continued:
Page
Head v. New Mexico Bd. of Exam’rs in Optometry,
374 U.S. 424 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Hillsborough County v. Automated Med. Labs., Inc.,
471 U.S. 707 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) . . . . . . . . . . . 14
Murray v. Motorola, Inc., 982 A.2d 764
(D.C. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 15, 16
National Broad. Co. v. United States, 319 U.S. 190
(1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir.), cert.
denied, 546 U.S. 998 (2005) . . . . . . . . . . . . . . . . . . . . 10, 11
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19
Talk Am., Inc. v. Michigan Bell Tel. Co., 131 S. Ct.
2254 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Vermont Yankee Nuclear Power Corp. v. NRDC,
435 U.S. 519 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Williamson v. Mazda Motor of Am., Inc., 131 S. Ct.
1131 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Wyeth v. Levine, 129 S. Ct. 1187 (2009) . . . . . . . . . . . 8, 9, 13
Statutes, regulations, and rule:
Communications Act of 1934, Pub. L. No. 73-415,
48 Stat. 1064 (47 U.S.C. 151 et seq.) . . . . . . 1, 4, 11, 17, 18
National Environmental Policy Act of 1969,
42 U.S.C. 4321 et seq. . . . . . . . . . . . . . . . . . . . 3, 4, 7, 18, 19
Radio Act of 1927, Pub. L. No. 69-632, 44 Stat. 1162 . . . . . 1
Radio Communication Act of 1912, ch. 287, 37 Stat.
302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

V
Statutes, regulations, and rule—Continued:
Page
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16, 17, 20
§ 601(c)(1), 110 Stat. 143 . . . . . . . . . . . . . . . . . . . . 16, 17
§ 704(b), 110 Stat. 152 . . . . . . . . . . . . . . . . . . . . 5, 17, 20
42 U.S.C. 4332(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 U.S.C. 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 17, 18
47 U.S.C. 152 note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
47 U.S.C. 154(i) (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
47 U.S.C. 154(j) (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
47 U.S.C. 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 303(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 303(r) (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
47 U.S.C. 309(j)(3)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
47 U.S.C. 332(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
40 C.F.R.:
Pt. 1501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pt. 1502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pt. 1507:
Section 1507.3(b)(2)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pt. 1508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1508.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 C.F.R.:
Section 1.1307(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19
Section 1.1308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19
Section 2.1091(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1093(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI
Regulation and rule—Continued:
Page
Section 2.803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Miscellaneous:
FCC, Office of Eng’g and Tech., Questions and
Answers about Biological Effects and Potential
Hazards of Radiofrequency Electromagnetic
Fields
, OET Bulletin No. 56 (4th ed. 1999), http://
transition.fcc.gov/Bureaus/Engineering_
Technology/Documents/bulletins/oet56
/oet56e4.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
Guidelines for Evaluating the Envtl. Effects of
Radiofrequency Radiation:
8 F.C.C.R. 2849 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11 F.C.C.R. 15,123 (1996), on reconsideration,
12 F.C.C.R. 13,494 (1997), aff’d, Cellular
Phone Taskforce
v. FCC, 205 F.3d 82 (2d Cir.
2000), cert. denied, 531 U.S. 1070 (2001) . . passim
12 F.C.C.R. 13,494 (1997), aff’d, Cellular Phone
Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000),
cert. denied, 531 U.S. 1070 (2001) . . . . . . . . passim
H.R. Rep. No. 204, 104th Cong., 1st Sess. Pt. 1
(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20
Responsibility of the FCC to Consider Biological
Effects of Radiofrequency Radiation When
Authorizing the Use of Radiofrequency Devices,
100 F.C.C.2d 543 (1985) . . . . . . . . . . . . . . . . . . . . . . 3, 4, 17

VII
Miscellaneous—Continued:
Page
Responsibility of the FCC to Consider Biological
Effects of Radiofrequency Radiation When Au-
thorizing the Use of Radiofrequency Devices,
2
F.C.C.R. 2064 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

In the Supreme Court of the United States
No. 10-1064
FRANCIS J. FARINA, PETITIONER
v.
NOKIA, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order
inviting the Solicitor General to express the views of the
United States in this case. In the view of the United
States, the petition for a writ of certiorari should be de-
nied.

STATEMENT

1. For nearly a century, the federal government
has extensively regulated radio communications. See
Radio Communication Act of 1912, ch. 287, 37 Stat. 302;
Radio Act of 1927, Pub. L. No. 69-632, 44 Stat. 1162. In
the Communications Act of 1934, Pub. L. No. 73-415,
48 Stat. 1064 (47 U.S.C. 151 et seq.), Congress “cent-
raliz[ed] authority” to regulate radio communications in
a single federal agency, the Federal Communications
Commission (FCC or Commission). 47 U.S.C. 151. In
regulating the industry, the FCC’s core mission is “to
(1)

2
make available * * * to all the people of the United
States * * * a rapid, efficient, Nation-wide, and world-
wide wire and radio communication service.” Ibid. The
Communications Act further directs the FCC to “en-
courage the provision of new technologies and services
to the public,” 47 U.S.C. 157, and to facilitate the “effi-
cient and intensive use of the electromagnetic spec-
trum,” 47 U.S.C. 309( j)(3)(D). The Commission must
also strive to protect the “safety of life and property
through the use of wire and radio communication.” 47
U.S.C. 151.
To facilitate the FCC’s pursuit of those sometimes
competing objectives, “Congress endowed” the agency
“with comprehensive powers to promote and realize the
vast potentialities of radio.” National Broad . Co. v.
United States, 319 U.S. 190, 217 (1943). In particular,
Congress authorized the Commission to regulate the
technical aspects of wireless radio communications ser-
vices, including “the kind of apparatus to be used” and
the “emissions” that such equipment may produce. 47
U.S.C. 303(e). This Court has held that “the Commis-
sion’s jurisdiction over” such “technical matters * * *
is clearly exclusive.” Head v. New Mexico Bd . of
Exam’rs in Optometry, 374 U.S. 424, 430 n.6 (1963).
2. Nearly every form of wireless communications—
from television, radio, and cellular telephones to satellite
communications networks and dispatch systems for po-
lice and fire departments—uses radiofrequency (RF )
electromagnetic waves to send and receive signals. See
FCC, Office of Eng’g and Tech., Questions and Answers
about Biological Effects and Potential Hazards of
Radiofrequency Electromagnetic Fields, OET Bulletin
No. 56 (4th ed. 1999), at 2-3, http://transition.fcc.gov/
Bureaus/Engineering_Technology/Documents/bulletins/

3
oet56/oet56e4.pdf. At high levels, RF energy can cause
a potentially dangerous thermal effect: the heating of
human tissue. Id . at 6-8.
The National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq., requires federal agen-
cies to evaluate the environmental effects of “major”
regulatory actions “significantly affecting the quality of
the human environment.” 42 U.S.C. 4332(2)(C). Al-
though NEPA is designed “to insure a fully informed
and well-considered decision” that takes environmental
concerns into account, Vermont Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519, 558 (1978), the statute
“does not mandate particular results, but simply pre-
scribes the necessary process,” Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989). Un-
der regulations promulgated by the Council on Environ-
mental Quality (CEQ), an agency is ordinarily required
to prepare either an environmental impact statement
(EIS) or an environmental assessment (EA) to evaluate
the potential effects of its actions. See 40 C.F.R. Pts.
1501, 1502, 1508. An agency may, however, identify
classes of actions, known as “categorical exclusions,” 40
C.F.R. 1507.3(b)(2)(ii), for which neither an EIS nor an
EA is required, based on the agency’s determination
that such actions “do not individually or cumulatively
have a significant effect on the human environment,” 40
C.F.R. 1508.4.
In 1985, the Commission adopted rules prescribing
RF exposure standards for certain FCC-licensed facili-
ties. Responsibility of the FCC to Consider Biological
Effects of Radiofrequency Radiation When Authorizing
the Use of Radiofrequency Devices, 100 F.C.C.2d 543
(1985) (1985 RF Order). Under those rules, an EA is
required only for those facilities that exceed the FCC’s

4
prescribed RF limits. The Commission based its RF
standards on guidelines that had been developed by the
American National Standards Institute (ANSI), a non-
profit organization that has helped to develop and ad-
minister national consensus standards for American
industry for nearly a century. Id. at 551. As the “[l]egal
basis” for prescribing those standards, the FCC cited
NEPA, as well as three provisions of the Communica-
tions Act (47 U.S.C. 154(i), 154(j), and 303(r) (1978)) that
vest the FCC with broad rulemaking authority. 100
F.C.C.2d at 565.
The Commission initially excluded from its RF rules
certain “relatively low-powered communications sys-
tems,” including cellular phones. See Responsibility of
the FCC to Consider Biological Effects of Radiofrequen-
cy Radiation When Authorizing the Use of Radiofre-
quency Devices, 2 F.C.C.R. 2064, 2065 ¶ 14 (1987). The
Commission found “little likelihood” that those devices
would “cause exposures in excess of the RF safety guide-
lines.” Id . at 2065 ¶ 15. In 1992, however, ANSI
adopted a new standard for RF exposure that was “gen-
erally more stringent” than its previous standard “in the
evaluation of low-power devices, such as hand-held ra-
dios and cellular telephones.” See Guidelines for Evalu-
ating the Envtl. Effects of Radiofrequency Radiation,
11 F.C.C.R. 15,123, 15,127 ¶ 9 (1996) (1996 RF Order),
on reconsideration, 12 F.C.C.R. 13,494 (1997) (1997 RF
Order), aff’d, Cellular Phone Taskforce v. FCC, 205 F.3d
82 (2d Cir. 2000), cert. denied, 531 U.S. 1070 (2001).
The next year, the FCC began a proceeding to con-
sider revising its rules to reflect ANSI’s new RF stan-
dard. Guidelines for Evaluating the Envtl. Effects of
Radiofrequency Radiation, 8 F.C.C.R. 2849 (1993).
That proceeding was still pending when Congress en-

5
acted the Telecommunications Act of 1996 (1996 Act),
Pub. L. No. 104-104, 110 Stat. 56. Section 704(b) of the
1996 Act directed the FCC to “complete action” within
180 days on its pending proceeding “to prescribe and
make effective rules regarding the environmental ef-
fects of radio frequency emissions.” 100 Stat. 152. The
House Commerce Committee, which had drafted Section
704(b), explained that because “[a] high quality national
wireless telecommunications network cannot exist if
each of its component[s] must meet different RF stan-
dards in each community,” the FCC should adopt uni-
form federal RF standards that strike “an appropriate
balance” between “adequate safeguards of the public
health” and “speed[y] deployment * * * of competitive
wireless telecommunications services.” H.R. Rep. No.
204, 104th Cong., 1st Sess. Pt. 1, at 94-95 (1995) (House
Report).
In accordance with the deadline set by the 1996
Act, the Commission in August 1996 issued an order
adopting new RF exposure guidelines. 1996 RF Order,
11 F.C.C.R. at 15,124 ¶ 1. As authority for the
rulemaking, the agency cited a variety of Communica-
tions Act provisions. See id. at 15,185 ¶ 171. For the
first time, the agency applied its RF standards to wire-
less phones. Id. at 15,147 ¶¶ 63-64. The 1996 RF Order
established, for RF emissions from wireless phones, a
maximum specific absorption rate (SAR) in human tis-
sue of 0.08 W/kg averaged over the entire body, and 1.6
W/kg for localized exposure to areas such as the head.
47 C.F.R. 2.1093(d)(2). Unless the manufacturer or
seller of wireless phones certifies that the phones com-
ply with that limit, its application for equipment authori-
zation must include an EA that analyzes the environ-

6
mental consequences of the requested authorization.
See 47 C.F.R. 1.1307(b), 1.1308, 2.1091(c).
In crafting its new RF guidelines, the FCC placed
“special emphasis on the recommendations and com-
ments of Federal health and safety agencies,” including
the Environmental Protection Agency and the Food and
Drug Administration, “because of their expertise and
their responsibilities with regard to health and safety
matters.” 1996 RF Order, 11 F.C.C.R. at 15,135 ¶ 28;
see id. at 15,141-15,142 ¶ 49. The Commission concluded
that its new RF rules “represent[ed] the best scientific
thought” on the RF limits necessary “to protect the pub-
lic health.” Id . at 15,184 ¶ 168. The agency also deter-
mined that “these RF exposure limits provide a proper
balance between the need to protect the public and
workers from exposure to excessive RF electromagnetic
fields and the need to allow communications services to
readily address growing marketplace demands.” 1997
RF Order, 12 F.C.C.R. at 13,505 ¶ 29.
When it adopted the new RF guidelines in 1996, the
FCC declined to adopt a “broad-based preemption pol-
icy to cover all transmitting sources.” 1996 RF Order,
11 F.C.C.R. at 15,184 ¶ 168. The agency stated that
“[o]nce states and localities have had an opportunity to
review and analyze the guidelines we are adopting, we
expect they will agree that no further state or local reg-
ulation is warranted.” Ibid . The agency acknowledged
at that time that “research and analysis relating to RF
safety and health is ongoing,” and it expressed its expec-
tation that “changes in recommended exposure limits
will occur in the future as knowledge increases in this
field.” Id. at 15,125 ¶ 4. The Commission explained that
it would “work with industry and with the various agen-
cies and organizations with responsibilities in this area

7
in order to ensure that [federal RF] guidelines continue
to be appropriate and scientifically valid.” Ibid.
On judicial review of the 1996 RF Order, the Second
Circuit rejected arguments that the FCC’s RF exposure
standards were inadequate to protect the public. Cellu-
lar Phone Taskforce v. FCC, 205 F.3d 82, 89-95 (2d Cir.
2000), cert. denied, 531 U.S. 1070 (2001). The court
noted that “[a]ll of the expert [federal] agencies con-
sulted” by the FCC had “found the FCC’s approach to
be satisfactory.” Id . at 90. Observing that the estab-
lishment of “safety margins” is “a policy question, not a
legal one,” the court held that the FCC had acted rea-
sonably in setting RF standards that, while sufficient to
protect the public, would not unduly impede the provi-
sion of wireless “telecommunications services to the
public in the most efficient and practical manner possi-
ble.” Id . at 91-92 (internal quotation marks omitted).
The court further held that the Commission, in conduct-
ing the rulemaking, had complied with the procedural
requirements imposed by NEPA and the applicable
CEQ regulations. Id. at 94-95; see EMR Network v.
FCC, 391 F.3d 269 (D.C. Cir. 2004) (affirming the FCC’s
denial of a subsequent petition to consider revising its
RF standards).
3. Petitioner filed a putative class action in the
United States District Court for the Eastern District of
Pennsylvania, alleging that mobile phones manufactured
and sold by respondents in compliance with FCC RF
standards are potentially hazardous to the health of cell
phone users when the phones are used without headsets.
The district court granted respondents’ motion to dis-
miss, holding that petitioner’s claims were preempted
because they conflicted with federal law. Pet. App. 62a-
115a.

8
4. The court of appeals affirmed. Pet. App. 1a-61a.
The court concluded that “[a]llowing juries to impose
liability on cell phone companies for claims like [peti-
tioner’s] would conflict with the FCC’s regulations.” Id.
at 44a. The court observed that the Commission’s RF
standards for wireless phones “represent the FCC’s
considered judgment about how to protect the health
and safety of the public while still leaving industry capa-
ble of maintaining an efficient and uniform wireless net-
work.” Id. at 43a. The court further explained that “[a]
jury determination that cell phones in compliance with
the FCC’s SAR guidelines were still unreasonably dan-
gerous would, in essence, permit a jury to second guess
the FCC’s conclusion on how to balance its objectives.”
Id. at 44a. The court concluded that lawsuits like this
one “would hinder the accomplishment of the full objec-
tives behind wireless regulation” by potentially
“[s]ubjecting the wireless network to a patchwork of
state standards” derived from disparate jury awards (id.
at 46a), thereby “eradicating the uniformity” that “both
Congress and the FCC recognized * * * as an essen-
tial element of an efficient wireless network” (id. at 45a).
“In concluding that state-law causes of action like
[petitioner’s] may disturb the FCC’s balance of its statu-
tory objectives,” the court of appeals “afford[ed] some
weight to the views of the FCC itself.” Pet. App. 46a.
The court concluded that in this case, where “the subject
matter is technical and the relevant history and back-
ground are complex and extensive,” the FCC’s “expla-
nation of how state law affects the regulatory scheme”
was entitled to deference. Ibid. (quoting Wyeth v. Le-
vine, 129 S. Ct. 1187, 1201 (2009)). The court noted that
the Commission has “a unique understanding” of the
Communications Act and “an attendant ability to make

9
informed determinations about how state requirements
may pose an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress.”
Ibid. (quoting Wyeth, 129 S. Ct. at 1201).
The court of appeals explained that its finding of pre-
emption was supported by the Commission’s statement
in the 1997 RF Order that “the adoption of its SAR
guidelines constituted a balancing of safety and effi-
ciency.” Pet. App. 46a (citing 1997 RF Order, 12
F.C.C.R. at 13,496). The court also relied in part on an
amicus brief filed by the FCC and the United States in
a similar case, which explained “that state-law claims
would upset that balance.” Id. at 46a-47a (citing Gov’t
Amicus Br., Murray v. Motorola, Inc., 982 A.2d 764
(D.C. 2009) (No. 07-cv-1074)). Observing that “[t]he
FCC is in a better position to monitor and assess the
science behind RF radiation than juries in individual
cases,” id. at 60a, the court held that lawsuits like peti-
tioner’s are preempted because “[a]llowing juries to de-
termine” whether the FCC’s RF regulations “are ade-
quate to protect the public would ‘stand[] as an obstacle
to the accomplishment and execution of the full purposes
and objectives of Congress,’ ” id. at 61a (quoting
Hillsborough County v. Automated Med . Labs., Inc.,
471 U.S. 707, 713 (1985) (brackets in original)).

DISCUSSION

The court of appeals correctly held that petitioner’s
suit is preempted because the state-law rule it seeks to
impose would conflict with the FCC’s RF regulations.
Those regulations are intended to strike “a proper bal-
ance between the need to protect the public and workers
from exposure to potentially harmful RF electromag-
netic fields and the requirement that industry be al-

10
lowed to provide telecommunications services to the
public in the most efficient and practical manner possi-
ble.” 1997 RF Order, 12 F.C.C.R. at 13,496 ¶ 2. This
Court has recognized that when a regulatory agency
seeks “to achieve a somewhat delicate balance” of com-
peting “statutory objectives,” such a balance “can be
skewed by allowing * * * claims under state tort law”
that could produce different outcomes. Buckman Co. v.
Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001). The
same concern justifies preemption in this case.
Petitioner contends that the Court should grant cer-
tiorari for three reasons. First, he asserts that the deci-
sion below conflicts with decisions of the Fourth Circuit
and the District of Columbia Court of Appeals. Pet. 13-
17. Second, he argues that the Court should review this
case to clarify the impact of a savings clause in the 1996
Act. Pet. 17-22. Finally, petitioner maintains that this
case presents an important issue regarding the preemp-
tive effect of an agency’s NEPA regulation on state
laws. Pet. 22-25. None of those contentions justifies
further review.

A. There Is No Conflict Among The Courts Of Appeals That

Warrants This Court’s Intervention At This Time

1. Petitioner argues (Pet. 13-15) that the decision
below conflicts with Pinney v. Nokia, Inc., 402 F.3d 430,
cert. denied, 546 U.S. 998 (2005), in which a divided
panel of the Fourth Circuit held that a lawsuit challeng-
ing the safety of wireless phones did not conflict with
federal law. Id. at 456-458. But the decision in Pinney
was issued before the FCC set out its views on the effect
of state lawsuits on the federal regulatory scheme. In
light of those views, which were central to the reasoning
of the court below, see Pet. App. 46a, the Fourth Circuit

11
may reconsider its position if the issue arises in a future
case. Accordingly, this Court’s intervention would be
premature at this time.
In Pinney, the Fourth Circuit gave almost no consid-
eration to the preemptive effect of the FCC’s RF regula-
tions. Instead, the court focused its preemption analysis
on a single provision of the Communications Act, 47
U.S.C. 332. As the court explained, Section 332 “(1) pro-
vides factors that the FCC must consider in managing
the spectrum used for wireless services; (2) classifies
wireless service providers that provide wireless service
to the public for profit as ‘common carriers’ * * * ;
(3) prevents states from regulating ‘the entry of or the
rates charged by’ wireless service providers; and
(4) limits in certain respects the ability of states and
local zoning authorities to regulate the ‘placement, con-
struction, and modification’ of facilities that provide
wireless service.” 402 F.3d at 457 (citations omitted).
The Fourth Circuit concluded that it could “not infer
from [Section] 332 the congressional objective of achiev-
ing preemptive national RF radiation standards for
wireless telephones.” Ibid . By focusing only on that
statutory provision and failing to consider the independ-
ent preemptive effect of the Commission’s RF rules, the
court ignored the principle that, like statutes, the “stat-
utorily authorized regulations of an agency will pre-
empt any state or local law that conflicts with such regu-
lations or frustrates the purposes thereof.” City of New
York v. FCC, 486 U.S. 57, 64 (1988); see Fidelity Fed .
Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153
(1982) (“Federal regulations have no less pre-emptive
effect than federal statutes.”).
After the Fourth Circuit decided Pinney, the FCC
and the United States made clear in amicus filings that

12
state lawsuits challenging the safety of FCC-certified
wireless phones conflict with the federal policy objec-
tives underlying the FCC’s RF rules. In Murray v.
Motorola, Inc., 982 A.2d 764 (D.C. 2009), plaintiffs sued
a number of cell phone companies and handset manufac-
turers under District of Columbia law, alleging that the
plaintiffs had suffered injury as a result of using cell
phones produced, sold, or promoted by the defendants.
In their amicus brief in the D.C. Court of Appeals, the
FCC and the United States argued that the Commis-
sion’s RF regulations preempt any lawsuit asserting
claims that wireless phones that complied with the
FCC’s RF standards were unsafe. Gov’t Amicus Br.,
Murray, supra (No. 07-cv-1074) (FCC Amicus Br.).
The government’s amicus brief in Murray contended
that the lawsuit was preempted not only because the
federal government had occupied the field of regulating
technical standards for RF transmissions, FCC Amicus
Br. 12-14, but also because the suit “plainly conflicts
with the FCC’s RF exposure regulations,” id . at 15-18.
Quoting the 1997 RF Order, the amicus brief explained
that the Commission’s RF standards “are not simply a
minimum requirement” that States are free to supple-
ment, but instead “set the ‘proper balance between the
need to protect the public and workers * * * and the
need to allow communications services to readily ad-
dress growing marketplace demands.’” Id . at 17 (quot-
ing 1997 RF Order, 12 F.C.C.R. at 13,505 ¶ 29). Approx-
imately two and a half years later, the FCC informed
the court adjudicating a similar case that “[i]t continues
to be the Commission’s position * * * that state law
claims premised on the contention that FCC-compliant
cell phones are unsafe are preempted by federal law.”
Gov’t Statement of Interest, Attachment 2, at 2,

13
Dahlgren v. Audiovox Comm’cns Corp., No. 2002-CA-
007884-B (D.C. Super. Ct. filed Sept. 17, 2010) .
As this Court has recently observed, such amicus
briefs reflect an agency’s considered views, and courts
must defer to the agency’s interpretation of its own reg-
ulations as set forth in the briefs. Talk Am., Inc. v.
Michigan Bell Tel. Co., 131 S. Ct. 2254, 2257 n.1 (2011);
Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 878
(2011). Since the Commission filed its brief in Murray,
the appellate courts that have addressed the issue—the
District of Columbia Court of Appeals in Murray and
the Third Circuit in this case—have held that the FCC’s
RF rules preempt state lawsuits challenging the safety
of wireless phones that comply with the rules. In their
decisions, those courts properly took into account the
Commission’s description of how state lawsuits would
pose an obstacle to the objectives underlying the
agency’s RF rules. See Pet. App. 46a-47a (affording
“some weight to the views of the FCC,” and deferring to
the “ ‘agency’s explanation of how state law affects the
regulatory scheme’ ”) (quoting Wyeth v. Levine, 129
S. Ct. 1187, 1201 (2009)); Murray, 982 A.2d at 776-777
(giving “weight” to the FCC’s views and finding “per-
suasive” the FCC’s argument that verdicts holding de-
fendants liable for injuries caused by FCC-certified cell
phones would upset the policy balance that the FCC
struck in its rules).
Although the Fourth Circuit in Pinney reached a
different conclusion, it did so without the benefit of the
FCC’s views on the conflict between state lawsuits and
the Commission’s RF rules, and it did not adequately
consider the preemptive scope of the FCC’s standards.
When courts assess whether state law conflicts with the
policy objectives of an agency’s regulations, “the

14
agency’s own views should make a difference.” William-
son v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1139
(2011) (quoting Geier v. American Honda Motor Co.,
529 U.S. 861, 883 (2000)). That is especially true in cases
such as this one, where “the subject matter is technical”
and “the relevant history and background are complex
and extensive.” Geier, 529 U.S. at 883. In that context,
the FCC “is likely to have a thorough understanding of
its own regulation and its objectives and is ‘uniquely
qualified’ to comprehend the likely impact of state re-
quirements.” Ibid . (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 496 (1996)). Accordingly, in a future case,
with the benefit of the FCC’s views, and in light of the
decisions in Murray and this case, the Fourth Circuit
may reach a different conclusion. This Court’s review is
therefore unwarranted at this time.
2. Petitioner also asserts (Pet. 15-17) that the deci-
sion below conflicts with the decision of the District of
Columbia Court of Appeals in Murray. That is incor-
rect. The court in Murray held that “insofar as plain-
tiffs’ claims rest on allegations about the inadequacy of
the FCC’s RF radiation standard or about the safety of
their FCC-certified cell phones, the claims are pre-
empted under the doctrine of conflict preemption.” 982
A.2d at 777.
As petitioner observes (Pet. 16), the Murray court
held that its conflict-preemption ruling did not foreclose
potential liability under the District of Columbia’s
consumer-protection law “for providing plaintiffs with
false and misleading information about their cell phones,
or for omitting material information about the phones.”
982 A.2d at 783. Those claims, the court explained,
would not require plaintiffs “to prove that cell phones
emit unreasonably dangerous levels of radiation.” Ibid.

15
Accordingly, the court permitted plaintiffs to proceed
with allegations that the defendants had “falsely repre-
sented that [r]esearch has shown that there is absolutely
no risk of harm associated with the use of cell phones,”
and that the defendants had failed to inform consumers
of steps that could be taken to mitigate RF exposure,
“[t]o the extent that these claims are not read as claims
that cell phones are unreasonably dangerous.” Id . at
784 (first brackets in original; internal quotation marks
omitted).
Although petitioner contends (Pet. 16) that he made
similar allegations here, the court of appeals explained
that petitioner’s claims “differ from those brought in
Murray.” Pet. App. 38a n.26. In this case, petitioner
did not allege that respondents made misrepresenta-
tions that “there is absolutely no risk of harm from RF
radiation”; he instead alleged that respondents claimed
that their “cell phones were compliant with FCC guide-
lines and free from defects.” Id. at 38a-39a n.26. Like-
wise, the court noted, petitioner’s “allegations do not
posit a failure to disclose information enabling users to
mitigate risk, but simply that defendants failed to dis-
close a defect in their phones—the level of RF emis-
sions—that made them unsafe to operate.” Id. at 39a
n.26. Accordingly, there is no conflict between Murray
and the decision below even with respect to that narrow
set of claims.
Petitioner argues (Pet. Reply Br. 4) that the Third
Circuit “mischaracteriz[ed]” his “claims as challenges to
the adequacy of the FCC’s regulations.” To the con-
trary, the court of appeals correctly recognized that pe-
titioner could not prevail unless he convinced a jury that
the FCC’s RF rules were insufficient to protect the pub-
lic. “In order for [petitioner] to succeed, he necessarily

16
must establish that cell phones abiding by the FCC’s
SAR guidelines are unsafe to operate without a headset.
In other words, [petitioner] must show that these stan-
dards are inadequate—that they are insufficiently pro-
tective of public health and safety.” Pet. App. 38a; ac-
cord Murray, 982 A.2d at 784-785 n.35 (a claim “that
defendants omitted telling plaintiffs that the FCC SAR
standards are not adequate * * * would be pre-
empted,” even if couched in failure-to-warn terms). In
any event, even if the court of appeals had misunder-
stood or misconstrued petitioner’s claims, that case-
specific error would not warrant this Court’s review.
See Sup. Ct. R. 10.

B. The 1996 Act Did Not Divest The FCC Of Its Pre-

Existing Authority To Promulgate Regulations Having
Preemptive Effect

Petitioner argues (Pet. 17-22) that the Court should
grant certiorari to consider whether a statutory savings
clause that expressly disclaims implied preemption bars
a finding of conflict preemption. That issue, however, is
not properly presented by this case.
In contending that the FCC’s RF regulations cannot
impliedly preempt petitioner’s lawsuit, petitioner relies
on Section 601(c)(1) of the 1996 Act, which provides:
“This Act and the amendments made by this Act shall
not be construed to modify, impair, or supersede Fed-
eral, State, or local law unless expressly so provided in
such Act or amendments.” 47 U.S.C. 152 note (1996 Act
§ 601(c)(1), 110 Stat. 143). By its terms, that savings
clause applies only to provisions of, or amendments
made by, “this Act,” i.e., the 1996 Act. Long before the
1996 Act became law, however, “health and safety con-
siderations were already within the FCC’s mandate,”

17
and the agency’s “RF regulations were promulgated
under the rulemaking authority granted by” the Com-
munications Act of 1934. Pet. App. 50a (citing 47 U.S.C.
151, 332(a)); see 1996 RF Order, 11 F.C.C.R. at 15,185
¶ 171 (invoking the Commission’s authority under sev-
eral provisions of the Communications Act, but without
mentioning the 1996 Act). Indeed, the FCC first
adopted RF standards for communications devices in
1985, more than a decade before Congress enacted the
1996 Act. See 1985 RF Order, 100 F.C.C.2d at 566.
To be sure, Section 704(b) of the 1996 Act directed
the FCC to complete its then-pending RF rulemaking
within 180 days of the statute’s enactment. 1996 Act
§ 704(b), 110 Stat. 152. But that section merely set a
deadline for completing a pending rulemaking; it did not
grant new substantive authority to the agency or amend
any of the agency’s powers. Even if the 1996 Act had
never become law, the Commission would still have had
the authority to extend its RF emission standards to
wireless phones under pre–1996 Act provisions of the
Communications Act. The Third Circuit’s finding of con-
flict preemption based on the FCC’s RF regulations
therefore was not inconsistent with the 1996 Act’s sav-
ings clause.
Petitioner’s reliance on the 1996 Act’s savings clause
is doubly misplaced because that provision does not sim-
ply address preemption of state law. Rather, Section
601(c)(1) provides in addition that the 1996 Act does not
impliedly alter prior “Federal * * * law.” 47 U.S.C.
152 note. By its terms, Section 601(c)(1) thus precludes
any construction of the 1996 Act that would divest the
FCC of its pre-existing Communications Act authority
to promulgate RF regulations having preemptive effect.

18

C. The Fact That The FCC’s RF Regulations Serve In Part

To Carry Out The Agency’s NEPA Obligations Does Not
Prevent The Regulations From Having Preemptive Ef-
fect

Petitioner further contends (Pet. 22-25) that the
FCC’s RF regulations cannot have preemptive effect
because they were promulgated in part to comply with
the agency’s procedural obligations under NEPA. That
argument lacks merit.
As the Third Circuit explained, “although the FCC’s
RF regulations were triggered by the Commission’s
NEPA obligations, health and safety considerations
were already within the FCC’s mandate, 47 U.S.C.
§§ 151, 332(a), and all RF regulations were promulgated
under the rulemaking authority granted by the [Com-
munications Act].” Pet. App. 50a; see 1996 RF Order, 11
F.C.C.R. at 15,185 ¶ 171; 1997 RF Order, 12 F.C.C.R. at
13,562 ¶ 162. Indeed, the FCC could not properly have
relied on NEPA alone as authority for its RF regula-
tions, since NEPA does not vest agencies with any sub-
stantive powers beyond those they already possess. See
Department of Transp. v. Public Citizen, 541 U.S. 752,
767-770 (2004). Thus, if no other statute authorized the
FCC to establish RF standards and to condition cell-
phone approval on compliance with those standards,
NEPA would neither require nor permit the agency to
take those steps. The FCC’s determination that the
Communications Act authorized it to promulgate the RF
regulations therefore was essential to the lawfulness of
the rules.
Petitioner is also wrong in asserting (Pet. 22) that
the FCC’s RF rules do “not impose a substantive stan-
dard on wireless phones.” As petitioner acknowledges,
“FCC authorization is required before a particular cell-

19
phone model may be sold or used in the United States.”
Pet. 6 (citing 47 C.F.R. 2.803). As part of the
equipment-authorization process, an applicant ordinarily
must certify that its cell phones will not “cause human
exposure to levels of radiofrequency radiation in excess
of ” the RF limits prescribed by the FCC. 47 C.F.R.
1.1307(b). And while NEPA governed the process by
which the FCC considered the likely environmental ef-
fects of cell-phone approval, NEPA provided no guid-
ance concerning the particular RF limits the agency
should adopt. See, e.g., Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989) (explaining
that NEPA “does not mandate particular results, but
simply prescribes the necessary process”).
As petitioner emphasizes (Pet. 22-23), the FCC’s RF
rules do not categorically preclude the agency from ap-
proving cell phones with emissions in excess of the regu-
latory limits. Rather, an applicant who seeks approval
to market such phones may prepare an EA that analyzes
the environmental consequences of equipment authori-
zation. 47 C.F.R. 1.1307(b), 1.1308. When it adopted the
current RF limits for cell phones, however, the Commis-
sion anticipated that its RF rules would create “a de
facto compliance requirement, since most applicants and
licensees who are not categorically excluded * * * un-
dertake measures to ensure compliance before submit-
ting an application in order to avoid the preparation of
a costly and time-consuming EA.” 1996 RF Order, 11
F.C.C.R. at 15,200. Consistent with that expectation,
the FCC has informed us that, when wireless phone
manufacturers have sought FCC authorization to sell
wireless phones since the RF limits took effect, they
have always certified that their phones do not exceed
those limits, and have never attempted to obtain ap-

20
proval to sell non-compliant phones by submitting an
EA.The Commission’s RF guidelines thus were not sim-
ply procedural in nature, but reflected the agency’s sub-
stantive determination that its standards for wireless
phones would “provide a proper balance between the
need to protect the public and workers from exposure to
potentially harmful RF electromagnetic fields and the
requirement that industry be allowed to provide tele-
communications services to the public in the most effi-
cient and practical manner possible.” 1997 RF Order, 12
F.C.C.R. at 13,496 ¶ 2.* This Court has repeatedly rec-
ognized that when a federal agency’s rule reflects a bal-
ancing of competing considerations, the federal regula-
tion preempts any state laws that could disrupt the bal-
ance struck by the agency. See, e.g., Buckman, 531 U.S.
at 349-351; Geier, 529 U.S. at 874-886. The fact that the
FCC’s RF rules were also adopted to satisfy NEPA obli-
gations does not alter this longstanding principle of con-
flict preemption. The Third Circuit properly applied
this principle when it concluded that the FCC’s RF rules
preempted petitioner’s lawsuit.
* The House Committee that drafted Section 704(b) of the 1996 Act
explained that “[a] high quality national wireless telecommunications
network cannot exist if each of its component[s] must meet different RF
standards in each community.” House Report 95. It further stated that
it intended for the FCC to adopt “uniform, consistent [RF] require-
ments, with adequate safeguards of the public health and safety,” in
order to “speed deployment” of “competitive wireless telecommunica-
tions services” and “provide consumers with lower costs” and “a greater
range” of service “options.” Id. at 94. Although the House Committee
made those statements to address the specific concern that divergent
local RF standards could obstruct the construction of wireless telecom-
munications facilities such as cell towers and antennas, the same
fundamental concern applies to cellular telephone handsets.

21
In any event, the NEPA issue raised by petitioner
does not present any significant question that warrants
this Court’s review. Petitioner speculates (Pet. 24) that
under the Third Circuit’s analysis, “agency regulations
identifying regulatory actions that will not trigger
NEPA requirements could have broad substantive, pre-
emptive effect on state laws regulating the conduct of
the private actors whose activities would be considered
in a NEPA analysis, if one were required.” But peti-
tioner has failed to identify any past or currently pend-
ing case presenting that question, and neither the court
below nor the Fourth Circuit in Pinney discussed the
NEPA issue in any detail. Review by this Court would
therefore be premature.

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
AUSTIN C. SCHLICK
Solicitor General
General Counsel
MALCOLM L. STEWART
PETER KARANJIA
Deputy Solicitor General
Deputy General Counsel
ERIC D. MILLER
RICHARD K. WELCH
Assistant to the Solicitor
Deputy Associate General
General
Counsel
JAMES M. CARR
Counsel
Federal Communications
Commission
AUGUST 2011

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