A class of consumers sued Apple, Inc., in a federal district court in California, alleging that emissions of RF radiation from certain iPhones exceeded FCC standards, presented potential health risks, and required better disclosures from the company. Apple moved to dismiss on the ground that the action was impliedly preempted by the FCC’s exposure standards for cell phone RF radiation, which establish levels of exposure below which the FCC will allow a cell phone to be marketed without requiring further analysis under the National Environmental Policy Act. The district court dismissed the action on the ground that the state-law tort duties and consumer-protection standards the plaintiffs invoked were preempted because, in the district court’s view, the Communications Act of 1934 grants the FCC authority to issue preemptive substantive regulations of cell phone emissions.
The plaintiffs appealed to the Ninth Circuit, and Public Citizen filed an amicus brief supporting their appeal. The brief argued that a key provision of the Communications Act cited by the district court does not grant the FCC authority to issue regulations concerning the health and safety effects of RF emissions, and that the FCC did not rely on any claim of such authority. In addition, although the Telecommunications Act of 1996 authorized the FCC to conduct a rulemaking concerning cell phone RF emissions, it expressly ruled out implied preemption.