This case was brought by purchasers of cell phones sold without headsets. The plaintiffs allege state-law claims for breach of warranty and misrepresentation, based on the defendants’ assurances to customers that the cell phones were proven safe and posed no risk from radiofrequency radiation.
The Federal Communications Commission (FCC) must authorize cell phones before they may be sold or used in the United States. The FCC has a radio frequency (RF) radiation standard for determining whether applications for authorization may be approved without an environmental analysis, as required under the National Environmental Policy Act (NEPA) for agency actions that may have a significant effect on the human environment. Under its regulations, the FCC may authorize cell phones that meet the RF radiation standard without requiring an environmental analysis under NEPA, but the agency may authorize phones that do not meet the standard only after completion of an environmental analysis. The district court and Third Circuit Court of Appeals held that state-law claims premised on cell phone companies’ misrepresentations regarding the safety of their products are impliedly preempted because they frustrate the purposes of the FCC’s RF radiation standard.
In the Supreme Court, Public Citizen Litigation Group represented the plaintiffs, seeking review of the question whether their claims are preempted. The case also presented the questions (a) whether a regulation based on authority conferred by a statute that explicitly disclaims any implied preemptive effect can impliedly preempt state law on a “frustration of purpose” theory of preemption, and (b) whether an agency’s NEPA regulation, which imposes no substantive requirements, may preempt substantive state health, safety, or consumer-protection laws. The Court denied the cert. petition.