No. 1 0106 4 FEB 22 20~’1

~upreme ~ourt of the U.ite~ ~tate~

FRANCIS J. FARINA,

NOKIA, INC., ET AL.,

Petitioner,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

KENNETH A. JACOBSEN

12 Orchard LaneWallingford, PA 19086610-566-7930

ALLISON M. ZIEVE

Counsel of RecordSCOTT L. NELSON

PUBLIC CITIZENLITIGATION GROUP

1600 20th Street NWWashington, DC 20009202-588-]000azieve@citizen.org

February 2011

Counsel for Petitioner

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QUESTIONS PRESENTED

The Federal Communications Commission (FCC) mustauthorize cell phones before they may be sold or used inthe United States. The FCC has a radio frequency (RF)radiation standard for determining whether applicationsfor authorization may be approved without an environ-mental analysis, as required under the National Environ-mental Policy Act (NEPA) for agency actions that mayhave a significant effect on the human environment. Underits regulations, the FCC may authorize cell phones thatmeet the RF radiation standard without requiring anenvironmental analysis under NEPA, but the agency mayauthorize phones that do not meet the standard only aftercompletion of an environmental analysis.

The question presented, which has divided the lowercourts, is whether state-law claims premised on cell phonecompanies’ misrepresentations regarding the safety oftheir products are impliedly preempted because theyfrustrate the purposes of the FCC’s RF radiationstandard.

This question includes two more specific questions, onwhich the lower com’ts are also divided:

A. Whether a regulation based on authority conferredby a statute that explicitly disclaims any impliedpreemptive effect can impliedly preempt state law on a"frustration of purpose" theory of preemption.

B. Whether an agency’s NEPA regulation, whichimposes no substantive requirements, may preemptsubstantive state health, safety, or consumer-protectionlaws.

ii

PARTIES TO THE PROCEEDING

Petitioner is Francis J. Farina.

Respondents are Nokia, Inc.; NEC America;Ericsson Wireless Communications, ~[nc.; Motorola, Inc.;Sprint PCS, L.P.; Audiovox Communications Corporation;Nextel Communications of the Mid-Atlantic, Inc.; Matsu-shita Corporation of America, also kno~n as PanasonicCorporation; Philips Electronic North America Corp.;Qualcomm Incorporated, also known as Qualcomm, Inc.;Samsung Telecommunications America, L.P.; Sanyo NorthAmerica, Inc., also kno~m as Sanyo North America Group;Sony Electronics, Inc.; AT&T Wireless Se~-~’ices, Inc.;Cellco Partnership, also known as Verizon Wireless;Cingular Wireless LLC, also known as Southwestern BellWireless, formally kno~ as Southwestern Bell MobileSystems, Inc.; Voicestream Wireless Corporation, alsoknown as Voicestream Wireless; LG Electl-onicsMobile C omm U.S.A., Inc.; and Cellular TelecommunicationIndustry Association, also kno~n as CTIA.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ......................i

PARTIES TO THE PROCEEDING ................ii

TABLE OF AUTHORITIES ......................v

INTRODUCTION ............................... 1

OPINIONS BELOW .............................1

JURISDICTION ................................. 2

STATUTES AND REGULATIONS INVOLVED ....2

STATEMENT OF THE CASE ....................4

Factual and Regulatory Background .............4

Proceedings Below ...........................11

REASONS FOR GRANTING THE PETITION .....13

I. The Decision Below Is In Direct Conflict WithDecisions Of The Fourth Circuit And The DistrictOf Columbia Court Of Appeals ................13

II. The Decision Below Creates A Conflict Over TheImportant Question Whether Federal Regula-tions May Impliedly Preempt State Law When AStatutory Provision Expressly Disclaims ImpliedPreemption ................................. 17

III. The Case Raises The Important QuestionWhether An Agency’s Determinations AboutThe Applicability Of NEPA RequirementsPreempts Substantive State Laws GoverningThe Conduct Of Private Actors ................22

CONCLUSION ................................. 26

iv

APPENDIX

Court of Appeals opinion decision ...............laDistrict Court memorandum decision ...........62aDistrict Court order ........................116a

V

TABLE OF AUTHORITIES

CASES Pages

AT&T Communications of Illinois, Inc. v. IllinoisBell Telephone Co.,349 F.3d 402 (7th Cir. 2003) ....................18

Beneficial National Bank v. Anderson,539 U.S. 1 (2003) ..............................12

Department of Transportation v. Public Citizen,541 U.S. 752 (2004) ............................23

Dowhal v. SmithKline Beecham Consumer Healthcare,88 P.3d 1 (Cal. 2004) .......................... 20

Geier v. America Honda Motor Co.,529 U.S. 861 (2000) .........................17, 18

Holk v. Snapple Beverage Corp.,575 F.3d 329 (3d Cir. 2009) .....................20

Lockwood v. ConAgra Foods, Lnc.,597 F. Supp. 2d 1028 (N.D. Cal. 2009) ............20

Mu~v’ay v. Motorola, Inc.,982 A.2d 764 (D.C. 2009) ...........14, 15, 16, 19, 24

New York State Restaurant Ass’n v. New York CityBoard of Health,509 F. Supp. 2d 351 (S.D.N.Y. 2007) .............20

Pinney v. Nokia, Inc.,402 F.3d 430 (4th Cir.),cert. denied, 546 U.S. 998 (2005) ............ passim

Robertson v. Methow Valley Citizens Council,490 U.S. 332 (1989) ............................23

vi

Ve~vnont Ya~kee Nuclear Power Co~7). v.Natural Resources Defe~se Council, Inc.,435 U.S. 519 (1978) ............................24

STATUTES

48 Star. 1064 (1934) ...............................9

21 U.S.C. § 343-1 note ............................19

21 U.S.C. § 360kk(a)(1) ...........................10

21 U.S.C. § 360ss ................................11

28 U.S.C. § 1132(d) ..............................12

28 U.S.C. § 1254(1) ................................2

28 U.S.C. § 1453 .................................12

42 U.S.C. § 4332(2)(C) ........................3, 6, 24

47 U.S.C. § 152 note ....................2, 9, 14, 17, 18

47 U.S.C. § 332(c)(7)(B)(iv) ...................8, 10, 14

47 U.S.C. § 414 ...........................2, 9, 14, 17

Consumer Product Safety Improvement Act,Pub. L. No. 110-314, § 231,at 15 U.S.C. § 2051 note .......................21

Dodd-Frank Wail Street Reform and ConsumerProtection Act,Pub. L. No. 111-203, § 1041,codified at 12 U.S.C. § 5551 ..................20, 21

vii

Telecommunications Act of 1996,Pub. L. No. 104-104 ............................ 88 601(c)(1) (at 47 U.S.C. 8 152 note) ....2, 9, 14, 17, 18§ 704(a) (at 47 U.S.C. 8 332(c)(7)(B)(iv)) .....8, 10, 148 704(b) .................................... 2, 8

REGULATORY MATERIAL

7 C.F.R. § 372.5(c) ...............................24

10 C.F.R. Part 1021.410 ..........................24

18 C.F.R. § 380.5 ................................24

21 C.F.R. 88 25.30-25.34 ..........................24

40 C.F.R. § 1500.1 ................................7

40 C.F.R. § 1507.3(b) ..............................7

40 C.F.R. 8 1508.4 ................................7

47 C.F.R. § 1.1307(e) .............................10

47 C.F.R. § 2.1093(a) .....................3, 10, 22, 23

47 C.F.R. § 2.1093(c) .........................3, 4, 22

47 C.F.R. 8 2.803 ..................................6

65 C.F.R. § 10229 ................................24

Bureau of Land Management, Department of Interior,516 Departmental Manual 11 (2008) .............25

FCC, Notice of Proposed Rulemaking, Guidelinesfor Evaluating the Environmental Effects of Radio-frequency Radiation, 8 F.C.C.R. 2849 (1993) ..... 7, 8

FCC, Notice of Proposed Rulemaking,89 F.C.C.2d 214 (1982) .......................6, 7

viii

FCC, Questions and Answers about Biological Effectsand Potential Hazards of RadiofrequencyElectromagnetic Fields, Office of Eng’g. &Tech. Bulletin 56 (4th ed. Aug. 1999) ............ 4, 5

FCC, Guidelines for Evaluating the EnvironmentalEffects of Radiofrequency Radiation,12 F.C.C.R. 13494 (1997) .......................23

FCC, Report and Order, Guidelines for Evaluatingthe Environmental Effects of RadiofrequencyRadiation, 11 F.C.C.R. 15123 (1996) ..... 9, 10, 22, 23

FCC, Report and Order, Biological Effects of Radio-frequency Radiation, 100 F.C.C.2d 543 (1985) ......7

58 Fed. Reg. 2462 (1993) ..........................20

56 Fed. Reg. 60528 (1991) .........................20

MISCELLANEOUS

CTIA - The Wireless Ass’n v. City & County of SanFrancisco, N.D. Cal. CV-10-3224, Complaint,filed July 23, 2010 .............................19

Cecilia Kang, Oregon considers cell phone radiationlabel, Wash. Post, Post Tech, Feb. 8, 2011,at http://voices.washingtonpost.com/posttech/2011/02/oregon_state_senator_chip_shie.html .................................... 19

Cecilia Kang, Cellphone cancer study inconclusive;researcher urges more study, Wash. Post,Post Tech, May 16, 2010,at http://voices.washingtonpost.com/posttech/2010/05/cell_phone_cancer_study_produc.html .........5

ix

Joan New,nan, A Consideration of Federal Pre-emption in the Context of State and LocalE nvironmental Regulation,9 UCLA J. Envtl. L. & PoI’y 97 (1990) ...........25

Nicholas Robinson, SEQRA’s Siblings: Precedentsfrom Little NEPA ’s in the Sister States,46 Albany L. Rev. 1156 (1982) ..................25

Bruce Stutz, Are Cell Phones Safe ? The Verdict IsStill Out, Yale Env’t 360, Aug. 2, 2010,at http://e360.yale.edu/contentJfeature.msp?id=2300 ................................. 5

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INTRODUCTION

This case presents the question whether state-lawclaims premised on cell phone companies’ misrepresenta-tions regarding the safety of their products are impliedlypreempted because the claims are said to frustrate thepurposes of a Federal Communications Commission (FCC)standard. Contrary to a decision of the Fourth Circuit andin partial disagreement with a decision of the District ofColumbia Court of Appeals, the court of appeals in thiscase found such preemption even though Congress statedexplicitly that the statute requiring issuance of theregulation shall have "no implied effect" and the FCCstandard does not impose a substantive requirement, butrather was issued to satisfy the procedural requirementsof the National Environmental Policy Act (NEPA).

In addition to the conflict over the preemptive effect ofthe specific FCC regulation at issue, the lower courts aredivided over the effect of statutory provisions forbiddingimplied preemption and over the implied preemptive effectof NEPA regulations. Petitioners request that the Courtgrant certiorari to resolve the conflicts over theseimportant questions of federal law.

OPINIONS BELOW

The decision of the United States Court of Appeals forthe Third Circuit is reported at 625 F.3d 97, and isreproduced in the appendix at la. The decision of theUnited States District Court for the Eastern District ofPennsylvania granting Respondent’s motion to dismiss isreported at 578 F. Supp. 2d 740, and is reproduced in theappendix at 62a.

JURISDICTION

The com’t of appeals entered its judgment on October22, 2010. On December 27, 2010, a timely request for anextension of time was granted by Justice A]ito, extendingthe time within which to file a petition for a writ forcel~tiorari to and including February 22, 2011. This Courthas jurisdiction under 28 U.S.C. § 1254(I).

STATUTES AND REGULATIONS INVOLVED

The Communications Act of 1934, 47 U.S.C. § 414,states:

Exclusiveness of Chapter:

Nothing in this chapter contained shall in any wayabridge or alter the remedies now existing at commonlaw or by statute, but the provisions of this chapter arein addition to such remedies.

Section § 601(c)(1) of the Telecommunications Act of1996, Pub. L. No. 104-104 (47 U.S.C. § 152 note), states:

Effect on Other Laws:

(c) Federal, State, and Local Law-

(1) No implied effect--This Act and the amend-ments made by this Act shall not be construed tomodify, impair, or supersede Federal, State, or locallaw unless expressly so provided in such Act or amend-merits.

Section 704(b) of the Telecommunications Act of 1996(not codified in the U.S. Code), states:

Radio Frequency Emissions.--Within 180 days afterthe enactment of this Act, the Commission shallcomplete action in ET Docket 93-62 to prescribe and

make effective rules regarding the environmentaleffects of radio frequency emissions.

The National Environmental Policy Act of 1969, 42U.S.C. § 4332, provides, in relevant part:

The Congress authorizes and directs that, to the fullestex"cent possible:

(2) all agencies of the Federal Government shall-...

(C) include in every recommendation or report onproposals for legislation and other major Federalactions significantly affecting the quality of thehuman environment, a detailed statement by theresponsible official on-

(i) the environmental impact of the proposedaction,

(ii) any adverse environmental effects whichcannot be avoided should the proposal beimplemented, ....

47 C.F.R. § 2.1093, entitled Radiofrequency radiationexposure evaluation: portable devices, states, in relevantpart:

(a) Requirements of this section are a consequence ofCommission responsibilities under the NationalEnvironmental Policy Act to evaluate the environ-mental significance of its actions.

(c) Portable devices that operate in [listed cellphoneservices] are subject to routine en~ironmental evalua-tion for RF exposure prior to equipment authorization

4

or use. All other portable transmitting devices arecategorically excluded from routine environmentalevaluation for RF exposure prior to equipment author-ization or use, except as specified in §§ 1.1307(c) and1.1307(d) of this chapter. Applications for equipmentauthorization of portable transmitting devices subjectto routine environmental evaluation must contain astatement confirming compliance with the limits speci-lied in paragraph (d) of this section as part of theirapplication.

STATEMENT OF THE CASE

This petition arises from a Pennsylvania state-lawaction by petitioner Francis Farina on behalf of a putativeclass of Pennsylvania consumers against respondent cellphone manufacturers and retailers. The court of appealsheld that standards issued by the FCC impliedly preemptMr. Farina’s claims.

Factual and Regulatory Background

1. All wireless handheld telephones (commonly knownas cell phones) send and receive electromagnetic energy,which is transmitted between the cell-phone antenna andbase stations in the area in which the phone is located. Theenergy is not directional; that is, it is transmitted outwardin all directions from the phone.

At certain levels, the energy generated by radiosignals, kno~n as radio frequency (RF) radiation, can beharmful to humans. See FCC, Questions and Answersabout Biological Effects and Potential Hazards of Radio-frequency Electromagnetic Fields, Office of Eng’g. &Tech. Bulletin 56, at 6 (4th ed. Aug. 1999). It is widelyaccepted that, at high levels of exposure, RF radiation cancause biological damage by heating human tissue.

Scientific studies have also found biological effects atrelatively low levels of exposure, including changes in theimmune system, neurological effects, behavioral effects,alterations in brain tissue, and breaks in DNA strands. Id.at 8. According to the FCC, "whether or not such effectsmight indicate a human health hazard is not presentlyknown." Id.; see also, e.g., Bruce Stutz, Are Cell PhonesSafe ? The Verdict Is Still Out, Yale Env’t 360, Aug. 2, 2010,at http://e360.yale.edu/content/feature.msp?id = 2300;Cecilia Kang, Cellphone cancer study inconclusive;researcher urges more study, Wash. Post, Post Tech, May16, 2010, at http://voices.washingtonpost.com/posttec~2010/05/cell_phone_cancer_study_produc.html.

Although (or because) the evidence is not conclusive,many physicians and public health researchers havewarned that cell phone use may increase the risk of braincancer and other conditions. See, e.g., Third Cir. App.A897-902. The concern is particularly acute for children,whose developing brains are more susceptible to RFradiation exposure. In light of recent scientific data on thebiological effects of cell phone use, a group of prominentscientists has compared the cell phone threat to the harmcaused by asbestos, id. at A899, which was discovered onlyafter decades of use caused irremediable lung damage anduntreatable cancers in thousands of people. The studiesand warnings issued by this group are consistent withother recent studies warning of the dangers of cell phoneuse and the biological effects of RF radiation emissions.See, e.g., id. A904, A906-907. The use of headsets ameli-orates the threat by distancing the brain from the RFtransmissions. Nonetheless, and despite the serious healthconcerns and uncertain degree of risk, respondents adver-tised and marketed their cell phones, without headsets, assafe.

2. NEPA requires all agencies to consider the environ-mental impact of their proposed actions and to takeprocedural steps, including preparation of environmentalassessments (EAs) or envh~onmental impact statements(E ISs), before taking any "major" action that may "signifi-cantly affect[] the quality of the human environment." 42U.S.C. § 4332(2)(C).

The FCC has regulatory jurisdiction over wirelesstelephone ser~ice as part of its authority over radio trans-missions. The FCC regulates the spectrum available forcell phone use and sets technical standards associated withcell phone communication. Because cell phones transmitradio signals, FCC authorization is required before aparticular cell-phone model may be sold or used in theUnited States. 47 C.F.R. § 2.803.

In 1982, the FCC first addressed human exposure toRF radiation from certain FCC-regulated facilities (butnot from cell phones) by issuing a proposed level of RFradiation that facilities could emit without triggering theFCC’s obligation to undertake a NEPA assessment. In sodoing, the FCC "stress[ed] that the Commission hasneither the expertise nor the primary jurisdiction to pro-mulgate health and safety standards for RF and micro-wave radiation." FCC, Notice of Proposed Rulemaking, 89F.C.C.2d 214, ¶ 183 (1982). The FCC explained, however,that NEPA required it to consider whether activities atfacilities that it licensed significantly affected the environ-ment. The FCC did not propose to impose any substantiverequirements on its regulated industries, id. ¶ 187, norcould it have done so under the purely procedural require-ments of NEPA. In addition, the FCC noted that state andlocal authorities had already adopted regulations regard-ing human exposure to RF radiation, and the Commissiondid not indicate any concerns about possible conflict

7

between those regulations and the FCC standard fortransmission facilities. Id. ¶ 188.

In 1985, the FCC finalized its proposal by amending theregulations in which it specified actions that would becategorically excluded from NEPA’s environmental analy-sis requirement because they lack significant effect and,therefore, would not call for environmental analyses underNEPA.~ The FCC stated that applications for certainpermits would trigger NE PA requirements if the facilitiesseeking the permits were not in compliance with theothel~ise voluntary, privately promulgated health andsafety guidelines for RF radiation established by theAmerican National Standards Institute (ANSI) in 1982.FCC, Report and Order, Biological Effects of Radio-frequency Radiation, 100 F.C.C.2d 543, ¶ 1 (1985). As it hadin its 1982 proposal, the FCC again acknowledged that ithad "neither the expertise nor the authority to develop itsown health and safety standards." Id. ¶ 49. The FCC’s 1985standard did not apply to many low-power devices,including wireless telephones.

In 1992, ANSI adopted new guidelines for permissibleRF radiation exposure that applied to additional cate-gories, including cell phones. See FCC, Notice of ProposedRulemaking, Guidelines for Evaluating the EnvironmentalEffects of Radiofrequency Radiation, 8 F.C.C.R. 2849, 2850

1Established by NEPA, the Council on EnvironmentalQuality (CE Q) coordinates federal environmental efforts and hasissued NEPA regulations "to tell federal agencies what they mustdo to comply with the procedures and achieve the goals of the Act."40 C.F.R. § 1500.1. CEQ has instructed agencies that they mayidentify categories of actions that are excluded from NEPAbecause such actions typically would not trigger an EA or EISrequirement. Id. §§ 1507.3(b), 1508.4.

(1993). The FCC then proposed replacing the 1982 ANSIguidelines with the 1992 version in its NEPA regulations.Id. at 2851. Because the 1992 ANSI guidelines addressedcell phones, the FCC’s proposal suggested including cellphones in the FCC’s NEPA regulations concerning whenNEPA analysis was required and when it was categoricallynot required. Id.

While the FCC rulemaking was undel~Tay, Congressenacted the Telecommunications Act of 1996 (TCA), Pub.L. No. 104-104 (1996), which amended the CommunicationsAct. The TCA did not authorize the FCC to issue substan-tive health or safety regulations addressing RF emissions,but it directed the FCC to complete the NEPA rulemakingwithin 180 days. Id. § 704(b); see supra p. 2. The TCA alsoincludes a narrow preemption provision, applicable only tothe siting and building of physical facilities, which statesthat the FCC’s RF regulations preempt state and localregulations regarding "placement, construction, and modi-fication of personal wireless service facilities on the basisof the envh~onmental effects of radio frequency emissionsto the extent that such facilities comply with the [FCC’s]regulations concerning such emissions." Id. § 704(a),codified at 47 U.S.C. § 332(c)(7)(B)(iv).2

In addition to the preemption provision with respect tothe siting and building of facilities, the TCA has a no-preemption provision. The Communications Act, evenbefore the TCA, contained a "savings" provision thatremains in effect and states: "Nothing in this chaptercontained shall in any way abridge or alter the remedies

~The statute does not define "facilities." The court belowheld that "facilities" refers to physical infrastructure, not to cellphones. Pet. App. 31a-32a; accord Pinney v. Nokia, Inc., 402 F.3d430, 455 (4th Cir.), cert. de~’~ied, 546 U.S. 998 (2005).

9

now existing at common law or by statute, but theprovisions of this chapter are in addition to suchremedies." 47 U.S.C. § 414.3 The TCA goes even further,expressly disclaiming any implied preemption of state orlocal law:

Effect on Other Laws:

(c) Federal, State, and Local Law-

(1) No Implied Effect--This Act and the amend-merits made by this Act shall not be construed tomodify, impair, or supersede Federal, State, or locallaw unless expressly so provided in such Act or amend-ments.

TCA, § 601(c)(1) (47 U.S.C. § 152 note).

After passage of the TCA, and in accordance with theTCA’s requirement that the FCC conclude its RFrulemaking, the FCC on August 1, 1996, adopted newregulations, which it also referred to as "guidelines,"addressing RF radiation emitted by its regulated facilitiesand cell phones. Under the new regulations, the FCC mayapprove licensing and authorization applications fromfacilities that emit less than a specified amount of RFradiation without undertaking environmental analysisunder NEPA. FCC, Report and Order, Guidelines forEvaluating the Environmental Effects of RadiofrequencyRadiation, 11 F.C.C.R. 15123 (1996). In addition to facili-ties, the 1996 regulations cover "portable devices," such ascell phones.

3In the original statute, "this chapter" was "this Act." 48Star. 1064 (1934). The chapter includes all of the CommunicationsAct of 1934 and subsequent amendments.

10

The FCC issued the 1996 regulations to satisfy its"responsibilities under [NEPA] to evaluate the environ-mental significance of its actions." 47 C.F.R. § 2.1093(a)(addressing RF radiation evaluation for cell phones); see 11F.C.C.R. at 15125 (regulations issued to satisfy NEPA and"the requirements of the [TCA] for a timely resolution ofthis proceeding"). Accordingly, if an application for equip-ment authorization from a cell phone manufacturer showsthat the phones emit more than the specified amount of RFradiation, FCC regulations require the completion of anenvironmental analysis (either an EA or EIS) in accord-ance with NEPA, before the application can be considered.In addition, the 1996 regulations include a preemptionregulation that incorporates verbatim the narrow pre-emptive language of the TCA, 47 U.S.C. § 332(e)(7)(B)(iv),applicable only to the location, construction, or modifica-tion of facilities. See 47 C.F.R. § 1.1307(e). The 1996 regula-tions remain in effect today.

Notably, while the FCC has addressed RF emissionsfrom cell phones to satisfy its obligations under NEPA andpursuant to provisions of the Communications Act (asamended) that expressly disavow implied preemptiveeffect, Congress has conferred authority upon anotheragency to issue preemptive radiation standards for con-sumer products. Specifically, under the Radiation Controlfor Health and Safety Act of 1968, Congn~ess directed theFood and Drug Administration (FDA) to "by regulationprescribe performance standards for electronic productsto control the emission of electronic product radiation fromsuch products if [the FDA] determines that such standardsare necessary for the protection of the public health andsafety." 21 U.S.C. § 360kk(a)(1). If the FDA issues regula-tions prescribing such health and safety standards, thoseregulations preempt conflicting state and local standards.

ll

Id. § 360ss. The FDA, however, has never issued regula-tions prescribing standards applicable to RF radiationemitted by wireless telephones.

Proceedings Below

This case was brought by petitioner Francis Farina asa class action on behalf of Pennsylvania consumers,alleging claims for breach of warranty and violation ofstate unfair and deceptive trade practices laws, againstmanufacturers and sellers of cell phones. Mr. Farinaalleges that cell phones, as currently manufactured, causeadverse biological effects when used without headsetsbecause holding a cell phone so that the antenna is againstthe head may expose the user to dangerous amounts of RFradiation. The complaint turns on allegations thatrespondents’ cell phones are unsafe to operate withoutheadsets, and that respondents knew of the potentialdanger yet misleadingly warranted that the products aresafe to operate without the use of headsets and are freefrom defects. The complaint seeks statutory damages andinjunctive relief, including requiring a notice to correctrespondents’ misrepresentations and provision of headsets.

Shortly after the case was filed in state court, it wasremoved to federal court on the basis of "complete preemp-tion" and subsequently transferred to the federal districtcourt for the District of Maryland as part of a multi-districtlitigation (MDL) proceeding.4 Mr. Farina, along with

4The "complete preemption" doctrine is an exception to thewell-pleaded complaint rule. Under the doctrine, "when a federalstatute wholly displaces the state-law cause of action throughcomplete pre-emption," the state-law claim is removable because"[w]hen the federal statute completely pre-empts the state-lawcause of action, a claim [that] comes within the scope of that cause

(continued...)

12

several other MDL plaintiffs, moved to remand based onlack of federal jurisdiction. The MDL court denied thatmotion and dismissed all of the cases in the MDL on thebasis of preemption. The Fourth Circuit reversed, holdingthat the plaintiffs’ alleged only state-law claims and thatthose claims did not arise under federal law because the"complete preemption" doctrine did not apply. Therefore,the com’t held, the motion to remand the removed casesshould have been gn-anted because the federal courtslacked subject matter jurisdiction. Pinney, 402 F.3d at 445-46, 451. (As discussed i~fi~a at 15-16, with respect to theone MDL case in which federal jurisdiction was proper onthe basis of diversity of citizenship, the court went on tohold that the FCC’s RF radiation standard did notpreempt the plaintiffs’ state-law claims.)

Mr. Farina’s case was then remanded to state court inPennsylvania. When Mr. Farina later added a newdefendant, respondents again removed, this time under theClass Action Fairness Act, 28 U.S.C. §§ 1132(d), 1453. SeePet. App. 12a-13a.

Back in a federal district court, now in the EasternDistrict of Pennsylvania, respondents filed another motionto dismiss, again arguing, as they had in the MDLproceedings, that Mr. Farina’s claims were expressly pre-empted and impliedly preempted under both field preemp-tion and conflict preemption theories. Although it rejectedthe express preemption and field preemption arguments,the district court held that the claims were impliedlypreempted by the FCC’s RF radiation standards. Rel~ng

4(...continued)of action, even if pleaded in terms of state law, is in reality based on

federal law." Be~zeficial Nat’l Bank v. Anderson,, 539 U.S. 1, 8(2003).

on the FCC’s obligation under NEPA to determine theenvironmental impact of its actions, and apparentlymisunderstanding that the RF standard does not imposea substantive requirement on manufacturers and sellers ofcell phones, the court stated that the allegations in thecomplaint"trample upon the FCC’s authority to determinethe maximum standard for RF emissions." Id. at 114a.

The Third Circuit affirmed, holding that Mr. Farina’sclaims were neither expressly preempted nor preemptedunder a field preemption theory but that, notwithstandingthe Communications Act’s savings clause and the TCA’sexplicit prohibition against implied preemption, this caseposed an obstacle to the accomplishment of the agency’sobjectives and, therefore, was impliedly preempted. Ineffect, the Third Circuit treated the agency’s regulationsconcerning when NEPA analysis is required as substantiverequirements that impliedly impose both a floor and aceiling on the protections that may be provided consumersagainst RF radiation.~

REASONS FOR GRANTING THE WRIT

I. The Decision Below Is In Direct Conflict WithDecisions Of The Fourth Circuit And The Dist-rict Of Columbia Court Of Appeals.

The decision below is in direct conflict ~ith the FourthCircuit’s decision in Pinney, which held that the claimsalleged in this same case and similar cases presentingidentical claims were not preempted. See 402 F.3d at 457-59. Similar state-law claims were also considered by theDistrict of Columbia Court of Appeals, which held that

S0ther issues addressed in the decisions below are nolonger at issue.

14

some of the claims were impliedly preempted and thatothers were not. See Mu~ay v. Motorola, Inc., 982 A.2d764 (D.C. 2009).

As noted above, supra p. 12, Pi~ney rejected theapplicability of the complete preemption doctrine toseveral cases, including this one, in the MDL proceedingof which Farina was a part. In addition, because one of theMDL cases was in federal court on the basis of diversityjm’isdiction, the Fourth Circuit also considered whetherthe claims alleged were actually preempted--that is,whether preemption was available as a defense, as opposedto a basis for jurisdiction. Like the Third Circuit in thiscase, the Fourth Circuit rejected the defendants’ expresspreemption and field preemption arguments. In directcontrast to the Third Circuit, however, the Fourth Circuitheld that the plaintiffs’ claims--virtually the same claimsat issue here--were not impliedly preempted by theCommunications Act, the TCA, or FCC regulations.

First, the Fourth Circuit noted that the FCC’s RFradiation standard for cell phones was not promulgatedpursuant to a substantive mandate found in the TCA; itwas promulgated pursuant to NEPA. 402 F.3d at 457.Second, the court considered the TCA’s preemption provi-sion, 47 U.S.C. § 332(c)(7)(B)(iv), see supra pp. 8-9, andfound that the statute’s "specificity" as to the preemptivescope of the FCC’s RF radiation standards for u~irelessservice facilities ’N, eighs against a finding that Congresshas an implicit goal of making preemptive the RF radiationstandards for all other types of wireless telecommunica-tions equipment, including wireless telephones." 402 F.3dat 458. Third, the Fourth Circuit looked to the statute’ssavings clause, 47 U.S.C. § 414, and the "No ImpliedEffect" provision, id. at § 152 note, see supra p. 2, andrecognized that these clauses "counsel against any broad

construction of the goals of [the relevant statutoryprovisions] that would create an implicit conflict with statetort law." 402 F.3d at 458. For all these reasons, the FourthCircuit concluded that the state-law claims did not conflictwith the purposes and objectives of Congress and theFCC.

Having determined that the plaintiffs’ claims posed noconflict with Congress’s objectives, the court in Pinneynext considered whether the specific relief sought--provision of headsets--would "stand as an obstacle toCongress’ actual goal of establishing a nationwide networkof wireless telephone se~wice coverage." Id. The court heldthat it would not.

Directly contrary to the holding and analysis in Pinney,the court below held that liability in this case "would con-flict with the FCC’s regulations" by "permitting a jury tosecond guess the FCC’s conclusion on how to balance itsobjectives"--protecting"the health and safety of the publicwhile still leaving the industry capable of maintaining anefficient and uniform wireless network." Pet. App. 43a. Thedecision below is impossible to square with the FourthCircuit’s rejection of exactly the same implied preemptionarguments.

In Murray, in which the plaintiffs alleged facts similarto tl~ose at issue in Fa~ina and Pinney, the District ofColumbia Court of Appeals reached a conclusion differentfrom that of both the Third and the Fourth Circuits.Rejecting the Fourth Circuit’s analysis, Murray held that"state regulation" that would "alter the balance" that theFCC sought to achieve through its RF regulation waspreempted. 982 A.2d at 776. And it found that claims basedon allegations about the adequacy of the FCC standard orthe safety of FCC-authorized cell phones were thereforepreempted. Id. at 777-78. It further found that claims

16

seeking damages based on the non-thermal effects of cell-phone radiation were also preempted, notwithstanding thatthe FCC standard does not address non-thermal effects.Id. at 778-79.

Contrary to the decision below, however, Mm~ayallowed some claims to go fm~ard. The court held thatclaims about false or misleading statements or omissionsthat do not depend on proof that cell phones areunreasonably dangerous are not preempted. Id. at 783. Forexample, Murray allowed a claim based on the allegationthat defendants falsely represented that "[r]esearch hassho,am that there is absolutely no risk of harm associatedwith the use of cell phones" to go fo~’ard. Id. at 784.~

Here, Mr. Farina’s claims are based on breach ofwarranty and violation of consumer protection laws thatprohibit affirmative misrepresentations about the qualityand attributes of consumer goods. As in Murray, thecomplaint here alleges that respondents misrepresentedthat their cell phones were absolutely safe, withoutdisclosing that the safety of cell phones at current levels ofRF radiation has not been established and that thescientific evidence is inconclusive. See, e.g., Third Am.Complaint ¶¶ 54, 55, 57-59. In dismissing the case in itsentirety, the Third Ch’cuit decision directly conflicts withthis part of the holding in Murray.

Thus, as the law stands, consumers’ ability to bringstate-law claims depends on the state in which they live:Consumers in Mat3"land and other states of the Fourth

~M~rray also held that claims based on injuries caused byphones acquired prior to August 1996, when the FCC issued thecurrent standard, or phones that did not comply with the currentstandard, were not preempted. 982 A.2d at 781,782.

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Circuit can bring claims that consumers in Pennsylvaniaand other states of the Third Circuit cannot, whileconsumers in the District of Columbia can bring someclaims barred in the Third Circuit but are prohibited frombringing other claims allowed in the adjoining states of theFourth Circuit. The petition should be granted to resolvethe direct conflict created by these three appellate-courtdecisions.

II. The Decision Below Exacerbates A Conflict OverThe Important Question Whether Federal Regu-lations May Impliedly Preempt State Law WhenA Statutory Provision Expressly DisclaimsImplied Preemption.

The FCC derives its authority from Congress, which,through the Communications Act, delegated to the FCCauthority to regulate communications by wire and radioand, in the TCA, directed the FCC to complete its then-pending rulemaking regarding RF emissions. Congressalso limited the express preemptive effect of thatrulemaking to state laws concerning the location orconstruction of facilities. Congress further specified thatthe Communications Act does not "in any way abridge oralter" common-law or statutory remedies. 47 U.S.C. § 414.And it stated, in a provision entitled "No Implied Effect,"that the TCA "shall not be construed to modify, impair, orsupersede Federal, State, or local law unless expressly soprovided." Id. at § 152 note (§ 601(e)(1)). Although thisCourt has held that a savings clause such as § 414 does notbar the operation of conflict preemption, see Geier v. Am.Honda Motor Co., 529 U.S. 861, 869 (2000), it has neveraddressed the effect of a statutory provision that explicitlydisclaims any implied preemptive effect.

This case raises that important question--whether theobjectives of an agency regulation may preempt state lawwhere the statute that authorizes or (as in the TCA)requires the agency to act explicitly states that the statutehas no implied preemptive effect. That is, may a court findimplied preemption on the basis of "frustration of pur-poses" of a regulation promulgated pursuant to a statutethat Congress has stated does not impliedly preempt statelaw? On this question, the courts of appeals are also inconflict.

To begin with, the courts have treated the provisiondirectly at issue here--the "No Implied Effect" clause,§ 601(c)(1)---in strikingly dissimilar ways. The FourthCh’cuit in Pinney held that the clause showed thatCongress did not intend RF radiation standards for cellphones to be preemptive. See Pinney, 402 F.3d at 458.Likewise, the Seventh Circuit has held that § 601(c)(1)"precludes a reading that ousts the state [law] by implica-tion." AT&T Commc’ns of Ill. v. Ill. Bell Tel. Co., 349 F.3d402, 410 (7th Cir. 2003) (rejecting challenges to Illinoisstatute mandating methodology for determining rate thatlocal telephone company could charge to use its network).

In direct conflict, the court below, although itacknowledged that "it is conceivable that § 601(c)(1) couldbe dispositive," Pet. App. 55a, held that Congress’s expressdisavowal of implied preemption was, in essence, ineffec-tive because "a savings prox~ision does not’bar the ordinaryworking of conflict pre-emption principles.’" Id. (citingGeier, 529 U.S. 869). The court thus construed the "NoImplied Effect" provision to mean only that "Congress’sobjectives are more limited than they might otherwise becharacterized." Id. at 56a. The court did not explain how itsholding represented merely a "more limited" reading orhow its reading was consistent with § 601(c)(1). Similarly,

19

in a footnote, the District of Columbia Court of Appealsdismissed § 601(c)(1) and Pinney’s reliance on it. SeeMurray, 982 A.2d at 778 n.19.

The question presented by § 601(c)(1) is likely to recur.On Februa~ 2, 2011, a bill was introduced in the Oregonlegislature to require disclosure on cell phones that thesafety of the devices has not been established.7 And SanFrancisco has adopted an ordinance requiring disclosureof the amount of RF radiation emitted by cell phones,which is currently being challenged in federal districtcourt, in part on the theory that the ordinance is pre-erupted. See CTIA - The Wireless Ass’n v. City & Countyof San Francisco, N.D. Cal. CV-10-3224, Complaint, filedJuly 23, 2010.

More broadly, on the question whether Congress mayby statute grant authority to regulate while withholdingimplied authority to preempt, the Third Circuit’s decisionconflicts in principle with decisions construing the Nutri-tion Labeling in Education Act (NLEA), which similarlydisclaims implied preemptive effect. See 21 U.S.C. § 343-1note (Pub. L. No. 101-535, § 6(c)(1)) (NLEA "shall not beconstrued to preempt any provision of State law, unless

~The pending bill (designated LC 1273 in the state legis-lature) would require a warning on cell phone packages and theback of the phones stating:

This is a radio-frequency (RF), radiation emitting devicethat has nonthermal biological effects for which no safetyguidelines have yet been established. Controversy exists asto whether these effects are harmful to humans. Exposureto RF radiation may be reduced by limiting your use of thisdevice and keeping away from the head and body.

See Cecilia Kang, Oregon co~,siders cell phone radiatio~ label,Wash. Post, Post Tech, Feb. 8, 2011, at http://voices.washingtonpost.com/posttech/2011/02/oregon_state_senator_chip_shie.html.

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such provision is expressly preempted"). In conflict withthe decision below, courts have held that this provisionprecludes implied preemption. See, e.g., Holk v. SnappleBeverage Co,op., 575 F.3d 329 (3d Cir. 2009); Lockwood v.ConAgraFoods, Inc., 597 F. Supp. 2d 1028, 1032 (N.D. Cal.2009); N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health,509 F. Supp. 2d 351,355 (S.D.N.Y. 2007). But cf. Dowhal v.SmithKline Beecham Consumer Hea Ithcare, 88 P.3d 1, 7-9(Cal. 2004) (finding a state law impliedly preempted not-withstanding a savings clause directed expressly to thatstate law).

Also contrary to the Third Circuit’s treatment of§ 601(c)(1), the FDA reads the NLEA prmqsion to "clearlymanifest[] Congress’s intention" that there is no preemp-tion under the NLEA outside the scope of that statute’sexpress preemption provision. 56 Fed. Reg. 60528, 60530(1991); see 58 Fed. Reg. 2462 (1993) ("[T]he only Staterequirements that are subject to preemption are those thatare affirmatively different on matters that are covered by[the express preemption provision] of the act.") (emphasisadded).

Other statutes, too new to have been addressed inlitigation, also expressly limit or eliminate any impliedpreemptive effect. See Dodd-Frank Wall Street Reformand Consumer Protection Act, Pub. L. No. 111-203, § 1041(enacted July 21, 2010);~ Consumer Product Safety

s"Sec. 1041(a)(2) states: "Rule of Construction.--This title,other than sections 1044 through 1048, may not be construed asannulling, altering, or affecting, or exempting any person subjectto the provisions of this title from complying with, the statutes,regulations, orders, or interpretations in effect in any State, exceptto the extent that any such provision of law is inconsistent with the

(continued...)

21

Improvement Act, Pub. L. No. 110-314, § 231 (enactedAug. 14, 2008), at 15 U.S.C. § 2051 note.9 The reasoning inthe opinion below calls into doubt the efficacy of thesedeliberate attempts by Congress to limit the preemptivescope of important enactments, and will encouragelitigants and courts to ascribe implied preemptive effect toregulations promulgated under these laws in defiance ofCongress’s expressly stated intent.

The petition should be granted to resolve the recurringquestion whether Congress may preclude "frustration ofpurpose" preemption or whether an agency’s objective can

s(...continued)provisions of this title, and then only to the extent of theinconsistency."

Section 1041(b) states: "Relation to Other Provisions ofEnumerated Consumer Laws That Relate to State Law.--Noprovision of this title, except as provided in section 1083, shall beconstrued as modifying, limiting, or superseding the operation ofany provision of an enumerated consumer law that relates to theapplication of a law in effect in any State with respect to suchFederal law."

~Section 231 states: "Rule With Regard to Preemp-tion.--The provisions of [statutes implemented by the ConsumerProduct Safety Commission] establishing the extent to which thoseActs preempt, limit, or otherwise affect any other Federal, State,or local law, any rule, procedure, or regulation, or any cause ofaction under State or local law may not be expanded or contractedin scope, or limited, modified or extended in application, by anyrule or regulation thereunder, or by reference in any preamble,statement of policy, executive branch statements, or other matterassociated with the publication of any such rule or regulation. Inaccordance with the provisions of those Acts, the Commission maynot construe any such Act as preempting any cause of action underState or local common law or State statutory law regardingdamage claims."

22

preempt state law even when Congn’ess has expresslystated that it cannot. This question will only grow inimportance in light of Congress’s increasing use of no-implied-preemption clauses. A clear answer is called for toensure that states do not misunderstand the scope of theauthority they retain and whether authority can be takenaway from them, notwithstanding these clauses, based onthe implications of agency action.

III. This Case Raises The Important QuestionWhether An Agency’s Determinations AboutThe Applicability Of NEPA’s RequirementsPreempt Substantive State Laws GoverningThe Conduct Of Private Actors.

The regulation held to preempt Mr. Farina’s claimsdoes not impose a substantive standm-d on u@eless phones.Rather, as the regulation and the regulatory history makeclear, 47 C.F.R.§ 2.1093(e) states the level of RF radiationthat a cell phone can emit without triggering the FCC’sNEPA obligation to evaluate the device’s environmentaleffect before authorizing the device for sale. The FCC didnot issue the standard to impose a substantive obligationon companies, but "[t]o meet its responsibilities underNEPA." 11 F.C.C.R. at 15124; see 47 C.F.R.§ 2.1093(a);Pet. App. 6a ("Although the FCC does not possessindividual agency expertise with respect to the develop-ment of public health and safety standards, . . theCommission concluded that NEPA obligated it to regulateRF radiation.") (citations omitted).

Accordingly, if a company applies for authorization tosell a cell phone that does not meet the standard, FCCregulations do not require the FCC to reject the applica-tion or the company to make any change to its product.They require only the preparation of an EA, and

potentially an EIS, before the application can be granted.Similarly, meeting the standard does not mean that thecompany is in compliance with some federal requirementthat displaces any others to which it might be subject;meeting the standard means only that the agency does nothave to take the procedural steps required by NEPAbefore it acts.

To be sure, manufacturers have generally chosen tostay within the level stated in the regulation so as to avoidthe delay that would result if the FCC undertook theNEPA analysis. Nonetheless, the regulation is, by expressstatement of the FCC, a regulation issued to implementNEPA. 47 C.F.R. § 2.1093(a) ("Requirements of thissection are a consequence of Commission responsibilitiesunder [NEPA] to evaluate the environmental significanceof its actions."); 11 F.C.C.R. at 15125 (Report and Orderfinalizing regulation); FCC, Guidelines for Evaluating theEnvironmental Effects of Radiofrequency Radiation, 12F.C.C.R. 13494, 13499 ¶ 13 (1997) (amending parts of 1996guidelines and reiterating that rules issued to comply withNEPA). And NEPA is a procedural statute that "does notmandate particular results" but rather "imposes only pro-cedural requirements on federal agencies." Dep’t ofTransp. v. Public Citizen, 541 U.S. 752, 756 (2004) (internalquotation marks omitted); see Robe~tson v. Methow ValleyCitizens Council, 490 U.S. 332, 350 (1989) ("lilt is now wellsettled that NEPA itself does not mandate particularresults, but simply prescribes the necessary process.").

To petitioner’s knowledge, no court has ever beforeheld that an agency’s decision to categorically exclude anaction from NEPA’s procedural requirements preempts

24

application of state substantive law to private conduct.~°

And in contrast to the Third Circuit, the Fom’th Circuit inPinney found no preemption in pars because the regula-tions on which the preemption theory was based were pro-mulgated pursuant to NEPA, not pursuant to a mandate ofthe Communications Act. 402 F.3d at 457; see also Ve~,nontYankee Nuclear Power Co~7~. v. Natural Res. De.(. Council,I~c., 435 U.S. 519, 548 (1978) ("NEPA does not repeal byimplication any other statute.") (citation omitted).

The holding that an agency’s rule as to what activitiesare categorically excluded from NEPA’s proceduralrequirements can have preemptive effect on state law hasimplications for numerous federal regulatory agencies,regulated entities, and the public. NEPA’s requh~ementsapply to every agency and to a~ny action that might have asignificant environmental effect. See 42 U.S.C.§ 4332(2)(C). Under the Third Circuit’s analysis, agencyregulations identifying regulatory actions that ~411 nottrigger NEPA requh~ements could have broad substantive,preemptive effect on state laws regulating the conduct ofthe private actors whose activities would be considered ina NEPA analysis, if one were required. See, e.g., 7 C.F.R.§ 372.5(c) (Animal and Plant Health Inspection Se~w., Dep’tof Agric.); 10 C.F.R. Part 1021.410 (Dep’t of Energy); 18C.F.R. § 380.5 (Federal Energy Regulatory Comm’n); 21C.F.R. 9§ 25.30-25.34 (FDA); 65 C.F.R. § 10229 (Dep’t of

~°M.~rray addressed the fact that the FCC’s RF regula-tions are NEPA regulations only in a footnote, finding that thedistinction between NE PA regulations and substantive regulationswas "not ... important." The court suggested ~hat by instructing theFCC to finalize its pending rulemaking, the TCA had somehowtransformed the NEPA guideline into a substantive requirement.982 A.2d at 778 n.19.

Health and Human Selws.); Bureau of Land Mgmt., Dep’tof Interior, 516 Dep’tal Manual 11, § 11.8(b) (2008).

Similarly, under the Third Circuit’s approach, agencydecisions that EIS’s were not required in particular casesbecause of the absence of a significant environmentalimpact could suddenly operate to preempt the applicationof state environmental, safety, health, and consumerprotection standards to the underlying private conduct.Yet "it is apparent that the express intent of NEPA is notto exclude state environmental regulation, but to encour-age cooperation with local governments to achieve theCongressional goal of environmental protection." JoanNewman, A Consideration of Federal Preemption in theContext of State and Local Environmental Regulation, 9UCLA J. Envtl. L. & Pol’y 97, 108 (1990). Indeed, NEPAhas long co-existed with an array of state environmentallaws. See, e.g., Nicholas Robinson, SEQRA’s Siblings:Precedents fi~orn Little NEPA’s in the Sister States, 46Albany L. Rev. 1155, 1157-58 & nn. 16-19 (1982) (citingstate "mini-NEPA" laws).

Because the potential effect of claims to "NEPApreemption" are so far-reaching, the Court should grantthe petition to address this significant issue.

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KENNETH A. JACOBSEN12 Orchard LaneWallingford, PA 19086610-566-7930

CONCLUSION

The petition for a ~a-it of certiorari should be granted.

Respectfully submitted,

ALLISON M. ZIEVE

Cou~zsel of RecordSCOTT L. NELSONPUBLIC CITIZEN

LITIGATION GROUP1600 20th Street NWWashington, DC 20009202-588-1000azieve@citizen.org

Counsel for Petitioner

February 2011