The potential biological hazards of using cell phones took center stage on Monday as a plaintiffs lawyer urged the 3rd U.S. Circuit Court of Appeals to revive a Pennsylvania class action suit that says manufacturers must be ordered to provide a headset with every phone as a safety device.
Attorney Kenneth A. Jacobsen argued in Farina v. Nokia Inc. that a lower court judge erred in tossing the suit out on the grounds that it would interfere with the Federal Communications Commission, which has exclusive authority to regulate the radio frequency or RF emission of cell phones.
The FCC has no expertise in matters of public health and safety, Jacobsen said, and the federal statutes that give the FCC its powers were never intended to oust the state courts from their traditional roles of providing remedies for breaches of warranty or false advertising.
But Jacobsen soon found himself fending off a barrage of questions from two of the judges -- Chief Judge Anthony J. Scirica and Judge Thomas L. Ambro -- on the issue of whether the case was properly pre-empted.
Ambro said he thought the defendants had a "darn good argument" that the case was subject to the doctrine of implied pre-emption since the FCC was tasked with crafting a uniform scheme for regulating cell phone devices and networks.
"This is their bailiwick. This is their turf," Ambro said, referring to the FCC.
But Jacobsen insisted that the suit would never interfere with the FCC's work since the plaintiffs are not seeking to alter the RF regulations.
Instead, Jacobsen said, the plaintiffs focused on the claims made in the advertisements in which, he said, cell phone manufacturers and service providers assured consumers that the products were "absolutely safe."
In reality, Jacobsen said, it has long been known that RF emissions have effects on human tissue, and the Pennsylvania plaintiffs are simply demanding that headsets -- and accurate information -- be provided.
But attorney David C. Frederick of Kellogg Huber Hansen Todd Evans & Figel, arguing for the cell phone manufacturers and providers, argued that U.S. District Judge John R. Padova was correct in holding that the suit was pre-empted because radio frequencies are "an instrumentality of interstate commerce" that simply "cannot be defined by state borders."
If Jacobsen's argument were accepted, Frederick said, the Pennsylvania plaintiffs would be asking a jury to declare that cell phones suffer from a defect that renders them "unreasonably dangerous."
Such a proceeding, Frederick argued, would put the courts on a "collision course" with the FCC's carefully balanced regulatory scheme.
In a 46-page opinion handed down in September 2008, Padova concluded that the plaintiffs' allegations "unquestionably trample upon the FCC's authority to determine the maximum standard for RF emissions."
The suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations: Nokia Inc.; Ericsson Wireless Communications Inc.; Motorola Inc.; Sprint PCS; Audiovox Communications Corp.; Nextel Communications; Panasonic Corp.; Philips Electronics North America Corp.; Qualcomm Inc.; Sanyo North America; Sony Electronics Inc.; AT&T Wireless Services Inc.; Verizon Wireless; Southwestern Bell Mobile Systems Inc.; Cellular One; VoiceStream Wireless; LG Electronics Mobilecomm Inc.; Cellular Telecommunication Industry Association; and Telecommunications Industry Association.
Taking the lead in arguing a joint motion to dismiss before Padova were attorneys Seamus C. Duffy of Drinker Biddle & Reath in Philadelphia, representing AT&T, and Terrence J. Dee of Kirkland & Ellis in Washington, D.C., representing Motorola.
[Editor's note: Seamus C. Duffy is the brother of Shannon P. Duffy, the author of this article.]
In the 18 months since Padova's ruling, the jurisprudence on pre-emption has experienced a sea change, most notably in the U.S. Supreme Court's decision in Wyeth v. Levine that cleared the way for a state lawsuit against a drug maker and rejected arguments that the Food and Drug Administration's policing of drug warning labels should supplant state products liability laws.
Frederick, who argued for the winning plaintiff in the Wyeth case at the Supreme Court, was hired by the cell phone companies to argue the 3rd Circuit appeal.
Scirica asked Frederick if the Wyeth decision had undermined the Supreme Court's 2000 decision in United States v. Locke, which had pre-empted a suit over an oil spill on the grounds that it would interfere with the comprehensive federal regulatory scheme governing oil tankers.
Frederick was also the winning lawyer in the Locke case, having argued the Supreme Court appeal for the U.S. government when he was working as an assistant solicitor general.
Locke, which was decided unanimously, remains good law, Frederick argued, and provides a good contrast to Wyeth.
In Wyeth, he said, the justices held that parallel state actions against drug makers have always acted as a complement to the federal regulatory scheme, while in Locke, the court held that the state law claims would conflict with federal regulation of an exclusively federal arena -- maritime law.
Ambro pressed Frederick on the distinction that Jacobsen was urging, asking why the plaintiffs weren't correct in noting that the FCC "doesn't have any particular expertise" in safety and health issues.
But Frederick insisted that Congress gave the FCC the task of establishing regulations that would balance the need to protect public health and the need to deploy cell phone technology in the most efficient manner possible.
When Jacobsen returned to the podium for his rebuttal argument, Ambro asked if Frederick were correct in his warning that allowing the Pennsylvania suit would inevitably lead to a "hodgepodge" of regulations, varying from state to state, and thereby defeating the intent of having national, uniform standards.
Jacobsen insisted that the Pennsylvania case wouldn't interfere with the FCC regulations on RF emissions in any way since the cure proposed by the suit was simply to demand truth in advertising and mandate the inclusion of headsets in cell phone purchases.
The third judge on the panel, 9th Circuit Senior Judge Arthur Alarcon sitting on the 3rd Circuit by invitation, did not ask any questions during oral argument.