Law Offices of David G. Arganian, Seattle, WA

Alsup Weighs S.F.'s Cellphone Disclosure Ordinance

Health risks of cellphone use are "possible." And so are UFOs.

That was a point U.S. District Judge William Alsup made Thursday in an exchange with a lawyer for San Francisco who tried to fend off an injunction that would halt the city's novel cellphone "right to know" ordinance.

But even as Alsup repeatedly challenged Deputy City Attorney Vince Chhabria's arguments on why requiring cellphone retailers to give consumers city-created materials doesn't run afoul of the First Amendment, Alsup capped off the hearing saying he hadn't made up his mind.

"I don't know the answer," Alsup said.

The wireless industry, which has sued on First Amendment and pre-emption grounds, won at least a small victory. The city agreed to Alsup's request to postpone implementation of the ordinance, set to take effect next week, until Alsup can turn out his order, which he said should be in the next week.

Alsup repeatedly asked for scientific findings of health risks, to which Chhabria pointed to the World Health Organization's position that radio-frequency energy, emitted by cellphones, is a "possible" carcinogen.

That prompted Alsup to toss out his "UFOs are possible" point.

"Your honor, with respect, I think that belittles the conclusions of the people who looked at this," Chhabria said.

Lawyers for CTIA-The Wireless Association claim the city is compelling speech in violation of the First Amendment, an argument corporations are using across the country to fight back against a slew of local health and safety disclosure ordinances.

Andrew McBride of Wiley Rein in Washington, D.C., one of three firms representing CTIA at the hearing, told Alsup that if the city can force retailers to display and pass out information that expresses an opinion, not just stating pure fact, then "the First Amendment is really a dead letter."

The ordinance calls for retailers to give consumers a sticker warning of radio-frequency emissions and tells consumers they can request a factsheet with more information. And it calls for retailers to hang a poster.

Bad news for the wireless industry came when Alsup said he agreed with Chhabria that the Federal Communications Commission has never actually deemed cellphones "safe."

Still, Alsup wanted to know why the city shouldn't let the district court and the Ninth Circuit U.S. Court of Appeals weigh in on the novel ordinance before allowing the measure to take effect. "What's the rush?" he asked.

"It's not at all clear that people are not being harmed by the absence of such a regulation," Chhabria said.

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