1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply ISO of Mot. for Prelim. Inj. No. C10-03224 WHA Robert A. Mittelstaedt (#60359) Craig E. Stewart (#129530) JONES DAY 555 California Street 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Fax: (415) 875-5700 [email protected]Andrew G. McBride (pro hac vice) Joshua S. Turner (pro hac vice) Megan L. Brown Brendan T. Carr WILEY REIN LLP 1776 K Street, N.W. Washington, DC 20006 Telephone: (202)719-7000 Fax: (202) 719-7049 [email protected]Jane F. Thorpe (pro hac vice) Scott A. Elder (pro hac vice) ALSTON & BIRD LLP 1201 West Peachtree St., NW Atlanta, Georgia 30309-3424 Telephone: (404) 881-7592 Fax: (404) 253-8875 [email protected]Seamus C. Duffy (pro hac vice) Susan M. Roach (pro hac vice) DRINKER BIDDLE & REATH LLP One Logan Square Suite 2000 Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Fax: (215) 988-2757 [email protected]Terrence J. Dee (pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2099 Fax: (312) 862-2200 [email protected]Attorneys for Plaintiff CTIA – The Wireless Association® UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CTIA - THE WIRELESS ASSOCIATION®, Plaintiff, v. THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, Defendant. Case No. 3:10-cv-03224 WHA PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date: October 20, 2011 Time: 8:00 a.m. Place: Courtroom 9, 19th Floor Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page1 of 23
Transcript
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
Robert A. Mittelstaedt (#60359) Craig E. Stewart (#129530) JONES DAY 555 California Street 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Fax: (415) 875-5700 [email protected]
Andrew G. McBride (pro hac vice) Joshua S. Turner (pro hac vice) Megan L. Brown Brendan T. Carr WILEY REIN LLP 1776 K Street, N.W. Washington, DC 20006 Telephone: (202)719-7000 Fax: (202) 719-7049 [email protected]
Jane F. Thorpe (pro hac vice) Scott A. Elder (pro hac vice) ALSTON & BIRD LLP 1201 West Peachtree St., NW Atlanta, Georgia 30309-3424 Telephone: (404) 881-7592 Fax: (404) 253-8875 [email protected]
Seamus C. Duffy (pro hac vice) Susan M. Roach (pro hac vice) DRINKER BIDDLE & REATH LLP One Logan Square Suite 2000 Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Fax: (215) 988-2757 [email protected]
Terrence J. Dee (pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2099 Fax: (312) 862-2200 [email protected] Attorneys for Plaintiff CTIA – The Wireless Association®
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CTIA - THE WIRELESS ASSOCIATION®,
Plaintiff,
v.
THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA,
Defendant.
Case No. 3:10-cv-03224 WHA
PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I. THE CITY’S NOVEL REGIME VIOLATES THE FIRST AMENDMENT. ................... 2
A. The City’s Warning Regime Is Subject To Heightened Scrutiny. .......................... 2
B. The City’s Response That Its Compelled Message Is “Immunized” From First Amendment Scrutiny Is Irreconcilable With Decades Of Precedent. ............ 4
1. FAIR And Beeman Are Completely Inapposite. ......................................... 4
2. The City’s Remaining Attempts To Avoid Heightened Scrutiny Fail. ............................................................................................................. 6
C. The City’s Alternative Argument Under Zauderer Fails. ....................................... 8
II. THE CITY’S REGIME CONFLICTS WITH FEDERAL LAW AND POLICY. ........... 11
A. The City’s Regime Squarely Challenges Federal Law and Policy. ...................... 11
B. The City’s Regime Will Upset The Balance Struck by Federal Wireless Policy. ................................................................................................................... 13
C. The Materials Are Inaccurate and Inconsistent With The FCC’s Judgments. ...... 13
III. THE REMAINING FACTORS OVERWHELMINGLY FAVOR CTIA. ....................... 14
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page2 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- ii - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
TABLE OF AUTHORITIES
Page(s) Cases
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).................................................................................................... 14
Am. Trucking Ass’ns, Inc. v. Los Angeles, 559 F.3d 1046 (9th Cir. 2009).................................................................................................... 15
Beeman v. Anthem Prescription Mgmt., 2011 WL 2803561 (9th Cir. July 19, 2011) ......................................................................... 1, 4, 5
Bennett v. T-Mobile USA, Inc., 597 F. Supp. 2d 1050 (C.D. Cal. 2008) ............................................................................... 11, 12
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980) ..................................................................................................................... 4
Con. Edison v. Pub. Serv. Comm’n of New York, 447 U.S. 530 (1980) ................................................................................................................... 11
Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003)........................................................................................................ 5
Farina v. Nokia Inc., 625 F.3d 97 (3d Cir. 2010) ............................................................................................... 2, 11, 12
Golden Gate Rest. Ass’n v. San Francisco, 512 F.3d 1112 (9th Cir. 2008).................................................................................................... 15
Grove City College v. Bell, 465 U.S. 555 (1984) ..................................................................................................................... 4
Hunt v. City of Los Angeles, 638 F.3d 703 (9th Cir. 2011)...................................................................................................... 10
Ibanez v. Florida Dept. of Bus. and Prof., 512 U.S. 136 (1994) ................................................................................................................... 11
New York State Restaurant Ass’n v. New York City Bd. of Health, 556 F.3d 114 (2d Cir. 2009) ....................................................................................................... 10
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1 (1985) ................................................................................................................ passim
Riley v. National Fed. of the Blind, 487 U.S. 781 (1988) ............................................................................................................. 3, 4, 8
Rumsfeld v. FAIR, 547 U.S. 47 (2006) ............................................................................................................... 1, 4, 5
Save Strawberry Canyon v. DOE, 613 F. Supp.2d 1177 (N.D. Cal. 2009) ...................................................................................... 15
Sorrell v. IMS Health Inc., 131 S.Ct. 2653 (2011) .................................................................................................................. 3
Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003).................................................................................................... 12
United States v. Locke, 529 U.S. 89 (2000) ..................................................................................................................... 12
Viacom Int’l Inc. v. FCC, 828 F.Supp. 741 (N.D. Cal. 1993) ............................................................................................. 14
Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009), aff’d sub nom. Brown v. Entm’t Merch. Ass’n131 S.Ct. 2729 (2011) ............................... 4, 9, 10
Von Saher v. Norton Simon Museum of Art, 592 F.3d 954 (9th Cir. 2009)........................................................................................................ 9
Wooley v. Maynard, 430 U.S. 705 (1977) ................................................................................................................. 5, 6
Zauderer v. Office of Disc. Counsel, 471 U.S. 626 (1985) ............................................................................................................ passim
Statutes
Cal. Bus. & Prof. Code § 8505.10 ................................................................................................. 13
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page4 of 23
FCC, Guide, Wireless Devices and Health Concerns, http://www.fcc.gov/guides/wireless-devices-and-health-concerns) ....................................................................................................... 9
Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C.R. 13494, 13497 (¶ 5) (1997) ......................................................................................................................................... 13
Rules
Fed. R. Evid. 201(b) ......................................................................................................................... 9
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page5 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- v - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
TABLE OF SUPPORTING DOCUMENTS
Reply Declaration of Ronald C. Petersen Exhibit 1: Supplemental Expert Report of Ronald C. Petersen Reply Declaration of David Stewart, Ph.D. Exhibit 1: Second Supplemental Report on San Francisco Cellular Telephone Information
Ordinance
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page6 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 1 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
INTRODUCTION
The City contends that it may compel a seller of goods, by means of government-drafted
“Stickers,” “Posters,” and “Factsheets,” to convey the City’s viewpoint concerning a debate about
the safety of the seller’s product, without any First Amendment scrutiny at all. The City’s
message is a controversial one, and one with which the seller vehemently disagrees. This
compelled speech, the City contends, is “immunized” from First Amendment scrutiny simply
because, in this “age of government-required disclosures,” no consumer will confuse the message
as having been “endorsed” by the seller and, after all, the seller remains free to balance the overall
message by advertising opposing views in parallel with the City’s view. The City is quick to
disown the obvious and intended message conveyed by its materials. Instead, the City argues that
it is not purporting to warn consumers about any actual danger, that it simply wants to emphasize
that there is scientific uncertainty and that, while it awaits certainty, consumers should treat
phones as if they are dangerous by limiting use in various ways. Under the City’s view, it could
mandate that its views on any “debate” related to the safety of a product—even one deemed safe
by the federal government—be broadcast on private property at the point of sale through
materials dictated by the City.
To support this remarkable position, the City relies on two cases that have nothing to do
with government compelled messages. Rumsfeld v. FAIR, 547 U.S. 47 (2006), is foremost a
government spending case—universities that take federal money are required to give DOD
recruiters the same access to students as other recruiters have. Though some schools claimed the
regime impermissibly compelled speech, the Supreme Court found that the law regulated conduct
and that any impact on speech was purely incidental. Here, the City is not incidentally burdening
speech by regulating conduct. It directly forces retailers to disseminate City-drafted materials
conveying its own position. Beeman v. Anthem Prescription Mgmt., 2011 WL 2803561 (9th Cir.
July 19, 2011), is similarly off point. Beeman involved a price survey and reporting requirement
as part of the direct regulation of the complex relationship between health insurance plans,
intermediaries, and retail pharmacies. As with FAIR, there was no government-mandated speech
or viewpoint at issue.
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page7 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 2 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
The City’s multiple and one-sided Display Materials, which are avowedly designed to
deliver “San Francisco’s message,” Opp. at 13, regarding an alleged debate about the use and
safety of cell phones, cannot be analogized to the pure factual disclosure of calorie content or the
presence of mercury, and are not the sort of uncontroversial disclosures of fact at issue in the
Zauderer v. Office of Disc. Counsel, 471 U.S. 626 (1985), line of cases. As a result, this content-
based regime is subject to heightened scrutiny. Mot. at 6-9. Indeed, the City has not attempted to
justify its regime under heightened scrutiny, effectively conceding that it fails.
The City’s preemption arguments miss the mark. Its asserted public health purpose
confirms that the very premise of the Ordinance questions the adequacy of the federal safety
standards. Telling people to turn off their phones when not in use to reduce exposure to RF
energy does not safeguard consumers; it is harmful. Mot. at 20 nn.23-25. The materials also
discourage cell phone use by children and in mass transit and elevators. Much more than the
headset requirement rejected in Farina v. Nokia Inc., 625 F.3d 97 (3d Cir. 2010), the materials
shift the balance away from the promotion of wireless communications and in favor of an
unsubstantiated public safety interest already considered carefully by the federal agencies.
The remaining preliminary injunction factors overwhelmingly favor CTIA. The City
devotes one paragraph to the balance of harms and identifies none. It submits no evidence to
dispute CTIA members’ likely injuries. Nor can it explain the need, after more than a year of its
delay, to shrink compliance time from 6 months in the Original Ordinance to 15 days in this
version. The public interest cannot be served by misleading warnings that, once released, can
never be effectively corrected.
This motion presents a host of important issues. CTIA is likely to succeed on the merits
and faces imminent irreparable injury. Because the balance of harms is so one-sided, and the
public interest favors maintaining the status quo, the Court should grant CTIA’s motion.
ARGUMENT
I. THE CITY’S NOVEL REGIME VIOLATES THE FIRST AMENDMENT.
A. The City’s Warning Regime Is Subject To Heightened Scrutiny.
Heightened scrutiny applies where the government forces a private party to convey the
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page8 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 3 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
government’s opinion. Preventing the government from foisting its point of view on private
parties is at the very core of the First Amendment. “Mandating speech that a speaker would not
otherwise make necessarily alters the content of the speech . . . [and therefore is] a content-based
regulation of speech.” Riley v. National Fed. of the Blind, 487 U.S. 781, 785 (1988). Content-
based regimes are “presumptively invalid,” and subject to heightened First Amendment scrutiny,
whether they affect commercial, mixed, or fully protected speech. Sorrell v. IMS Health Inc., 131
S.Ct. 2653, 2667 (2011) (quotation marks omitted).
There is no question that the Display Materials reflect and are designed to convey the
City’s views. The City admits they relate to what it calls a “debate” regarding cell phone safety.
CTIA’s members do not believe there is a genuine “debate,” because no legitimate science
demonstrates that cell phones cause adverse health effects. However, accepting the premise that
there is scientific debate, such a debate would necessarily involve at least two viewpoints and the
Display Materials undeniably present the City’s. Their status as opinion, rather than fact, is
further betrayed by the “recommendations” describing when, where, and how people should use
cell phones. These “recommendations” reflect the City’s view that cell phones may pose a risk
and suggest very specific measures—including turning phones off—for ensuring safe use. Such
“recommendations” cannot credibly be characterized as facts. The City has opinions about the
safety of cell phones and how people should and should not use them. The First Amendment
problem is that it has decided to force others to convey its opinions on their private property.
Any doubt that heightened scrutiny applies is removed by the fact that, as CTIA
established, there are editorial control, brand protection, and space constraints inherent in retail
stores’ messaging. D’Ambrosio Dec. ¶¶ 16-19, 23, and Ex. A. That declaration, which stands
unrebutted, carefully described both the commercial and non-commercial speech elements present
in Verizon Wireless retail outlets. Id. ¶¶ 20-22. Where a court deals with “mixed speech,” that
is, commercial speech interwoven with fully-protected speech, heightened scrutiny applies.
Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (“If speech . . . does more than
propose a commercial transaction—then it is entitled to full First Amendment protection.”).
Despite bearing the burden under the First Amendment, the City has implicitly conceded
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page9 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 4 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
that it cannot satisfy any form of heightened scrutiny—even the test in Central Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980), for purely commercial
speech—by failing to articulate how it meets those standards. The City’s asserted interest in
public health and its assertion that its regime is not all that burdensome do not suffice. So the
City hangs its hat on two very tenuous arguments: the First Amendment does not apply, or
Zauderer permits the forced dissemination of “information” the City thinks might be relevant to
consumers. These arguments fail.
B. The City’s Response That Its Compelled Message Is “Immunized” From First
Amendment Scrutiny Is Irreconcilable With Decades Of Precedent.
The City makes the radical claim that no First Amendment scrutiny should apply at all.
But the City gets nearly every aspect of the analysis wrong, starting with its erroneous claim that
there is an enormous distinction between “restrictions on speech (which are virtually always
subject to heightened scrutiny) and disclosure requirements (which are virtually never subject to
heightened scrutiny).” Opp. at 10. The Supreme Court disagrees: “in the context of protected
speech, the difference is without constitutional significance, for the First Amendment guarantees
‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not
to say.” Riley, 487 U.S. at 796-97. Riley itself is a “disclosure case” in which the Supreme Court
struck down a requirement that accurate information regarding net charitable proceeds be
disclosed in solicitations for donations. Similarly, Video Software Dealers Ass’n v.
Schwarzenegger, 556 F.3d 950 (9th Cir. 2009), aff’d sub nom. Brown v. Entm’t Merch. Ass’n131
S.Ct. 2729 (2011), and Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67 (2d Cir. 1996), applied
First Amendment scrutiny to “disclosure requirements.” The City barely addresses these cases.
1. FAIR And Beeman Are Completely Inapposite.
The City bases its assertion that the First Amendment does not apply on FAIR and
Beeman, two cases it chides CTIA for not citing. CTIA did not cite these cases because they are
well off point. The government requirement in FAIR was a condition to the voluntary acceptance
of federal funds. FAIR, 547 U.S. at 59 (citing Grove City College v. Bell, 465 U.S. 555, 575-76
(1984)). The conditions a government can place on speech when a private entity takes the
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page10 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 5 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
government’s money are vastly different from the mandate imposed here. Id. Further, the Court
found “recruiting” to be on the “conduct” side of the speech/conduct distinction running through
the Court’s cases, and that any impact on speech was, at most, incidental. Id. at 65-69. In FAIR,
the government did not require colleges to display “UNCLE SAM WANTS YOU” posters, or
place stickers on job postings suggesting military careers as an alternative, or hand out
“Factsheets” about the benefits of experience in the armed services. It simply required that the
military not be barred from campuses. By contrast, the City’s Ordinance doe not regulate
conduct. As the language quoted by the City makes plain, FAIR recognizes that a “compelled-
speech violation” occurs where a “speaker’s own message” is affected. Opp. at 14. The Display
Materials are pure speech foisted on retailers and “affect” their messages.
Beeman is every bit as inapposite. California required companies to “obtain the results of
studies” of pharmaceutical pricing and “report the objective data revealed by th[o]se studies” to
third party payors. Beeman, 2011 WL 2803561, *10. As in FAIR, the law was not subject to
First Amendment scrutiny because its “primary prescription . . . is conduct-based.” Id. *11.
Beeman thus did not, as the City implies, turn on the fact that entities remained free to assert
whatever viewpoint they liked. Opp. at 14. Rather, it turned on the fact that the law did not
compel them to utter any specific government-dictated content. Id. *10. Beeman expressly
distinguished cases involving content-based speech regulation, because “a content-based
regulation [is] subject to ‘exacting’ First Amendment scrutiny.” Id. *9. The court was clear that
its analysis would have been different if a private party were “compelled to convey a viewpoint”
or “subjective” information, id. *10, as retailers are here.1
The City’s attempt to distinguish Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475
U.S. 1 (1985), Wooley v. Maynard, 430 U.S. 705 (1977), Miami Herald Pub. Co. v. Tornillo, 418
U.S. 241 (1974), and other compelled speech cases, only confirms that this is a compelled speech
1 For similar reasons, Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003), is inapt. There, the law “d[id] not dictate a specific message.” Id. at 849. It required municipalities to develop their own materials to educate the public about stormwater discharges. The Ninth Circuit distinguished compelled speech cases where the government actually “compel[s] a recitation of a specific message,” Id. at 851, which is precisely what the City requires.
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page11 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 6 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
case. The City argues that Wooley is distinguishable because the government forced parties to
use private property (cars) to carry a message with which they disagreed. Opp. at 16. But just as
in Wooley, the record here shows that the City is forcing retailers to use their private property to
disseminate messages with which they disagree. D’Ambrosio Dec. ¶ 22, 29. Likewise, the City
fails to distinguish PG&E (government forcing a company to carry third party messages in its
billing envelopes) or Tornillo (government requiring a newspaper to carry editorial replies) other
than to fall back on its claim that those cases implicated the First Amendment and this one does
not. Opp. at 16.
2. The City’s Remaining Attempts To Avoid Heightened Scrutiny Fail.
The City offers some additional points, but it is unclear whether they purport to buttress
the novel argument that no First Amendment scrutiny applies, or the slightly more modest claim
that Zauderer applies and is satisfied. Either way, none is correct.
First, the City argues that the First Amendment is not implicated because retailers can still
communicate and engage in counter-speech. Opp. at 14. This contradicts long-settled Supreme
Court precedent. Mot. at 22-23. A “content-based grant of access to private property” violates
the First Amendment precisely because it pressures persons to engage on an issue, and at a time
and place, of the government’s choosing. See PG&E, 475 U.S. at 16; Tornillo, 418 U.S. at 256.
The Display Materials force retailers to host what the City itself alleges is a “debate” about health
effects of phones in their carefully laid-out stores. The City has set the “agenda,” PG&E, 475
U.S. at 9, and any “forced response” retailers might feel appropriate “is antithetical to the free
discussion that the First Amendment seeks to foster.” Id.
Second, the City suggests that the First Amendment is not implicated because its materials
only take up a “small” amount of space. Opp. at 14-15. This is wrong. The City’s “disclosures”
consists of several pages of opinion regarding the safety of cell phones and advice regarding the
use of cell phones. Its handout is the only piece of paper that customers in Verizon Wireless’s
paperless stores will receive. D’Ambrosio Dec. ¶ 21. And it is lengthy compared to the factual
calorie count and mercury disclosures upon which the City principally relies. Opp. at 17-18. But
even if the City were right about the limited nature of its imposition, contra D’Ambrosio Dec. ¶
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page12 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 7 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
17-19, 25-26, and Exh. A, there is no “small space” exception to the First Amendment. It is
undisputed that space is at a premium in retail stores and on the cards adjacent to phones. Placing
the City’s Stickers on the cards will oust some speech or detract from speech that is there.
Similarly, placing an 11” X 17” poster in a “prominent location,” is not a de minimus intrusion.
Third, the argument that the materials are exempt from First Amendment review because
they state that they were “prepared solely by the City,” Opp. at 15, is groundless.2 Such
disclaimers make no difference where the City is forcing a company to use its private property to
carry the City’s message. Mot. at 9 n.11. The Court in PG&E confronted this precise issue. The
government there forced a company to carry a third party’s message in its billing envelopes, but
“required [the party] to state that its messages are not those of appellant.” PG&E, 475 U.S. at 6-
7. Nevertheless, the Court applied strict scrutiny and invalidated the law. Id. at 16 n.11 (“The
disclaimer serves only to avoid giving readers the mistaken impression that TURN’s words are
really those of appellant . . . . It does nothing to reduce the risk that appellant will be forced to
respond when there is strong disagreement with the substance of TURN’s message.”).
Fourth, the City claims that the First Amendment is not implicated because “the wireless
industry itself uses much of the language” compelled by the City. Opp. at 11. Of course, the City
cannot argue that all retailers3 use language identical to that mandated by the City, and it does not
claim that they use any graphics remotely resembling the alarmist depictions of the human form
with red, orange, and yellow waves from cell phones penetrating the head and groin, which Dr.
Stewart confirms heighten the message of danger. Decl. of Dr. David Stewart, Exh. 1,
Supplemental Report, ¶¶ 13(A)-(B),15 (Oct. 4, 2011) (“Stewart Supp.”); Stewart Second
Supplemental Report On San Francisco Telephone Information Ordinance, ¶¶ 9, 10 (Oct. 11,
2011) (“Stewart Sec. Supp.”). The referenced user manuals also discuss compliance with the
FCC standards at length, a subject conspicuously absent from the Display Materials. For
example, Motorola tells Droid customers at the very outset: “Your mobile device is designed to
comply with local regulatory requirements in your country concerning exposure of human beings
2 While the Poster and “Factsheet” state they were prepared by the City, the Stickers do not. 3 The cited materials are not from retailers at all, but from phone manufacturers.
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page13 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 8 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
to RF energy. Sanders Dec. Ex. D. Apple’s iPhone4 manual makes a similar prefatory statement
(which the City omitted from its selected quote): “iPhone is designed and manufactured to
comply with the limits for exposure to RF energy set by the Federal Communications
Commission (FCC) of the United States.” Id. Ex. E. Indeed, that manual contains several
paragraphs of information discussing regulatory compliance and the FCC’s safety standards
before the portion selectively quoted by the City. Instead of reference to compliance with the
federal safety standard, the City inserts alarmist graphics. These differences make it
“disingenuous” to use the manuals’ language to justify the Display Materials. Stewart Sec. Supp.
¶¶ 8-10.4 Finally, no retailer gives RF safety the same prominence as price or features, as the
City does with its required Stickers.
Whatever the content of the user manuals, the difference between voluntary speech and
compelled speech is key. Riley, 487 U.S. at 795 (“Mandating speech that a speaker would not
otherwise make” runs straight into the First Amendment.). Moreover, editorial choice of context,
placement, and emphasis matter, precisely because (as Dr. Stewart explains, Stewart Sec. Supp.
¶¶ 9, 10) changing these factors can completely change the message conveyed. The layout,
design, and content of retail stores are the product of protected and deliberate communicative
decisions that include expressions on matters of environmental, social, and other fully protected
matters. Mot. at 7; D’Ambrosio Dec. ¶¶ 13-19. To assert that the First Amendment is not even
implicated when the City injects its own views into these locations via Posters, “Factsheets,” and
Stickers with the goal of influencing “where people’s minds might go,” Opp. at 1, is untenable.
C. The City’s Alternative Argument Under Zauderer Fails.
The City incorrectly argues that the Ordinance and Display Materials are subject to the
more relaxed standard of review enunciated in Zauderer and its progeny. The City is wrong, but
cannot meet that standard in any event.
4 The Display Materials actually contradict voluntary statements made by CTIA members. For example, Motorola Mobility’s Corporate Responsibility Website states that “there is no health-related reason to adopt special precautionary measures for usage by children.” Motorola Mobility, Wireless Communication and Health FAQs, (http://responsibility.motorola.com/ index.php/consumers/wirelesscommhealth/wcahfaq/).
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page14 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 9 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
First, the City ignores that Zauderer only applies when compelled statements are limited
to “uncontroversial information.” Zauderer, 471 U.S. at 651; Schwarzenegger, 556 F.3d at 966-
67; Mot. at 11-12. The City makes no attempt to show that the content it requires retailers to
disseminate is “uncontroversial,” and it could not do so if it tried. Putting aside the overall
message that cell phones are potentially dangerous, the materials warn that “[d]eveloping brains
and thinner skulls lead to higher absorption in children,” which Mr. Petersen explains is
controversial as a matter of science.5 Likewise, the City’s “recommend[ations]” to reduce RF
exposure and limit cell phone use based on concerns about the safety of FCC-compliant phones
are expressly contrary to the views of CTIA and the FCC, which “does not endorse the need for”
consumers to “reduce exposure.” FCC, Guide, Wireless Devices and Health Concerns,
does not invite the City to compel the delivery of controversial messages that “are expressly
contrary to the corporation’s views.” PG&E, 475 U.S. at 16 n.12.
Second, the City cannot credibly argue that the Display Materials are “purely factual” as
also required by Zauderer. They offer opinions regarding how, when, where, and why to use and
not use cell phones. In this context, the act of handing every customer who purchases a phone a
“Factsheet” from the government is itself a communication about the relative importance and
degree of the alleged “scientific debate” with which CTIA disagrees. In addition, the materials
are scientifically incomplete and misleading. Petersen Prelim. ¶¶ 7, 36-37; Petersen Supp. ¶¶ 5.
The City offers no expert testimony to explain its materials, so the scientific principles in the two
Petersen Declarations are established for purposes of this motion.6 Moreover, the City’s
5 See Decl. of Ronald C. Petersen, Preliminary Expert Report, ¶ 7(b) (Oct. 4, 2011) (“Petersen Prelim.”). While the City attempts to defend the accuracy of this statement by relying on a WHO finding not properly before the Court, Opp. at 13 n.6, as confirmed in his Supplemental Report, see Supplemental Decl. of Ronald C. Petersen, Supplemental Preliminary Expert Report, ¶ 5 (Oct. 11, 2011) (“Petersen Supp.”), the City’s statement regarding children is incomplete and therefore misleading from a scientific point of view. 6 A string-cite of articles cannot substitute for evidence. The Court can take notice that these articles exist, but cannot rely upon their substance or conclusions. See Fed. R. Evid. 201(b); Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 960 (9th Cir. 2009) (judicial notice of publications proper only as to their existence, not as “to whether the contents of those articles were in fact true”) (quotation marks omitted). Neither the Court nor CTIA can test the pure
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page15 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
statements are categorically different from the simple, indisputable factual disclosures that have
been subject to Zauderer. Statements about the degree to which children’s brains are exposed to
RF energy while using a cell phone—a subject about which there are numerous scientific
papers—are not like statements of calorie counts on menus, New York State Restaurant Ass’n v.
New York City Bd. of Health, 556 F.3d 114 (2d Cir. 2009) (“NYSRA”), or disclosures of the
difference between fees and costs in attorney advertising, Zauderer, 471 U.S. at 652. In none of
those cases did the government attempt to synthesize and convey its viewpoint on a complex
scientific issue that is a matter of public “debate” or include its substantive “recommend[ations]”
about when and how to use the product safely.
Third, the City’s claim that Zauderer is not limited to correction of misleading
commercial speech, Opp. at 17-19, contravenes Supreme Court precedent. The City relies almost
exclusively on cases from other circuits that adopt a so-called “broader reading” of Zauderer.
But they predate Milavetz, Gallop & Milavetz, P.A. v. U.S., 130 S.Ct. 1324, 1339-41 (2010),
which confirms that Zauderer is limited to circumstances where the government is correcting
potentially misleading commercial statements. Id. at 1340. The Ninth Circuit agrees that
Zauderer asks, in part, “if the ‘disclosure requirements are reasonably related to the State’s
interest in preventing deception.’” Schwarzenegger, 556 F.3d at 967 (quoting Zauderer, 471 U.S.
at 651) (emphasis added).
Fourth, the City’s regime is not subject to Zauderer because that standard only applies
within the context of commercial speech, Zauderer, 471 U.S. at 650-52, which “‘does no more
than propose a commercial transaction.’” Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th
Cir. 2011) (quotation marks omitted). The mandated statements do far more than speak to a
proposed commercial transaction. They do not, for example, relate to price or contract terms.
Instead, they provide one side of what the City characterizes as a scientific debate about cell
phone safety and proper cell phone use, an issue much broader than any particular transaction.
The fact that the City mandates the warnings in a commercial setting (a retail store) or in
hearsay assertions in these various publications. They do not qualify as facts, “not subject to reasonable dispute,” id., but are part of the so-called “debate” that the City wishes to influence.
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page16 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 11 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
conjunction with speech that might otherwise be considered commercial (point-of-sale displays)
does not alter this conclusion. The Supreme Court has held that requiring inclusion of speech in
bill inserts, a medium that naturally includes primarily commercial speech, does not prevent the
speech at issue from being subject to full First Amendment protection. See, e.g., Con. Edison v.
Pub. Serv. Comm’n of New York, 447 U.S. 530, 532-33 (1980); see also PG&E, 475 U.S. at 19.
Finally, even if Zauderer applied, the Display Materials could not meet it. See Mot. at 12-
17. The City does not claim to be addressing any known public health problem, for good reason:
the FCC ensures the safety of RF emissions. But the City cannot mandate disclosures to serve a
general “right to know,” because that is an “inadequate” basis for requiring speech. Amestoy, 92
F.3d at 73. Further, the volume of the City’s materials and their distribution through numerous
channels exceed any permissible Zauderer “disclosure.” As the Supreme Court made clear,
requiring long-winded explanations, even in the context of “potentially misleading” statements
can violate the First Amendment. Ibanez v. Florida Dept. of Bus. and Prof., 512 U.S. 136, 146
(1994) (“‘unduly burdensome disclosure requirements . . . offend the First Amendment’” (quoting
Zauderer, 471 U.S. at 651)).
II. THE CITY’S REGIME CONFLICTS WITH FEDERAL LAW AND POLICY.
A. The City’s Regime Squarely Challenges Federal Law and Policy.
The Opposition does not shy away from the City’s conviction that cell phones are
potentially dangerous, that their use requires precautions, and that the FCC is not adequately
fulfilling its responsibility to ensure the safety of cell phones. The City’s assertion of a public
health purpose confirms that it is “second-guess[ing]” the FCC’s choices. Bennett v. T-Mobile
USA, Inc., 597 F. Supp. 2d 1050, 1053 (C.D. Cal. 2008). Because the City’s judgment is
embodied in direct regulation of wireless phone marketing and sales, it directly challenges the
FCC’s policy choice and must yield to federal law. Mot. at 17-22.
The City tries to argue that the “balancing” preemption cases do not apply by
characterizing Farina and Murray v. Motorola, Inc., 982 A.2d 764 (D.C. 2009), as focused on the
calibration of emissions standards. But the decisions in Farina and Murray (and Bennett, which
the City does not address) are not that narrow. Each recognized that, regardless of the relief
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page17 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 12 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
sought through state action, claims premised on the perceived “inadequacy of the FCC’s radiation
standard” and concerns “about the safety of . . . FCC-certified cell phones” necessarily constitute
a “collateral attack on the FCC” regime and impermissibly “second-guess the balance reached by
the FCC.” Murray, 982 A.2d at 777 (quoting Bennett, 597 F.Supp.2d at 1053); accord Farina,
625 F.3d at 122. Indeed, in Farina, it did not matter that the state law obligation would not in
fact mandate a different SAR level or constitute an emission standard. Id. at 133. The
“inescapable effect” of the theory of liability challenged the FCC’s regime. Id. at 122.
The City’s regulations “rest” on the notion that FCC-compliant cell phones are potentially
dangerous, Murray, 982 A.2d at 777, and “expressly challenge the FCC standards” for cell phone
safety, Farina, 625 F.3d at 122. The City states, “FCC regulations presently do not require cell
phone manufacturers to measure the amount of [RF] energy an average user will absorb.”
Ordinance, Findings ¶ 6. It “urges the FCC” to develop what the City deems are better metrics,
id. ¶ 7, and states that in the meantime, “it is in the interest of the public health to require cell
phone retailers to inform consumers about the potential health effects of cell phone use.” id. ¶ 8.
The City invokes the “presumption against preemption,” Opp. at 22-24, in an effort to tip
the analytic scales in its favor, but it does not explain how the presumption should change the
result. In any event, the presumption is not triggered where, as here, there is a “history of
significant federal presence,” United States v. Locke, 529 U.S. 89, 108 (2000), like the
comprehensive federal regulation of radio waves needed for wireless communications. In Ting,
the Ninth Circuit held that the presumption does not apply to the regulation of interstate
communications, which were long regulated by the federal government. Ting v. AT&T, 319 F.3d
1126 (9th Cir. 2003).7 Ting’s logic compels rejection of a presumption against preemption here.
7 The Third Circuit’s application of the presumption against preemption in Farina does not alter this conclusion. Ting governs, but in any event, the City’s regime is nothing like the traditional application of tort law, where the government has an interest in redressing injuries to its citizens. And in any event, the Farina court readily concluded the presumption was overcome because the state claim there was so obviously preempted. Farina, 625 F.3d at 117.
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page18 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 13 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
B. The City’s Regime Will Upset The Balance Struck by Federal Wireless Policy.
Though the City implausibly denies that its materials send a message of danger from
FCC-compliant phones, there is every reason to believe that the they send a strong warning (with
government imprimatur) that cell phones are potentially dangerous. Stewart Supp. ¶¶ 12-13.8
And the City “recommends” various actions, including limiting use of phones, especially by
children, and turning them off. If the City is truly motivated by its desire to reduce its health care
costs and safeguard the public, Opp. at 2-3, 24-25, it must believe people will heed its warnings.
Nor does the city dispute that these actions will affect network management and
optimization, Fitterer Dec. ¶ 8-9, consumers’ use and enjoyment, Fitterer Dec. ¶ 6-7, and access
to public safety services, Springer Dec. ¶ 9-14. The City seems to concede the effects, Opp. at
21-22, but takes the position that they are not relevant to federal policy. Opp. at 22. But the
FCC’s RF regime expressly seeks to “allow communications services to readily address growing
marketplace demands,” Procedures for Reviewing Requests for Relief from State and Local
Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C.R.
13494, 13497 (¶ 5) (1997), and it has long been the policy of the FCC to advance wireless
services, including mobile broadband, and access to public safety as well as national uniformity
in wireless policy. Mot. at 19-21.
C. The Materials Are Inaccurate and Inconsistent With The FCC’s Judgments.
The City does not mount a serious response to evidence about its materials’ inaccuracies
or their inconsistency with federal findings and scientific fact. CTIA showed that the materials
send a strong warning of danger. Stewart Supp. ¶¶ 12-14.9 The City responds by questioning the
8 Dr. Scott admits that some consumers may avoid cell phones entirely, Scott Dec. n.8, but states that without a survey we cannot know for sure. Dr. Stewart has already conducted one such survey and in his opinion, it is very likely that the City’s materials will be interpreted as a strong warning to consumers. Stewart Supp ¶ 12. Dr. Scott’s speculation is unsupported, Stewart Sec. Supp. ¶¶ 6-8, and at best reinforces the need for time to conduct a survey. 9 The State of California agrees that the color red is associated with immediate danger and should be used sparingly. See Cal. Vehicle Code § 25269 (“No person shall display a flashing or steady burning red warning light on a vehicle except [authorized emergency vehicles] or when an extreme hazard exists.”) (emphasis added); Cal. Bus. & Prof. Code § 8505.10 (“warning signs” used by pest control operators to be printed “in red on white background”).
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page19 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 14 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
methodology of the previous survey and citing inapposite examples of warnings that look nothing
like the Display Materials. Opp. at 11. These criticisms are unfounded. Stewart Sec. Supp. ¶¶ 6,
8-9. Nor has the City controverted CTIA’s demonstration that this message of danger is
misleading and conflicts with the FCC’s position. Mot. at 12-17. Similarly, CTIA established
that the City’s warning about children is at odds with the science underlying the FCC’s standard,
which protects the entire population, including children, from potential adverse health effects
from RF energy. Mot. at 13. The City quotes a sentence from a single article that discusses the
potential for a different distribution of RF energy in children, which cites a 2010 study. Petersen
Supp. ¶ 2. But that carefully selected sentence does not establish that the City’s mandatory
statement about RF energy absorption in children is fact. Id. Rather the required disclosure
related to children is a statement of opinion that presents a misleading characterization of the
science and is in conflict with science underlying the FCC standard. Id. at ¶ 3. Thus, the City’s
position that it is simply communicating “factual” and non-controversial information about
children and cell phones is unsupportable.
III. THE REMAINING FACTORS OVERWHELMINGLY FAVOR CTIA.
CTIA has amply satisfied all of the remaining factors and preliminary relief is manifestly
appropriate. CTIA has demonstrated that its members are “likely” to be irreparably harmed by
the imminent enforcement of the regime. Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). First, a deprivation of First Amendment rights, even for a short time,
is irreparable per se. See Viacom Int’l Inc. v. FCC, 828 F.Supp. 741, 744 (N.D. Cal. 1993).
Second, CTIA submits unrebutted evidence about imminent injury to goodwill, customer
relationships, and competitive position, D’Ambrosio Dec. ¶ 24 (consumer confusion and
distraction); ¶ 29 (harms from forced product disparagement); ¶ 30 (impact of changing display
and promotional materials), as well as business operations, Fitterer Dec. ¶ 8-9 (network harms
from public turning phones off). These injuries are irreparable. See Mot. at 22-24.
The City effectively concedes that First Amendment injury is irreparable as a matter of
law, but its response to the other injuries is frivolous. The City claims that there will be no harm
to reputation or goodwill because its materials do not expressly “criticize the retailers or accuse
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page20 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 15 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
them of being dishonest.” Opp. at 24. This is cold comfort. The alarmist graphics and statements
contain multiple inaccuracies and are designed to communicate at the point of sale that cell
phones “might post health risks.” Opp. at 24. The City also speculates that because cell phones
are ubiquitous it “strains credulity” to think consumers will forgo them. No evidentiary support is
offered for any of these assertions.
While CTIA’s harms are established as a matter of law and fact, the City has done nothing
to establish any harm to it from a limited injunction. The City has willingly delayed the
effectiveness of its Ordinance for over a year. Maintaining the status quo while this Court
carefully examines the City’s latest attempt to fashion an RF warning regime will do no harm.
Finally, the City argues that the public interest is vindicated by enforcing duly enacted
local legislation, Opp. at 25, but even the case cited recognizes that such a public interest yields to
federal constitutional interests. See Golden Gate Rest. Ass’n v. San Francisco, 512 F.3d 1112
(9th Cir. 2008). Otherwise, the public interest would always disfavor preliminary relief from
even the most dubious of local enactments. But see Am. Trucking Ass’ns, Inc. v. Los Angeles, 559
F.3d 1046, 1059-60 (9th Cir. 2009) (reversing denial of preliminary injunction where local
interest was outweighed by “public interest represented in” federal law and Constitution). Given
the lopsided equities and the “serious questions” here, the Court should enter “a limited
preliminary injunction . . . to remain effective until the full merits can be resolved[.]” Save
Strawberry Canyon v. DOE, 613 F. Supp.2d 1177 (N.D. Cal. 2009) (Alsup, J.).
CONCLUSION
For the foregoing reasons, the Court should grant CTIA’s motion and enter a preliminary
injunction against enforcement of any aspect of the Ordinance.
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page21 of 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 16 - Reply ISO of Mot. for Prelim. Inj.
No. C10-03224 WHA
Dated: October 11, 2011
JONES DAY
By: /s/ Robert A. Mittelstaedt Robert A. Mittelstaedt (#60359) Craig E. Stewart (#129530) JONES DAY 555 California Street 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Fax: (415) 875-5700 [email protected]
Andrew G. McBride (pro hac vice) Joshua S. Turner (pro hac vice) Megan Brown Brendan T. Carr Wiley Rein LLP 1776 K Street, N.W. Washington, DC 20006 Telephone: (202)719-7000 Fax: (202) 719-7049 [email protected]
Terrence J. Dee (pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2099 Fax: (312) 862-2200 [email protected]
Seamus C. Duffy (pro hac vice) Susan M. Roach (pro hac vice) Drinker Biddle & Reath LLP One Logan Square Suite 2000 Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Fax: (215) 988-2757 [email protected]
Jane F. Thorpe (pro hac vice) Scott A. Elder (pro hac vice) ALSTON & BIRD LLP 1201 West Peachtree St., NW
Case3:10-cv-03224-WHA Document76 Filed10/11/11 Page22 of 23
