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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`No. C 19-05322 WHA
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`ORDER ON MOTION FOR
`SUMMARY JUDGMENT
`
`ANDREW COHEN, TIMOTHY
`HORNICK, KALEAH C. ALLEN,
`KIMBERLY BENJAMIN, MARK
`WEILER, MATT KOPPIN, SCOTT
`CISCHKE, ALBERT COLLINS, PAUL
`COLETTI, KRYSTLE FAERN, RODOLFO
`CABRERA, BRANDY DAVIS, WILLIAM
`ZIDE, DAVID HEDICKER, NANCY
`MAEKAWA, CATHERINE GOODWIN,
`KATHLEEN BOGGS, KIMBERLY
`MODESITT, MARK KUNZE, ARIANA
`RYAN, BECKY WELLINGTON, M. GAIL
`SUNDELL, VICTOR PERLMAN, and
`ZACHARY GOMOLEKOFF, individually
`and on behalf of all other similarly situated,
`Plaintiffs,
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`
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`v.
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`APPLE INC.,
`
`Defendant.
`
`
`INTRODUCTION
`In this putative class action, this order holds that the FCC’s radio frequency radiation
`exposure regulations preempt plaintiffs’ tort and consumer-fraud claims.
`STATEMENT
`At all material times, defendant Apple, Inc., manufactured and sold a series of
`industry-defining smartphones known as the iPhone: a cellphone with a broad range of
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`additional functions based on advanced computing capability, large storage capacity, and
`internet connectivity. Like other forms of wireless communication, these smartphones relied
`on radiofrequency electromagnetic waves (RF radiation) to send and receive signals. The
`oscillation of electrical charges in the phone antennas would generate RF radiation emanating
`from those antennas. The closer to the body the phone remained while in use, the more RF
`radiation a user would get.
`For at least the last forty years, scientists have weighed in on the health risks associated
`with RF radiation exposure from radio transmitters. Unlike ionizing radiation (such as
`X-rays), which is always potentially harmful to human tissue, non-ionizing radiation, such as
`phones emit, is incapable of breaking the chemical bonds so as to damage DNA. High levels
`of RF radiation, however, can cause adverse thermal effects, like a burn. More controverted
`is the purported existence of non-thermal effects caused by lower levels of RF radiation.
`Such effects, if they exist, may include an increased risk of cancer, cellular stress, structural
`and functional changes to the reproductive system, learning and memory deficits, genetic
`damage, and neurological disorders.
`Based on its review of the science, the Federal Communications Commission has
`promulgated RF exposure standards that all cellphones must comply with before being sold
`in the United States. Guidelines for Evaluating the Environmental Effects of Radiofrequency
`Radiation, 11 F.C.C.R. 15123 ¶ 171 (1996) (1996 RF Order). Plaintiffs, purchasers of nine
`different iPhone models, seek to hold Apple to account for selling iPhones that allegedly do not
`comply with the Commission’s RF emissions standards.
`Plaintiffs filed this action in September 2019, seeking to represent “[a]ll persons who
`have owned or leased an iPhone for personal or household use in the United States.” A few
`weeks later, plaintiffs’ counsel filed a nearly identical complaint, also in our district, on behalf
`of different named plaintiffs. Prior orders related and consolidated the two actions. Following
`an initial case management conference, plaintiffs filed their consolidated amended class action
`complaint, now our operative complaint (Dkt. Nos. 47, 51, 53).
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`The operative complaint alleged seven disclosure-related claims and one negligence
`claim for medical monitoring. Plaintiffs based the latter on an allegedly increased risk of harm
`they may face due to their use of iPhones as advertised. The disclosure-related claims alleged
`that Apple marketed its phones for use on or in close proximity to the body, but failed to
`disclose that such use would allegedly expose consumers to RF radiation levels above the
`federal standards, and failed to disclose the alleged risk attendant to such exposure.1
`Apple sought dismissal under a litany of theories, including preemption, lack of standing,
`and various pleading deficiencies. Following a hearing, an order found that matters outside the
`pleadings had been presented in Apple’s briefs without sufficient justification. Apple’s motion
`became one for summary judgment under Rule 56 and discovery opened immediately (Dkt.
`Nos. 62, 75, 89).
`Given the necessary application of FCC regulations and guidance, and particularly the
`extent to which its regulations could preempt plaintiffs’ claims, the Court invited the
`Commission to participate as an amicus curiae. The Commission accepted, filing a statement
`of interest addressing the application of its regulations and guidance to plaintiffs’ claims.
`After some discovery ensued, Apple moved again for summary judgment on the
`dispositive issues of preemption and jurisdiction.
`Following a hearing, the undersigned judge ordered Apple to produce all
`communications between Apple and the FCC prior to and related to any certification involved
`in this action and all communications regarding the Chicago Tribune story. Plaintiffs were
`allowed a supplemental brief to explain the significance of the produced communications to
`the pending motion, and Apple an opportunity to respond. Promptly, Apple filed an
`emergency motion for clarification and an extension of time to produce the communications.
`A prior order granted the motion, and extended the briefing deadlines as well.
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`1 The complaint also alleged claims for relief against another smartphone manufacturer, Samsung Electronic
`America, Inc. When both parties moved to dismiss, Samsung also moved to compel arbitration. A week later,
`plaintiffs voluntarily dismissed their claims against Samsung.
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`Now, plaintiffs all but abandon any reliance on what communications Apple did produce
`and instead rehash arguments made in their briefs. The single document plaintiffs found
`relevant demonstrated, in that instance, that Apple, not the FCC, bore responsibility for its
`disclosures to consumers in their user manuals.
`This order follows full briefing, a telephonic hearing (due to the ongoing public health
`emergency), and supplemental briefing.
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`ANALYSIS
`Plaintiffs seek to hold Apple liable for selling iPhones that allegedly exceeded the
`Commission’s RF radiation exposure limits, making the phones unsafe. All agree, however,
`that the Commission certified each and every iPhone model as compliant with its RF
`regulations. And, the Commission has determined that all certified cellphones pose no health
`risks. Plaintiffs nevertheless insist that a jury should decide whether the iPhones exceed the
`federal RF exposure standards here, not the administrative agency tasked with developing and
`administering the safety program. Under ordinary conflict preemption principles, a state law
`that “stands as an obstacle to the accomplishment and execution of the full purposes and
`objectives” of a federal law is pre-empted. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
`The basic question, then, is whether plaintiffs’ tort and consumer-fraud claims that would have
`juries administer the Commission’s regulations would stand as an obstacle to the regulations’
`own objectives. This order answers yes, and holds that the claims must be deemed preempted.
`Before reaching the preemption determination, however, three threshold issues regarding
`the statutory basis for the RF regulations must be addressed, following a review of the statutory
`and regulatory background.
`The Communications Act of 1934 established the Federal Communications Commission
`as the centralized authority for regulating wire and radio communication, charging the
`Commission with making available
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` a
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` rapid, efficient, Nation-wide, and world-wide wire and radio
`communication service with adequate facilities at reasonable
`charges, for the purpose of the national defense, for the purpose of
`promoting safety of life and property through the use of wire and
`radio communication, and for the purpose of securing a more
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`effective execution of this policy by centralizing authority
`heretofore granted by law to several agencies and by granting
`additional authority with respect to interstate and foreign
`commerce in wire and radio communication . . . .
`47 U.S.C. § 151. To achieve its broad objectives, Congress endowed the Commission “with
`comprehensive powers to promote and realize the vast potentialities of radio.” Nat’l Broad.
`Co. v. FCC, 319 U.S. 190, 217 (1943). One such power included the authority “to regulate
`‘the kind of apparatus to be used’ for wireless radio communications and ‘the emissions’ that
`such equipment may produce” (Dkt. No. 101-1, FCC Statement at 3, quoting 47 U.S.C.
`§ 303(e)).2
`The Commission has played a central role in the development of cellular radio
`technology since its inception, establishing the basic regulatory structure for the cellular
`mobile radio service in 1981. Cellular Communications Systems, 86 F.C.C.2d 469, 470
`(1981). At the service’s regulatory core is the Commission’s sole jurisdiction over radio
`licensing pursuant to Section 301 of the 1934 Act. On the equipment side, the rules required
`compliance with minimum technical standards to ensure efficient and effective use of the radio
`spectrum licensed for cellular service. The regulations and guidance expressly asserted federal
`primacy over the area of technical standards, finding that “any state licensing requirements
`adding to or conflicting with them could frustrate federal policy.” Id. ¶¶ 79–83.
`In establishing technical standards for all radio communications, the Commission also
`took into account its obligations under the National Environmental Policy Act of 1969.
`These standards required environmental assessment of proposed transmitting facilities and
`operations that exceeded applicable health and safety standards for RF radiation exposure.
`Although NEPA imposed only procedural requirements, the Commission adopted substantive
`technical requirements as well, out of “concern that any significant impact on the human
`environment caused by excessive exposure to RF radiation should be considered as part of
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`2 The Communications Act is located at Chapter 5 of Title 47 of the United States Code. 47 U.S.C. §§ 151
`et seq. The “short title” of the chapter is “Communications Act of 1934.” 47 U.S.C. § 609. The Telecommunications
`Act of 1996 contained provisions that amended the Communications Act of 1934 and provisions that did not.
`Somewhat haphazard use of the Telecommunications Act to refer to the codified Communications Act has led to some
`confusion. Unless otherwise specified, this order will refer to the codified Act as the Communications Act only.
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`FCC procedures for licensing and approving transmitting facilities and operations.”
`Responsibility of the Federal Communications Commission to Consider Biological Effects of
`Radiofrequency Radiation When Authorizing the Use of Radiofrequency Devices, 2 F.C.C.R.
`2064 ¶ 2.
`The 1985 rules largely adopted safety guidelines prepared by the American National
`Standards Institute in 1982, but excluded low-power devices such as cellphones. In 1993,
`however, a rulemaking commenced in light of a new ANSI standard that was “generally more
`stringent in the evaluation of low-power devices.” 1996 RF Order, 11 F.C.C.R. 15123 ¶ 9.
`In the meantime, Congress enacted the Telecommunications Act of 1996, which, in
`Section 704(b), directed the Commission to “complete action” within 180 days on its pending
`proceeding “to prescribe and make effective rules regarding the environmental effects of radio
`frequency emissions.”
`And so it did, issuing an order adopting new RF exposure guidelines the same year.
`1996 RF Order, 11 F.C.C.R. 15123 ¶ 1. Consistent with the 1992 ANSI/IEEE standard, the
`Commission adopted RF exposure limits for cellphones for the first time. Id. ¶¶ 63–64.
`Despite court challenges and regular reevaluation by the Commission, the 1996 exposure limits
`and basic regulatory framework have remained in place.
`Periodically since their establishment, the Commission has reviewed the 1996 standards
`to ensure they have kept pace with current knowledge and changing needs. To that end, a 2013
`inquiry requested comment to determine whether the federal RF exposure limits and policies,
`including the prescribed testing parameters, needed reassessment. In 2019, an order found that
`the current research continued to support the existing standards, concluding that the 1996 RF
`exposure limits and testing parameters remained sufficient to protect human safety. The order
`thus terminated the 2013 notice of inquiry. Notably, the Commission determined that “phones
`legally sold in the United States pose[d] no health risks.” Resolution of Notice of Inquiry,
`Second Report and Order, Notice of Proposed Rulemaking, and Memorandum Opinion and
`Order, 34 F.C.C.R. 11687 ¶ 14 (2019) (2019 RF Order).
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`Although the 2019 RF Order came in December 2019, the Commission announced its
`proposed findings in August 2019. Two weeks later, the Chicago Tribune reported that it
`(the newspaper) had conducted an independent investigation finding that many major cell
`phones sold in the United States, including the iPhone models it tested, exposed consumers to
`RF radiation levels in excess of the Commission’s limits. It based its findings on independent
`testing it had ordered from an “FCC-recognized accredited lab.” Although Apple tested most
`of its iPhones at a test separation distance of five millimeters, pursuant to the federal
`guidelines, the Tribune tested the phones at both five and two millimeter separation
`distances — the two millimeter distance approximating the distance a phone carried in pants
`or shirt pockets would be from the body. The phones allegedly exceeded the FCC limits at
`each distance, including at the five-millimeter distance used by Apple in its certification filing.
`As will be discussed below, Apple and the Commission dispute the significance of the
`independent testing.
`Two days after the Tribune published its story, plaintiffs filed this putative class action.
`In September 2019, plaintiffs’ counsel conducted their own RF emissions testing. Counsel
`enlisted the same lab as had the Tribune, but added additional iPhone models and a zero
`millimeter testing distance to replicate use of the phones against the skin. The reason for
`testing the phones in this manner was intertwined with plaintiffs’ theories of liability.
`As discussed, Apple’s marketing allegedly deceived and misled plaintiffs into believing
`that iPhones could be used on or in close proximity to the body without exceeding FCC RF
`exposure limits. For example, Apple touted its iPhones as “the Internet in your pocket,” “your
`life in your pocket,” and a “studio in your pocket.” When tested to imitate this closer use,
`plaintiffs allege that iPhones exceeded the federal limits.
`In December 2019 and one day before plaintiffs filed their amended complaint, the
`previously announced 2019 RF Order issued. The order formally rejected claims that
`RF exposure testing of cell phones should be done with “zero spacing.” It found such
`against-the-body testing unnecessary for reasons discussed in more detail below. Pertinent to
`plaintiffs’ disclosure-related claims, the order found that even if consumers normally used
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`Commission-certified phones at a closer distance than tested, and even if a certified phone
`exceeded the federal limits under such normal use against the body, the order found that large
`safety margins had been built into the existing testing requirements and RF exposure limits
`would still sufficiently protect human safety. FCC 2019 RF Order, 34 F.C.C.R. 11687 ¶ 14.
`Also in December 2019, the Commission published the results of testing it undertook in
`response to the Tribune’s claims of noncompliance. Each of the implicated phones had been
`tested at the test separation distances used in each device’s original certification filing (not at
`two millimeters, as the Tribune additionally had) and consistent with OED’s parameters. For
`iPhones, the FCC Lab tested at five millimeters. The RF radiation exposure from each of the
`iPhones measured fell well within the safety limits. The Lab found no evidence of violations
`of the technical standards.
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`* * *
`Taking a closer look at the Commission’s rules, the RF radiation exposure regulations
`fall within the equipment authorization procedures found in Part 2 of the rules. 47 C.F.R.
`§§ 2.901 et seq. The Chief of the Office of Engineering and Technology (OET) is charged
`with administering the equipment authorization program. 47 C.F.R. § 0.241(b). Section 2.901
`sets forth the “basis and purpose” of the equipment authorization rules:
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`In order to carry out its responsibilities under the Communications
`Act and the various treaties and international regulations, and in
`order to promote efficient use of the radio spectrum, the
`Commission has developed technical standards for radio frequency
`equipment and parts or components thereof. The technical
`standards applicable to individual types of equipment are found in
`that part of the rules governing the service wherein the equipment
`is to be operated.
`Prior to marketing or use, cellphone manufacturers must ensure compliance with the RF
`exposure limits, using device-type specific criteria for demonstrating compliance. Third-party
`accrediting organizations recognized by the Commission, known as Telecommunication
`Certification Boards, review and grant applications for certification if the device is found
`capable of complying with applicable technical standards and if granting the application would
`serve the public interest, convenience, and necessity. Once certification has been granted, the
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`Commission maintains its regulatory grip by acting on complaints of noncompliance. To that
`end, it may require a manufacturer to investigate the complaint or it may do so on its own,
`through its OET Laboratory. Manufacturers must provide a sample of the device as well as
`pertinent records upon request. If upon inspection it is determined that the equipment does not
`comply with the technical standards, the device’s certification may be revoked. 47 C.F.R.
`§§ 2.803, 2.805, 2.915, 2.937, 2.939, 2.945, 2.1093, 24.51, 24.52.
`The Communications Act, as amended, provided the statutory basis for the equipment
`authorization program. The provisions relevant to cellphone RF exposure limits include the
`general rulemaking provisions, Sections 154(i) and 303(r) — both grant authority to “[m]ake
`such rules and regulations and prescribe such restrictions and conditions, not inconsistent with
`law, as may be necessary to carry out the provisions of this chapter” — and section 303(e),
`which charges the Commission with regulating, as the public convenience, interest, or
`necessity requires, “the kind of apparatus to be used” for wireless radio communications and
`“the emissions” that such equipment may produce.
`* * *
`As discussed, plaintiffs raise three threshold arguments concerning the statutory basis for
`the regulatory scheme at issue. First, plaintiffs argue that the regulations were promulgated
`under NEPA, which they assert cannot impose substantive obligations capable of conflicting
`with state law. Plaintiffs correctly note that NEPA is a procedural statute that “does not
`mandate particular results” but rather “imposes only procedural requirements on federal
`agencies.” DOT v. Public Citizen, 541 U.S. 752, 756 (2004) (internal quotation marks
`omitted). What plaintiffs ignore, however, is that while the Commission began its review in
`light of NEPA, it subsequently chose to mandate “particular results” by promulgating
`substantive rules under its longstanding Communications Act authority, delegated by Congress
`in 1934. 1996 RF Order, 11 F.C.C.R. 15123 ¶ 171.
`Plaintiffs rely on Jasso v. Citizens Telecommunications Co. of CA, Inc., 2007 WL
`2221031 at *7 (E.D. Cal. Jul. 30, 2007) (Judge Edmund Brennan), for the proposition that
`NEPA imposes no substantive requirements, and is therefore irrelevant. But Jasso goes on to
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`explain what is relevant: that the Commission decided to adopt substantive requirements under
`the Communications Act when it promulgated its RF regulations. 2007 WL 2221031 at *7;
`see, e.g., 47 C.F.R. § 27.52. It is these substantive requirements that preempt.
`Second, we must determine whether a 1996 Act saving clause (quoted below) amending
`the Communications Act curtailed authority to impliedly preempt plaintiffs’ claims. Although
`a saving clause raises the inference that Congress did not intend to preempt state law, the
`existence of a saving clause does not foreclose or limit the operation of ordinary preemption
`principles. Geier, 529 U.S. at 869, 874 (2000). Pursuant to such principles, “we infer that
`Congress did not intend the saving provisions in a federal law to be interpreted in a way that
`causes the federal law ‘to defeat its own objectives, or potentially, as the Court has put it
`before, to destroy itself.’” The competing inferences simply mean we “interpret a saving
`clause as [we] would any statutory language: giving effect to its plain language and meaning
`in a way that best comports with the statute as a whole.” In re Volkswagen “Clean Diesel”
`Marketing, Sales Practices, and Products Liability Litigation, 959 F.3d 1201, 1214 (9th Cir.
`2020) (quoting Geier, 529 U.S. at 872).
`Plaintiffs argue that a saving clause within a provision titled “Removal of barriers to
`entry,” granted authority to preempt certain state and local requirements, but only after
`providing notice and an opportunity for public comment. 47 U.S.C. § 253(b). That much is
`true. Plaintiffs go further, however, reading the 1996 Act to require notice-and-comment
`rulemaking in all cases of preemption. Plaintiffs paraphrase the law as follows (Opp. at 16)
`(emphasis and ellipses added by plaintiffs):
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`In 47 U.S.C. § 253(b), Congress expressly preserved state
`authority to “impose, on a competitively neutral basis . . .
`requirements necessary to preserve and advance universal services,
`protect the public safety and welfare, ensure the continued quality
`of telecommunications services, and safeguard the rights of
`consumers.” (emphasis added). In 47 U.S.C. § 253(d) it authorized
`the FCC to preempt “the enforcement” of state or local statutes,
`regulations, or “legal requirement[s]” that do not meet those
`statutory requirements, “to the extent necessary to correct such
`violation or inconsistence.” [footnote omitted.] Such preemptive
`action must be preceded by “notice and an opportunity for public
`comment.” Id.
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`[. . .]
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`Section 253 actually provides, in part (emphasis added):
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`(a) In general
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`No State or local statute or regulation, or other State or local legal
`requirement, may prohibit or have the effect of prohibiting the
`ability of any entity to provide any interstate or intrastate
`telecommunications service.
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`(b) State regulatory authority
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`Nothing in this section shall affect the ability of a State to impose,
`on a competitively neutral basis and consistent with section 254 of
`this title, requirements necessary to preserve and advance universal
`service, protect the public safety and welfare, ensure the continued
`quality of telecommunications services, and safeguard the rights of
`consumers.3
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`(d) Preemption
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`If, after notice and an opportunity for public comment, the
`Commission determines that a State or local government has
`permitted or imposed any statute, regulation, or legal requirement
`that violates subsection (a) or (b), the Commission shall preempt
`the enforcement of such statute, regulation, or legal requirement to
`the extent necessary to correct such violation or inconsistency.
`Plaintiffs’ version of the law suffers two key omissions: First, plaintiffs omit Subsection (a)
`entirely, which expressly preempts state and local law standing as industry barriers to entry;
`second, plaintiffs strip Subsection (b) of its key limitation — that it applies to Section 253
`only. Rather than generally preserve state authority over specific regulatory objectives, as
`plaintiffs suggest, Subsection (b) merely claws back those objectives from Subsection (a)’s
`preemptive reach. Subsection (d), on the other hand, enforces this intricate boundary: If, after
`providing notice and an opportunity for public comment, the Commission determines the state
`or local regulation violates Subsections (a) or (b), the state or local regulation shall be
`preempted. No such action has been taken here, nor could it have, as the legal requirement
`plaintiffs seek to impose does not yet exist. Nothing in the plain language of Section 253
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`3 Section 254 established a federal-state joint board to work with the Commission in advancing “universal
`service,” a program to ensure that consumers in rural, insular, and high-cost areas have access to modern
`communications networks capable of providing voice and broadband service, both fixed and mobile, at rates that are
`reasonably comparable to those in urban areas.
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`otherwise affects our analysis. In re Volkswagen, 959 F.3d at 1214. Observe how the intricate
`mechanics of Section 253 contrast sharply with the regulatory powerhouses that do carry
`preemptive weight here, Sections 154 and 303 of the Communications Act.
`Third, plaintiffs put Section 601(c)(1) of the 1996 Act forward (included in notes to
`47 U.S.C. § 152):
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`NO IMPLIED EFFECT. — This Act and the amendments made by
`this Act shall not be construed to modify, impair, or supersede
`Federal, State, or local law unless expressly so provided in such
`Act or amendments.
`
`Unlike Section 253(b), Section 601(c)(1) is not an ordinary saving clause. It forbids both
`implied repeal of federal law and implied preemption of state and local law. Rather than
`express a preference one way or the other, the manifest purpose is to preserve a pre-existing
`balance between the various sources of law. And, by its terms, the provision applied only to
`provisions of, or amendments made by “this Act,” the 1996 Act. The plain language of
`Section 601(c)(1) thus preserves the authority delegated under the 1934 Act unless expressly
`otherwise provided by the 1996 Act. In re Volkswagen, 959 F.3d at 1214.
`Plaintiffs take an alternative reading, assuming that Section 601(c)(1) of the 1996 Act
`also applied to the 1934 Communications Act. 47 U.S.C. §§ 151 et seq. The plain language
`militates against such a reading. Two further points, however, confirm the plain meaning.
`First, Section 1(b) of the 1996 Act states:
`
`Except as otherwise expressly provided, whenever in this Act an
`amendment or repeal is expressed in terms of an amendment to,
`or repeal of, a section or other provision, the reference shall be
`considered to be made to a section or other provision of the
`Communications Act of 1934 (47 U.S.C. 151 et seq.).
`Section 1(b) emphasizes the distinction between the 1996 Act and the 1934 Act. We must read
`Section 601(c)(1) as applying to “[the 1996 Act] and the amendments made by [the 1996 Act]”
`to the Communications Act of 1934. Second, Section 601(c)(1) itself is not an amendment to
`the code but instead a note to Section 152. Its placement as a note comports with its plain
`language. Plaintiffs’ alternative take would abolish implied preemption long exercised under
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`Northern District of California
`United States District Court
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`Case 3:19-cv-05322-WHA Document 179 Filed 10/29/20 Page 13 of 28
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`the Communications Act in a provision that Congress left out of the Communications Act
`itself.
`On the merits of Section 601(c)(1), plaintiffs do not identify any provision of the
`1996 Act that affects the Commission’s authority to regulate RF radiation exposure. Instead,
`plaintiffs argue that “Section 601(c)(1) emphasizes Congress’s clear intent that preemption
`must be express and a result of the legislative process or notice and comment rulemaking”
`(Opp. at 17). Without pointing to any express provision of the 1996 Act, plaintiffs ask that we
`read into Section 601(c)(1) an intent to substantively alter longstanding Communications Act
`authority. By the provision’s own terms, plaintiffs reading is verboten.
`To be sure, the 1996 Act did circumscribe the Commission’s broad authority somewhat,
`removing from it the power to “limit or affect the authority of a State or local government or
`instrumentality thereof over decisions regarding the placement, construction and modification
`of personal wireless service facilities.” 47 U.S.C. § 332(c)(7)(A). The new Section 332(c)(7)
`“prevents Commission preemption of local and State land use decisions and preserves the
`authority of State and local governments over zoning and land use matters except in the limited
`circumstances . . . .” H.R. Conf. Rep. 104-458, at 208–09 (1996). But, echoing
`Section 601(c)(1)’s intent to preserve, the Conference Report also provided:
`
`The limitations on the role and powers of the Commission under
`this [Section 332(c)(7)] relate to local land use regulations and are
`not intended to limit or affect the Commission's general authority
`over radio telecommunications, including the authority to regulate
`the construction, modification and operation of radio facilities.
`Id. at 209. Plaintiffs’ claims do not involve local land use regulations.
`* * *
`Having rejected plaintiffs’ arguments that th