FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 20-17307
`
`D.C. No.
`3:19-cv-05322-
`WHA
`
`OPINION
`
`ANDREW COHEN; TIMOTHY
`HORNICK; KALEAH C. ALLEN;
`KIMBERLY BENJAMIN; MARK
`WEILER; MATT KOPPIN; SCOTT
`CISCHKE; PAUL COLETTI; KRYSTLE
`FAERYN; RODOLFO CABRERA;
`BRANDY DAVIS; WILLIAM ZIDE;
`DAVID HEDICKER; NANCY
`MAEKAWA; CATHERIN GOODWIN;
`KATHLEEN BOGGS; MARK KUNZE;
`ARIANA RYAN; BECKY
`WELLINGTON; M. GAIL SUNDELL;
`VICTOR PERLMAN; ZACHARY
`GOMOLEKOFF; GLENN JACOBS; JUNE
`A. HALL,
`
`Plaintiffs-Appellants,
`
`APPLE INC.,
`
`v.
`
`Defendant-Appellee,
`
`and
`
`SAMSUNG ELECTRONIC AMERICA,
`INC.,
`
`Defendant.
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 20-17307
`
`D.C. No.
`3:19-cv-05322-
`WHA
`
`OPINION
`
`ANDREW COHEN; TIMOTHY
`HORNICK; KALEAH C. ALLEN;
`KIMBERLY BENJAMIN; MARK
`WEILER; MATT KOPPIN; SCOTT
`CISCHKE; PAUL COLETTI; KRYSTLE
`FAERYN; RODOLFO CABRERA;
`BRANDY DAVIS; WILLIAM ZIDE;
`DAVID HEDICKER; NANCY
`MAEKAWA; CATHERIN GOODWIN;
`KATHLEEN BOGGS; MARK KUNZE;
`ARIANA RYAN; BECKY
`WELLINGTON; M. GAIL SUNDELL;
`VICTOR PERLMAN; ZACHARY
`GOMOLEKOFF; GLENN JACOBS; JUNE
`A. HALL,
`
`Plaintiffs-Appellants,
`
`APPLE INC.,
`
`v.
`
`Defendant-Appellee,
`
`and
`
`SAMSUNG ELECTRONIC AMERICA,
`INC.,
`
`Defendant.
`
`
`
`2
`
`COHEN V. APPLE
`
`Appeal from the United States District Court
`for the Northern District of California
`William Alsup, District Judge, Presiding
`
`Argued and Submitted December 10, 2021
`Pasadena, California
`
`Filed August 26, 2022
`
`Before: William A. Fletcher, Johnnie B. Rawlinson, and
`John B. Owens, Circuit Judges.
`
`Opinion by Judge W. Fletcher
`
`SUMMARY*
`
`Preemption / Federal Communications Commission
`
`The panel affirmed the district court’s summary judgment
`for Apple Inc., based on preemption of the state-law claims
`by federal law, in an action bought by plaintiffs, who are
`iPhone users, alleging that Apple breached state tort and
`consumer-fraud laws by misrepresenting and failing to
`disclose the amount of radiofrequency (“RF”) radiation
`emitted by iPhones.
`
`regulatory scheme established by a Federal
`A
`Communications Commission 1996 RF Order set exposure
`limits that included cell phones, and it remains largely intact
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`COHEN V. APPLE
`
`3
`
`today. Plaintiffs alleged that RF radiation emitted by iPhones
`regularly exceeded the federal exposure limit, and they
`brought eight claims against Apple under state tort and
`consumer-fraud laws. The district court held that plaintiffs’
`state-law claims were preempted by federal law.
`
`The panel held that the Hobbs Act did not deprive the
`district court of jurisdiction. The panel rejected Apple’s
`argument that the Hobbs Act broadly granted exclusive
`jurisdiction to courts of appeals over private suits that
`implicated the substance of agency determinations, and
`divested district courts of jurisdiction to pass on any issue
`that would require them to decide on a determination made in
`an FCC final order. Plaintiffs in this case did not challenge
`the validity of any of the FCC’s final orders, either directly or
`indirectly. The issue in this case was whether the FCC’s
`concededly valid orders had preemptive effect. A holding
`that the FCC orders do, or do not, preempt plaintiffs’ state-
`law claims had no effect on their validity.
`
`Turning to the merits of the appeal, the panel first
`addressed plaintiffs’ argument that the FCC promulgated its
`RF Orders under the National Environmental Policy Act
`(“NEPA”), which was a purely procedural statute with no
`preemptive force, and therefore regulations promulgated
`under NEPA did not preempt plaintiffs’ state-law causes of
`action. The panel agreed with plaintiffs that NEPA was a
`purely procedural statute and that it had no preemptive force.
`However, the panel did not agree with plaintiffs that the
`FCC’s RF Orders were promulgated under NEPA. The panel
`held
`that
`the
`twin Communications Acts,
`the
`Communications Act of 1934 and the Telecommunications
`Act of 1996, granted to the FCC broad regulatory powers
`over wireless communications devices. The 1996 Act
`
`
`
`COHEN V. APPLE
`
`4 d
`
`irected the FCC to complete rulemaking for RF radiation
`that had already been initiated under the 1934 Act. NEPA, by
`contrast, granted no affirmative regulatory powers over
`wireless communications.
`
`Next, plaintiffs argued that even if the FCC’s RF Orders
`were promulgated under either, or both, of the two
`Communications Acts, the savings clauses in those Acts
`preserved their state-law causes of action. Specifically, first,
`plaintiffs argued that the 1934 Act did not authorize
`preemption by regulations promulgated under the Act, and
`therefore their state-law causes of action were not preempted
`by the FCC’s Orders. The panel held that a federal statute
`need not specify its preemptive force in order for the statute
`to have such a force, and Congress did not need to expressly
`delegate preemptive authority to the FCC for its regulations
`to preempt state law. The operative question was whether the
`agency meant to preempt the state law. The intent to preempt
`need not be express. Under the doctrine of implied conflict
`preemption, the agency’s statutorily authorized regulations
`will preempt any conflicting state or local law. The panel held
`that the conflict between the FCC’s RF radiation regulations
`and plaintiffs’ state law claims posed a sufficient obstacle to
`the full accomplishment of the FCC’s objectives. The
`savings clause in § 414 of the 1934 Act did not help
`plaintiffs. The panel concluded that the FCC’s regulations
`under the 1934 Act, setting upper limits on the levels of
`permitted RF radiation, preempted state laws that imposed
`liability premised on levels of radiation below the limits set
`by the FCC.
`
`Second, plaintiffs argued that the preemptive scope of the
`FCC’s radiation regulations could not be determined solely
`by consulting the 1934 Act. The panel disagreed, and held
`
`
`
`COHEN V. APPLE
`
`5
`
`that the scope of preemption of the FCC’s RF regulations was
`controlled by the 1934 Act, and the preemption provisions of
`the 1996 Act were irrelevant. The savings clause in Section
`332(c)(7)(A) of the 1996 Act was a narrowly focused savings
`clause and had nothing to do with RF radiation emissions
`from cell phones. The general savings clause in Section 601
`of the 1996 Act by its very terms applied only to the 1996 Act
`and does not apply to the 1934 Act.
`
`COUNSEL
`
`Matthew W.H. Wessler (argued) and Linnet Davis-Stermitz,
`Gupta Wessler PLLC, Washington, D.C.; Elizabeth A. Fegan
`and Jessica H. Meeder, Fegan Scott LLC, Chicago, Illinois;
`for Plaintiffs-Appellants.
`
`Joseph R. Palmore (argued) and Adam L. Sorensen,
`Morrison & Foerster LLP, Washington, D.C.; William F.
`Tarantino and James R. Sigel, Morrison & Foerster LLP, San
`Francisco, California; for Defendant-Appellee.
`
`Leah M. Nicholls, Public Justice P.C., Washington, D.C., for
`Amicus Curiae Public Justice.
`
`Scott L. Nelson and Allison M. Zieve, Public Citizen
`Litigation Group, Washington, D.C., for Amicus Curiae
`Public Citizen.
`
`Joshua S. Turner, Megan L. Brown, and William K. Lane III,
`Wiley Rein LLP, Washington, D.C.; Paul V. Lettow and
`Stephanie A. Maloney, U.S. Chamber Litigation Center,
`Washington, D.C.; for Amicus Curiae Chamber of Commerce
`of the United States of America.
`
`
`
`COHEN V. APPLE
`
`6 T
`
`errence J. Dee and Jessica J. Thomas, McDermott Will &
`Emery LLP, Chicago,
`Illinois,
`for Amicus Curiae
`CTIA—The Wireless Association.
`
`OPINION
`
`W. FLETCHER, Circuit Judge:
`
`Cell phones emit radiofrequency (“RF”) radiation in the
`course of their ordinary operation. Pursuant to the
`Communications Act of 1934 and the Telecommunications
`Act of 1996 (“twin Communications Acts”), the Federal
`Communications Commission (“FCC”) has promulgated
`regulations establishing RF radiation standards for cell
`phones.
`
`Plaintiffs-appellants (“plaintiffs”) Andrew Cohen and
`other individuals are users of iPhones manufactured by
`defendant-appellee Apple Inc. Plaintiffs brought suit against
`Apple in the district court, alleging that Apple breached state
`tort and consumer-fraud laws by misrepresenting and failing
`to disclose the amount of RF radiation emitted by iPhones.
`The district court entered summary judgment for Apple,
`holding that the plaintiffs’ state-law claims are preempted by
`federal law.
`
`We have jurisdiction under 28 U.S.C. § 1291 and affirm.
`We hold that the district court had subject matter jurisdiction
`and that plaintiffs’ claims are preempted.
`
`
`
`COHEN V. APPLE
`
`I. Background
`
`7
`
`We begin with an overview of RF radiation, of the
`relevant statutory structure, and of FCC regulation of devices
`that emit RF radiation.
`
`A. RF Radiation
`
`Like radios and televisions, cell phones rely on
`radiofrequency electromagnetic waves, otherwise known as
`RF radiation, to receive signals. Cell phones also emit RF
`radiation to send signals. RF radiation is a subset of
`electromagnetic radiation.
` There are two forms of
`electromagnetic
`radiation:
`ionizing and non-ionizing.
`Ionizing radiation can be extremely dangerous. Among other
`things, it can alter a person’s DNA. Non-ionizing radiation
`is much less dangerous and is incapable of damaging DNA.
`However, high levels of non-ionizing RF radiation can cause
`biological effects by increasing the temperature of tissues.
`Federal Communications Commission, RF Safety FAQ,
`https://www.fcc.gov/engineering-technology/electromagnet
`ic-compatibility-division/radio-frequency-safety/faq/rf-safety
`[https://perma.cc/DD6C-3SGM] (last visited July 18, 2022).
`For example, RF radiation is used to heat food in microwave
`ovens. Id. Cell phones emit non-ionizing RF radiation, but
`not at high enough levels to cause thermal effects. Id.
`
`The effects of non-thermal RF radiation on human health
`are controverted. Id. While some studies have described
`adverse biological effects resulting from exposure to low
`levels of RF radiation at levels emitted by cell phones, many
`of these effects could not be replicated in later studies. Id.
`Current FCC regulations for cell phones set RF radiation
`
`
`
`COHEN V. APPLE
`
`8 l
`
`imits far below the level at which adverse biological effects
`in laboratory animals have been observed.
`
`B. Statutory Background
`
`Congress created the FCC through the Communications
`Act of 1934 (“1934 Act”), Pub. L. No. 73-416, 48 Stat. 1064
`(codified as amended at 47 U.S.C. § 151 et seq.). The 1934
`Act, as amended, instructed the FCC “to make available . . .
`a rapid, efficient, Nation-wide, and world-wide wire and
`radio communication service with adequate facilities at
`reasonable charges,” for three purposes: (1) national defense,
`(2) “promoting safety of life and property through the use of
`wire and radio communications,” and (3) “securing a more
`effective execution of this policy by centralizing authority”
`previously granted to multiple agencies and “granting
`additional authority with respect to interstate and foreign
`commerce in wire and radio communication.” 47 U.S.C.
`§ 151. The 1934 Act, as amended, declared it a national
`policy “to encourage the provision of new technologies and
`services to the public.” Id. § 157(a).
`
`The 1934 Act “endowed the [FCC] with comprehensive
`powers to promote and realize the vast potentialities of
`radio.” Nat’l Broad. Co. v. United States, 319 U.S. 190, 217
`(1943). The Act, as amended, authorized the FCC 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 [statutory] provisions.” 47 U.S.C. § 303(r); see
`also id. § 154(i) (“The Commission may perform any and all
`acts, make such rules and regulations, and issue such orders,
`not inconsistent with this chapter, as may be necessary in the
`execution of its functions.”). The 1934 Act also authorized
`the FCC, “as public convenience, interest, or necessity
`
`
`
`COHEN V. APPLE
`
`9
`
`requires,” to “[r]egulate the kind of [radio] apparatus to be
`used with respect to its external effects and the purity and
`sharpness of the emissions from each station and from the
`apparatus therein.” Id. § 303(e).
`
`The 1934 Act contains a general savings clause. It
`provides: “Nothing in this chapter contained shall in any way
`abridge or alter the remedies now existing at common law or
`by statute, but the provisions of this chapter are in addition to
`such remedies.” Id. § 414.
`
`In 1996, Congress passed the Telecommunications Act
`(“1996 Act”). Telecommunications Act of 1996, Pub. L. No.
`104-104, 110 Stat. 56. When the 1996 Act was passed, the
`FCC had initiated but had not completed a rulemaking
`proceeding concerning RF radiation. The 1996 Act directed
`the FCC to “complete action . . . to prescribe and make
`effective rules regarding the environmental effects of radio
`frequency emissions” within 180 days after the enactment of
`the Act. Id. § 704(b), 110 Stat. at 152.
`
`The 1996 Act limits the FCC’s authority where its
`regulations would conflict with state and local land-use
`regulations. A specific savings clause provides, “[N]othing
`in this chapter shall 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 Conference Report of the 1996 Act
`describes § 332(c)(7) as “prevent[ing FCC] preemption of
`local and State land use decisions and preserv[ing] the
`authority of State and local governments over zoning and
`land use matters.” H.R. Rep. No. 104-458, at 207–08 (1996)
`(Conf. Rep.). That is, the limitation placed on the FCC’s
`
`
`
`10
`
`COHEN V. APPLE
`
`preemptive powers by § 332(c)(7) “relate[s] to local land use
`regulations and [is] 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.
`
`The 1996 Act also contains a general savings clause. It
`provides: “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.” 1996 Act § 601(c)(1), 110 Stat. at
`143. The savings clause is not codified in the United States
`Code, but is included as part of the notes to 47 U.S.C. § 152.
`
`The Hobbs Act governs judicial review of FCC final
`orders. Under the Hobbs Act, federal courts of appeals
`(except the Federal Circuit) have “exclusive jurisdiction to
`enjoin, set aside, suspend (in whole or in part), or to
`determine the validity of,” inter alia, “all final orders of the
`Federal Communications Commission made reviewable by
`[47 U.S.C. § 402(a)].” 28 U.S.C. § 2342; see also 47 U.S.C.
`§ 402(a) (providing judicial review of the FCC’s orders and
`decisions, including “[a]ny proceeding to enjoin, set aside,
`annul, or suspend any order of the [FCC]”).
`
`FCC regulatory actions are subject to the National
`Environmental Policy Act (“NEPA”). For “[f]ederal actions
`significantly affecting the quality of the human environment,”
`NEPA requires federal agencies to include “a detailed
`statement” regarding the “environmental impact of the
`proposed action.” 42 U.S.C. § 4332(2)(C)(i). NEPA “does
`not mandate particular results” but “imposes only procedural
`requirements on federal agencies with a particular focus on
`
`
`
`COHEN V. APPLE
`
`11
`
`requiring agencies to undertake analyses of the environmental
`impact of their proposals and actions.” Dep’t of Transp. v.
`Pub. Citizen, 541 U.S. 752, 756–57 (2004) (first quoting
`Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
`350 (1989); and then citing id. at 349–50). Because the
`licensing of equipment that emits RF radiation may
`significantly affect the environment, NEPA obligates the FCC
`in such cases to consider the environmental impact of its
`proposed actions with respect to licensing.
`
`C. FCC Regulation of Devices that Emit RF Radiation
`
`In 1979, the FCC issued a notice of inquiry (“1979 Notice
`of Inquiry”) to gather information relevant to “its regulatory
`responsibility to promote communications by radio in light of
`the increased concern about the biological effects of radio
`frequency radiation.” In re Responsibility of the Federal
`Communications Commission to Consider Biological Effects
`of Radio Frequency Radiation When Authorizing the Use of
`Radio Frequency Devices, 72 F.C.C.2d 482, 482, ¶ 1 (June
`15, 1979).
`
`The 1979 Notice of Inquiry was based on the FCC’s
`responsibilities under two statutes. First, the 1934 Act directs
`the FCC “to promote the use of radio communications service
`. . . as the public convenience, interest, or necessity requires,”
`and imposes on the FCC the “statutory obligation to make
`available, so far as possible a rapid efficient communication
`service at reasonable charges and to prevent interference
`between stations.” Id. at 487–88, 489, ¶¶ 12, 16 (internal
`ellipses and quotation marks omitted). The FCC noted that,
`in fulfilling its statutory mandate under the 1934 Act, “[a]
`balance must be achieved between serving the public interest
`by fulfilling its needs for communications services and
`
`
`
`12
`
`COHEN V. APPLE
`
`adequately protecting the populace against potentially adverse
`biological effects that may be attributable to excessive RF
`radiation.” Id. at 489, ¶ 17. Second, the FCC was required to
`comply with NEPA.
` The FCC noted its “explicit
`responsibilities under NEPA.” Id. at 488, ¶ 13.
`
`In 1982, pursuant to its 1979 Notice of Inquiry, the FCC
`issued a notice of proposed rulemaking (“1982 NPRM”)
`regarding the biological effects of RF radiation. In re
`Responsibility of the Federal Communications Commission
`to Consider Biological Effects of Radiofrequency Radiation
`When Authorizing the Use of Radiofrequency Devices,
`89 F.C.C.2d 214 (Feb. 18, 1982). The 1982 NPRM proposed
`expanding the definition of “major actions” that would
`subject RF radiation-emitting devices to FCC licensing
`requirements. Id. at 215, ¶ 2. The FCC identified the “legal
`basis” for its 1982 NPRM as follows:
`
`the
`is based on
`The action proposed
`obligations imposed on the [FCC] by the
`National Environmental Policy Act of 1969
`and is in furtherance of §§ 4(i) and 303(r) of
`the Communications Act of 1934, as
`amended, which permits the [FCC] to make
`rules and regulations not inconsistent with
`other existing laws, as may be necessary in
`the execution of its functions, with the
`additional view of securing the public welfare.
`
`Id. pt. VI(3), at 255 (citation omitted). The 1982 NPRM
`acknowledged that NEPA required the FCC “to consider
`whether the equipment and operations it authorizes will
`‘significantly affect the quality of the human environment.’”
`Id. at 251, ¶ 183 (quoting 42 U.S.C. § 4332(2)(c)).
`
`
`
`COHEN V. APPLE
`
`13
`
`In 1985, the FCC issued an order (“1985 RF Order”)
`amending
`its “rules
`implementing” NEPA.
` In re
`Responsibility of the Federal Communications Commission
`to Consider Biological Effects of Radiofrequency Radiation
`When Authorizing the Use of Radiofrequency Devices, 100
`F.C.C.2d 543, 543, ¶ 1 (Mar. 14, 1985). The 1985 RF Order
`adopted the 1982 Radio Frequency Protection Guides drafted
`by the American National Standards Institute (“ANSI”). Id.;
`see id. at 547, ¶ 9. In adopting the ANSI guidelines as a
`standard, the FCC noted: “Although we have neither the
`expertise nor the jurisdiction to develop our own radiation
`exposure guidelines, we believe . . . that the [FCC] does have
`the expertise and authority to recognize technically sound
`standards promulgated by
`reputable and competent
`organizations such as ANSI.” Id. at 551, ¶ 25 (emphasis in
`the original).
`
`The 1985 RF Order used the ANSI standard as a
`“triggering mechanism for environmental assessment.” Id.
`at 560, ¶ 51. Only applications for FCC authorization of
`radio and broadcast facilities not in compliance with the
`ANSI standard would require a thorough environmental-
`impact analysis, including the submission of a narrative
`environmental statement. Id. at 560–61, ¶¶ 51–54. The 1985
`RF Order excluded from its requirements any “relatively low-
`powered communications systems” such as mobile devices,
`which had a low likelihood of causing exposure exceeding
`the ANSI standard. In re Responsibility of the Federal
`Communications Commission to Consider Biological Effects
`of Radiofrequency Radiation When Authorizing the Use of
`Radiofrequency Devices, 2 FCC Rcd. 2064, 2065, ¶¶ 14–15
`(Apr. 9, 1987); see 1985 RF Order, 100 F.C.C.2d at 561, ¶ 54.
`The ANSI standard, which the FCC adopted through its 1985
`RF Order, explicitly excluded “low power devices such as
`
`
`
`14
`
`COHEN V. APPLE
`
`hand-held, mobile, and marine radio transceivers” on the
`ground that while “[t]hese devices may emit localized fields
`exceeding the protection guides, [they] will result in a
`significantly lower rate of energy absorption than allowed for
`the whole body average.” ANSI, American National
`Standard Safety Levels with Respect to Human Exposure to
`Radio Frequency Electromagnetic Fields, 300 kHz to
`100 GHz 10 (1982).
`
`The FCC identified the “legal basis” for its 1985 RF
`Order as follows:
`
`This action is based on the obligations
`imposed on the [FCC] by NEPA, and is in
`furtherance of §§ 4(i), 4(j), and 303(r) of the
`Communications Act of 1934, as amended.
`These provisions permit the [FCC] to make
`rules and regulations not inconsistent with
`other existing laws, “as may be necessary in
`the execution of its functions,” and “to carry
`out the provisions of” the Communications
`Act.
`
`1985 RF Order, 100 F.C.C.2d at 565 (citations omitted) (first
`quoting 47 U.S.C. § 154(i); and then quoting 47 U.S.C.
`§ 303(r)). The FCC identified two objectives in its 1985 RF
`Order: (1) “to clarify its policy with regard to potential
`hazards from RF radiation emitted by transmitting facilities
`that [it] license[s] or authorize[s];” and (2) “to comply with
`our legal obligations under NEPA.” Id. at 564.
`
`In 1992, ANSI updated its guidelines, narrowing the
`scope of the exclusion of low-powered devices. In 1993, the
`FCC issued a notice of proposed rulemaking (“1993 NPRM”)
`
`
`
`COHEN V. APPLE
`
`15
`
`to adopt ANSI’s updated 1992 guidelines, noting that the
`narrower exclusion for low-powered devices was more
`protective than the broader exclusion in ANSI’s 1982
`guidelines.
`
`In re Guidelines
`for Evaluating
`the
`Environmental Effects of Radiofrequency Radiation, 8 FCC
`Rcd. 2,849, 2,849, 2,851, ¶¶ 1, 14 (Apr. 8, 1993). The FCC
`identified the “legal basis” for its 1993 NPRM as follows:
`
`This action is a result of the [FCC’s] legal
`obligations under the NEPA to provide the
`means by which to evaluate [FCC] actions
`with respect to environmental significance,
`and it is in furtherance of Sections 4(i), 4(j),
`and 303(r) of the Communications Act of
`1934, as amended.
`
`Id. at 2,854, ¶ 31(C) (citations omitted).
`
`After issuance of the 1993 NPRM and while the FCC’s
`rulemaking was pending, Congress enacted
`the
`Telecommunication Act of 1996. The 1996 Act directed the
`FCC to “complete action . . . to prescribe and make effective
`rules regarding the environmental effects of radio frequency
`emissions” within 180 days after the effective date of the Act.
`1996 Act § 704(b), 110 Stat. at 152.
`
`In 1996, the FCC issued an order (“1996 RF Order”)
`adopting new RF radiation standards applicable to low-
`powered portable devices, including cell phones. In re
`Guidelines for Evaluating the Environmental Effects of
`Radiofrequency Radiation, 11 FCC Rcd. 15,123 (Aug. 1,
`1996). The 1996 RF Order noted that ANSI had adopted
`updated RF radiation guidelines in 1992, and that the updated
`ANSI standard was “more restrictive in the amount of
`
`
`
`16
`
`COHEN V. APPLE
`
`environmental RF exposure permitted.” Id. at 15,126, ¶ 8.
`The more protective 1992 ANSI standard provided two tiers
`of exposure criteria: (1) controlled environments, in which
`those exposed to RF radiation are aware of their potential for
`exposure (for example, as a condition of their employment),
`and (2) uncontrolled environments, in which exposed
`individuals have no knowledge or expectation that their RF
`radiation exposure may exceed permitted levels. Id.
`at 15,126, ¶ 8, 15,136, ¶ 35. The updated standard mandated
`a specific absorption rate (“SAR”) limit of 0.4 W/kg as
`averaged over the whole body and 8 W/kg for peak localized
`exposure (i.e., for a specific area of the body) for cell phones
`in controlled environments. Id. at 15,140, ¶ 46. It mandated
`an SAR limit of 0.08 W/kg for whole-body average exposure
`and 1.6 W/kg for peak localized exposure for cell phones in
`uncontrolled environments. Id.
`
`The 1996 RF Order adopted the distinction drawn by the
`1992 ANSI guidelines between controlled/uncontrolled
`environments. Id. at 15,139, ¶ 42. It also adopted the ANSI
`guidelines’ requirements for low-power devices whose
`radiating structure is in direct contact with or within
`20 centimeters of the human body under conditions of normal
`use (e.g., cell phones). Id. at 15,146–47, ¶¶ 62–63. Because
`most low-power, portable devices were intended for use by
`consumers rather than solely in the workplace, the FCC
`mandated a 1.6 W/kg maximum RF exposure for cell phones,
`and
`routine SAR evaluation “either by
`laboratory
`measurement techniques or by computational modeling, prior
`to equipment authorization or use.” Id. at 15,147, ¶ 65.
`
`The FCC’s 1996 RF Order satisfied FCC’s obligations
`under § 704(b) of the 1996 Act, which directed the FCC to
`“prescribe and make effective
`rules
`regarding
`the
`
`
`
`COHEN V. APPLE
`
`17
`
`environmental effects of radio frequency emissions” within
`180 days. 1996 Act § 704(b), 110 Stat. at 152. The FCC
`noted that the updated RF radiation guidelines “will protect
`the public and workers from exposure to potentially harmful
`RF fields.” 1996 RF Order, 11 FCC Rcd. at 15,124, ¶ 1. The
`FCC also noted that the guidelines “will be of benefit both to
`the public and to the telecommunications industry [because
`t]hey will provide assurance that recent scientific knowledge
`is taken into account regarding future decisions on approval
`of FCC-authorized facilities and equipment.” Id. at 15,184,
`¶ 169. The FCC identified provisions of the 1934 Act, as
`amended, as its statutory authority to issue the 1996 RF
`Order. Id. at 15,185, ¶ 171.
`
`The regulatory scheme established by the FCC’s 1996 RF
`Order remains largely intact today. Under 47 C.F.R.
`§ 2.1093(d)(1), “[a]pplications for equipment authorization of
`portable RF sources subject to routine environmental
`evaluation must contain a statement confirming compliance
`with the limits specified in § 1.1310 . . . .” In turn, 47 C.F.R.
`§ 1.1310(c) provides: “The SAR limits for general
`population/uncontrolled exposure are 0.08 W/kg, as averaged
`over the whole body, and a peak spatial-average SAR of
`1.6 W/kg, averaged over any 1 gram of tissue.” If the FCC
`determines that a device, such as the iPhone, complies with
`its RF radiation guidelines (tested at maximum power and
`under more extreme conditions than normal use) and other
`technical standards, the agency issues a certification
`authorizing sale of the device. 47 C.F.R. § 2.907. If the
`device “would cause human exposure to levels of RF
`radiation in excess of the limits in § 1.1310,” the applicant for
`equipment authorization must prepare an environmental
`assessment. Id. § 1.1307(b)(1)(i)(C). The proposed device
`can still be approved for sale if the FCC determines that it
`
`
`
`18
`
`COHEN V. APPLE
`
`will not have a significant impact on the human environment.
`Id. § 1.1308(d). In practice, however, the FCC sees the RF
`radiation limits as a “de facto compliance requirement.”
`1996 RF Order, 11 FCC Rcd. at 15226. According to an
`amicus brief filed by the United States before the Supreme
`Court in 2011, cell phone manufacturers “have never
`attempted to obtain approval to sell non-compliant phones by
`submitting an [environmental assessment]” since
`the
`promulgation of the FCC’s RF radiation rules. Brief for the
`United States as Amicus Curiae at 19–20, Farina v. Nokia,
`Inc., 565 U.S. 928 (2011) (No. 10-1064), 2011 WL 3799082,
`at *19–20.
`
`In 2013, the FCC issued a notice of inquiry (“2013 Notice
`of Inquiry”) soliciting public comments about whether the
`1996 RF exposure limits should be reassessed. In re
`Reassessment of Federal Communications Commission
`Radiofrequency Exposure Limits and Policies, 28 FCC Rcd.
`3,498, 3,498, ¶ 1 (Mar. 29, 2013). The 2013 Notice of
`Inquiry affirmed the FCC’s previous view that it must strike
`a balance between public safety and the public’s access to
`new telecommunications services. The FCC explained:
`
`The [FCC] has a responsibility to provide a
`proper balance between the need to protect the
`public and workers from exposure
`to
`potentially harmful RF electromagnetic fields
`and the requirement that industry be allowed
`to provide telecommunications services to the
`public in the most efficient and practical
`manner possible. The intent of our exposure
`limits is to provide a cap that both protects the
`public based on scientific consensus and
`allows
`for efficient and practical
`
`
`
`COHEN V. APPLE
`
`19
`
`implementation of wireless services. The
`present [FCC] exposure limit is a “bright-line
`rule.” That is, so long as exposure levels are
`below a specified limit value, there is no
`requirement to further reduce exposure. The
`limit is readily justified when it is based on
`known adverse health effects having a
`well-defined threshold, and the limit includes
`prudent additional safety factors (e.g., setting
`the limit significantly below the threshold
`where known adverse health effects may
`begin to occur). Our current RF exposure
`guidelines are an example of such regulation,
`including a significant “safety”
`factor,
`whereby the exposure limits are set at a level
`on the order of 50 times below the level at
`which adverse biological effects have been
`observed in laboratory animals as a result of
`tissue heating resulting from RF exposure.
`
`Id. at 3,582, ¶ 236 (footnote omitted) (internal quotation
`marks omitted).
`
`In 2019, the FCC issued an order and resolution of notice
`of inquiry (“2019 RF Order”) that left intact its 1996 RF
`radiation guidelines, including for cell phones. In re
`Proposed Changes in the Commission’s Rules Regarding
`Human Exposure to Radiofrequency Electromagnetic Fields,
`34 FCC Rcd. 11,687, 11,688, ¶ 2 (Dec. 4, 2019); id at 11,696,
`¶ 14. In Environmental Health Trust v. FCC, 9 F.4th 893
`(D.C. Cir. 2021), the D.C. Circuit granted in part a petition
`challenging the 2019 RF Order and remanded to the FCC for
`further proceedings. The D.C. Circuit held that the FCC
`“failed
`to provide a
`reasoned explanation
`for
`its
`
`
`
`20
`
`COHEN V. APPLE
`
`determination that its guidelines adequately protect against
`the harmful effects of exposure to radiofrequency radiation
`unrelated to cancer.” Id. at 900.
`
`D. Factual and Procedural Background
`
`Plaintiffs-appellants Andrew Cohen and other individuals
`are iPhone users. Defendant-appellee Apple, Inc., is a
`California corporation. Apple designs, manufactures, and
`sells consumer electronic products, including the iPhone.
`
`In August 2019, the Chicago Tribune reported results of
`its independent investigation of RF radiation levels of popular
`cell phones sold in the United States. Sam Roe, We Tested
`Popular Cellphones for Radiofrequency Radiation. Now the
`FCC Is Investigating., Chi. Tribune, Aug. 21, 2019,
`https://www.chicagotribune.com/investigations/ct-cell-phone-
`radiation-testing-20190821-72qgu4nzlfda5kyuhteiieh4da-
`story.html. According to the report, RF radiation exposure
`from Apple’s iPhone 7 “measured over the legal safety limit
`and more than double” what Apple found from its own
`testing. Id.
`
`Two days after publication of the Tribune’s report,
`plaintiffs filed a putative class action in the district court
`seeking to represent all iPhone users in the United States.
`Within a few weeks, a nearly identical complaint was filed in
`the district court on behalf of different named plaintiffs. The
`district court consolidated the two actions, and plaintiffs filed
`a consolidated amended class action complaint.
`
`The complaint alleged that RF radiation emitted by
`iPhones regularly exceeded the federal exposure limit. The
`complaint relied heavily on the Tribune’s testing of the RF
`
`
`
`COHEN V. APPLE
`
`21
`
`radiation emitted by iPhones, citing the Tribune’s report of
`data showing that RF radiation exposure to iPhone 7 models
`averaged 2.59 W/kg and 3.225 W/kg in two tests, both of
`which exceeded the federal exposure limit of 1.6 W/kg.
`Plaintiffs’ counsel also conducted their own testing, using the
`same lab the Tribune had used. They tested additional iPhone
`models, and they tested at a zero-millimeter distance to
`replicate use of the iPhone against the skin. According to
`their testing, RF radiation emitted by iPhone 7 models
`reached 3.6 W/kg at a 5-millimeter separation distance.
`Based on data obtained from this testing, the complaint
`alleged that Apple engaged in “deceptive and misleading”
`marketing by advertising iPhones as safe when used against
`the body (for example, by advertising the iPhone as “the
`Internet in your pocket” or showing people holding iPhones
`in their bare hands in commercials).
`
`The T
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