By Allison Grande
Law360, New York (May 31, 2011) — The U.S. Supreme Court asked the solicitor general Tuesday to weigh in on whether reviving a putative class action accusing several cellphone providers of failing to shield users from allegedly hazardous radio frequency emissions would undermine federal regulatory responsibilities.
In a one-sentence order, the high court — which is still deciding whether to take up plaintiff Francis Farina’s Feb. 22 petition for review — invited acting U.S. Solicitor General Neal Kumar Katyal to file a brief expressing the federal government’s views on the suit, which claims Nokia Corp., AT&T Wireless Services Inc. and more than a dozen other defendants ignored research about allegedly harmful radiation in order to be free to mass-produce cellphones without regulatory constraints.
The Third Circuit affirmed the dismissal of the suit in October, finding that federal law preempted the state law claims contained in Farina’s third amended complaint.
Congress charged the Federal Communications Commission with regulating the cellphone industry, and in doing so asked it to determine and enforce safe levels of radio frequency radiation, according to the appeals court. Allowing the states to each arrive at their own respective definitions of radio frequency safety would conflict with the federal regulatory scheme, requiring preemption of Farina’s suit, it found.
“The FCC is in a better position to monitor and assess the science behind RF radiation than juries in individual cases,” the appeals court wrote.
Farina’s case — which wound its way to the Supreme Court by way of a state court, two federal district courts, the Judicial Panel on Multidistrict Litigation and the Third Circuit — alleged that more than 190 million cellphone users in the United States are regularly exposed to hazardous levels of radiation as a result of holding their phones in the customary manner: against their heads.
His suit named 19 defendants, including Nokia, Motorola Inc., Sprint PCS, Qualcomm Inc., Sony Electronics Inc., AT&T and Verizon Wireless. It also named two trade associations, the Cellular Telecommunications Industry Association and the Telecommunications Industry Association.
Farina sought to represent a class consisting of Pennsylvania residents who had purchased or leased cellphones and hadn’t been diagnosed with any illness or injury resulting from their use, as well as all future purchasers and lessees.
According to Farina, the proper utilization of a headset eliminates radio frequency exposure to the cell phone user’s head. These headsets have been on the market, but the defendants marketed them only as an accessory of convenience, Farina claimed.
Before the Third Circuit, Farina argued that federal law should not have preempted his claim because the relief he sought — requiring cellphones to include headsets — would not have impacted the efficiency of the wireless network, according to the appeals court.
But the appeals court said it had to evaluate Farina’s appeal based on the cause of the action, not the relief being sought. Plus, even if all Farina wanted to accomplish was to ensure companies provided headsets and warned consumers to wear them, a jury might have proscribed a different, more costly remedy, it said.
“Although Farina attempts to characterize his suit as setting a headset requirement, this misapprehends the effect a finding of liability would have in this kind of suit,” the appeals court said.
A spokesman for AT&T declined to comment on the Supreme Court’s request Tuesday. Counsel for Farina and a spokeswoman for the Solicitor General’s Office did not immediately respond to a request for comment.
Chief Justice John G. Roberts and Justice Stephen Breyer took no part in the consideration or decision of the petition.
Farina is represented by Allison M. Zieve of the Public Citizen Litigation Group.
The cellphone companies are represented by David C. Frederick of Kellogg Huber Hansen Todd Evans & Figel PLLC.
The case is Farina v. Nokia Inc. et al., case number 10-1064, in the U.S. Supreme Court.
–Additional reporting by Ian Thoms. Editing by Chris Giganti.