Berkeley City Council moves forward with cellphone ‘right to know’ ordinance

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Rachael Garner/File

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Berkeley City Council decided to move forward with a case regarding the city’s cellphone “right to know” ordinance Thursday after a public comment session about a potential repeal of the ordinance.

CTIA — The Wireless Association, a trade association representing wireless companies, filed a lawsuit in June 2015 against the city of Berkeley for its “right to know” ordinance, which requires cellphone retailers to disclose to their customers that carrying cellphones close to their bodies can expose them to levels of radiofrequency, or RF, radiation that exceeds federal guidelines.

CTIA’s case against Berkeley is based on the claim that the ordinance violates the First Amendment by forcing retailers to declare a controversial message. According to the Federal Communications Commission, phones certified by CTIA must provide required information to consumers about RF radiation in the phones’ instruction manuals. The city of Berkeley claims the “right to know” ordinance simply reinforces this message.

Councilmember Kriss Worthington said the case will now go back to the 9th U.S. Circuit Court of Appeals for review. Former U.S. solicitor general Theodore Olson is the attorney representing CTIA, while Harvard Law School professor Lawrence Lessig — who took on the case pro bono — is among the lawyers representing the city of Berkeley.

Lessig attended the public comment session at Old City Hall and later participated in a closed session with council members and other lawyers. He said he commends the council for taking a stand against the CTIA’s use of the First Amendment.

“I think the City Council has been quite bold,” Lessig said.

Ellie Marks, director of the California Brain Tumor Association, said she originally asked Lessig to work on the case, and he agreed to help redraft the “right to know” ordinance to ensure it would stand ground in court.

“We’re hopeful today that the City Council will remain committed to this law,” Marks said.

In September 2016, the 9th U.S. Circuit Court of Appeals ruled that the ordinance “complied with the First Amendment because the information in the disclosure was reasonably related to a substantial governmental interest and was purely factual,” according to an article by Joel Moskowitz, a researcher at UC Berkeley’s School of Public Health.

Former City Council member and retired critical care nurse Max Anderson also spoke during public comment. Anderson served on the council when the ordinance was drafted and worked hard to get it passed, according to Cynthia Papermaster, coordinator of the Golden Gate chapter of Codepink: Women for Peace.

“The courageous individuals and groups of people who stand up to that kind of overpowering bullying are to be commended, and certainly this council over the years falls within that category,” Anderson said at the meeting.

Papermaster is another advocate for upholding the ordinance. She said she worked as a librarian for the same law firm as Olson for 13 years, and she came to the meeting to reiterate Anderson’s point that there is no reason for the wireless communications industry to oppose the “right to know” law.

“For an industry group to come in like that and threaten the city of Berkeley with a lawsuit because they don’t like this regulation — which is a public health protection for us — is, in my view, outrageous,” Papermaster said.

Contact Sabina Mahavni at [email protected] and follow her on Twitter at @sabina_mahavni.