Andrew Cohen v. Apple Inc. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW COHEN; TIMOTHY No. 20-17307
HORNICK; KALEAH C. ALLEN;
KIMBERLY BENJAMIN; MARK D.C. No.
WEILER; MATT KOPPIN; SCOTT 3:19-cv-05322-
CISCHKE; PAUL COLETTI; KRYSTLE WHA
FAERYN; RODOLFO CABRERA;
BRANDY DAVIS; WILLIAM ZIDE;
DAVID HEDICKER; NANCY OPINION
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,
v.
APPLE INC.,
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.
A regulatory scheme established by a Federal
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
4 COHEN V. APPLE
directed 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.
6 COHEN V. APPLE
Terrence 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 7
I. Background
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
8 COHEN V. APPLE
limits 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 aut hori t y over radi o
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 action proposed is based on the
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 Tribune’s story prompted the FCC to conduct further
testing of iPhones. In December 2019, the FCC published the
results of its own testing. The FCC’s further testing
measured RF radiation exposure from iPhones as well within
the safety limits. The testing revealed no evidence of
violation of the FCC’s technical standards.
Plaintiffs’ complaint alleged eight claims against Apple
under state tort and consumer-fraud laws: (1) Apple
intentionally misrepresented the safety of iPhones despite
knowing that their RF radiation exceeded federal limits;
(2) Apple failed to exercise reasonable care in not warning
plaintiffs about unsafe RF radiation emitted by iPhones;
(3) Apple violated California’s Unfair Competition Law by
failing to disclose that iPhones emitted RF radiation at unsafe
levels or levels exceeding the federal limit; (4) Apple violated
California’s Consumers Legal Remedies Act by failing to
22 COHEN V. APPLE
disclose that iPhones emitted RF radiation at unsafe levels or
levels exceeding the federal limit; (5) Apple violated
California’s false advertising law by failing to disclose that
iPhones emitted RF radiation at unsafe levels or levels
exceeding the federal limit; (6) Apple violated various states’
consumer protection acts due to its dissemination of
deceptive and misleading advertising materials; (7) Apple
was unjustly enriched because plaintiffs did not receive
products as marketed by Apple; and (8) Apple breached its
implied warranty that iPhones were safe for ordinary use.
The complaint sought class certification, a finding of liability
against Apple, the establishment of a medical monitoring
fund under claims (1) and (2), money damages, appropriate
injunctive relief, and attorney’s fees.
On January 2, 2020, Apple moved to dismiss plaintiffs’
complaint. Apple argued, inter alia, that plaintiffs lacked
Article III standing and, assuming standing, that federal law
preempted plaintiffs’ claims. Following a hearing, the district
court found that Apple had presented matters outside of the
pleadings. The district court converted Apple’s motion to
dismiss into a motion for summary judgment.
The district court invited the FCC to participate as amicus
curiae. The FCC filed a statement of interest on April 13,
2020, in which it made three main arguments. First, the FCC
argued that “[t]o the extent that plaintiffs’ claims effectively
challenge the adequacy or reasonableness of FCC testing
procedures for assessing compliance with RF limits, the
[district court] lacks jurisdiction” under 28 U.S.C. § 2342(1).
Second, the FCC argued that “plaintiffs’ claims are
preempted to the extent they suggest that RF emissions from
cell phones certified by the FCC for sale in the United States
are unsafe.” The FCC argued that the FCC’s regulations
COHEN V. APPLE 23
reflected congressional expectation that “the FCC . . . use its
expert judgment to balance different policy objectives,”
including “between ‘adequate safeguards of the public health’
and ‘speed[y] deployment of competitive wireless
telecommunications services.’” The FCC contended that
litigation such as plaintiffs’ “is especially disruptive to the
FCC’s certification program because plaintiffs seek relief
based on third-party testing that may have inaccurately
measured the RF emissions of Apple’s iPhones.” Third, the
FCC argued that the district court had no jurisdiction over
plaintiffs’ state-law claims that Apple failed to disclose that
iPhones emitted RF radiation at unsafe levels or levels
exceeding the FCC’s RF limits. Even if the district court had
jurisdiction, the FCC argued, federal law preempted those
claims.
In its statement of interest, the FCC asserted that Apple’s
iPhone (including the iPhone 7, the iPhone X, and the iPhone
XS) complied with federal RF radiation guidelines. The FCC
stated that it had tested each iPhone model for the specific
bands of operations investigated by the Chicago Tribune, and
had found that the tested phones produced maximum
measured exposure of 0.946 W/kg for the iPhone 7, 0.799
W/kg for the iPhone X, and 1.35 W/kg for the iPhone
XS—all well under the FCC’s permitted maximum of
1.6 W/kg.
In October 2020, the district court entered summary
judgment for Apple. The district court held that the FCC
promulgated substantive RF radiation regulations under the
1934 Act rather than under NEPA. The district court found
that the 1996 Act’s general savings clause, 47 U.S.C. § 253,
and § 601(c) of the 1996 Act did not change the normal
operation of conflict-preemption analysis or limit the FCC’s
24 COHEN V. APPLE
statutory authority to regulate RF radiation. The district court
concluded that the FCC’s regulation of RF radiation, as part
of its equipment-authorization regime, preempted plaintiffs’
claims. In reaching this conclusion, the district court relied
on Farina v. Nokia, Inc., 625 F.3d 97, 133–34 (3d Cir. 2010),
in which the Third Circuit held that the FCC’s regulations
preempted similar claims under state law.
Plaintiffs timely appealed. On appeal, they concede that
RF radiation emissions from Apple’s iPhone are at levels
below the maximum permitted by FCC regulations. Their
primary arguments on appeal are that (1) neither the 1934
Act, 1996 Act, nor NEPA gives the FCC authority to preempt
state law concerning cell-phone radiofrequency radiation, and
(2) the FCC’s RF radiation regulations do not preempt
state-law causes of action that are premised on maximum
levels of RF radiation below the maximum level set by the
FCC.
II. Standard of Review
We review a district court’s grant of summary judgment
de novo. See Zetwick v. County of Yolo, 850 F.3d 436, 440
(9th Cir. 2017). “Summary judgment is appropriate when,
viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine dispute as to any
material fact.” Id. (citation omitted).
III. Analysis
A. Subject Matter Jurisdiction Under the Hobbs Act
Under the Hobbs Act, federal courts of appeals (except
the Federal Circuit) have “exclusive jurisdiction to enjoin, set
COHEN V. APPLE 25
aside, suspend (in whole or in part), or to determine the
validity of . . . all final orders of the [FCC] made reviewable
by [47 U.S.C. § 402(a)].” 28 U.S.C. § 2342(1); see also
47 U.S.C. § 402(a) (providing judicial review of FCC’s
orders and decisions, including “[a]ny proceeding to enjoin,
set aside, annul, or suspend any order of the [FCC]”). In
addition to direct challenges to agency orders, the Hobbs Act
grants exclusive jurisdiction to courts of appeals over suits
against private parties that would require the court to enjoin,
set aside, suspend, or determine the validity of a final FCC
order. Wilson v. A.H. Belo Corp., 87 F.3d 393, 399–400 (9th
Cir. 1996); see also Pub. Watchdogs v. S. Cal. Edison Co.,
984 F.3d 744, 765 (9th Cir. 2020) (Nuclear Regulatory
Commission order).
Apple argues that the Hobbs Act broadly grants exclusive
jurisdiction to courts of appeals over private suits that
implicate the substance of agency determinations. Citing two
of our cases, Apple argues that “the Hobbs Act divests district
courts of jurisdiction to pass on any issue that would require
them to decide whether they ‘agreed’ or ‘disagreed’ with a
determination made in an FCC final order,” and that the
district court therefore did not have jurisdiction over this
case.
We disagree. Neither case cited by Apple goes so far. In
Wilson, 87 F.3d at 395, plaintiffs brought suit in district court
against California television stations to recover payments for
campaign advertisements that allegedly exceeded limits
imposed by § 315(b) of the 1934 Act. The FCC had issued a
declaratory ruling asserting its exclusive authority to
adjudicate and enforce all claims under § 315(b). Id. We
held that the Hobbs Act barred jurisdiction because the
plaintiffs, in effect, had asked the district court to set aside or
26 COHEN V. APPLE
determine the validity of the FCC’s declaratory ruling. Id. at
400. Similarly, in Public Watchdogs, 984 F.3d at 765, the
plaintiff brought state-law claims against utility companies,
alleging mishandling of nuclear waste, and arguing that the
Nuclear Regulatory Commission (“NRC”) had improperly
granted a licensing amendment. We held that the Hobbs Act
barred the plaintiff’s “veiled challenge” to the NRC license
grant in the district court. Id. In both cases, plaintiffs’
lawsuits in effect would have required the district court to set
aside or determine the validity of an agency final order.
By contrast, plaintiffs in this case do not challenge the
validity of any of the FCC’s final orders, either directly or
indirectly. The issue in this case is whether the FCC’s
concededly valid orders have preemptive effect. A holding
that the FCC orders do, or do not, preempt plaintiffs’ state-
law claims has no effect on their validity.
We therefore hold that the Hobbs Act does not deprive the
district court of jurisdiction, and we reach the merits of the
appeal.
B. Preemption
Plaintiffs argue on two grounds that their state-law claims
are not preempted. First, they argue that the FCC
promulgated its RF Orders under NEPA. They argue that
because NEPA is a purely procedural statute with no
preemptive force, regulations promulgated under NEPA do
not preempt their state-law causes of action. Second, they
argue that even if the FCC’s RF Orders were promulgated
COHEN V. APPLE 27
under either, or both, of the twin Communications Acts, the
savings clauses in those Acts preserve their state-law causes
of action.
We disagree with both grounds.
1. NEPA
We agree with plaintiffs that NEPA is a purely procedural
statute and that it has no preemptive force. However, we do
not agree with plaintiffs that the FCC’s RF Orders were
promulgated under NEPA.
The twin Communications Acts grant to the FCC broad
regulatory powers over wireless communication devices. The
1934 Act authorizes the FCC to: (1) “Regulate the kind of
apparatus to be used with respect to its external effects and
the purity and sharpness of the emissions,” 47 U.S.C.
§ 303(e); (2) “Make such rules and regulations and prescribe
such restrictions and conditions, not inconsistent with law, as
may be necessary to carry out the provisions of [the
Communications Acts],” id. § 303(r); and (3) “[P]erform 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,” id. § 154(i).
The 1996 Act directed the FCC to complete rulemaking
for RF radiation that had already been initiated under the
1934 Act. Section 704(b) of the 1996 Act provides: “Within
180 days after the enactment of this Act, the [FCC] shall
complete action in ET Docket 93-62 to prescribe and make
effective rules regarding the environmental effects of radio
frequency emissions.” 1996 Act § 704(b), 110 Stat. at 152.
Section 704(b) does not itself grant rulemaking authority.
28 COHEN V. APPLE
Rather, it requires the FCC to complete its preexisting
rulemaking proceeding initiated in the 1993 NPRM under the
authority of the 1934 Act. See Farina, 625 F.3d at 128 &
n.28.
The FCC has been consistent in stating that its authority
to regulate RF radiation-emitting communication devices
comes from the 1934 Act. The FCC wrote in the 1982
NPRM that led to its 1985 RF Order, “The action proposed
is . . . in furtherance of §§ 4(i) and 303(r) of the
Communications Act of 1934 . . . , which permits the [FCC]
to make rules and regulations . . . as may be necessary in the
execution of its functions.” 1982 NPRM, 89 F.C.C.2d at 255.
It wrote in connection with the 1985 RF Order itself, “This
action is . . . in furtherance of §§ 4(i), 4(j), and 303(r) of the
Communications Act of 1934[.]” 1985 RF Order, 100
F.C.C.2d at 565. It wrote in the 1993 NPRM that led to its
1996 RF Order, “This action is . . . in furtherance of Sections
4(i), 4(j), and 303(r) of the Communications Act of 1934[.]”
1993 NPRM, 8 FCC Rcd. at 2854. It wrote in its 2019 RF
Order, “The [FCC’s] authority to adopt and enforce RF
exposure limits pursuant to the Communications Act . . . is
well established.” 2019 RF Order, 34 FCC Rcd. at 11,689
n.5.
NEPA, by contrast, grants no affirmative regulatory
powers over wireless communications. It is a procedural
statute designed to ensure that federal actions, including
regulatory actions, are reviewed for their environmental
consequences. See 42 U.S.C. § 4332. The FCC’s 1985, 1996
and 2019 RF Orders were not authorized by NEPA. Rather,
they were constrained by NEPA. Several of the FCC’s
statements reflect this understanding of NEPA. For example,
the FCC wrote in its 1985 RF Order, “This action is based on
COHEN V. APPLE 29
the obligations imposed on the [FCC] by NEPA[.]” 1985 RF
Order, 100 F.C.C.2d at 565. It wrote in its 1996 RF Order
that it issued the order “to fulfill [its] responsibilities under
NEPA.” 1996 RF Order, 11 FCC Rcd. at 15,183. It wrote in
its 2019 RF Order, “The Commission’s authority to adopt and
enforce RF exposure limits . . . consistent with NEPA is well
established.” 2019 RF Order, 34 FCC Rcd. at 11,689 n.5.
We therefore reject plaintiffs’ argument that the FCC’s
RF Orders were promulgated under NEPA.
2. The Twin Communications Acts
Alternatively, plaintiffs argue that neither the 1934 Act
nor the 1996 Act preempts their state-law claims. They make
essentially two arguments. First, they argue that the 1934 Act
does not provide authority to the FCC to promulgate
regulations that preempt their state-law claims. Second, they
argue that reading the 1934 and 1996 Acts together “makes
clear that Congress did not authorize the FCC’s regulations
to displace state law here.” We take each argument in turn.
a. Authority under the 1934 Act
Plaintiffs argue that the 1934 Act does not authorize
preemption by regulations promulgated under the Act, and
that its state-law causes of action are not preempted by the
FCC’s orders. We disagree.
“The Supremacy Clause provides the constitutional
foundation for federal authority to preempt state law.”
Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1178 (9th Cir.
2016) (citing U.S. Const. art. VI, cl. 2; Kurns v. R.R. Friction
Prods. Corp., 565 U.S. 625, 630 (2012)). “Preemption of
30 COHEN V. APPLE
state law, by operation of the Supremacy Clause, can occur in
one of several ways: express, field, or conflict preemption.”
Id. (citing Kurns, 565 U.S. at 630–31). Absent express
congressional preemption, federal law preempts state law
“when the scope of a [federal] statute indicates that Congress
intended federal law to occupy a field exclusively,” Kurns,
565 U.S. at 630 (alteration in original) (quoting Freightliner
Corp. v. Myrick, 514 U.S. 280, 287 (1995)), or where “the
state law ‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,’”
Beaver, 816 F.3d at 1179 (quoting Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372–73 (2000)). Our
“preemption analysis is driven by the presumption that ‘the
historic police powers of the States were not to be superseded
by the Federal Act unless that was the clear and manifest
purpose of Congress.’” Id. (quoting Wyeth v. Levine,
555 U.S. 555, 565 (2009)).
A federal statute need not specify its preemptive force in
order for the statute to have such force. The Supreme Court
has stated, plainly and repeatedly: “A pre-emptive
regulation’s force does not depend on express congressional
authorization to displace state law[.]” Fid. Fed. Sav. & Loan
Ass’n v. de la Cuesta, 458 U.S. 141, 154 (1982); see also City
of New York v. FCC, 486 U.S. 57, 64 (1988). While plaintiffs
protest that “Apple dusts off two decades-old cases” (both de
la Cuesta and City of New York were decided in the 1980s),
the Supreme Court has never overruled either case, and they
remain good law. We have cited them as providing the
standard governing agency preemption. See MetroPCS Cal.,
LLC v. Picker, 970 F.3d 1106, 1117 (9th Cir. 2020);
Barrientos v. 1801–1825 Morton LLC, 583 F.3d 1197, 1208
(9th Cir. 2009) (specifically citing de la Cuesta, 458 U.S.
at 154, for the proposition that “[a] pre-emptive regulation’s
COHEN V. APPLE 31
force does not depend on express congressional authorization
to displace state law”). We therefore conclude that Congress
need not expressly delegate preemptive authority to the FCC
for its regulations to preempt state law.
“Along with Congress, ‘a federal agency acting within the
scope of its congressionally delegated authority may pre-empt
state regulation.’” Barrientos, 583 F.3d at 1208 (quoting City
of New York, 486 U.S. at 63–64). First, for a regulation to
have preemptive force, it must fall “within the scope of the
[federal agency’s] delegated authority,” id. at 583 F.3d
at 1208 (alteration in original) (quoting de la Cuesta,
458 U.S. at 154), or, in other words, it must be “statutorily
authorized,” City of New York, 486 U.S. at 64. Second, the
agency must have “meant to pre-empt” state law. MetroPCS,
970 F.3d at 1117 (quoting Barrientos, 583 F.3d at 1208).
“Where, as here, we consider whether a federal agency has
preempted state regulation, we do not focus on Congress’s
‘intent to supersede state law’ but instead ask ‘whether [the
federal agency] meant to pre-empt [the state law].’” Id.(quoting Barrientos, 583 F.3d at 1208).
Importantly, the intent to pre-empt need not be express.
Geier v. Am. Honda Motor Co., 529 U.S. 861, 884–85 (2000).
Under the doctrine of implied conflict preemption, “[t]he
statutorily authorized regulations of an agency will pre-empt
any state or local law that conflicts with such regulations or
frustrates the purposes thereof.” City of New York, 486 U.S.
at 63. In other words, it must be either “impossible to comply
with both state and federal requirements,” or the state law
must stand “as an obstacle to the accomplishment and
execution of the full purposes and objectives of [the federal
agency].” MetroPCS, 970 F.3d at 1118. State law may pose
such an obstacle when it disturbs a balance the federal
32 COHEN V. APPLE
regulation has struck between “conflicting policies that were
committed to the agency’s care by the statute.” Barrientos,
583 F.3d at 1208 (alteration in original) (quoting City of New
York, 486 U.S. at 64). The balance struck by the federal
agency should not be disturbed “unless it appears from the
statute or its legislative history that [the balance] is not one
that Congress would have sanctioned.” City of New York,
486 U.S. at 64 (quoting United States v. Shimer, 367 U.S.
374, 383 (1961)).
As an initial matter, the plaintiffs argue that because
matters of health and safety, such as the biological effects of
cell phone RF radiation, fall within states’ historic police
powers, the presumption against preemption applies in this
case. We assume, without deciding, that the presumption
applies. Nevertheless, the presumption is overcome because
the conflict between the FCC’s RF radiation regulations and
plaintiffs’ state law claims poses a sufficient obstacle to the
full accomplishment of the FCC’s objectives. See Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000).
As discussed above, the FCC’s RF radiation regulations
were promulgated pursuant to §§ 4(i), 4(j) and 303(r) of the
1934 Act. The regulations thus fall within the scope of the
agency’s delegated authority under the 1934 Act. The 1934
Act grants broad authority to the FCC to promulgate
regulations that strike a balance among overlapping and
potentially conflicting policies. These policies include the
promotion of “a rapid, efficient, [n]ation-wide, and world-
wide . . . communication service,” the promotion of “safety
of life and property through the use of wire and radio
communications,” “national defense,” and the encouragement
of “provision of new technologies and services to the public.”
47 U.S.C. §§ 151, 157(a). The FCC’s RF radiation
COHEN V. APPLE 33
regulations, as applied to cell phones, were intended to strike
such a balance.
In its 1979 Notice of Inquiry, 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
adequately protecting the populace against potentially adverse
biological effects that may be attributable to excessive RF
radiation.” 1979 Notice of Inquiry, 72 F.C.C.2d at 489, ¶ 17.
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. See
2013 Notice of Inquiry, 28 FCC Rcd. at 3,582, ¶ 236.
Plaintiffs’ state-law claims would disrupt the balance
struck by the FCC. In an analogous case, the Third Circuit
has explained:
The reason why state law conflicts with
federal law in these balancing situations is
plain. When Congress charges an agency
with balancing competing objectives, it
intends the agency to use its reasoned
judgment to weigh the relevant considerations
and determine how best to prioritize between
these objectives. Allowing state law to
impose a different standard permits a re-
balancing of those considerations. A state-
law standard that is more protective of one
34 COHEN V. APPLE
objective may result in a standard that is less
protective of others.
Farina, 625 F.3d at 123. The same reasoning applies in this
case. The FCC’s adoption of specific RF radiation limits for
cell phones is the result of the agency’s striking a balance
between the conflicting policies of public safety and the
public’s access to telecommunications technologies.
The savings clause in § 414 of the 1934 Act does not help
plaintiffs. We quoted it above. For the convenience of the
reader, here it is again: “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.” 47 U.S.C. § 414.
On appeal, plaintiffs do not press the allegations in their
complaint that Apple’s iPhones emit RF radiation at levels
above the maximum permitted by FCC regulations. For
purposes of appeal, they concede that Apple’s iPhones
comply with the FCC’s RF radiation regulations. They write,
“On appeal, [plaintiffs] pursue only their claims that Apple
devices are unsafe ‘in spite of’ compliance with federal
standards and that Apple fails to disclose their dangers.”
Plaintiffs’ concession that Apple’s iPhone complies with
emission levels prescribed by the FCC is fatal to their appeal.
If plaintiffs were to press the allegations in the complaint
that Apple’s iPhones exceeded the maximum RF radiation
levels permitted by the FCC, and were to argue that the state-
law remedies they seek were premised on Apple’s violations
of the FCC’s RF radiation standards, this would be a different
appeal, and the savings clause might have some force. Cf.
Stengel v. Medtronic Inc., 704 F.3d 1224, 1233 (9th Cir.
COHEN V. APPLE 35
2013) (en banc). However, this is not their argument.
Plaintiffs’ argument on appeal is that state-law causes of
action premised on RF radiation emission standards more
protective than those prescribed by the FCC are not
preempted.
In Geier v. American Honda Motor Co., 529 U.S. 861(2000), the Supreme Court wrote that it “has repeatedly
‘decline[d] to give broad effect to saving clauses where doing
so would upset the careful regulatory scheme established by
federal law.’” Id. at 870 (quoting United States v. Locke,
529 U.S. 89, 106–107 (2000)). Consistently with Geier, we
have held that § 414, the savings clause of the 1934 Act,
preserves only those rights not inconsistent with the statutory
requirements. Telesaurus VPC, LLC v. Power, 623 F.3d 998,
1010 (9th Cir. 2010). Section 414 cannot be read expansively
to “abrogate the very federal regulation of mobile telephone
providers that the [1934 Act] intended to create.” Id. at 1011(quoting Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983,
987 (7th Cir. 2000)). “Said otherwise, 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,’” including those implemented by federal
regulations. In re Volkswagen “Clean Diesel” Mktg., Sales
Pracs., & Prods. Liab. Litig., 959 F.3d 1201, 1214 (9th Cir.
2020) (quoting Geier, 529 U.S. at 872).
In American Telephone & Telegraph Co. v. Central Office
Telephone, Inc., 524 U.S. 214 (1998), the Supreme Court
refused to construe § 414 as saving state-law tort and breach
of contract claims from preemption under the 1934 Act’s
filed rate doctrine. The Court wrote:
36 COHEN V. APPLE
A claim for services that . . . directly conflict
with the tariff—the basis for both the tort and
contract claims here—cannot be “saved”
under § 414. “Th[e saving] clause . . . cannot
in reason be construed as continuing in
[customers] a common law right, the
continued existence of which would be
absolutely inconsistent with the provisions of
the act. In other words, the act cannot be held
to destroy itself.”
Id. at 227–28 (alteration and omission in original) (quoting
Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426,
446 (1907)).
So too here. The 1934 Act authorizes the FCC to balance
the overlapping and potentially competing factors in setting
safe and uniform limits for RF radiation from cell phones.
Allowing state tort law to prescribe lower levels of RF
radiation than the levels prescribed by the FCC would
interfere with the nationwide uniformity of regulation that is
the aim of the Act, and would render the FCC’s statutorily
mandated balancing essentially meaningless. If state law
were allowed to prescribe such levels, it would “stand[] as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Beaver, 816 F.3d
at 1179 (quoting Crosby, 530 U.S. at 372–73).
We therefore hold that the FCC’s regulations under the
1934 Act, setting upper limits on the levels of permitted RF
radiation, preempt state laws that impose liability premised
on levels of radiation below the limits set by the FCC.
COHEN V. APPLE 37
b. Reading the 1934 and 1996 Acts Together
Plaintiffs argue that the preemptive scope of the FCC’s
RF radiation regulations cannot be determined solely by
consulting the 1934 Act. They argue that the 1934 and 1996
Acts must be read together. They write in their brief that it
was in the 1996 Act “that Congress carefully delineated the
limited scope of the FCC’s preemptive authority.” We
disagree. We hold that the scope of preemption of the FCC’s
RF radiation regulations is controlled by the 1934 Act, and
that the preemption provisions of the 1996 Act are irrelevant.
As discussed in detail above, the FCC’s RF radiation
regulations were promulgated under §§ 4(i), 4(j), and 303(r)
of the 1934 Act. The 1996 Act directed the FCC to complete
within 180 days a pending rulemaking proceeding with
respect to RF radiation for cell phones. 1996 Act § 704(b),
110 Stat. at 152. But the 1996 Act did not provide the
underlying authority for adopting the RF radiation
regulations. It merely directed the FCC to complete quickly
the pending rulemaking proceeding under the 1934 Act.
As also discussed above, there are two preemption
provisions in the 1996 Act. First, there is a narrowly focused
savings clause. Section 332(c)(7)(A) of the 1996 Act
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). This provision protects the
placement, construction, and modification of state and local
“facilities,” such as cell phone towers, from preemption under
the 1996 Act. It has nothing to do with RF radiation
emissions from cell phones.
38 COHEN V. APPLE
Second, there is a general savings clause. Section 601 of
the 1996 Act 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 (emphasis added). By its plain terms, this
provision applies only to “this Act”—that is, to the 1996 Act.
It does not apply to the 1934 Act.
Because § 332(c)(7)(A) applies only to “facilities,” and
§ 601(c)(1) applies only to the 1996 Act, the preemption
provisions of the 1996 Act do not affect the preemptive scope
of the FCC’s RF radiation regulations under the 1934 Act.
Conclusion
We hold that the Hobbs Act does not deprive the district
court of jurisdiction in this case. We hold, further, that the
FCC’s regulations of the RF radiation of cell phones,
promulgated under the 1934 Act, preempt plaintiffs’ state-law
claims as they are presented to us on appeal.
AFFIRMED.