WASHINGTON-As expected, the wireless industry late Wednesday asked the U.S. Supreme Court to review and overturn an appeals-court ruling that allowed state courts to handle lawsuits regarding the possible negative health effects of using handheld wireless phones.
“The U.S. Court of Appeals for the 4th Circuit’s endorsement of a state common law broadside into the coherence and uniformity of federal-radio regulation, standing alone, makes this case one of exceptional importance and worthy of this court’s plenary review. Both Congress and the Federal Communications Commission have repeatedly recognized that a reliable and seamless interstate wireless network is a national resource-essential to homeland security, public safety and the economic health of this country. This court’s intervention is necessary to prevent the balkanization of network standards invited by the 4th Circuit’s decision, which will, if uncorrected, undermine the ability of consumers to use an FCC-approved wireless telephone in every state in the union,” reads the wireless industry’s request for review, officially known as a petition for a writ of certiorari.
The wireless industry was stunned when the 4th Circuit rejected a federal judge in Maryland’s opinion that a group of class-action lawsuits should be handled at the federal level and that they should be rejected because the FCC had established RF standards that all of the devices in question met.
Wireless telecommunications is a national service that states should not regulate, contends the wireless industry in a variety of venues across the country. Before the Supreme Court, industry is arguing that current law prohibits state regulation of entry into the mobile-phone market.
“This case is about the proper balance between federal and state authority over a critical channel of interstate communication and commerce-the modern wireless telephone network,” said the industry in its cert petition.
If the Supreme Court takes the case, it could be one of the first issues decided by Supreme Court nominee John Roberts. The Republican-controlled Senate has vowed to consider Roberts’ nomination before the court begins its 2005 term Oct. 3.
Roberts, who was nominated July 19 to replace retiring Supreme Court Justice Sandra Day O’Connor, has served for the last two years on the U.S. Court of Appeals for the District of Columbia Circuit. While on the D.C. Circuit, he authored three telecommunications-related cases, two of which he sided with the FCC in how it handled two post-auction matters. In the third case, he ruled against the FCC in favor of AT&T Corp. in a case dealing with toll-free numbers.
The Supreme Court in June declined to consider the appeal of an environmental advocacy group that sued to force the FCC to study possible health effects of mobile-phone tower emissions.
The EMR Network argued that the commission’s RF radiation guidelines do not take into account recent research findings and fail to distinguish among children, elderly and ill individuals insofar as exposure limits.
The agency’s RF standard was upheld by the U.S. Court of Appeals for the 2nd Circuit in 2000. The FCC is currently examining whether and how the RF standard, adopted in 1996, should be revised.
