WASHINGTON-The Supreme Court is poised to decide whether to review a lower-court ruling that would revive five class-action lawsuits alleging wireless firms endangered consumers by knowingly marketing unsafe radiation-emitting cell phones without headsets. While the ruling is a high-stakes legal matter for the $100 billion cellular industry, the claim goes far beyond the question of mobile-phone safety. Thus, some unlikely parties are weighing in on the matter.
“The lower court’s rejection of uniform national standards in the area of interstate communication by radio threatens not only the efficient operation of the nation’s wireless infrastructure, but countless other regulatory regimes where the primacy of federal law has heretofore been unquestioned,” Nokia Inc. told the high court last week.
The Supreme Court, itself undergoing a controversial makeover, could rule as early as Oct. 31 on industry’s request to review the 4th U.S. Circuit Court of Appeals’ split decision of March 16. The 4th Circuit reversed U.S. District Judge Catherine Blake’s dismissal of the five headset lawsuits on federal pre-emption grounds. Blake tossed out the headset cases in March 2003, only months after throwing out an $800 million brain-cancer lawsuit against Motorola Inc. and others for lack of scientific evidence.
The Supreme Court’s decision whether to take the headset case will not turn on the science-which has produced a mix of data in recent years, though government agencies have determined research largely does not link phones to cancer-but rather on whether the lawsuits are pre-empted by federal telecom law. Complicating the controversy are different levels of federal pre-emption under debate in the five headset lawsuits.
The cell-phone industry claims the litigation has the potential to undermine wireless regulation and operation of wireless networks-including emergency communications-in the United States.
“The Fourth Circuit’s decision to oust the FCC from its role as the exclusive regulator of RF [radio frequency] emissions from mobile phones will have far-reaching ramifications,” CTIA, the cellular trade association, warned the Supreme Court. “State rules affecting RF emissions cannot be drawn narrowly to avoid interference with the federal regime, because RF emissions are fundamental to interstate mobile wireless communications. Subjecting CTIA’s members to a patchwork of inconsistent state requirements will threaten the continued provision of wireless at the quality and price expected by consumers.”
The wireless industry is not alone in wanting the Supreme Court to review-as well as overturn-the 4th Circuit’s headset decision. In addition to CTIA, other national business groups are urging the Supreme Court to take a hard look at one particular headset case: Nokia Inc. et al. v. Garrett Naquin et al. The U.S. Chamber of Commerce, the Product Liability Advisory Council, the Institute of Electrical and Electronic Engineers and the American National Standards Institute have joined CTIA is seeking review of the 4th Circuit decision.
IEEE recently approved a new RF radiation standard that is less stringent for mobile phones than current guidelines, yet largely in line with an international standard used by more than 40 countries. The IEEE standard now goes to ANSI for publication and afterward possibly to the FCC.
U.S. courts have upheld the current RF safety standard. While the FCC enforces the RF standard-developed by government and industry-as it applies to licensed wireless carriers, the Food and Drug Administration has legal jurisdiction over cell phones and other radiation-emitting products.
Plaintiffs’ lawyers argue the class-action headset lawsuits are a matter for state courts, being grounded in common law theories of strict product liability, breach of implied warranty and fraudulent concealment.
“The complaints do not assert any federal claims. They contain no reference to federal laws or regulations,” stated plaintiffs’ lawyers.
The class-action headset cases, which originated in state courts in Louisiana, Maryland, Pennsylvania, New York and Georgia, seek to force cell-phone carriers to supply headsets to wireless subscribers who lack them and to reimburse wireless consumers who already purchased the devices. Plaintiffs’ attorneys, led by the law firm of Baltimore Orioles owner and trial lawyer Peter Angelos, also are seeking punitive damages.
The headset cases and other health-related litigation have been on hold pending action by the Supreme Court.
However, the Supreme Court’s consideration of whether to review the 4th Circuit’s headset reversal does not appear to be slowing down six brain-cancer lawsuits against industry in the Superior Court of the District of Columbia. Judge Cheryl M. Long has scheduled an Oct. 24 hearing on wireless companies’ motion to dismiss the six lawsuits on federal pre-emption grounds. Federal judge Blake of Baltimore remanded the cases to the D.C. Superior Court in July 2004.
The headset and brain-cancer litigation is playing out as new cell-phone health research trickles out of Europe and the U.S., some backing the wireless industry and some favoring plaintiffs’ lawyers.
Indeed, a new study concludes electromagnetic radiation produced by cell phones do not stress human cells in a way that could lead to heath risks.
“We performed highly sensitive, extremely well-controlled tests on living cells irradiated with energy like that from mobile phones, but at levels 5 to 10 times higher than those set for the devices by regulatory agencies,” says Andrei Laszlo, Ph.D., associate professor of radiation oncology and a researcher at the Siteman Cancer Center at Barnes-Jewish Hospital and Washington University School of Medicine. “We see no indication that factors involved in the stress response increase their activity as a result of such exposures.”
The research, reported in the journal Radiation Research, was supported by a contract with Motorola. Motorola is a defendant in some of the health-related lawsuits.
The stress response is a protection mechanism for human cells set into motion by various adverse stimuli, including heat shock, heavy metals, and inflammation. University researchers said high levels of the stress response in cells are thought to result in changes associated with malignancy.
Previous studies have indicated mobile phones do stress human cells, but Washington University scientists said those findings “may be due to less-than-ideal experimental conditions” which create unwanted heating caused by microwave exposure.
“We’ve done extensive studies on the effect of cell-phone radiation in our research group in the past as well,” Laszlo says. “Dr. Joseph Roti Roti and his colleagues have examined the potential for DNA damage and cellular transformation, and the effect of microwave radiation on animals has been studied also. Now we’ve conducted this study of the molecular mechanisms of the stress response. In every case we’ve looked at, our group saw no biological effects of cell phone radiation that could cause cancer.” RCR
