THE WIRELESS INDUSTRY DODGED one bullet and got tagged by another as the Superior Court of the District of Columbia threw out six brain-cancer lawsuits against wireless carriers, manufacturers and others.
The decision was a major legal victory that tempered the sting of a separate state court decision to award lifetime disability and medical efforts to an AT&T Inc. technician who claimed injuries from radio-frequency radiation exposure above those set by the Federal Communications Commission.
The D.C. court’s dismissal of the brain-cancer suits was solely based on jurisdictional grounds; Judge Cheryl Long agreed with the wireless industry and the FCC that the complaints were preempted by federal law. The six lawsuits have bounced between the Superior Court and federal court since the first one was filed in 2001.
Last week’s decision was the biggest for the wireless industry since 2002, when a federal judge tossed out an $800 million brain-cancer lawsuit against wireless companies because of inadequate scientific evidence.
Long was unequivocal in her ruling.
“This is not a close question. Having found that multiple alternative pre-emption doctrines are controlling, this court has no discretion to allow the claims to proceed any further,” stated Long in the 69-page decision.
Cellphone trade association CTIA declined comment, saying only that it would let the ruling speak for itself.
Long gave weight to the brief of the FCC, which broke from tradition and intervened to support industry in arguing the six lawsuits did not belong in the D.C court.
The FCC’s radiation exposure guidelines governing regulated wireless carriers have been upheld by the courts. The Food and Drug Administration, however, has legal oversight of phone safety. Government health experts here and overseas say research does not point to a link between cellphones and brain cancer, but they continue to call for more research to address studies that show biological damage from handset emissions.
“This is an argument that is strictly a legal one, and the court does not in any fashion attempt to weigh the underlying worth or truth of the claims,” Long’s ruling stated. Two of the six plaintiffs have died since the lawsuits were first filed.
Appeal expected
While the wireless industry again has gained the upper hand in litigation, the legal battle appears to be far from over.
“I would expect to appeal this opinion,” said Jeffrey Morganroth, a lead attorney for the plaintiffs.
Morganroth said Long’s order flies in the face of U.S. District Judge Catherine Blake’s decision to return the six brain-cancer suits to the D.C. Superior Court after finding the complaints were not federally pre-empted. Moreover, added Morganroth, the 4th U.S. Circuit Court of Appeals rejected industry’s federal pre-emption arguments in litigation involving class-action suits to force cellular carriers to supply subscribers with headsets to reduce their exposure to mobile-phone radiation. The U.S. Supreme Court subsequently decided against industry’s petition for a review of the 4th Circuit decision.
The wireless industry has faced safety questions since the early 1990s when a Florida man claimed his wife’s fatal brain cancer was caused by cellphone use. But the wireless industry won that case and brain-cancer suits that followed, despite suffering major legal setbacks on jurisdiction in recent years.
Alaska case
Possibly of more immediate concern to the wireless industry is Alaska high court’s decision to uphold Alaska’s Workers’ Compensation Board because of potential implications for operators, tower companies and other players.
“This decision is significant because the FCC RF limit is designed to keep people from being heated, and ignores evidence of other adverse biological effects at much lower levels,” stated The EMR Policy Institute.
The group added: “This precedent-setting case opens the door for any wireless industry or maintenance worker who has been exposed to antenna arrays on the job site that have not been shut off to file disability claims should they suffer similar cognitive and neurological symptoms. U.S. wireless service providers are not required to document compliance with FCC RF safety limits by on-site radiation measurements. Millions of workers occupy worksites on a daily basis where operating antenna arrays are camouflaged and where no workplace RF safety program is carried out.”
The Alaskan wireless facility at issue involved the installation of a new computer-operating switching system in the Eagle River earth station, but the legal and policy issues are nonetheless relevant for wireless health across the board in the telecom sector.
“We are still reviewing this opinion to determine our options,” said Walt Sharp, an AT&T spokesman.
