The Federal Communications Commission’s testing regulations preempt a class suit alleging certain iPhone models emit dangerous radiation levels when carried close to the body, Apple Inc. told the Northern District of California.
Additionally, that court lacks jurisdiction over the suit, which seeks to challenge the FCC’s testing rules, an issue that must be reviewed by a federal appeals court, Apple said in a filing May 1.
Apple’s motion followed an FCC filing that detailed its position on whether the claims can proceed.
Andrew Cohen and others alleged a lab hired by the Chicago Tribune found that the iPhone 7, 8, and X showed exposure above the federal limit when tested under conditions simulating the distance when carrying the phone in a shirt or pants pocket.
In February, the court asked the FCC to weigh in about its radiofrequency emissions testing, and said it’s “inclined to hold that if the Apple products ultimately satisfy the Commission’s standard, then all claims must be dismissed on preemption grounds.”
The FCC, which retested the phones and found them to be in compliance, said its testing parameters reflect its “considered policy judgment about the best way to evaluate and ensure the safety of cell phones made available for sale in the United States.”
Litigation like the suit here “is especially disruptive” to the FCC’s certification program because the plaintiffs seek relief based on third-party testing that may have inaccurately measured the RF emissions of Apple’s iPhones, the commission said.
Additionally, the plaintiffs seek to call Apple to account for not testing its iPhones in a manner that isn’t required by the commission’s testing procedures, the filing said. Judicial review of that decision, however, falls under the exclusive jurisdiction of the courts of appeals, it said.
Because there can be no dispute that the iPhones are certified by the FCC, this litigation can’t go forward without undermining the FCC’s “carefully calibrated testing requirements,” adopted after the commission reviewed “all available information to balance its various objectives and promote uniformity in a highly technical area,” Apple said.
Only the FCC can determine whether a cell phone is compliant with its regulations, and the plaintiffs’ claims serve as nothing more than an improper challenge to the FCC’s regime, Apple said.
Fegan Scott LLC and Andrus Anderson LLP represented the plaintiffs. Dechert LLP represented Apple.
The case is Cohen v. Apple, Inc., N.D. Cal., 3:19-cv-05322, motion 5/1/20.