Ctia - the Wireless Association v. CITY AND COUNTY OF SAN FRANCISCO, California

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CTIA - THE WIRELESS
ASSOCIATION,
Plaintiff - Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO, California,
Defendant - Appellee.
No. 11-17707
D.C. No. 3:10-cv-03224-WHA
MEMORANDUM*
CTIA - THE WIRELESS
ASSOCIATION,
Plaintiff - Appellee,
v.
CITY AND COUNTY OF SAN
FRANCISCO, California,
Defendant - Appellant.
No. 11-17773
D.C. No. 3:10-cv-03224-WHA
Appeal from the United States District Court
for the Northern District of California
FILED
SEP 10 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Edward R. Korman, Senior United States District**
Judge for the Eastern District of New York, sitting by designation.
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William Alsup, District Judge, Presiding
Argued and Submitted August 9, 2012
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and KORMAN, Senior
District Judge.**
This is an appeal and cross appeal from the district court’s order
preliminarily enjoining, in part, provisions of a San Francisco ordinance requiring
cell phone sellers to make certain disclosures to consumers about radiofrequency
energy emissions from cell phones. S.F. Ordinance 156-11 (1022). Under the
standard established in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626
(1986), any governmentally compelled disclosures to consumers must be “purely
factual and uncontroversial.” Id. at 651.
The district court found the factual statements in the revised fact sheet were
accurate and not misleading. Appellant CTIA correctly points out, however, that
the revised fact sheet contains more than just facts. It also contains San
Francisco’s recommendations as to what consumers should do if they want to
reduce exposure to radiofrequency energy emissions. This language could prove
to be interpreted by consumers as expressing San Francisco’s opinion that using

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cell phones is dangerous. The FCC, however, has established limits of
radiofrequency energy exposure, within which it has concluded using cell phones
is safe. See, e.g., Guidelines for Evaluating the Envt’l Effects of Radiofrequency
Radiation, 11 F.C.C.R. 15123, 15184 (1996). Moreover, the findings made by the
San Francisco Board of Supervisors on which the challenged ordinance is
predicated acknowledges that “[t]here is a debate in the scientific community about
the health effects of cell phones,” and the district court observed that “San
Francisco concedes that there is no evidence of cancer caused by cell phones.” We
cannot say on the basis of this record that the fact sheet, as modified by the district
court, is both “purely factual and uncontroversial.” Zauderer, 471 U.S. at 651.
The court therefore erred in holding the city could compel distribution of the
revised fact sheet.
The district court enjoined the original ordinance compelling distribution of
broader materials. Id. San Francisco cross-appeals that order, seeking to enforce
the ordinance in its entirety. Since the ordinance compels statements that are even
more misleading and controversial than the revised fact sheet, the original
injunction must be affirmed.

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The order preliminarily enjoining enforcement of the ordinance is
AFFIRMED. The court’s subsequent order modifying the injunction is
VACATED.
The City and County of San Francisco’s motion for judicial notice filed
on January 25, 2012, is granted.
Costs will be awarded to the plainiff-appellant.
AFFIRMED in part, VACATED in part, and REMANDED.

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