Apple Waives Right to Respond to Cert. Petition in RF Radiation High Court Appeal

Apple has decided not to file a responsive brief in the radiofrequency (RF) radiation case filed by iPhone users who claim that Apple breached state tort and consumer-fraud laws by misrepresenting and failing to disclose the amount of RF radiation emitted by its smartphones. The case arrived at the Supreme Court in November 2022, after the Ninth Circuit issued a published opinion finding the claims preempted.

Law Street Media’s previous coverage of the suit explained that smartphones rely on radiofrequency electromagnetic waves for incoming and outgoing signals. The oscillation of electrical charges in the phone antennas generates RF radiation.

Though harmful at higher levels, the lower-level effects of RF radiation, including increased risk of cancer and cellular stress, are disputed. The plaintiffs claimed that Apple iPhones did not comply with Federal Communications Commission (FCC) RF radiation emission standards and that the manufacturer failed to disclose the risks associated with overexposure.

The district court granted summary judgment in favor of Apple after asking the FCC to weigh in on the case. Judge William Alsup ruled that the federal regulations displaced the plaintiffs’ claims and specifically that the FCC’s equipment-authorization scheme represented an intentional decision to “establish uniform technical standards embodying a careful balance between safety and efficiency.”

Last August, a Ninth Circuit panel reached the same conclusion after amici chimed in on behalf of both parties. Applying the principles of implied preemption, the opinion said the agency meant to preempt conflicting state or local law. “We therefore hold that the FCC’s regulations under the [Communications Act of 1934], setting upper limits on the levels of permitted RF radiation, preempt state laws that impose liability premised on levels of radiation below the limits set by the FCC,” the panel concluded.

The Supreme Court will now decide whether to grant the petition.

The plaintiffs are represented by Gupta Wessler PLLC and Fegan Scott, and Apple by Morrison & Foerster LLP.