FARINA v. NOKIA INC.

625 F.3d 97

Francis J. FARINA, individually and on behalf of all those similarly situated

v. NOKIA INC.; NEC America; Ericsson Wireless Comm., Inc.; Motorola, Inc.; Sprint PCS, L.P.; Audiovox Communications Corporation; Nextel Communications of the Mid-Atlantic, Inc.; Matsushita Corporation of America, also known as Panasonic Corporation; Philips Electronic North America Corp.; Qualcomm Incorporated also known as Qualcomm, Inc; Samsung Telecommunications America, L.P.; Sanyo North America, Inc. also known as Sanyo North America Group; Sony Electronics, Inc.; AT & T Wireless Services, Inc.; Cellco Partnership, also known as Verizon Wireless; Cingular Wireless LLC, also known as Southwestern Bell Wireless formally known as Southwestern Bell Mobile Systems, Inc.; Cellular One Group, also known as Cellular One; Voicestream Wireless Corporation, also known as Voicestream Wireless; LG Electronics MobileComm U.S.A., Inc.; Cellular Telecommunication Industry Association, also known as TIA; John Does Nos. 1-100Francis J. Farina, Appellant.

No. 08-4034.

United States Court of Appeals,Third Circuit.

Argued April 19, 2010.

Filed: Oct. 22, 2010.

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Kenneth A. Jacobsen, Esquire (Argued), Wallingford, PA, Michael D. Donovan, Esquire, Donovan Searles, Philadelphia, PA, Joseph A. O'Keefe, Esquire, O'Keefe & Sher, Kutztown, PA, for Appellant.

David C. Frederick, Esquire (Argued), Kellogg Huber Hansen Todd Evans & Figel, Washington, D.C., Seamus C. Duffy, Esquire, Drinker Biddle & Reath, Philadelphia, PA, for Appellees, AT & T Wireless Services, Inc. n/k/a New Cingular Wireless Services, Inc.; Cingular Wireless LLC n/k/a AT & T Mobility LLC.

John Beisner, Esquire, Skadden Arps Slate Meagher & Flom, Washington, D.C., Robert C. Heim, Esquire, Richard D. Walk, Jr., Esquire, Dechert, Philadelphia, PA, for Appellee, Cellco Partnership d/b/a Verizon Wireless.

Andrew G. McBride, Esquire, Joshua S. Turner, Esquire, Wiley Rein, Washington, D.C., for Appellees, Cellco Partnership d/b/a Verizon Wireless; Nokia Inc.

Daniel T. Fitch, Esquire, Stradley Ronon Stevens & Young, Philadelphia, PA, John B. Isbister, Esquire, Tydings & Rosenberg, Baltimore, MD, for Appellee, Samsung Telecommunications America, LLC.

Susan K. Herschel, Esquire, Hoyle Fickler Herschel & Mathes, Philadelphia, PA, Eugene A. Schoon, Esquire, Sidley Austin, Chicago, IL, for Appellee, Voicestream Wireless Corporation n/k/a T-Mobile USA, Inc.

Edward M. Crane, Esquire, Skadden Arps Slate Meagher & Flom, Chicago, IL, Steven A. Haber, Esquire, Obermayer Rebmann Maxwell & Hippel, Philadelphia, PA, for Appellees, Nextel Communications of the Mid-Atlantic, Inc.; Nextel Boost of the Mid-Atlantic LLC; Nextel West Corp.; Nextel Boost West LLC.

James P. Ulwick, Esquire, Kramon & Graham, Baltimore, MD, for Appellee, NEC Corporation of America.

Francis A. Citera, Esquire, Greenberg Traurig, Chicago, IL, Brian T. Feeney, Esquire, Greenberg Traurig, Francine F. Griesing, Esquire, Griesing Law, Philadelphia, PA, for Appellees, Qualcomm, Inc.; Sony Electronics, Inc.

Howard D. Scher, Esquire, Buchanan Ingersoll & Rooney, Philadelphia, PA, for Appellee, Cellular One Group.

Walter H. Swayze, III, Esquire, Segal McCambridge Singer & Mahoney, Philadelphia, PA, for Appellee, Panasonic Corp. of North America f/k/a Matsushita Electric Corporation of America.

David G.C. Arnold, Esquire, Narberth, PA, Linda B. Epstein, Esquire, Hughes Hubbard & Reed, Washington, D.C., for Appellee, LG Electronics MobileComm U.S.A., Inc.

Rochelle M. Fedullo, Esquire, Wilson Elser Moskowitz Edelman & Dicker, Philadelphia, PA, for Appellee, Sanyo North America, Inc.

Ashley R. Adams, Esquire, Akin Gump Strauss Hauer & Feld, Houston, TX, Fred I. Williams, Esquire, Akin Gump Strauss Hauer & Feld, Austin, TX, Steven M. Zager, Esquire, Akin Gump Strauss Hauer & Feld, New York, NY, for Appellee, Nokia, Inc.

Walter L. McDonough, Esquire, Swartz Campbell, Philadelphia, PA, for Appellee, Sprint Corp.

Stephan G. Weil, Esquire, Dickstein Shapiro, Washington, D.C., Craig E. Ziegler, Esquire, Montgomery McCracken Walker & Rhoads, Philadelphia, PA, for Appellee, Audiovox Communications Corporation.

Mark A. Aronchick, Esquire, Robert L. Ebby, Esquire, Hangley Aronchick Segal

& Pudlin, Philadelphia, PA, Charles L. Babcock, Esquire, David T. Moran, Esquire, Jackson Walker, Dallas, TX, for Appellee, Ericsson Inc.

Raymond B. Biagini, Esquire, Lisa M. Norrett, Esquire, McKenna Long & Aldridge, Washington, D.C., Mary C. Doherty, Esquire, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Appellee, Philips Electronics North America Corporation.

Robert E. Welsh, Jr., Esquire, Welsh & Recker, Philadelphia, PA, for Appellee, Cellular Telecommunication Industry Association.

Terrence J. Dee, Esquire, Michael B. Slade, Esquire, Kirkland & Ellis, Chicago, IL, for Appellee, Motorola Inc.

James M. Mesnard, Esquire, Seyfarth Shaw, Washington, D.C., for Appellee, Telecommunications Industry Association.

Before: SCIRICA, AMBRO and ALARCÓN ^* , Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Appellant Francis J. Farina brought this class action against various cell phone manufacturers and retailers of wireless handheld telephones. He appeals from the dismissal of his complaint on the ground that his claims are preempted by regulations promulgated by the Federal Communications Commission. We will affirm.

I.

Farina represents a putative class consisting of all past, current, and future Pennsylvania purchasers and lessees of cell phones who have not been diagnosed with an injury or illness resulting from their cell phone usage. Farina's claims are based on the allegation that cell phones, as currently manufactured, are unsafe to be operated without headsets because the customary manner in which they are used-with the user holding the phone so that the antenna is positioned next to his head-exposes the user to dangerous amounts of radio frequency (“RF”) radiation. Farina alleges the marketing of cell phones as safe for use without headsets violates several provisions of Pennsylvania law.

A.

A cell phone functions by transmitting information between its low-powered radio transmitter and a base station, usually a tower containing a large antenna. See generally Pinney v. Nokia, Inc., 402 F.3d 430, 439-40 (4th Cir.2005). Each base station reaches a relatively small area, or cell, and as a user moves from cell to cell, the signal must transfer from base station to base station. Id. at 440. When cell phones communicate with base stations, they emit RF energy. Id. The strength of a cell phone signal, and hence its range, has been positively correlated with the intensity of its RF emissions. See In re Rural Telephone Cos., 18 F.C.C.R. 20802, 20829 & n. 114 (2003) [hereinafter NPR Rural ] (notice of proposed rulemaking). ¹ The science is clear that at high levels RF radiation can cause adverse “thermal” effects resulting from the heating of human tissue. See generally FCC, Office of Engineering & Technology, Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields, OET Bull. No. 56, 6-7 (4th ed. Aug. 1999) [hereinafter OET Bulletin], available at http:// www. fcc. gov/ Bureaus/ Engineering_ Technology/ Documents/ bulletins/ oet 56/ oet 56 e 4. pdf. More controversial is the purported existence of “non-thermal” effects caused by lower levels of RF radiation. Farina alleges that over the past five decades “dozens of peer reviewed research papers were published which, individually and collectively, raised serious and credible questions regarding whether the RF [radiation] to which [cell phone] users were and are exposed posed a risk or threat to their health.” Third Am. Compl. ¶ 51; see also id. ¶¶ 79-86, 90-98 (describing findings from numerous studies and laboratory tests). According to the FCC, however, “the evidence for production of harmful biological effects [from low-level RF radiation] is ambiguous and unproven.” OET Bulletin 8. Results from studies have been “inconclusive,” and “while the possibility of ‘non-thermal’ biological effects may exist, whether or not such effects might indicate a human health hazard is not presently known.” Id. In light of the present state of the science, the FCC has stated that any cell phone legally sold in the United States is a “safe” phone. App. 691.

B.

Federal regulation of radio communications can be traced back a century, to the Wireless Ship Act of 1910, ch. 379, 36 Stat. 629. See Nat'l Broad. Co. v. United States, 319 U.S. 190, 210, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). Federal control over the medium was extended by the Radio-Communications Act of 1912, ch. 287, 37 Stat. 302, which mandated federal licensing of the use of radio frequencies, Nat'l Broad. Co., 319 U.S. at 210, 63 S.Ct. 997, and was cemented by the Federal Communications Act of 1934, ch. 652, 48 Stat. 1064 (“FCA”), Nat'l Broad. Co., 319 U.S. at 213-14, 63 S.Ct. 997. The FCA was enacted “[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available ... a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges....” 47 U.S.C. § 151. To that end, the FCA established the FCC, which was endowed with broad authority to license and regulate radio communications. See Nat'l Broad. Co., 319 U.S. at 214-16, 63 S.Ct. 997.

[1] The FCC's jurisdiction extends to wireless telephone service, see In re An Inquiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems, 86 F.C.C.2d 469, 470 (1981) [hereinafter Cellular Commc'ns ], and FCC authority over the technical aspects of radio communications is “exclusive,” Head v. N.M. Bd. of Exam'rs in Optometry, 374 U.S. 424, 430...