3rd Circuit Holds Cell Phone Radiation Class Action Preempted by FCC Regulation

October 22, 2010. The U.S. Court of Appeals (3rdCir) issued its opinion [85 pages in PDF] in Farina v. Nokia, a putative class action against numerous cell phone manufacturers and retailers of wireless handheld telephones. The Court of Appeals affirmed the judgment of the District Court, which dismissed.

Francis Farina filed a complaint in state court in Pennsylvania alleging that the defendants' cell phones expose users to dangerous amounts of radio frequency (RF) radiation, and that this violates various Pennsylvania laws. The case was removed to the U.S. District Court (EDPenn).

The Federal Communications Commission (FCC) regulates RF radiation. See, FCC web page titled "Radio Frequency Safety".

The District Court dismissed the complaint on the grounds that it is preempted by FCC regulation. The Court of Appeals affirmed.

The Court of Appeals wrote that "The inexorable effect of allowing suits like Farina's to continue is to permit juries to second-guess the FCC’s balance of its competing objectives. The FCC is in a better position to monitor and assess the science behind RF radiation than juries in individual cases. Regulatory assessments and rulemaking call upon a myriad of empirical and scientific data and medical and scientific opinion, especially in a case, such as RF radiation, where the science remains inconclusive."

It added that "Though we foreclose relief for the members of this putative class, this does not render them devoid of protection. The FCC has pledged to serve an ongoing role in the regulation of RF radiation and to monitor the science in order to ensure its regulations remain adequate to protect the public."

This case is Francis Farina v. Nokia, Inc., et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 08-4034, an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 06-cv-0724, Judge John Padova presiding. Judge Scirica wrote the opinion of the Court of Appeals, in which Judges Ambro and Alarcon (USCA/9thCir sitting by designation), joined.