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CTIA argues SF cell phone law violates First Amendment

After the CTIA issued a new complaint that San Francisco's Right-to-Know Ordinance violates the First Amendment, city officials have put the law under further review.

San Francisco's board of supervisors has agreed to put its Right-to-Know Ordinance under further review after the wireless industry's lobbying arm claimed the legislation infringes on the First Amendment rights of cell phone retailers.

In an interview with CNET, CTIA spokesman John Walls said the city cannot force retailers to distribute materials that warn consumers about the possible negative effects of cell phone radiation. "You can't compel speech," he said. "Telling retailers to give out that information violates the First Amendment."

The free speech argument is just the latest in a series of attempts by the CTIA to stop the San Francisco law, which requires retailers to distribute the consumer materials and post the Specific Absorption Rate (or SAR) for all cell phones at the point of sale. Though the CTIA's main contention has long been that the ordinance is unconstitutional because only the FCC and FDA have oversight over radio frequency emissions, the organization also contends that the SAR measure is misleading to consumers.

The board of supervisors held a closed-door meeting with City Attorney Dennis Herrera's office last week to discuss the First Amendment complaint and is scheduled to hold another on Tuesday, April 5. Deputy City Attorney Vince Chhabria said the San Francisco Department of the Environment is reevaluating the consumer materials that it had prepared.

"One of the questions for [the Department of the Environment] was, 'Should we consider those First Amendment claims?'" Chhabria said. "The department is taking into account any reasonable objection."

After the San Francisco board of supervisors passed the legislation (PDF) last June, the CTIA subsequently filed a lawsuit, which is now on hold. It moved its annual trade show to San Diego beginning this October.

Chhabria insisted the CTIA is not being ignored in the review process, but he questioned why the organization never participated in the public comment period for the materials that the city held late last year. "We never received input from the industry," he said. "Instead, they added a First Amendment claim."

Walls confirmed that the CTIA did not participate in the public comment but said his organization is vetting the materials now. "I don't think our input was sought," he said. "But we're waiting to hear what the new language is."

The legislation was supposed to take effect May 1, but in February, city officials postponed the implementation date to June 15. CNET will continue to report developments as they occur.

Correction on Monday, April 4 at 5:03 p.m. PT: This story originally reported that Deputy City Attorney Vince Chhabria said the Board of Supervisors asked the Department of Environment to review the consumer materials it had prepared. The department actually took that step on its own.