WASHINGTON – A federal appeals court has revived class-action lawsuits against dozens of cell phone companies, who were accused by users in five states of selling phones that emitted harmful levels of radiation.
The published opinion by a divided panel of the 4th U.S. Circuit Court of Appeals reversed a lower court, which said the five lawsuits were pre-empted by the Federal Communications Act.
In a 2-1 ruling, the majority said Wednesday that the relief sought by the phone users — headsets — did not interfere with the federal goal of establishing a nationwide wireless telephone network.
It ordered four of the cases returned to the state courts in which they were originally filed — including Maryland — and said the fifth should move forward in federal court.
An attorney for the cell-phone users called it “a significant opinion.”
“It’s a recognition of the validity of our position” that the lawsuits belong in state court, said the attorney, Russell Smouse.
Kenneth Starr, who argued the case for the phone companies, could not be reached Thursday to comment on the ruling. A spokesman for CTIA-The Wireless Association, which represents cell phone companies, declined comment.
Cell phone users from Maryland and four other states had sued scores of companies, including Nokia and Verizon Wireless, for selling cell phones which they argued emitted harmful levels of radiation unless they were equipped with headsets — even though that radiation was within federal limits.
Among other things, the users want the companies to provide headsets with the phones they sell. They are also asking for enough money to buy each of them a new cell phone or a headset.
The cases were removed to federal court and consolidated in Maryland, where U.S. District Judge Catherine Blake in 2002 refused to send four of them back to the state courts, saying they were a backdoor attack on the Federal Communications Commission. In 2003, she dismissed all five cases.
But Circuit Judge M. Blane Michael, in the majority opinion Wednesday, wrote that the “lurking question of federal law” does not land the users’ state-based complaints in federal courts.
“The thrust of the claims is that Nokia (and the others) violated state law by manufacturing and selling a product that it knew, or should have known, was dangerous,” Michael wrote.
He also said that Blake wrongly dismissed the fifth case on the grounds that that lawsuit was pre-empted by the FCA, and said it should move forward in the federal court system.
In his dissent, District Judge Jackson Kiser agreed with Blake that the cases would eventually ask whether the FCC’s radiation emission standards are appropriate. Kiser, of the Western District of Virginia, was sitting on the appeals case.
He wrote that the cell phone users are “seeking to completely undo the FCC standard,” by challenging not only the regulation but also the process by which it was developed and the agency’s expertise in setting radiation emission limits.
“We should not dismiss this case as lacking federal question . . . simply because the plaintiffs have filed claims cloaked in state law language,” Kiser wrote.
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