Fontana v. Apple, Inc. et al

Filing 53

ORDER DISMISSING CASE: The Motions to Dismiss filed by Apple Inc. ( 40 ) and Verizon Wireless Services LLC ( 42 ) are hereby GRANTED and this case is hereby DISMISSED WITH PREJUDICE. Signed by Chief Judge Waverly D. Crenshaw, Jr on 8/3/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
ANTHONY “TONY” FONTANA,
Plaintiff,
v.
APPLE INC. AND VERIZON
WIRELESS SERVICES, LLC,
Defendants.

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No. 2:18-cv-00019
Chief Judge Crenshaw

MEMORANDUM OPINION AND ORDER
This is a personal injury action allegedly arising from Anthony Fontana’s use of a cell phone.
Now pending are Motions to Dismiss filed by Apple Inc. (Doc. No. 40) and Verizon Wireless
Services LLC (Doc. No. 42) that present the issue of whether those claims are preempted by the
Telecommunications Act of 1996 (“TCA” or “Act”) and its directive to the Federal Communications
Commission (“FCC”) to enact radio frequency (“RF”) emission regulations. Because binding Sixth
Circuit precedent suggest that they are, the motions will be granted.
I. Background
Fontana’s Amended Complaint sets forth Tennessee causes of action for strict liability in tort
and breach of warranty. The essence of his claim is that he “has suffered cancer,” and has “an
increased risk of cancer” (Doc. No. 39, Amended Complaint ¶ 11) as a result of using an iPhone 6
that was designed, manufactured, and marketed by Apple, and sold and serviced by Verizon.
Fontana asserts that Apple and Verizon “provided an inadequate warning that cell phone radiation
is ‘possibly carcinogenic’ to humans” and “failed to warn of the damaging effects of radio-frequency
radiation on human cells.” (Id. ¶¶ 12(a), (b)). He also alleges that (1) Apple failed to design the
iPhone 6 to include “certain technologies to reduce RF exposure,” ( id. ¶ 13), and (2) Defendants

jointly engaged in a “common plan” in “fail[ing] to provide adequate warnings or instructions for
the Plaintiff’s health,” (id. ¶ 28). Fontana seeks $750,000 in compensatory damages, and an equal
amount in punitive damages.
II. Discussion
This case is controlled by Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315 (6th
Cir. 2017), notwithstanding Fontana’s efforts to characterize Robbins as simply involving a zoning
dispute. There, “[s]everal Kentucky residents sued to stop a company from building a cell-phone
tower near their homes,” asserting “tort claims based on their concern that the tower will harm their
health, devalue their properties, and emit excessive light and noise.” Id. at 317-18. “To buttress
their claims of harm to public health and property values, the Residents presented an expert report
surveying the scientific literature on radio frequency . . . emissions from cell-phone towers,” that
“linked living near cell-phone towers to higher rates of cancer, brain tumors, and a multitude of
other health problems.” Id. at 318.
After observing that preemption can either be expressed by Congress or implied where
federal and state law conflict, the Sixth Circuit concluded that plaintiff’s claims were impliedly
preempted by the TCA. More specifically, the Sixth Circuit found “obstacle preemption” – a form
of implied preemption – applicable because state law in the field would be “‘an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.’” Id. at 319 (quoting
Yates v. Ortho-McNeil-Janssen Pharm., Inc., 808 F.3d 281, 294 (6th Cir. 2015)). The court then
held:
Congress passed the TCA to foster industry competition in local markets, encourage
the development of telecommunications technology, and provide consumers with
affordable access to telecommunications services. Telecommunications Act of 1996,
Preamble, Pub. L. No. 104–404, 110 Stat. 56 (1996). The TCA furthers those goals
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by preventing local governments from impeding the siting and construction of cell
towers that conform to the FCC's RF-emissions standards. See 47 U.S.C. §
332(c)(7)(B)(iv). By delegating the task of setting RF-emissions levels to the FCC,
Congress authorized the federal government—and not local governments—to strike
the proper balance between protecting the public from RF-emissions exposure and
promoting a robust telecommunications infrastructure. See id.; In the Matter of
Procedures for Reviewing Requests for Relief from State & Local Regulations
Pursuant to Section 332(c)(7)(b)(v) of the Commc’ns Act of 1934 in the Matter of
Guidelines for Evaluating the Envtl. Effects of Radiofrequency Radiation, 12 F.C.C.
Rcd. 13494, 13505 (1997).
Allowing RF-emissions-based tort suits would upset that balance and impair the
federal government's ability to promote the TCA’s goals. A proliferation of suits
similar to the one the Residents brought would tie up companies whenever they tried
to build cell towers, leading to construction delays, increased costs, and ultimately,
less public access to affordable cell-phone services. Widespread litigation would
also shift the power to regulate RF emissions away from the FCC and into the hands
of courts and state governments. Stanley v. Amalithone Realty, Inc., 94 A.D.3d 140,
940 N.Y.S.2d 65, 70 (2012).
Id. at 320.
Clearly, Robbins’ holding goes beyond a zoning dispute and cell-phone towers. It broadly
bars “RF-emissions-based tort suits” because they would impair the goals of the TCA. This has
been the holding of many other courts as well.
For example, in Farina v. Nokia Inc., 625 F.3d 97, 125 (3d Cir. 2010), the Third Circuit
upheld dismissal of a putative class action asserting that cell phones without antennas are unsafe.
In so doing, the court addressed and rejected several of the arguments now raised by Fontana,
including that (1) the savings clause of the TCA and/or the Federal Communications Act (“FCA”)
permits suits such as this, and (2) a claim alleging insufficient warnings does not call into play
federal regulations and thus there is no preemption.
The savings clause in the FCA provides: “Nothing in this chapter contained shall in any way
abridge or alter the remedies now existing at common law or by statute, but the provisions of this

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chapter are in addition to such remedies.” 47 U.S.C. § 414. A savings clause in the TCA is similar:
“This Act and the amendments made by this Act shall not be construed to modify, impair, or
supersede Federal, State, or local law unless expressly so provided in such Act or amendments.”
PL 104–104, 110 Stat 56. Even though the court in Farina recognized that “[t]he presence of a
savings provision is fundamentally incompatible with complete field preemption,” and that both
Congress and the FCC “hesitated to override all state law . . . within the field of RF preemption,”
it found conflict in the form of obstacle preemption applicable for several reasons.
The court began by reviewing Supreme Court cases that indicate “that regulatory situations
in which an agency is required to strike a balance between competing statutory objectives lend
themselves to a finding of conflict preemption.” Farina, 625 F.3d at 123 (discussing Buckman Co.
v. Plaintiffs’ Legal Comm., 531 U.S. 341, 353 (2001); Medtronic, Inc., v. Lohr, 518 U.S. 470, 485
(1996); and City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638–39 (1973)). The
court in Farina then opined:
The reason why state law conflicts with federal law in these balancing situations is
plain. When Congress charges an agency with balancing competing objectives, it
intends the agency to use its reasoned judgment to weigh the relevant considerations
and determine how best to prioritize between these objectives. Allowing state law
to impose a different standard permits a re-balancing of those considerations. A
state-law standard that is more protective of one objective may result in a standard
that is less protective of others.
625 F.3d at 123. Such is the case with the FCC and cell phones:
This is a situation “in which the Federal Government has weighed the competing
interests relevant to the particular requirement in question, reached an unambiguous
conclusion about how those competing considerations should be resolved in a
particular case or set of cases, and implemented that conclusion via a specific
mandate on manufacturers or producers.” Lohr, 518 U.S. at 501. Here, the FCC has
weighed the competing interests relevant to RF regulations—safety and efficiency.
It has reached an unambiguous conclusion by adopting [a] set of standards, see 47
C.F.R. § 2.1093(d), and it has implemented that conclusion via a specific mandate,
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requiring every cell phone sold in the United States to comply with those standards,
see 47 C.F.R. §§ 2.803(a)(1); 24.51–.52.
Id. at 125. Further,
Allowing juries to impose liability on cell phone companies for claims like
[plaintiff’s] would conflict with the FCC’s regulations. A jury determination that
cell phones in compliance with the FCC’s SAR guidelines[1] were still unreasonably
dangerous would, in essence, permit a jury to second guess the FCC’s conclusion on
how to balance its objectives. Were the FCC’s standards to constitute only a
regulatory floor upon which state law can build, juries could re-balance the FCC's
statutory objectives and inhibit the provision of quality nationwide service. . . . As
an agency engaged in rulemaking, the FCC is well positioned to solicit expert
opinions and marshal the scientific data to ensure its standards both protect the
public and provide for an efficient wireless network. Allowing juries to perform
their own risk-utility analysis and second-guess the FCC’s conclusion would disrupt
the expert balancing underlying the federal scheme.
Id. at 125-6.
Utilizing much of the same rationale, the District of Columbia Court of Appeals found
conflict/obstacle preemption applicable in a case seeking to hold “a group of cellular-telephone
manufacturers, distributors, promoters, sellers, service providers, industry associations, and
standards-setting entities” liable “for bodily injuries from cell phones that met the radio frequency
. . . radiation standard adopted by the Federal Communications Commission” because “verdicts that
would hold defendants liable for damages for bodily injuries caused by cell phones that met the FCC
RF radiation limit ‘would necessarily upset [the] balance [the agency struck] and . . . contravene the
policy judgments of the FCC” regarding how safely and efficiently to promote wireless
communication. Murray v. Motorola, Inc., 982 A.2d 764, 768, 777 (D.C. 2009) (citation omitted,
brackets in original). So did the District Court for the Central District of California in a case

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“SAR” is an acronym for specific absorption rate that “measures the amount of energy absorbed
in human tissue.” Id. at 107.

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alleging loss of hearing, vertigo and other personal injuries arising from the use of Samsung and
Motorola cellular phones because “[t]o allow state claims such as these asserted by Plaintiff to
proceed would be to question the judgment of the FCC on the issue of RF emissions standards.”
Bennett v. T-Mobile USA, Inc., 597 F. Supp. 2d 1050, 1053 (C.D. Cal. 2008); see also Firstenberg
v. Monribot, 350 P.3d 1205, 1216 (N.M. App. 2015) (citation omitted) (affirming dismissal of
claims for injunctive relief and money damages against neighbor whose electronic equipment
(including cellphone) adversely affected plaintiff’s health because “allow[ing] cell phone providers
to ‘be held liable even though they indisputably complied with’ FCC regulatory requirements,”
would “impose a legal duty that would directly conflict with federal mandates”); Stanley, 94 A.D.3d
at 146 (dismissing plaintiffs’ claim that there were high levels of RF emissions in their apartment
due to presence of cellphone towers on the roof because “[e]ntertaining plaintiffs’ claims would
require us to second guess the FCC’s standards and engage in our own form of judicial regulation
of RF emissions.”)
Likewise in this case, Fontana’s state law claims are conflict/obstacle preempted. He does
not allege that the iPhone 6 was or is noncompliant with governing FCC regulations. To the
contrary, he contends that “FCC-certified mobile phones are not deemed safe,” and that “[s]cientific
studies have demonstrated or will demonstrate a strong link between cell phone usage and cancer.”
(Doc. No. 46 at 3). Not only do these assertions mean that his claims fall within the holding of
Robbins, they also undercut his argument that “[f]ederal law becomes relevant only as a defense and
only after a plaintiff has made out the elements of his state law claims.” (Doc. No. 46 at 5). By
arguing that the iPhone 6 was defectively designed and manufactured, and sold in an
unmerchantable manner because it “fail[ed] to provide developed antenna technologies that would

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cancel radiation directed at the Plaintiff’s use” and that “the manufacturer of the iPhone 6 . . . could
have installed a shield device designed to reduce the cell phone radiation,” (Doc. No. 48 at 3),
Fontana is directly attacking the adequacy of the RF exposure regulations. Congress has left that
decision to the FCC, not the court or a jury. See, Farina, 625 F.3d at 121 (finding that, even though
plaintiff “attempts to characterize his claims as consumer claims based only on false and misleading
statements, . . . he necessarily must establish that cell phones abiding by the FCC’s SAR guidelines
are unsafe to operate . . . and “[w]hether or not [he] intends to expressly challenge the FCC
standards at trial, the inescapable effect of his complaint is to do so”); Murray, 982 A.2d at 780-81
(citations omitted, bracket in original) (“We are satisfied that state regulation (such as the damages
awards that plaintiffs seek) that would treat FCC-certified cell phones as defective and unreasonably
dangerous – because of the non-thermal effects of RF radiation, even though the phones meet the
FCC RF radiation standard – conflicts with federal law. That is because, to prove their claims
premised on allegations of injury from the non-thermal effects of RF radiation from FCC—certified
cell phones, plaintiffs will necessarily have to accept [their] premise that the FCC’s SAR maximum
is inadequate to ensure the safe use of cell phones”).
In reaching this conclusion, the Court recognizes Fontana’s reliance on the Fourth Circuit’s
decision in Pinney v. Nokia, Inc., 402 F.3d 430, 458 (4th Cir. 2005), which held that requiring cell
phones to carry headsets would have no effect on the efficiency of the wireless network and thus
preemption did not apply. However, not only is Pinney apparently somewhat of an outlier, it has
been criticized because “the focus on the headset requirement is misplaced. For the purposes of
preemption analysis, it is the cause of action, and not the specific relief requested, that matters.
Preemption speaks in terms of claims, not in terms of forms of relief.” Farina, 625 F.3d at 133.

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Pinney has also been criticized because (1) “the court appears to have reached its conclusion without
considering the views of the FCC”; (2) the “court’s focus was not on the adequacy of the FCC’s
SAR standard”; (3) it “gave weight to the fact that the FCC undertook its rulemaking relating to RF
standards pursuant to the broadly applicable National Environmental Policy Act . . . rather than
pursuant to specific radio-communications legislation,” even though “the FCC adopted its current
regulations after passage of the Telecommunications Act”; and (4) it improperly relied on the
savings clause because “[t]he Supreme Court has ‘repeatedly declined to give broad effect to saving
clauses where doing so would upset the careful regulatory scheme established by federal law.”
Murray 982 A.2d at 778 n. 19.
Ultimately, whether such criticism is warranted does not matter because this Court is bound
by Sixth Circuit authority. As already noted, Robbins makes clear that “[b]y delegating the task of
setting RF-emissions levels to the FCC, Congress authorized the federal government – and not local
governments – to strike the proper balance between protecting the public from RF-emissions
exposure and promoting a robust telecommunications infrastructure,” and “[a]llowing
RF-emissions-based tort suits would upset that balance and impair the federal government's ability
to promote the TCA’s goals.” Robbins, 854 F.3d at 820.
III. Conclusion
Based upon the foregoing, the Motions to Dismiss filed by Apple Inc. (Doc. No. 40) and
Verizon Wireless Services LLC (Doc. No. 42) are hereby GRANTED and this case is hereby
DISMISSED WITH PREJUDICE.
The Clerk of the Court shall enter a final judgment.

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IT IS SO ORDERED.

__________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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