WASHINGTON-Federal Communications Commission officials last week refused to discuss whether they were prodded by cellular lobbyists to get involved in brain-cancer lawsuits, the first time to date the agency is believed to have weighed in on civil health litigation.
On Nov. 21, the FCC filed a friend-of-the-court brief with the Superior Court for the District of Columbia supporting the mobile-phone industry’s pending motion to dismiss six brain-cancer lawsuits on federal pre-emption grounds.
When asked why the FCC decided to intervene in brain-cancer litigation at the D.C. Superior Court and whether agency officials met with industry lobbyists in advance of the FCC’s Nov. 21 court filing, Samuel L. Feder, acting general counsel of the FCC, refused to discuss the matter.
Likewise, Andrew McBride, lead counsel in brain-cancer litigation, did not respond to an e-mail requesting comment on any interaction with the FCC preceding the commission’s decision to file in support of cellular industry at the D.C. Superior Court. McBride, also a lead attorney in industry’s unsuccessful petition for Supreme Court review of the 4th Circuit ruling, is a lawyer at the influential telecom law firm headed by former Republican FCC chairman Richard Wiley. Kevin Martin, the sitting FCC chairman, is a former associate of Wiley Rein & Fielding L.L.P.
CTIA, the nation’s cellular trade group and defendant in brain-cancer litigation, did not respond to requests for comment.
The D.C. Superior Court, which last month asked parties to comment on the relevance of the U.S. Supreme Court’s decision allowing class-action headset lawsuits to move ahead in state courts, must agree to accept the FCC’s filing before the submission can be made part of the official record.
In March, the 4th U.S. Circuit Court of Appeals in Richmond, Va., overturned a lower court ruling and remanded to state courts four lawsuits alleging industry should have supplied headsets to consumers to limit handset radiation in view of controversy in the scientific community about the safety of mobile phones. A fifth headset lawsuit is in limbo in Maryland federal court.
Industry then failed to convince the U.S. Supreme Court to review the 4th Circuit’s decision.
While industry’s federal pre-emption argument ultimately did not succeed in ousting the five headset lawsuits, wireless lawyers are hopeful the D.C. Superior Court will toss out six brain-cancer lawsuits on pre-emption grounds.
“By permitting the Pinney [headset] plaintiffs’ claims that wireless telephones are unreasonably dangerous devices to go forward, the 4th Circuit condoned what is essentially a back-door challenge to the FCC’s decision to allow the sale of those phones to the public and to the adequacy of the RF [radio-frequency] standards the FCC adopted,” the FCC told the D.C. Superior Court. The courts have upheld the FCC’s RF radiation standard. “Because a state-law action that seeks to overturn federal agency determinations inherently `stands as an obstacle to the accomplishment and execution’ of a valid federal policy,” industry lawyers added, “such an action conflicts with federal law and is therefore pre-empted.”
Plaintiffs’ lawyers called the FCC’s attempt to file a brief a this time “a blatant attempt to reopen briefing on a motion which was filed more than one year ago.” Industry’s motion to dismiss the six brain-cancer lawsuits is ripe for a ruling.
Industry lawyers point out the U.S. Solicitor General on April 12 authorized the FCC to file a brief with the 4th Circuit when industry sought rehearing of a three judge-panel’s March 16 decision, but the action was deemed too late. The 4th Circuit on April 12 rejected the industry’s en banc rehearing request.
