referral to City Manager
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1. Berkeley will ensure that consumers are made aware of the Federal Communications Commission FCC s required disclosure to never carry or use a cell phone directly against the body 1 e in a pocket or tucked into a bra when turned ON and connected to a wireless network in order to avoid exposure to radio frequency RF energy that may exceed the federal exposure guideline 2180 Milvia Street 5 Floor Berkeley California 94704 Tel 5 0 981 7130 Fax 510981 7133 TDD 510981 6903 E mail manderson ci berkeley ca us website www ci berkeley ca us FINANCIAL IMPLICATIONS World renowned attorney Harvard Law Professor and Director of Edmund J Safra Center for Ethics Lawrence Lessig has offered to provide legal advice to the City of Berkeley as well as to defend this proposed ordinance pro bono BACKGROUND Essential to understanding the intent of this recommendation is the fact that what is proposed is not anew consumer disclosure but rather an attempt to further the effectiveness of cell phone manufacturers existing consumer disclosures The problem with the current manner in which this information is disclosed is that it is written in legalese and located in the fine print of user manuals or hidden within screens on the phone itself where it is unlikely to be seen by the typical consumer The nature of the disclosure itself is to direct consumers to never wear or use a cell phone directly against the body as in a pants o2. future litigation The CTIA dropped their suit upon San Francisco s repeal of the law prior to the court ruling on their petition for reimbursement of 112 097 in attorney fees For more information please read these relevant news articles http www newsweek com iphone 6 bendgate apple says your iphone shouldnt go your pocket avoid radiation 273313 Apple s Instructions Say Not to Keep Your Phone in Your Pocket Anyway http content time com time magazine article 0 9171 2029493 00 html Cell Phone Safety What the FCC Didn t Test CONTACT Councilmember Max Anderson Council District 3 510981 7130
3. navigating through the following screens Settings gt General gt About gt Legal gt RF Exposure To reduce exposure to RF energy use a hands free option such as the built in speakerphone the supplied headphones or other similar accessories Carry iPhone at least 10mm away from your body to ensure exposure levels remain at or below the as tested levels Samsung Galaxy S5 Refer to Health amp Safety amp Warranty Guide pg 3 Also found on the phone navigating through the following screens Settings gt About Device gt Legal Information gt Samsung Legal gt Health amp Safety For body worn operation this phone has been tested and meets FCC RF exposure guidelines when used with an accessory that contains no metal and that positions the mobile device a minimum of 1 0 cm from the body BlackBerry Bold Found in user guide Safety and Product Information Use hands free operation if it is available and keep the BlackBerry device at least 0 59 in 15mm from your body including the abdomen of pregnant women and the lower abdomen of teenagers when the BlackBerry device is turned on and connected to a wireless network Motorola Moto X Found in user guide in the section titled Safety Regulatory amp Legal pg 64 When using the mobile phone next to your body other than in your hand or against your head maintain a distance of 1 5 cm 3 4 inch from your body to be consistent with how the mobile phone is tested for complia
4. 37 CITY SF Office of Councilmember Max Anderson District 3 ACTION CALENDAR November 18 2014 Continued from October 28 2014 To Honorable Mayor and Members of City Council From Councilmember Max Anderson Councilmember Kriss Worthington Subject City Manager Referral Cell phone ordinance referral to City Manager RECCOMMENDATION Refer to City Manager for the creation of an ordinance to have cell phone retailers give to consumers who purchase a phone a factual informational handout referring the user to their cell phone manufacturers disclosure regarding the recommended separation distance for use against the body PROPOSED WORDING The Federal Government requires that cell phones meet radio frequency RF exposure guidelines Don t carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is turned ON and connected to a wireless network This will prevent exposure to RF levels that may exceed the federal guidelines Refer to the instructions in your phone or user manual for the recommended separation distance The above advisory will appear in the form of an informational handout to be handed to consumers by the retailer at the time of purchasing a cell phone NOTE City staff to provide specific font size and design of the handout as well as text about this being a requirement of the City of Berkeley with the city s official seal By adopting this proposal the City of
5. band the consumer may be exposed to RF radiation levels that exceed the federal exposure guideline In July 2012 the Government Accountability Office GAO issued a report called Exposure and Testing Requirements for Mobile Phones Should Be Reassessed in which the following statements appear FCC has also not reassessed its testing requirements to ensure that they identify the maximum RF energy exposure a user could experience Some consumers may use mobile phones against the body which FCC does not currently test and could result in RF energy exposure higher than the FCC limit FCC should formally reassess and if appropriate change its current RF energy exposure limit and mobile phone testing requirements related to likely usage configurations particularly when phones are held against the body Because of the separation distance allowed during testing against the body torso the FCC requires that manufacturers must inform consumers to always maintain this separation distance used at testing to ensure that the exposure levels remain below the as tested levels Specific information must be included in the operating manuals to enable users to select body worn accessories that meet the minimum test separation distance requirements Users must be fully informed of the operating requirements and restrictions to the extent that the typical user can easily understand the information to acquire the required body worn accessories to
6. maintain compliance Instructions on how to place and orient a device in body worn accessories in accordance with the test results should also be included in the user instructions All supported body worn accessory operating configurations must be clearly disclosed to users through conspicuous instructions in the user guide and user manual to ensure unsupported operations are avoided FCC KDB 447498 DOI General RF Exposure Guidance Section 4 2 2 4 The above FCC guideline is the basis for the advisories that appear in the fine print of every cell phone user manual In spite of the FCC requiring that consumers be made aware of this information manufacturers print this necessary separation distance advisor in fine print legalese and locate the consumer disclosure in difficult to find sections of cell phone user manuals or buried within the text on the phone itself NOTE This proposed ordinance seeks to make consumers aware of their cell phone manufactures separation distance disclosure as required by the FCC It also reiterates in consumer friendly language the manufacturers message that consumers must never use or carry a cell phone directly against the body while turned ON and connected to a wireless network Examples of fine print separation distance advisories for popular cell phones Apple iPhone 5 Found on the Apple website at https llwww apple com legal rfexposure iphoneS 1 e And can be found on the Phone
7. nce with RF exposure requirements Why should we be concerned about consumers not seeing the manufacturers fine print advisories to keep their cell phone a small distance from the body The manufacturers separation distance consumer advisories hidden in the manuals range from requiring a minimum usage distance of from 5 mm 1 5 inch to 25 mm l inch away from the torso They seem like such small distances why should consumers be informed Because as a matter of physics the microwave emissions from cell phones decrease sharply as the distance is increased Even a 5 mm separation distance makes a significant difference in reducing the exposure levels consumers will receive when the phone is used or carried directly against the body Consumers have the right to know How is this proposed legislation different from what San Francisco adopted in 2011 On September 10 2012 the 9 Circuit Court of Appeals ruled in an unpublished decision that the Cell Phone Fact Sheet the city had required to be distributed at the point of sale went beyond facts as it also contained recommendations from the city that do not appear in the user manuals as to what consumers should do if they want to reduce exposure to radiofrequency energy emissions such as to turn off the phone when not in use Because the Court saw this situation as mandating controversial statements that were not purely factual they ruled that the city s law violated industry s I
8. r shirt pocket or tucked into a bra or waistband when turned ON and connected to a wireless network Doing so the consumer risks exposure to radiofrequency RF radiation that may exceed the federal exposure guideline established by the Federal Communications Commission FCC Why are the fine print separation distance advisories located within phones and user manuals FCC rules state that cell phones must be tested for compliance with exposure guidelines but they allow the phones to be tested held a small separation distance away from the torso simulating being carried or used in a belt clip or holster The testing protocol for body worn use was established prior to 1996 when phones were assumed to be carried on the body in a holster or belt clip and when they were not designed to be worn and or used in pockets or tucked into bras typical ways that phones are used today Because the 18 year old federal guidelines have not been updated since they were originally established in 1996 the FCC still assumes that all cell phones are only carried or used on the body in a holster or belt clip Manufacturers wrongfully assert that all their customers always use a holster or belt clip to maintain the required separation distance when carried or used on the body The FCC does not test cell phones the way they are typically used in a pocket directly against the body Therefore if a cell phone is used in a pocket or tucked into a bra or waist
9. st Amendment Constitutional rights Berkeley s proposed Cell Phone Right to Know ordinance seeks to inform consumers of the body worn separation distance disclosure and directs consumers to their particular phone manufacturers required separation distance as this crucial safety information is not visible in the packaging The FCC requires that consumers be made aware of these body worn separation distance disclosures so this action is clearly in alignment with requirements already promulgated by the federal regulatory agency that oversees cell phone radiation exposure guidelines What are the facts about San Francisco s settlement of their Cell Phone Right to Know Law From the San Francisco Department of Environment website San Francisco believes the Ninth Circuit s opinion is deeply flawed but the City is bound by that opinion as the district court would be in further litigation over San Francisco s ordinance Accordingly San Francisco settled the case with CTIA in exchange for a waiver of attorneys fees However because the Ninth Circuit s decision is unpublished it is not binding on any jurisdiction other than San Francisco and it would not be binding on any other district court in litigation over any legislation from another jurisdiction imposing disclosure requirements on retailers Furthermore under the Federal Rules of Appellate Procedure no party is permitted to cite the Ninth Circuit s unpublished opinion as precedent in
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