                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 10 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CTIA - THE WIRELESS                              No. 11-17707
ASSOCIATION,
                                                 D.C. No. 3:10-cv-03224-WHA
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

CITY AND COUNTY OF SAN
FRANCISCO, California,

              Defendant - Appellee.



CTIA - THE WIRELESS                              No. 11-17773
ASSOCIATION,
                                                 D.C. No. 3:10-cv-03224-WHA
              Plaintiff - Appellee,

  v.

CITY AND COUNTY OF SAN
FRANCISCO, California,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      William Alsup, District Judge, Presiding

                       Argued and Submitted August 9, 2012
                            San Francisco, California

Before: SCHROEDER and CALLAHAN, Circuit Judges, and KORMAN, Senior
District Judge.**

      This is an appeal and cross appeal from the district court’s order

preliminarily enjoining, in part, provisions of a San Francisco ordinance requiring

cell phone sellers to make certain disclosures to consumers about radiofrequency

energy emissions from cell phones. S.F. Ordinance 156-11 (1022). Under the

standard established in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626

(1986), any governmentally compelled disclosures to consumers must be “purely

factual and uncontroversial.” Id. at 651.

      The district court found the factual statements in the revised fact sheet were

accurate and not misleading. Appellant CTIA correctly points out, however, that

the revised fact sheet contains more than just facts. It also contains San

Francisco’s recommendations as to what consumers should do if they want to

reduce exposure to radiofrequency energy emissions. This language could prove

to be interpreted by consumers as expressing San Francisco’s opinion that using



       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

                                            2
cell phones is dangerous. The FCC, however, has established limits of

radiofrequency energy exposure, within which it has concluded using cell phones

is safe. See, e.g., Guidelines for Evaluating the Envt’l Effects of Radiofrequency

Radiation, 11 F.C.C.R. 15123, 15184 (1996). Moreover, the findings made by the

San Francisco Board of Supervisors on which the challenged ordinance is

predicated acknowledges that “[t]here is a debate in the scientific community about

the health effects of cell phones,” and the district court observed that “San

Francisco concedes that there is no evidence of cancer caused by cell phones.” We

cannot say on the basis of this record that the fact sheet, as modified by the district

court, is both “purely factual and uncontroversial.” Zauderer, 471 U.S. at 651.

The court therefore erred in holding the city could compel distribution of the

revised fact sheet.

      The district court enjoined the original ordinance compelling distribution of

broader materials. Id. San Francisco cross-appeals that order, seeking to enforce

the ordinance in its entirety. Since the ordinance compels statements that are even

more misleading and controversial than the revised fact sheet, the original

injunction must be affirmed.




                                           3
      The order preliminarily enjoining enforcement of the ordinance is

AFFIRMED. The court’s subsequent order modifying the injunction is

VACATED.

      The City and County of San Francisco’s motion for judicial notice filed

on January 25, 2012, is granted.

      Costs will be awarded to the plainiff-appellant.

      AFFIRMED in part, VACATED in part, and REMANDED.




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