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So what is a SAR, anyway?

As the FCC says,

Working closely with federal health and safety agencies, such as the Food and Drug Administration (FDA), the FCC has adopted limits for safe exposure to radiofrequency (RF) energy. These limits are given in terms of a unit referred to as the Specific Absorption Rate (SAR), which is a measure of the amount of radio frequency energy absorbed by the body when using a mobile phone. The FCC requires cell phone manufacturers to ensure that their phones comply with these objective limits for safe exposure. Any cell phone at or below these SAR levels (that is, any phone legally sold in the U.S.) is a “safe” phone, as measured by these standards. The FCC limit for public exposure from cellular telephones is an SAR level of 1.6 watts per kilogram (1.6 W/kg).

(from http://www.fcc.gov/cgb/sar/)

Every cell phone sold in the U.S. must comply with the FCC regulations requiring compliance with the SAR rule, and public disclosure of the SAR value via the FCC’s web site, and sometimes at other web sites.

It’s the ‘public disclosure’ part is just what the CTIA (and the wireless industry that funds it) is so afraid of.

So what, exactly, has San Francisco done to tick-off the CTIA?

San Francisco adopted an ordinance requiring easily accessible point-of-sale disclosure of the SAR value for each phone sold or leased in San Francisco by retailers. 

For the purposes of the ordinance, a retailer is someone who sells or leases cell phones to the public within the City,  or anyone who offers cell phones for sale or lease within the City. Retailers, as defined in the ordinance, specifically excludes anyone selling or leasing cell phones over the phone, by mail, or over the internet, and also excludes anyone selling or leasing cell phones directly to the public at a convention, trade show, or conference, or otherwise selling or leasing cell phones directly to the public within the City for fewer than 10 days in a year (i.e, a person who sells his or her old cell phone to someone else, for example).

So, what does the ordinance require?

First, it requires that any cell phone service provider (think: Verizon, AT&T, MetroPCS, etc.) provide the City with a list of their retailers located in the City.  That list must be updated annually.  (Ord. Sect. 1102.)

Tough to do?  I think not.

Second, if “a cell phone retailer posts display materials in connection with sample phones or phones on display, the display materials must include … three elements: (1) The SAR value of that phone and the maximum allowable SAR value for cell phones set by the FCC; (2) A statement explaining what the SAR value is; and (3) A statment that additional educational materials regarding SAR values and cell phone use are available from the cell phone retailer. ”

To promote uniformity, the City will adopt regulations specifying the content and format of the three elements just listed.

Third, the ordinance sets the minimum physical size, and the type face and minimum point equivalencies for the notice.  (Ord. Sect. 11043.)

Fourth, the ordinance phases in over the period between now an May, 2011, and does not begin enforcement actions against non-compliant persons until August 2012.  Even then, before any fines are imposed, the retailer will have 30 days to come into compliance.  And even if fines are imposed, the ordinance specifically says that fines are the only penalty…no jail time for violations.

That’s what the wireless industry finds to be simply egregious, but they frame their argument in terms of, well, PR spin.  Just read the  first line of that portion of the CTIA’s press release about it’s law suit. The quote, attributed to John Walls, their VP of Public Affairs is:

“CTIA has filed this lawsuit to prevent consumer confusion. The problem with the San Francisco ordinance is not the disclosure of wireless phone SAR values – that information is already publicly available. Consumers can learn a device’s SAR value from a number of public sources, and the value is often included in user manuals and listed on the websites of manufacturers and the FCC. CTIA’s objection to the ordinance is that displaying a phone’s SAR value at the point-of-sale suggests to the consumer that there is a meaningful safety distinction between FCC-compliant devices with different SAR levels.

“The FCC has determined that all wireless phones legally sold in the United States are ‘safe.’ The FCC monitors scientific research on a regular basis, and its standard for RF exposure is based on recommended guidelines adopted by U.S. and international standard-setting bodies. Furthermore, according to the experts at the U.S. Food and Drug Administration (FDA), the available scientific evidence shows no known health risk due to the RF energy emitted by cell phones. As the FDA states on its website, ‘[t]he weight of scientific evidence has not linked cell phones with any health problems.’

“In contrast, the message conveyed by the San Francisco ordinance to consumers is that the FCC’s standards are insufficient and that the safety of an FCC-authorized wireless device depends on its SAR level. Therefore, the ordinance contradicts the thorough review of the science by the FCC, FDA and other U.S. and international expert agencies, and will send consumers the false message that there is a safety difference between wireless devices that comply with the FCC’s stringent standards.

“The wireless industry is committed to consumer choice. That means providing consumers with the best information to assist them in making the right choice for them when purchasing a device and services.  The San Francisco ordinance, by conveying a misleading impression about the relative safety of wireless phones, will hinder – rather than assist – consumers in making their choices.”

(Emphasis added)

I love the in-your-face PR spin that the “CTIA has filed this lawsuit to prevent consumer confusion.” It’s classic misdirection. Consumer’s are confused because, ah, the same metric is presented in the same way across different handsets? And that metric is available at the very moment the consumer is considering what, exactly, to purchase? Yup, that would confuse me, too.

Not.

I’d like to offer my own idea for a label, and one that is instantly recognizable to anyone who happens to ingest food on a fairly regular basis.  A label, like I show below, could provide basic information to consumers at the time and point of sale, just when and where the CTIA would rather you not have that information. There could be room for other optional data about phone-specific features as I’ve suggested.

We learned to first live with, and then to realize the immense value of consumer information at the point-of-sale for all sorts of consumer food goods, and later at fast-food restaurants.   Consumer’s have not stopped buying groceries, nor have they stopped dining at Micky-D’s, but if they want the consumer information about what they’re going to eat, its right there for them when they are making their buying decisions.

Does any rational person believe that consumers will stop buying cell phones in San Francisco if the ordinance goes into force?

Nope, me neither.

Finally, I believe that consumer rights’ groups should be banding together to oppose to the CTIA’s lawsuit as it is an attempt to bar a government from requiring consumer-oriented disclosure of public record information. The chilling effects that would result could deal a real knock-out blow to smart, informed consumerism.

To read the law suit and the City’s ordinance at the heart of the suit, click on this link.

For more information on SAR from the FCC, start at these sites:

http://www.fcc.gov/oet/rfsafety/sar.html
and
http://www.fcc.gov/cgb/sar/

Note: I’ve been one of Palos Verdes Estates experts in this case for years.  -jlk

The FCC’s Shot Clock for siting decisions in wireless cases is turning out to be the bad idea that most governments expected it would be.   Right now we’re seeing the first round of “Chicken” …  The carriers are starting to demand siting decisions on cases because the Shot Clock rule entitles them to sue if they don’t get it.

“Okay… you want a decision?  DENIED for the following reasons based on evidence in the administrative record….”  is what some governments are starting to offer applicants who demand their ‘final’ decision on day 90 or 150.  At the last minute will one side or the other ‘blink’ in this high-stakes game of Chicken? 

In some cases, especially in California with its state law CEQA requirements and when looking at compliance with local siting ordinance requirements, the decisions simply can’t pop out on time like the output of an assembly line.

I suspect we’ll see a fair number of application denials in the next few months while all sides figure out how to live under the Shot Clock…at least until the rule is overturned or seriously limited by the courts.

It was a dumb idea for the wireless industry to push for this rule.  The only ones who will really benefit from strict and severe application of the rule will be the attorneys and experts.  As both, I still think this was a dumb idea becuase it will make siting a more rigid process.

Those are my opinions.  What are yours?

Warrantless Search of Cell Phone Data Barred Unless Necessary for Officer’s Safety or to Preserve Evidence

2008-1781.  State v. Smith, Slip Opinion No. 2009-Ohio-6426.
Greene App. No. 07-CA-47, 2008-Ohio-3717.  Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, O’Connor, and Lanzinger, JJ., concur.
Lundberg Stratton, O’Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-6426.pdf

View oral argument video of this case.
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(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.

The Court’s 4-3 majority decision, which reversed a ruling of the 2^nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools.

During pretrial proceedings, Smith moved to suppress all evidence police had obtained through the search of his cell phone, arguing that in conducting that search without first obtaining a warrant, the officers had violated his constitutional right against unreasonable search and seizure. The trial court ruled that it would not allow the state to use photographs taken from Smith’s cell phone, but denied the motion to suppress as it related to the call records and stored numbers discovered on Smith’s phone, citing a 2007 federal court decision, United States v. Finley, which held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant. Smith was convicted on all counts and sentenced to 12 years in prison.

He appealed his convictions and sentence, asserting among other claims that the trial court had erred in denying his motion to suppress evidence obtained through the warrantless phone search. In a 2-1 decision, the 2^nd District Court of Appeals affirmed the action of the trial court.  The dissenting member of the three-judge panel cited a different federal court’s decision, United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional. Smith sought and was granted Supreme Court review of the 2^nd District’s ruling with regard to the constitutionality of the phone search.

In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  … The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. … This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). … But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”

Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2^nd District’s majority and dissenting opinions.

She wrote: “In United States v. Finley …the Fifth Circuit upheld the district court’s denial of defendant’s motion to suppress call records and text messages retrieved from his cell phone. … Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant.  During the search incident to the arrest police found a cell phone in Finley’s pocket. He was taken along with his passenger to the passenger’s house, where other officers were conducting a search.  While Finley was being questioned there, officers examined the cell phone’s call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. … In upholding the search, the Fifth Circuit analogized Finley’s cell phone to a closed container found on an arrestee’s person, which may be searched. … Notably, Finley had conceded that a cell phone was analogous to a closed container. … Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”

“The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit’s decision in Finley, granted a defendant’s motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation.  They arrested Park and took him to booking, where they searched him and found a cell phone.  Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park’s cell phone. … Because the search of the cell phone’s contents was not conducted out of concern for the officer’s safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”

In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”

While acknowledging several federal court decisions during the 1990s that treated electronic pagers and computer memo books as closed containers for search and seizure purposes, Justice Lanzinger wrote: “Each of these cases, however, fails to consider the Supreme Court’s definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it.  Additionally, the pagers and computer memo books of the early and mid-1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container.  We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”

“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”

“ … We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

Justice Robert R. Cupp entered a dissenting opinion, joined by Justices Evelyn Lundberg Stratton and Terrence O’Donnell, stating that in his view the majority erred by “needlessly theorizing” about  cell phone capabilities in the abstract rather than following Finley and similar decisions which have held that police may conduct warrantless searches of closed containers found on the person of an arrestee.  He wrote: “As the majority opinion recognizes, a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest. … The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.

Thus, I would hold that the search here—which resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest—is permissible under the Fourth Amendment.

“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”

Contacts
Stephen K. Haller, 937.562.5250, for the state and Greene County prosecutor’s office.

Craig M. Jaquith, 614.644.1568, for Antwaun Smith.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click “Submit.”

Thanks to Julian Quattlebaum III of the Channel Law Group for sending this along!

This guide discusses how local government agencies can properly and effectively deal with RF safety issues that come up in connection with wireless siting cases (primarily cell sites, but also broadcast, ham radio, and commercial two-way users, as well).

While written primarily for California public law attorneys, attorneys around the country will find many important and useful gems in the article.

The editor of the Public Law Journal has kindly granted permission for me to reproduce the article in PDF format.

Please follow this link to download the article download page.

I’m pleased to report that Clearwire (through its outside counsel, Suzanne Toller  reached out to me and set up a face-to-face meeting to discuss their plans, their process, and their network technology.  That meeting occurred last month.

Following the meeting, which lasted two hours, Suzanne followed-up with a six page letter discussing the points we covered in the meeting.  While the letter, properly, reflects Clearwire’s views, I think it is helpful as it extend the dialog and expands on the information base.

I invite you to read ‘the rest of the story’ on a special page at my law firm web site, TelecomLawFirm.com, which you can reach by clicking here.

Jonathan

Before you sign on the dotted line, it’s worth pulling our your original lease (and any amendments you’ve signed) to see whether adding Clearwire (or any new proposed site occupant) is permitted or required under the lease, or whether this is an opportunity for you to adjust your site revenue upwards to reflect the new addition, and ‘true-up’ other open items connected with your tower lease.

Be especially careful if your wireless carrier tenant approaches you for permission to sublease to another wireless firm AND asks for a rent reduction at the same time.   Talk about galling!

I’ve had site landlords approach me recently who find themselves in one or more of the ugly positions I’ve just listed.  If you’d like legal assistance to avoid giving away potential new revenue, and to avoid giving away your current revenue, drop me an electronic note or give me a call.

Jonathan Kramer, Esq.
Kramer Telecom Law Firm, PC
Los Angeles

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