UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREW COHEN; TIMOTHY No. 20-17307 HORNICK; KALEAH C. ALLEN; KIMBERLY BENJAMIN; MARK D.C. No. WEILER; MATT KOPPIN; SCOTT 3:19-cv-05322- CISCHKE; PAUL COLETTI; KRYSTLE WHA FAERYN; RODOLFO CABRERA; BRANDY DAVIS; WILLIAM ZIDE; DAVID HEDICKER; NANCY OPINION MAEKAWA; CATHERIN GOODWIN; KATHLEEN BOGGS; MARK KUNZE; ARIANA RYAN; BECKY WELLINGTON; M. GAIL SUNDELL; VICTOR PERLMAN; ZACHARY GOMOLEKOFF; GLENN JACOBS; JUNE A. HALL, Plaintiffs-Appellants,

v. APPLE INC., Defendant-Appellee,

and SAMSUNG ELECTRONIC AMERICA, INC., Defendant. 2 COHEN V. APPLE

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted December 10, 2021 Pasadena, California

Filed August 26, 2022

Before: William A. Fletcher, Johnnie B. Rawlinson, and John B. Owens, Circuit Judges.

Opinion by Judge W. Fletcher

SUMMARY*

Preemption / Federal Communications Commission

The panel affirmed the district court’s summary judgment for Apple Inc., based on preemption of the state-law claims by federal law, in an action bought by plaintiffs, who are iPhone users, alleging that Apple breached state tort and consumer-fraud laws by misrepresenting and failing to disclose the amount of radiofrequency (“RF”) radiation emitted by iPhones.

A regulatory scheme established by a Federal Communications Commission 1996 RF Order set exposure limits that included cell phones, and it remains largely intact

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. COHEN V. APPLE 3 today. Plaintiffs alleged that RF radiation emitted by iPhones regularly exceeded the federal exposure limit, and they brought eight claims against Apple under state tort and consumer-fraud laws. The district court held that plaintiffs’ state-law claims were preempted by federal law.

The panel held that the Hobbs Act did not deprive the district court of jurisdiction. The panel rejected Apple’s argument that the Hobbs Act broadly granted exclusive jurisdiction to courts of appeals over private suits that implicated the substance of agency determinations, and divested district courts of jurisdiction to pass on any issue that would require them to decide on a determination made in an FCC final order. Plaintiffs in this case did not challenge the validity of any of the FCC’s final orders, either directly or indirectly. The issue in this case was whether the FCC’s concededly valid orders had preemptive effect. A holding that the FCC orders do, or do not, preempt plaintiffs’ state- law claims had no effect on their validity.

Turning to the merits of the appeal, the panel first addressed plaintiffs’ argument that the FCC promulgated its RF Orders under the National Environmental Policy Act (“NEPA”), which was a purely procedural statute with no preemptive force, and therefore regulations promulgated under NEPA did not preempt plaintiffs’ state-law causes of action. The panel agreed with plaintiffs that NEPA was a purely procedural statute and that it had no preemptive force. However, the panel did not agree with plaintiffs that the FCC’s RF Orders were promulgated under NEPA. The panel held that the twin Communications Acts, the Communications Act of 1934 and the Telecommunications Act of 1996, granted to the FCC broad regulatory powers over wireless communications devices. The 1996 Act 4 COHEN V. APPLE directed the FCC to complete rulemaking for RF radiation that had already