and commencement of action and relation mack and i probably spent three hours of argument just on those and you may want to touch it but at least for me i'm most interested in going to the end of the case and hearing what you have to say about conflict preemption and the fact that the initial action was taken underneath and then the subsequent action under the t c and then  only state court pennsylvania state court for breach of warranty with respect to when the rising out of the defendants voluntary and unregulated warranties and statements about the safety of their cellphones that appeared in advertising promotional literature and other documents that they used to market their phones no state or federal rule on either permitted or prevented these defendants for making the statements that they did but having ch voluntarily speak having chosen to issue warranties there was a responsibility not to deceive the public and to tell the truth in their statements in their warranties about the adverse biological facts of the emissions from the cell phones as well as the fact that they had sex could mitigate it if we start with preemption speaking only for myself would concede that that there isn't any express preemption but there's a darn good that congress passed as part of that amendments section six a one seat that specifically held that there should be no implied preemptive afact from any of the advancement that were passed it was and sufficiency of those particular are african nation standards not at all your honor we're not challenging we were not seeking a lower guideline and they are guidelines that's what the label the f c c puts on them they are guidelines we're not seeking a lower them we're not seeking to alter them what we envision your honor is in litigation similar to what the white case held and that was if the defendants want to submit evidence at trial in the lower ultimately happened in our court as a result of that in college chico is that you had there the f d a after about seventy five years coming in and in a simply in a regulation saying that we now think we were going to preempt the field where seven years earlier they had specifically made note that they were preempting the field this case is remarkably different this is a case where the f only now filing a brief but they've take taken the position for a long period of time that this is this is their bailiwick this is their turf they have the ability to make regulations here  they realize that there is not enough scientific evidence they do rely on others but they are they have actively looked at this and in fact engaged in some rulemaking activity may i disagree with the court with your  one respect to or at least if not disagree make may i at least respond to the indictment of my point being that this case is very different than what was in while your honor i think there are more power levels consistent with why and differences for example respect to the position of the s c c the position of the f c c and we are not quarrelling with the with the f c c ability and right to pass on such technical things as a spectrum yeah i mean this is ongoing and why it is look you have should have federal regulation but can you have complementary state regulation here is the court the question is who has the right two for what has the government done the government appears to have done a lot realizing that it doesn't have all the evidence and with regard to regulation of radiation pertaining to cell phones your honor the with respect to what the f c c has done was conflict preemption rather than express what conflict you're on your honor conflict preemption is is really and i believe what judge but dover found was that there was some kind of obstacle to the to the to the development and implementation of the wireless community around the country it's difficult for us to envision how a headset requirement which number one is already being manufactured and sold by these cell phone companies and number two which the f d a and the f c c themselves on their own website advocated as a mitigating measure in case consumers were afraid about the r f effects of of headsets how that would be an obstacle these companies are already engaged in the business of telecommunication of wireless telecommunications service they already provide a headset requirement which is the requirement that we ask and the agencies themselves are promulgated the r f standard advocated the congress until the regulations that were issued by the f c c states and local governments were saying we're not going to allow a cell phone tower on that parcel we're not going to allow it by on this block we're not going to allow it by th c for decades accepted that kind of regulation by the states and by the local governments and it was the power of that was invested in the f c c and the only limited preemptive powered that was invested in the f c c with the one nine hundred ninety six amendments that allowed the f c c now to step in and say ok now we have the authority now we have the ability to regulate this the f c c has made affirmative statements that until it was received that delegated congressional authority it lacked any preemptive power out all and it allowed these facilities to be located and the bees own the end of the be dictated to by the state and local state and local governments for decades so your honor there was a tolerance and acceptance of power a well regulation with respect to the states and local governments and the federal government more importantly your honor is to look at the preemptive of the preamp the scope of what the eps the telecommunications act did and what it didn't do there were no pretty there is a savings provision in the original thirty four what and what about sections se procedure that would be applicable to our two radio frequency facilities the b of seven zero four was the the component of the f a and that was congress said you've got to get your act together you haven't done anything for three years we want these regulations issued now and because we're going in now give you for the first time your preemptive authority to stop these schools and local communities from barring cellphones but we're going to do that but you have to probably hate regulations that was not a broad grant of authority to preempt local law it's certainly not to preempt warranty laws and one must also appreciate the fact that all of these regulations obligation under that statute to assess the environmental impact of its major activities there's nothing in either the original telecommunications act or subsequent acts so even if even a subsection indicated i think very strongly correctly and as the demur record that the section three thirty two c seven refers to facilities that the context of it the interpretation of it was never intended to apply to cell phones and when you couple that with the fact that the f c c has you routinely declared it's not a health and safety agency when the f d a itself which these defendants argued unsuccessfully down in louisiana first the f d a has exclusive preemptory jurisdiction under the radiation product control act of one thousand and sixty eight to regulate these then there is whatever these regulations are they're says ition as that this is they have delegated responsibility and they're doing a lot of the way and balancing here and that permitting these kinds of suits will upset function that congress wants and perform i understand that's their position your honor we don't agree with it and again we cannot understand how a suit that addresses that preserves and recognizes the sovereign sovereignty of the commonwealth of pennsylvania to regulate areas that it is regulated in the past false advertising consumer protection and health and safety a suit that seeks to take to task t defendants for their or firman of voluntary statements that's what this case is this is a case for breach of warranty because they defend the ancillary did the go into the public to sell these phones with assurances and promises of safety even the f d a and the f c c have said that there is no proof that these phones are absolutely safe there is no conflict there is consistency i understand what the f c c is saying now as we all know the f the f c c and other federal agencies have have in many cases including including wyeth and more most recently in cuomo with the o c c where the supreme court had to rein in the o c c have have expanded the authority beyond the delegation of congress and at the end of it but it that that that the very least as a result of the congressional order that there be rule making with r f radiation or standards at least that deal with or of radiation and they say look we're attempting to strike a balance here based on the evidence that we currently have that looks like the f c c has walked into the arena of regulation pertaining to our effort he ation and we do not dispute that it's what not walked into that and we do not dispute it nor we challenging nor will there be evidence at trial of an attack on your standard what we are what this case is about is can you make and misleading statements to the public in advertising material because they've waded into the area your honor does not mean that they preempted that area especially in the face of a provision in that same statute your honor that same statute there is no federal cause of action in fact wyeth indicated and recognized that in the absence of a federal remedy which there is none here state remedy should be presumed then a presumption against preemption is even  failure to provide that kind airbags and as for its particular and restraints when i was a district court wrong and citing geier and relying  on i think the district court was wrong in that the the law of preemption has evolved and we now have new guidelines and new standards and new directives from the supreme court as well as from the third circuit in the snapple case as well as in the chicken of the sea case which have recognize that the supreme court both in the tria case as well as more recently in the wyeth case has has a wife case could not be more clear your honor about reaffirming the presumption against preemption particularly in areas where states have regulated in the past an advertising and false representation stickum to consumers as well as his health and safety all of which are implicated by this litigation clearly have been our areas of pennsylvania has has i shouldn't my shouldn't we look to the to come up with a system to phase in passive restraints so there was an explicit direct congressional mandate that the department of transportation have sole responsibility to decide how and when we were going with standards and i realize yes there is a presumption against preemption but there's also that that takes you so far and then there you have either conflict preemption or fuel preemption why isn't there this to some type of implied preemption here and what when do you cross the line ok there's a presumption against preemption too there is preemption how would you write an opinion that that lays out a standard for  us there's got to be a conflict your honor and here there is no clear conflict either legally or in fact there is no conflict with the ability of of the states to provide the remedy we're asking for that conflicts with any policy any rule or any cellular services they were categorically excluded from the one nine hundred eighty five rule making process when when the f c c started looking at regulations or offering elations relating to cellular services including towers what it did was it didn't do anything for three years congress was passing a law now to give it the preemptive authority it needed on zoning issues and citing issues and it said it's an important point i have not seen in my practice and i do a lot of preemption or i've never seen an express provision by congress that affirmatively states that there's no implied preempt of a fact to be given  anything that is done under a particular statute we all know that even if there's an express preemptive provision that doesn't mean that typical conflict of principles can apply to a lot of a lot of statues of saving as in why and when congress passed the one nine hundred ninety six amendments it was very limited in how it proved in fact it wasn't a preventive it was a preservation of state authority except in certain circumstances the exception circum certain circumstances your honor was this zoning and citing of powers and facilities what they call personal wireless facilities that was an exception to the rule the general rule was that all state run that is were going to be preserved the only time that they excluded the only exemption the t c h savings was looks to me like it just deals with base stations that's right that's right there's nothing  idea of trying to put cell phones into the language of a three thirty two c seven is really a stretch that out of what it does going to say is that the act the t c h the federal action will not be construed to modify impair it will supersede federal i don't believe they're entitled to difference at all your honor in this case i think that for all of what isn't skidmore whatever persuasive effect it might have to the extent that that's what you just put over found that's what judge put over found i don't believe in the evolution of what the f c c did here but more importantly the lack of authority the lack of delegated authority that it's entitle to any difference if it has i we have an identical circumstance we have very similar similar circumstance to what we have in the in why we have an agency coming in suddenly shifting gears and claiming fraud preemptive powers displacing state laws on the face of an amethyst brief or not case a preamble to way regulation done without any notice or without any comment or without any opportunity for heard and which was inconsistent with the other thing the other thing why i said which i think applies your as well wife was very clear we have been regular they pointed out the length of time for the regulation of the f d a and said the congress of congress really wanted to clear the field here and really wanted to engage in broad preemption congress knew how to do it it didn't do it so the extensive regulation and why it was viewed as a basis not to support preemption  it's being regulated is it radio communications and cell phones or is of help it's radio frequency that is long pen instrumentality of interstate commerce it has long been within the exclusive domain of the federal government and that radio frequency is exactly what can't be defined by state borders and that is precisely why the federal government has long had radio frequency and radio frequency effects within the exclusive to the federal government in one thousand nine hundred sixty three in the head case of footnote six of the court's opinion there and we have a conflict is here your honor stems from the nature of the de fact asserted under state law that defect in order to get a breach of warranty claim must assert and prove that the products being sold by the a pelleas are unreasonably dangerous that is an element of the state law claim and proof of that element unreasonable defect through unreasonable safety brings it into direct collision with the f c c is contrary to judge a fee it would seem that maybe the interest  play is a health risk to the user as opposed to just the radio communications frequencies not all health risks your honor come within that nate nation notion of safety of persons using those waterways the supreme court concluded that where there is an area of traditional federal control as there is with waterways the presumption against preemption and the notion of historic state police against that in why if the court addressed a very different statutory regime when when congress enacts of the food and drug cosmetic act and i think thirty eight it was aware of state claims that had been made against drug manufacturers and that parallel state action through historic lawsuits that had been brought against the drug industry had always been thought to be complementary to the federal regime because it raised information coming to light about the dangers of individual drugs that had been approved by the f d a and it was only when the f d a changed its long standing regulatory position in the early two thousand that there was a question about whether or not there was a conflict between state tort actions over individual injuries and here i would like to put a footnote the plaintiffs here do not assert any injury through radio frequency emissions they specifically  define the class not to include persons insured so what in effect they're seeking to do through the lawsuit or or person is not yet injured correct what they are seeking to do through the lawsuit is to question the regulatory judgment that the f c c struck information came to light a petition was brought to the f c c saying we don't think you properly gathered information about the radio frequency effects the d c circuit reviewed that and said the f c c was well within its discretion to deny that petition because the evidence wasn't sufficient to justify the f c c reopening a standard that it is now memorialized in notice and comment would make things and the state actions that they assert here run into direct conflict with the f c c is judged meant that the standard set a fifty four safety standard for radio frequency emissions is perfectly safe for use in the  interoperable cell phone industry and that safety standard i would point out further directly came from a balancing that congress directed the f c c to conduct between the rapid deployment in the most efficient means necessary of getting to a point of cellphone services with the safety that would be experienced by the individual user and that balancing brings this case directly into because their congress had directed the national highway traffic safety administration to engage in exactly the same kind of balancing in determining at what point airbags would be mandated verses the passive restraints with seat belts and that balancing by being directed to the federal agency was exactly what mitt's ahead on there and the court upheld that balancing as being in conflict with and yet it's a very close question because you've got  circuit in an offshoot of this case coming out the opposite way let me address that judge amber because i think the penny court can be distinguished here and it's important i think for you to understand how we think the court can best address that penny was so focused on the three thirty to see issue they kind of lost sight of where the real conflict is and the conflict here comes from the regulations the f c c has promulgated to establish one industry wide nationwide standard that all manufacturers must comply with in order to get f c c authorization to sell or lease their products and buy that focus just savings clauses and how they interpret them and let me address the savings clauses your honor first the ninety six savings clause only applies to the ninety six act and it does not really act as a normal savings clause the ninety six act of course had very complex provisions that reorders the entire nature of the telecommunications industry not just in cell phones and that savings was really was in effect to keep and preserve existing federal as well as state and local power the existing federal power here stems from the one nine hundred thirty four act which makes very clear that the f c c has the authority to promulgated regulations in the public interest for the public safety and for the nation wide distribution and dissemination of radio way frequencies so if you look at the ordering clauses of the regulations that are at issue here your honour's the f c c site specific lea to the one nine hundred thirty four act provisions those provisions remain federal law under the ninety six savings laws if you look at the one hundred thirty four savings clause which isn't so for fourteen that savings clause does not interfere with the clearly exclusive c control over the radio waves as the court is the supreme court noted in the head but what it says is nothing contained in this chapter show in any way a bridge or alter the remedies now existing common law or by statute but the provision of this chapter or to such remedies and in effect what they're saying is look all we're asking is that we want to have that requirement as an addition how does that conflict with federal law before a court  a remedy a jury would need to conclude that the product being sold is unreasonably dangerous and it's of that conclusion that element of liability that brings the case into conflict with the f judgment as the court supreme court in the bates case is really you may be right but do they really have to make a determination that it's unreasonably dangerous or that there is evidence out there that it could be and that all that we're requiring is a prophylactic measure of a of a headset being sold being given out as part of the package in this particular commonwealth as we've briefed and i don't think this is being contested in the grieving pennsylvania warranty law requires an unreasonable de fact for a breach of warranty claim and that unreasonable defect must am from an unreasonable danger that is posed by the selling of the product and judge ambo the theory that they advance here has no natural limiting principle because what they argue for would lead to the proliferation of state standards in this case it's just a headset one other state may say it needs to be a headset with a particular kind of wire another state may say it needs to be a wireless had stepped out with another so for the moment you're right that they have under pennsylvania law they have to show a defect but why are they precluded from having the opportunity to prove that it's the at th because the f c c has determined that a fifty fold safety standard strikes the correct congressionally mandated balance between the rapid nationwide deployment of cell phone services and putative safety risks that the individual user would use and i want to point out that the f c c made a distinction between what is known as controlled exposure and uncontrolled exposure uncontrolled exposure is there are those situations where you and i as individual users and consumers may not know that there's any risk of our african see at all and what the f c c did was set the standards so low that it it achieves a standard so that if you have no where on a set all of any exposure risks you're you're safe in controlled circumstances it said it different standard in those are the people who work on the cell phone towers and they're exposed to higher levels of r f emissions and what the f c c was trying to do was that balance between those persons who were not aware of any risk and would be deemed to be safe to take me back in time a little bit wasn't the f c c asked including what television broadcasters that's more or less correct judge ambrose but let me emphasize how that fact i'm struck by how that factors into our analysis it i think it doesn't factor in because it reflects a natural federal agency reluctance ever since president reagan issued an executive order directing federal agencies not to take a more aggressive and robust preemptive stance than was necessary to accomplish the federal objectives what the f c c said there was that we don't need to have a complete preemption of everything related but we're going to evaluate as the case may arise in the future and certainly the first instance the penny decision by the fourth circuit triggered an immediate response by the f c c which went to the d c district of columbia superior court proceedings and filed an amicus brief which in my experience is a highly unusual act for a federal government agency to do because it wanted to emphasize to the courts that the penny decision was incorrectly decided and even after the wife's decision was handed down the f c c filed a letter brief in the murray court to say that its opinion about f c c preemption in this circumstance under this statutory regime was not altered by the supreme court's decision in the non analogous federal prescription drug context so i think if you look at the different statutory context the different history of agency action the absence of a longstanding history of complementary litigation to assist the federal agency in its actions and the parallel very close parallel to the guy or decision where there was a congressional immunity but isn't this an area where the f c c or care that doesn't have any particular expertise it has the expertise to determine the balance that congress mandated for it and under that balancing the  took into account international and national standards setting bodies what the for food and drug administration the defense department a host of federal agencies and it was the f c c nice job no quite what they did was reasonable but the question is this doesn't seem to reexamination of its regulations it will reopen those proceedings there simply hasn't been that kind of information to cause the f c c to change the authoritative balance that it struck let's spend a minute or so more on the conflict and what it actually means as i understand the plaintiffs in this case they're saying that while there may be a theoretical conflict it really is not going to affect the f c c s ability  to require a particular level of strength of admissions that it's going to be and you know it best an overlap or an overlay and while it may incrementally change the standards from state to state it's not really going to essentially affect what the f c c does which is to say this is the certain level of emissions wind another ten minutes plus my correct in stating their view and if i am what's what's the response well i think that they are attempting to minimize the conflict to the greatest extent possible because their advocacy challenge in this case but i would point out that paragraph two of the second order by the f c c states that it's balancing and it was charged with balancing we believe our decisions provide a proper balance between the need to protect the public and workers from exposure to potentially harmful r f electromagnetic fields and the requirement that industry be allowed to provide telecommunications services to the public in the most efficient and practical manner possible now under a very firy of the case all fifty states are allowed to introduce new equipment requirements new equipment standards far more complicated for manufacturers than merely adding a heads into the package for a cellphone purchase again to require under state law that the addition of a headset be made you would first have to determine the liability for an unreasonable defect in reasonable safety that's step one and only if you're able to surmount step one which is exactly where the direct conflict is  are headed right into the proliferation problem that the f c c was attempting to avoid by striking the balance over safety concerns with the widespread telecommunications concerns and i would point out one more  thing about the safety standards which is that the telecommute occasions network was designed also to facilitate safety so that a person who wanted to call nine one one using his cell phone would have the ready capacity to do that would not have to worry about iraq or ability concerns or whether or not he had left his headset at home or whether or not in the circumstances the additional equipment requirement imposed by state law would interfere with his ability to use the cell phone for a safety purpose all of those things came into part of a balancing that the f c c was engaged in here to ensure that there would be a nationwide network that would apply required we'll see what state you happen to be  if you could talk about religion back for a moment well the night circuit standard i think is one if it rested on its interpretation of a state law or requirement so i don't think that if you were to agree with  majority of circuits you would bring yourselves into conflict on that point the key thing here is that after pass away was enacted in became effective it was to eighteen over that's correct it was months after that substitution of the proper l g defendant with the improper l g defendant sort of acquit yes that's correct and whether or not that affects the remove ability or rimi and but i don't think there's a serious argument here that the request to remain a significant case well i represented diana levine in that case and i believe that this is a very different statutory regime in wyeth the key fact was that the statute had imposed on the manufacturer the duty to keep its label up to date and through the process of state law tort suits the manufacturers had information that required them to keep their labels up to date and there was a federal regulation that explicitly allowed them to change their label without prior federal food and drug administration approval if they got that information you have a totally different regime here where you've got the f c c imposing an industry wide standard that is not attempting to make individual differentiated determinations about products and you've got thousands of prescription drugs out there hosing a why isn't that persuasive evidence that they were at least at that point attempting to preempt a few well big eights actually i think that that comment really does need to be understood in its context your honor because even well before as early as nine hundred seventy nine over those technical standards which we agree is the appropriate senior to apply and just because it took a comment by ameritech and did not deem it necessary to issue a  sweeping statement of preemption in one thousand nine hundred seven does not negate the actual conflict that arises where state law claims would call into question the f c c is authoritative judgment that the balance it struck was what congress wanted in measuring safety versus rapid deployment of interoperable cellphone technologies where was when was the date of the clinician to say that we are preempting t field that was in the one nine hundred ninety seven second order i believe and so is roughly the same time that they were doing the the standards here pursuant to rule making correct it was part of that will making process that's correct so is  part of the will making process we're setting standards and we are being asked to say that we're preempting the field and we decline to say that we are preempting the field now maybe it's changed since then but if it has changed since then what is the evidence that that's the case from the f c c for the other the fact that they have bought a brief i don't think it would have occurred to the f c c to be perfectly honest that there would be a state court proceeding that wouldn't act in a parallel fashion to second guess the regulatory judgment of the commission with respect to r f standards there certainly have been no history of actions in state court for radio frequency ever and so the notion that the can cause an issue now and obviously the f c c has begun through the use of other agencies to look into it but why as a complementary standard or a couple why can't on a parallel basis court do so because that challenge is the authoritative judgment about how to strike the balance if if the f c c is determination here that manufacturers are selling unreasonably dangerous products is that which drives the conflict completely your honor if there may be issues about conduct driver conduct or are using a cell phone in a restaurant that you know the local agencies are perfectly within their power to  implement it but that's different from apparatus or equipment apparatus and equipment are what the f c c is charged with regulating and it is made that regulatory determination he a couple of points if i may on one remodel if i just the point mr fredericks making the if you need under state law an unreasonable defect and as a result of formal federal rule making the f c c has determined that there is not at this time enough evidence to show that there is an unreasonable defect to allow states to come in and to say otherwise is going to create and he didn't have the saddest but properly a hodgepodge of of various requirements in various states and you do that in pennsylvania then what's california going to do it that argument your honor is that there is not a requirement of unreasonably dangerous product under warranty law that is a strict liability product liability what would you have gone to one hundred pm law it's a preach a warranty they said things to the public that were not true they made promises that a public about safety and about the use of these phones without disclosing the biological effects that these phones cause the money decision address that specific issue a logical facts would have to claims that go forward under strict liability unreasonably dangerous principles did allow claims to go forward under claims like ours consumer warranty because false representation and warranty law has a different standard if you promise something if you make statements about something then you have to deliver in those and out was that so the fact is we do not the did the defect is not in and we don't have to demonstrate at trial that these products were unreasonably dangerous nor do we have to demonstrate that they that there should be a lesser standard as i said i expect the trial in this case to be like wyeth where they come in and say we meet the f c c standard and we point out why it is that the that they represented that these phones were absolutely safe and that they represented that these phones had outflowing no adverse health effects i know it's false and and the f c c what is it in  when we license these broadcast facilities i know i'm going a little off track but i'll call it back we underneath license these major towers that emit r f energy need to requires us as an agency to evaluate the environmental effects of what we do we have to do that the way we're going to do that is a promulgated this are half the mission and oh by the way now we're going to extend that to cell phones so what the w th the i don't while i understand and i've read what the f c c did as taking into consideration health and safety issues or environmental issues underneath the fact is the f c c is also very clearly said it's not a health and safety agency that the f d a has exclusive authority preemptive already if this was the f d a and we were here right now we wouldn't be here right now because that is what has preemptive authority over devices and that's what they argued before judgment lamell in new orleans until and initially before the four circuit until i lost and now shifted their attention to the f c c so the fact is you're on of the the  a was dragged into this fight with all due respect in voluntarily because it had a mandatory obligation underneath to assess the environmental effects of the licenses that it was issuing to these wireless providers and that was the basis for for the one nine hundred eighty five rule making where they they excluded wireless completely and focus just on broadcast television radio and satellite broadcaster celebes and i undermine out of office but also what the defendants are currently doing in the commercial marketplace and what the f c c itself has advocated is a way of mitigating the effects of horrific missions and that is use headsets and that's what we're asking for