F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N D R E W C O H E

N ; T I M O T H Y H O R N I C K ; K A L E A H C. A L L E

N ; K I M B E R L Y B E N J A M I N ; M A R K W E I L E R ; M A T T K O P P I N ; S C O T T C I S C H K E ; P A U L C O L E T T I ; K R

Y S T L E F A E R Y N ; R O D O L F O C A B R

E R A ; B R A N D Y D A V I S ; W I L L I A M Z I D E ; D A V I D H E D I C K

E R ; N A N C Y M A E K A W A ; C A T H E R

I N G O O D W

I N ; K A T H L E E N B O G G S ; M A R

K K U N Z E ; A R I A N A R Y A N ; B E C K

Y W E L L I N G T O N ; M. G A I L S U

N D E L L ; V I C T O R P E R

L M A N ; Z A C H A

R Y G O M O L E K

O F F ; G L E

N N J A C O B S ; J U

N E A. H A L L , Plaintiffs-Appellants

,

v

.

A P P L E I N C ., Defendant-Appellee

,

and

S A M S U N G E L E C T R

O N I C A M E R

I C A , I N C ., Defendant. N o. 20-17307

D.C. No. 3:19-cv-05322- W HA

OPI NI ONC O H E N V

. A P P L E 2

A ppeal from the United States District Court

for the Northern District of California W illiam Alsup, District J udg e, Presiding

Arg ued and Submitted December 10, 2021

Pasadena, California

F iled Aug ust 26, 2022

B efore: W illiam A. F letcher, J ohnnie B . Rawlinson, and

J ohn B . Owens, Circuit J udg es.

Opinion by

J udg e W

. F letcher

SUMMARY *

P reem ption / F e deral Com m unications Com m ission

The panel affirmed the d istrict court’s summary judg ment for Apple I n c., based on preemption of the state

- l aw c laims b y federal law, in an action boug ht by plaintiffs, w h o a r e i Phone users, alleg ing that Apple breached state tort a nd consumer-fraud la ws b y misrepresenting and failing to disclose the amount o f radiofrequency (“RF ”) radiation emitted by

iPhones.

A r eg ula t ory scheme established by a F ederal Communications Commission 1996 RF Order set e x posure limits that included cell phones, and it remains larg ely intact

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C O H E N V

. A P P L E 3

today

. Plaintiffs alleg ed that RF radiation emitted by iPhones
reg ularly ex ceeded the f ederal e x posure limit, and they broug ht eig h t cla i m s ag ainst A pple under state tort a nd consumer-fraud laws. The district court held that plaintiffs’ state-law claims were preempted by federal law.

T h e panel held that the Hobbs Act did not d e prive th e district court o f j u r i sdiction. T he panel rejected Apple’s
arg ument that the H o b bs Act broadly g ranted ex clusive jurisdiction to c ourts of app e a l s over private suits that implicated the substance of ag ency d eterminat i ons, a nd divested district courts of jurisdiction to pass on any issue that would require them to decide o n a determination made in

an F CC final order. Plaintiffs in this case d i d not challeng e the validity of any of the F CC’s f inal orders, either directly o r indirectly

. The issue in this case w a s w hether the F CC’s concededly valid orders had preempti v e e f f ect. A holding
t hat the F CC orders do, or do not, preempt plaintiffs’ statelaw claims had no effect on their validity

. Turning to the merits of the appe a l

, the panel first addressed plaintiffs’ arg

ument that the F CC promulg ated its RF Orders under the National Environm ental Policy A ct (“NEPA”), wh i c h was a purely procedural statute with no preemptive force, and therefore reg ulations promulg ated under NEPA did not preempt plaintiffs’ state-law causes o f action. The panel ag reed with plaintiffs that N E P A w as a purely procedural statute and that it had no preemptive force. However, the panel did not ag ree with plaintiffs t h a t the F CC’s RF Orders were promulg ated under NEPA. The panel h e l d t h a t t h e t w i n C o m m u n i c a t i o n s A c t s , t h e Communicatio n s A ct of 1934 and the Telecommunications Ac t o f 1 996, g ranted to the F CC broad reg ulatory powers

over wireless c o m m u nications devices. The 1996 A ctC O H E N V

. A P P L E 4

directed the F CC to complete rulemaking f o r R F radiation that had already been initiated under the 1934 A ct. NEPA, b y contrast, g r anted n o a f

firmative reg ulatory powers over wireless communications.

Nex t, plaintiffs arg ued that even if the F CC’s RF Orders

were pr o m u l ga ted under either, or both, of the two Communications Acts, the s av ing s clauses in those Acts preserved their state-law causes of action. Specifically

, f irst, plaintiffs arg ued that the 1 9 3 4 A ct did not authoriz e preemption b y r eg ulations promulg ated under the Act, a nd therefore their state-law causes of a ction were not p reempted by the F CC’s Orders. The panel held that a federal statute need not specify its preemptive force in order f o r the statute to have such a force, and Cong ress did n ot need to ex pressly de l e g ate preemptive authority to the F CC for its reg ulations
to p reempt state law. The operative question was whether the
ag ency meant to p r eempt the state law. The intent to preempt need not be ex press. Under the doctrine of i mplied conflict preemption, the ag ency ’ s statutorily authoriz ed reg ulations will preempt a

ny conflicting state or local law. The panel h eld that the conflict b etween the F CC’s RF radiation reg ulations and plaintiffs’ state law claims posed a sufficient obstacle to the f ull accomplishment of the F CC’s objective s. The saving s clause in § 414 o f the 1934 Act did not h elp plaintiffs. The panel c oncluded t h a t the F CC’s reg ulations under the 1934 Act, setting u pper limits on th e levels o f permitted RF radiation, preempted state laws th a t imposed liability premised on levels of rad i a t i on below the limits set by the F CC.

Second, plaintiffs arg ued that the p r eemptive scope o f the F CC’s r adiation reg u latio n s could not be determined solely by consulting the 1934 A c t

. The panel disag reed, a nd h eldC O H E N V

. A P P L E 5

that the scope of preemption of the F CC’s RF reg ulations was controlled by the 1934 Act, and the preemption p rovisions o f the 1996 Act were irrelevant. The saving s clause in Section 332(c)(7)(A) of the 1996 Act was a narrowly focused saving s

c l a use and had nothing to do with RF radiation emissi o n s from cell phones. The g eneral saving s clause in Section 601 of the 1996 Act by its very terms applied only to the 1996 A ct and does not apply

to the 1934 Act.

COUNSEL

Matthew W .H. W essler (arg u ed) and L innet Davis-Stermitz

, Gupta W essler PL L C, W ashing ton, D.C.; Eliz abeth A. F eg an and J essica H. Meeder, F e g an Scott L L C, Chicag o, I l l inois; for Plaintiffs-Appellants.

J oseph R. Palmore (arg ued) and Adam L

. Sor en s en , Morrison & Foerster L L P, W ashing ton, D.C.; W illiam F

. Tarantino and J ames R. Sig el, Morrison & F o erster L L P, San F rancisco, California; for Defendant-Appellee.

L eah M. Nicholls, Public J u stice P.C., W ashing ton, D.C., for Amicus Curiae Public J ustice.

Scott L

. Nelson and Allison M. Z ieve, Publi c C i tiz en L itig ation Group, W ashing to n, D.C., for Amicus Curiae Public Citiz en.

J oshua S. Turner, Meg an L

. B rown, and W illiam K. L ane I I I
, W iley Rein L L P, W ashing ton, D.C.; Paul V. L ett ow a nd Stephanie A. Malone y , U .S. Chamber L itig ation Center, W a shing to n , D

. C

. ; f

o r Amicus Curiae Chamber of Commerce of the United States of America.C O H E N V

. A P P L E 6

Terrenc e J

. Dee and J essica J

. Thomas, McDermott W ill & Emery L L P, Chica go , I llinois, f or Amicus Curiae CTI A—The W ireless Association.

OP INION

W

. F L ETCHER, Circuit J udg e:

Cell phones emit radiofrequency (“RF ”) radiation in the

course of their ordinary operation

. Pursuant to the C o m munications Act of 1934 and the Telecommunicatio n s Act of 1996 (“twin Communications Acts”), the F ederal Communications Commissio n (“F CC”) has promulg ated
reg ulations establishing RF radiation standards for c ell phones.

Plaintiffs-appellants (“plaintiffs”) Andrew Cohen a nd other individuals a

r e users of iPhones manufactured by defendant-appellee Apple I nc. Plaintiffs broug ht suit ag ainst Apple in the district c ourt, alleg ing that Apple breached state tort and consumer-fraud laws by misrepresenting and failing
to disclose the amount of RF radiation emitted by iPhones. The district c ourt entered summary j udg ment for Apple, holding that the p laintiffs’ state-law claims a re preempted b y federal law.

W e have jurisdiction under 28 U.S.C. § 1291 and affirm. W e hold that the district court had subject matter jurisdiction and that plaintiffs’ claims are preempted.C O H E N V

. A P P L E 7

I . B ackg round

W e b eg in with an overview o f R F radiation, of the relevant statutory structure, and of F CC reg ulation of devices that emit RF radiation.

A. RF Radiation

L ike radios and televisio n s , cell phones rely on radiofrequen c y electromag netic waves, otherwise known a s RF r adiation, to receive sig nals. Cell phones also e mit RF radiati on to send sig n als. RF radiation is a subset o f

e l ectromag netic radiation. There are two forms o f electroma g netic radiation: ioniz ing and non-ioniz ing

. I oniz ing radiation can be ex tremely d ang erous. Among other th i n gs , it can alter a person’s DNA. Non-ioniz ing radiation is much less dang erous and is incapable of damag ing DNA. However, hig h levels o f n on-ioniz ing RF radiation can cause biolog ical effects by increasing the temperatur e o f tissues. F ederal Communication s Commission, RF Safety F A Q
, h t t p s : / / w w w

. fcc.g o v/eng ineering -technolog y /el e ct ro m agn et i c

- c o m p a t i b i lity -division/radio-freq u e n c y

- s a f e t y / f a q / r f

- s a f e t y [ https://perma.cc/DD6C-3SGM] (last visited J uly 18, 2022). F or ex ample, RF radiation is used to heat food in microwave

ovens. Id. Cell p h o nes emit non-ioniz ing RF radiation, but not at hig h enoug h levels to cause thermal effects. Id.

The e ffects of non-thermal RF radiation o n human health

are controverted. Id. W hile some studies have d e s c ribed adverse biolog ical effects resulting from ex posur e t o low levels of RF radiation at levels e mitted by cell phones, many of these effects c ould not b e replicated in later studies

. Id. Current F CC reg ulations f o r cell phones set RF radiationC O H E N V

. A P P L E 8

limits far below the level at which adverse biolog ical effects in laboratory

animals have been observed.

B

. Statutory

B ackg round

Cong r es s c reated the F CC throug h the Communications Act of 1934 (“1934 Act”), Pub. L

. No. 73-416, 48 Stat. 1064 (codified as a mended at 47 U.S.C. § 1 51 et seq. ). The 1934 Act, a s amended, instructed the F CC “to make available

. . . a rapid, eff

i c i e nt, Nation-wide, and world-wide wire a nd

ra dio c ommunication service with adequate facilities at reasonable charg es,” for three purposes: (1) national defense, (2) “promoting safety

of life and property throug h the use o f wire and radio communica t i o n s ,” and (3) “securing a more effective e x ecution o f this p o licy by c e ntraliz ing authority ” previously g ranted to multi p le ag e n c ies and “g ranting additional authority with r espect to interstate a n d f oreig n

commerce in wire a

nd radio communication.” 47 U .S.C. § 151. T he 1934 Act, as amended, decla r e d i t a n ational policy “to encourag e the provision of n ew technolog ies a nd services to the public.” Id. § 157(a).

T he 1 934 Act “ endowed the [ F CC] with c omprehens i v e powers to promote and realiz e the vast potentialities o f radio.” Nat’l Broad. Co. v. United States
, 319 U.S. 190, 217 (1943). T he Act, as amended, a uthoriz ed the F CC to “[ m] ake such rules and reg ulations and prescribe such r estrictions a nd conditions, not inconsistent with law, as may be necessary to carry o ut the [ statutory ] provisions.” 47 U.S.C. § 303(r); see also id. § 154(i) ( “The Commission may perform any and all acts, make such rules and reg ulations, and issue such orders,
not inconsistent with this chapter, a s may be necessary in the

ex e c ution of its functions.”). The 1934 Act also authoriz ed the F CC, “as p ublic convenience, interest, or necessityC O H E N V

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requires,” to “[ r] eg ulate the kind of [ radio] apparatus to be used with re spect to its ex ternal effects and the purity a nd sharpness of the emiss i o ns from each station and from the apparatus therein.” Id. § 303(e).

The 1934 Act contains a g eneral saving s clause. I t provides: “Nothing in this chapter contained shall in a ny way abridg e or alter the remedies now ex isting at common law o r by statute, but the p r ovisions of this chapter are in addition to such remedies.” Id. § 414.

I n 1 996, Cong ress passed the Telec o m m u nications A ct (“1996 A ct”). Telecommunications Act of 1996, Pub. L

. No. 104-104, 110 Stat. 56. W hen the 1 9 9 6 Act was passed, the F CC had initiated b ut had not completed a rulemaking proceeding concerning RF radiation. The 1996 Act directed the F CC to “complete a c tion

. . . t o prescribe and make effective rules reg arding the environmental effects o f radio frequency emissions” within 180 d ay s after the enactment o f the Act. I d. § 704(b), 110 Stat. at 152.

The 19 9 6 Act limits the F CC’s authority where its
reg ulations w ould conflict with state and local lan d-use
reg ulations. A specif

i c s aving s clause provides, “[ N] othing in this chapter shall limit or affect the authority of a State or local g overnment or instrumental i t y thereof over decisions
reg arding the p lacement, c onstr u ction, and modification o f
p e r s o n a l w i r e l e s s s e r v i c e f a c i l i t i es

. ” 4 7 U

. S

. C

. § 332(c)( 7 ) (A )

. The Conference Report of the 1996 A ct describes § 332( c ) (7) a s “ prevent[ ing F CC] preemption o f local and State land use decisions and p reserv[ i n g] t he authority of State a

n d local g overnments over z oning a nd land use matters.” H.R. Rep. No. 104-458, at 207–08 (1996) (Conf. Rep.). That is, t h e l i m itation placed on the F CC’sC O H E N V

. A P P L E 10

preemptive powers by § 3 32(c)(7) “relate[ s] to local land use reg ulations and [ is] not intended to limit o r affect the C o m m i s s i o n ’ s g e n e r a l a u t h o r i t y o v e r r a d i o telecommunications, includin g the a uthority to reg ulate the construction, modification and operation of radio facilities.” Id. at 209.

The 19 9 6 A c t a lso contains a g eneral saving s clause. I t provides: “ Th i s Act and the amendments made by this A ct shall n ot be construed to modify

, impa i r , o r supersede F ederal, State, or local la w u n less ex pressly so provided in such Act o r a mendments.” 1996 Act § 601(c)(1), 110 Stat. at 143. The saving s clause is not cod i f ied in the United States Code, but is included as part of the notes to 47 U.S.C. § 152.

The Hobbs A ct g overns judicial r eview of FC C f inal orders. Under the H obbs Act, federal courts of appeals (ex cept the F ederal Circuit) have “ex clusive jurisdiction to enjoin, set aside, suspend (in w hole or in part), or to determine t h e validity o f,” inter alia

, “all final o rders of the F ederal Communications Commission made reviewable b y [ 47 U.S.C. § 4 02(a)] .” 28 U.S.C. § 2342; see also 47 U .S.C. § 402(a) (providing judicial r e v i e w of the F CC’s orders a nd decisions, including “[ a ] n y proceeding to e njoin, set aside, annul, or suspend any

order of the [ F CC] ”).

F CC regu l a tory actions are subject to the National Environmental Policy Act (“NEPA”). F or “[ f] ederal actions sig nificantly affecting the quality o f the human environment,” NEPA requires federal ag encies to include “a de t ai led
sta tement” reg arding the “environmental impact of the proposed action.” 42 U.S.C. § 4332(2)(C)(i). NEPA “does
not mandate particular results” but “imposes only procedural requirements o n federal ag encies with a particular focus onC O H E N V

. A P P L E 11

requiring ag encies to undertake analy ses of the environmental impact of their proposals and a c tions.” Dep’t of Transp. v

. Pub. Citizen
, 541 U.S. 752, 7 56–57 (2004) (firs t quoting Robertson v. M

ethow Valley Citizens Council

, 490 U.S. 332, 3 5 0 (1989); and then citing id. a t 349–50). B ecause t h e licensing of equipment that emits RF radia t i o n may sig nificantly affect the e nvironment, NEPA obli g a t e s t h e F C C in such cases to c o nsider t h e environmental impact of its proposed actions with respect to licensing

.

C. F CC Reg ulation of Devices that Emit RF Radiation

I n 1979, the F CC issued a notice of inquiry (“1979 Notice of I nquiry ”) to g ather information relevant to “ its reg ulatory responsibility to promote communications by radio in lig ht o f the increased c oncern about the biolog ical effects o f radio frequency radiation.” In re Responsibility of the F ederal Communications Commission to Conside r B iolog ical Effects of Radio F requency Radiation W hen Authoriz ing the U se o f Radio F requency Devices, 72 F .C.C.2d 482, 4 82, ¶ 1 (J u ne 15, 1979).

The 1979 Notice of I nqu i r y was based o n the F CC’s responsibilities under two statutes. F irst, the 1 934 Act directs the F CC “to promote the use of radio communications service

. . . as the public convenience, interest, or necessity requires,” and imp o s e s o n the F CC the “statutory oblig ation to make available, so far as possible a rapid efficient communication service at reasonable c h arg es and to prevent int e r fe r e nce between stations.” Id. a t 487–88, 4 89, ¶¶ 12, 16 (internal ellipses and quotation marks omitted). The F CC noted that, in fulfilling its statutory mandate under t h e 1 9 34 A ct, “[ a] balance must be a chieved b etween serving the public interest by fulf i l l i n g its n e e ds for communications services a ndC O H E N V

. A P P L E 12

adequately protecting the populace ag ai n s t p o t e n t i a l l y a dverse biolog ical effects that may be a tt ri b u table to ex c essive RF radiation.” Id. at 489, ¶ 17. Second, the F CC w as required to comply with NEPA. The F CC noted its “ ex plic it responsibilities under NEPA.” Id. at 488, ¶ 13.

I n 1982, pursuant to its 1979 Notice of I nquiry

, the F CC issued a notice of proposed rulemaking (“1982 N P R M ” )
reg arding t h e biolog ical effects of RF radiation. I n re Responsibility of the F ederal Communications Commission
to Consider B iolog ical Effects o f Radiofrequenc y Radiation W h en Authoriz ing the Use of Radiof r equency D evices, 89 F .C.C.2d 214 (F eb. 18, 1982). The 1982 NPRM proposed

ex p anding th e definition of “major actions” that would subject RF radiation-emitting devices to F CC licensing requirements. Id. a t 215, ¶ 2. The F CC identified the “leg al basis” for its 1982 NPRM as follows:

The action proposed is based on t h e oblig ations imposed o n the [ F CC] by the Nati o nal Environmental Policy Act of 1969 and is in furtherance o f §§ 4(i) and 303(r) o f
t h e Communications Act of 1934, a s amended, which permits the [ F CC] to make rules and reg ulations not inconsistent with other e x isting laws, as may be necessary in the ex ecution of its functions, with the additional view of securing the public welfare.

Id. pt. VI (3), a t 2 5 5 (citation omitted). The 1982 N PRM acknowledg ed that NEPA required the F CC “ to consider whether the equipment a nd operations it authoriz es wi ll ‘sig nificantly affect the quality of the human e nvironment.’” Id. at 251, ¶ 183 (quoting 42 U.S.C. § 4332(2)(c)).C O H E N V

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I n 1985, the F CC i ssued an order (“1985 RF Order”) amending its “rules implementing ” NEPA. In re Responsibility of the F ederal Communications Commission
to Consider B iolog ical Effects o f Radiofrequency Radia t ion W h en Authoriz ing the Use of R a d i o frequency Devices, 100 F .C.C.2d 543, 543, ¶ 1 (Mar. 14, 1985). The 1985 RF Order adopted the 1 982 Radio Frequency Protection Guides drafted by the A merican National Standards I nstitute (“ANSI ”). Id. ;

see id. a t 5 47, ¶ 9. I n adopting the ANSI g uidel i nes as a standard, the F CC noted: “Althoug h we have neither the

ex p ertise nor the jurisdiction to develop our own radiation

ex p osure g uidelines, we believe

. . . that the [ F CC] does have the ex pertise and authority to recognize tech n ically sound standards promulg ated by reputable a nd competent org aniz ations such as ANSI

. ” Id. at 551, ¶ 2 5 (emphas i s i n the orig inal).

The 1985 RF O rder used the ANSI standard as a “trig g ering mechanism for e nvironmenta l a ssessment.” Id.
at 560, ¶ 51. Only applications for F C C a u t h oriz ation o f radio and broadcast facilities not in co m p l i a n ce with the ANSI standard would require a thoroug h environmentalimpact analy sis, including the submission of a narr at ive environmental statement. Id. at 560–61, ¶¶ 51–54. The 1985 RF Order ex cluded from its requirements any “relatively lowpowered communications sy stems” such as mobile devices, which h a d a low likelihood of causing ex posure ex ceeding the A NSI standard. I

n re Respon s i b i l i ty of the F ederal Communication s Commission to Consider B iolog ical Effects of Radiofrequency Radiation When A uthoriz i n g the Use o f Radiofrequency D evices, 2 F CC Rcd. 2064, 2065, ¶¶ 14–15 (Apr. 9, 1987); see 1985 RF Order, 100 F .C.C.2d at 561, ¶ 54. The ANSI standard, which the F CC a dopted throug h its 1985 RF Order, e x plicitly ex c lude d “ low p ower devices such a sC O H E N V

. A P P L E 14

hand-held, mobile, and marine radio trans c e i vers” on the
g round that while “[ t] hese devices may emit localiz ed fields

ex c e eding the protection g uides, [ they ] will re s u l t i n a sig nificantly lower rate of energ y absorption than allowed for the w hole b o d y averag e.” ANSI
, American National Standard Safety L evels with Respect to Human Ex p osure to Radio Frequency Electromag netic F ields, 300 kHz to 100 GHz 10 (1982).

The F CC identified the “leg al basis” for its 1985 RF Order as follows:

This action is based on t h e oblig ations imposed o n t h e [ F CC] b y NEPA, and is in furtherance of §§ 4(i), 4 (

j )

, and 3 03(r) of the Commu nications Act of 1934, as amended. These provisions permit the [ F CC] to make rules and reg ulations not inconsistent with other ex isting laws, “a s may b e necessary in the ex ecution of its functions,” and “to carry out the provisions of” the Communications Act.

1985 RF Order, 100 F .C.C.2d at 565 (citations omitted) (first quoting 47 U .S.C. § 154(i); and the n q u o t ing 47 U .S.C. § 303(r)). The F CC identified two o bjectives in its 1985 RF Order: (1) “to cl a r i fy its policy w ith reg ard to potential ha z a r ds from RF r adiation emitted by transmitting facilities that [ it] license[ s] or authoriz e [ s ] ; ” a n d (2) “to comply with our leg al oblig ations under NEPA.” I d. at 564.

I n 1992, ANSI updated its g uidelines, narrowing the
scope of the ex clusion of low-powered devices. I n 1 993, the F CC issued a notice of proposed rulemaking (“1993 NPRM”)C O H E N V

. A P P L E 15

to adopt ANSI ’s updated 1992 g uidelines, n o t i n g that the

narrow e r e x clusion for low-powered devices was more protective than the broader ex clusion in A N S I ’ s 1982
g uidelines. In re Guideli n e s for Evaluating the Environmental Effects of Radiofrequency Radiation, 8 F CC Rcd. 2,849, 2,849, 2,851, ¶¶ 1, 14 (Apr. 8, 1993). T he F CC identified the “leg al basis” for its 1993 NPRM as follows:

This a ction is a result o f t h e [ F CC’s] leg al oblig ation s under the NEPA to provide the

means by which to evaluate [ F CC] a ctions with r espect to environmental s i g nificance, and it is in f

urt h erance of Sections 4(i), 4(j), and 303(r ) of the Communications Act o f 1934, as amended.

Id. at 2,854, ¶ 31(C) (citations omitted).

After issuance of the 1 9 9 3 NPRM a nd while the F CC’s

r u l e m a k i n g w a s p e n d i n g , C o n g r e s s e n a c t e d t h e Telecommunication Act of 1996. The 1996 Act directed the F CC to “complete action

. . . to prescribe and make effective rules reg a rding the environmental effects of radio frequency emissions” within 180 day s after the effective date of the Act. 1996 Act § 704(b), 110 Stat. at 152.

I n 1996
, the F CC issued an order (“1996 RF Order”) ad o p ting new RF radiation standards applicable to lowpowered portable devices, including c e l l phones. In re Guidelines f

o r E v aluating the Environmental E ffects o f Rad i o f requency Radiation, 11 F CC Rcd. 15,123 ( Aug

. 1, 1996). T he 1996 RF Order n oted that ANSI had adopted updated RF radiation g u idelines in 1992, and that the updated ANSI standard was “ m o r e restrictive in the amount o fC O H E N V

. A P P L E 16

environmental RF ex posure permitted.” Id. at 15,126, ¶ 8. The more protective 1992 A NSI standard provided two tiers of ex posure criteria: (1) contr o l led environments, in which those ex posed to RF radiation are aware of their potential for

ex p osure (for ex ample, as a condition of their employ ment), and (2) uncontrolled environments, in which ex p osed individuals have no knowledg e or ex pectation that t h e i r R F radiation ex posure may ex ceed permitted levels

. I d

. at 15,126, ¶ 8
, 15,136, ¶ 35. The updated standard mandated

a specific a

bsorption rate (“SAR”) limit of 0.4 W /kg a s averag e d over the whole body a n d 8 W /kg for p eak localiz ed

ex p osure (i.e., for a specific area of the body ) for cell phones in controlled environments. Id. at 15,140, ¶ 46. I t mandated

an SAR limit of 0.08 W /kg for whole-body averag e ex posure and 1 .6 W /kg for peak localiz ed ex p osure for cell phon e s in uncontrolled environments. Id.

The 1996 RF Order adopted the distinction drawn by the 1992 ANSI guidelines b etween controlled/uncontrolled environments. Id. a t 15,139, ¶ 42. I t also adopted the ANSI
g uidelines’ requirements for low- p o wer devices whose radiating structure is in direct contact with or within 20 centimeters of the human body under conditions of normal

use (e.g

., cell phones). Id. a t 15,146–47, ¶¶ 62–63. B ecause most low-power, portable devices were intend e d fo r use b y

consumers rather than solely in the workpl a c e , the F CC mandated a 1.6 W /kg max imum RF ex posure for cell p hones,

an d r o utine SAR evaluation “either by laboratory
measurement techniques or by c omputational modeling

, prior to equipment authoriz ation or use.” Id. at 15,147, ¶ 65.

The F CC’s 1 996 RF Order satisfied F CC’s o b lig ations

u n d e r § 704(b) of the 1996 Act, which directed the FC C t o “prescribe and m ak e e f fective rules reg arding theC O H E N V

. A P P L E 17

environmental effects of r adio frequency emissions” within 180 day s. 1 996 Act § 704(b), 1 10 Stat. at 1 5 2

. T h e F CC noted t h at the updated RF radiation g uidelines “will protect the public and workers from ex posure to potentially harmful RF f ields.” 1996 RF Order, 1 1 F CC Rcd. at 15,124, ¶ 1

. The F CC also noted that the g uidelines “will be of benefit both to the public and to the telecommunications industry [ b ecause t] hey will provide assurance that recent scientific knowledg e is taken into a ccount reg arding f utur e d ecisions on approval of F CC-authoriz e d facilities and e q u i pment.” I d. at 15,184, ¶ 169. The F CC identified pro v i s i ons of the 1 934 Act, a s amended, as its st a t u t ory authority to issue the 1996 RF Order. Id. at 15,185, ¶ 171.

The reg ulatory scheme established by the F CC’s 1996 RF Order remains larg e ly intact t o d a y

. Under 47 C.F .R. § 2.1093(d)(1), “[ a ]p p l i c a

t i o n s f o r equipment authoriz a tion o f
p o r t able RF sources subject to routine environmental evaluation must contain a statement co n f irming compliance with the limits specified in § 1.1310

. . . .” I n turn, 47 C.F .R. § 1.1310(c) provides: “The SAR limits f or g eneral population/uncontrolled ex posure a re 0 .08 W /kg

, a s averag ed

over the whole body

, and a peak spatial-averag e SAR o f 1.6 W /kg

, averag ed o ver any 1 g r am o f t i ssue.” I f the F CC determines that a device

, such as the iPhone, complies with its RF radiation g uidelines (tested at max imum power a nd under m o r e ex treme conditions than normal use) and other
te c h n i cal standards, the ag ency issues a c ertification authoriz ing s a l e of the d evice. 47 C.F .R. § 2.907. I f the de v i c e “would cause human ex posure to levels of RF radiation in ex c ess of the limits in § 1.1310,” the applicant for equipment au thoriz ation must prepare an environmental
assessment. Id. § 1.1307(b)(1)(i)(C). The proposed d evice

can still be approved f

o r sale i f t h e F CC determines that itC O H E N V

. A P P L E 18

will not have a sig nificant impact on the human environment. Id. § 1.1308(d). I n practice, how e v e r, t he F CC sees the RF radiation limits as a “ de facto compliance requ i r e m ent.” 1996 RF Order, 11 F CC Rcd. a t 15226. According to an

a micus brief filed by the United States before the Su p r e m e Court i n 2011, cell phone manufacturers “have never attempted to obtain approval to sell non-compliant phones b y submitting an [ environmental asse s s ment] ” since the promulg a tion o f the F CC’s RF radiation rules. B rief for the United States as Amicus Curia e at 19–20, Farina v. Nokia, Inc.
, 565 U .S. 928 (2011) (No. 10-1064), 2011 W L 3799082, at *19–20.

I n 2013, the F CC issued a notice of inquiry (“2013 Notice of I nquiry ”) soliciting public c o m ments about whether the 1996 RF ex posure limits should b e r e a ssessed. I n re Reassessment of F ed eral Communications Commission Radiofrequency Ex posure L imits and Policies, 28 F CC Rcd. 3
, 4 98, 3 ,498, ¶ 1 (Mar. 29, 2013). T he 2 013 No t i ce o f I nquiry affirmed the F CC’s previous view that it must strike

a balance between public safety and the public’s access to new telecommunications services. The F CC ex p lained:

The [F CC] has a responsibility to p r o v ide a proper balance between the need to protect the public a nd worker s from e x posure to potentially harmful RF electromag netic fields

an d t h e requirement that industry be allowed
to provide telecommunications services to the public in the most efficient a nd practical

m a nner possible. The intent of our ex p o s u r e limits is to provide a cap that both protects the public based on scientific consensus a n d

a l l o w s f

o r e f f i c i e n t a n d p r a c t i c a lC O H E N V

. A P P L E 19

implementation of wireless services. The present [ F CC] ex posure limit is a “brig ht-line rule.” T h at is, so long as ex p osure levels a re below a specif

i e d limit value, there is no requirement to further reduce ex posure. The limit is readily justi fi ed when it is based on known a dverse health effects having a well-defined threshold, and the limit includes prudent additional safety factors (e.g ., setting the limit sig n i f

i c a ntly below the threshold where k n o wn adverse health effects may beg in to occur). Our current RF ex posure g uidelines are an ex ample of such reg ulation, including a s ig n ificant “ safety ” f actor, whereby the e x posure limits are set at a level

on the order of 5 0 times below the level at which adverse biolog ical effects have b e en observe d in laboratory animals a s a result o f tissue heating resulting from RF ex posure.

Id. at 3,582, ¶ 236 (footnote omitted ) (internal quotation marks omitted).

I n 2019, the F CC issued an order and resolution of notice of inquiry (“2019 RF Order”) that left intac t its 1996 RF radiation g uidelines, i n cluding for cell phones. In re Proposed Chang es in the Commission’s Rules Reg arding Human Ex posure to Radiofrequency Electromag n etic F ields, 34 F CC Rcd. 11,687, 11,688, ¶ 2 (Dec. 4
, 2019); id at 11,696, ¶ 14. I n Environmental H ealth Trust v. FCC
, 9 F .4th 893 (D.C. Cir. 2021), the D.C. Circ u i t gr anted in part a petition challeng ing the 2019 RF Order and r emanded to the F CC for further proceeding s. The D

. C

. C ircuit held that the F CC “failed to pro v i d e a reasoned ex planation for itsC O H E N V

. A P P L E 20

determination tha t i ts g u idelines a d e q uately protect ag ainst the harmful effects of ex posure to r adiofrequency radiation unrelated to cancer.” I

d. at 900.

D. F actual and Procedural B a ckg r ound

Pla i n t i f fs-appellants A ndrew Cohen a nd other individuals

are iPhone users. Defendant-appellee Appl e, I nc., is a California corporation. App l e desig ns, manufactures, a nd sells consumer electronic products, including the iPhone.

I n Aug ust 2 019, the Chicago Tribune reported results of its independent investig ation of RF radiation levels of popular cell phones sold in the United States. Sam Roe, W e Tested Popular Cellphones for Radiofrequency Radiation. Now the FCC Is Investigating.
, Chi. Tribune, Aug

. 21, 2019, h t t p s : / / w w w

. c h i c a g o t

r i b u n e

. c o m / i n v e s t i g a t i o n s / c t

- c e l l

- p h o n e

r a d i a t i o n

- t e s t i n g

- 2 0 1 9 0 8 2 1

- 7 2 q gu 4 n z l f d a 5 k y u h t e i i e h 4 d a

story .html. According to the report, RF radiation ex posure from Apple’s iPhone 7 “measured over the leg al safety limit

a n d m o re than double” what Apple found f rom its o w n testing

. Id.

Two day s after publication of the Tri b u n e ’ s report, plaintiffs filed a putative class action in the district court seeking to represent all iPhone users in the United States. W ithin a few weeks, a nearly identical complaint was filed in the district court on b e h alf of different named plaintiffs. The district court consolidated the two actions, and plaintiffs filed a consolidated amended class action complaint.

The complaint alleg ed that RF ra d i a t i on emitted b y i P hones reg ularly ex c eeded the federal ex posure limit. The

c o m p l aint relied heavily on the Tribune ’s testing of the R FC O H E N V

. A P P L E 21

radiation emitted b y i P hones, citing the Tribune ’s report o f data showing that RF radiation ex p osure to iPhone 7 models
averag e d 2.59 W /k g a

nd 3.225 W /kg in two tests, both o f

w hich e x ceeded the federal ex posure limit of 1.6 W / k g. Plaintiffs’ counsel also conducted their own testing

, using the

same lab the Tribune h ad used. They tested additional iPhone mod e l s , and they tested at a z ero-millimeter distance to replicate use of t h e i Phone ag ainst the skin. A ccording to their testing

, RF r adiation emi t t ed by iPhone 7 models reached 3.6 W /kg at a 5 -millimeter separation distan c e

. B a s e d on data o b tained from this testing

, the complaint alleg ed that Apple eng ag ed in “deceptive and misleading ” marketing by advertising iPhones a s safe when u s e d ag ainst the body (for ex ample, b y a dvertising the iPhone as “the I nternet in y our pocket” or showing people h o l d i n g iPhones in their bare hands in commercials).

The Tribune ’s story prompted the F CC to conduct f urther testing of iPhones. I n December 2019, the F CC published the

r e s u lts of its own testing

. The F CC’s further testing measured RF radiation ex posure from iPhones as w ell within th e s a fe t y limits. The testing revealed no evidence o f violation of the F CC’s technical standards.

P l a intiffs’ complaint alleg ed e ig ht claims ag ainst Apple under state tort and consumer-fraud laws: (1) Apple intentionally misrepresented th e safety of iPhones despite knowing th a t their RF radiation ex ceeded federal limits; (2) Apple fa i l e d to ex ercise reasonable care in not warning plaintiffs about unsafe RF radiation emitted by iPhones; (3) Apple violated California’s Unfair Competition L a w b y failing to disclose that iPhones emitted RF radiation at unsafe levels or levels ex ceeding the federal limit; (4) A pple v iolated Califor n i a’s Consumers L eg al Remedies Act by failing toC O H E N V

. A P P L E 22

disclose that iPhones emitted RF radiation at unsafe levels o r levels ex ceeding the f

e d eral limit; ( 5 ) A pple v iolated California’s false ad vertising law by failing to disclose that iPhones emitted RF rad iation at unsafe levels o r levels

ex c e eding the f

ederal limit; (6) Apple violated various states’

consumer protection acts d u e to its dissemination o f deceptive and misleading a d v e r tising materials; (7) Apple

was un j u s t l y enriched because plaintiffs did not receive products as marketed by A ppl e ; a nd ( 8) Apple breached its implied w arranty that iPhones were safe for o r dinary u se. The complaint soug ht class certification, a finding o f liability
ag ainst Apple, the e stablishment o f a medical monitoring fund under claims ( 1) a

nd (2), money damag es, appropriate injunctive relief, and attorney ’s fees.

On J anuary 2, 2020, Apple m o v e d to dismiss plaintiffs’

c o m p laint. Apple arg ued, inter alia

, that plaintiffs lac k e d A r t i cle I I I standing a

nd, assuming standing

, that federal law preempted plaintiffs’ claims. F ollowing a hearing

, the district
court found that Apple had presented ma t ters outside o f the pleading s. The district court conver t e d Apple’s motion to dismiss into a motion for summary judg ment.

The district court invited the F CC to participate as amicus curiae. The F CC filed a statement of interest on A pril 13, 2020, in which it made three main a r g u ments. F irst, the F CC
arg ued that “[ t] o the ex tent that plaintiffs’ claims effectively challeng e the adequacy or reason a b l eness of F CC testing procedures for assessing compliance wi t h RF limits, the [ district court] lacks jurisdiction” under 28 U.S.C. § 2342(1). Second, the F CC arg ued tha t “p laintiffs’ c laims a re preempted to the ex tent they sug g est that RF emissions from cell phones certified b y the F CC for sale in the United States

are unsafe.” T he F CC arg ued that the F CC’s reg ulationsC O H E N V

. A P P L E 23

reflected cong r essional ex pectation that “the F CC

. . . use its

ex p ert judg ment to balance different policy o b jectives,” including “between ‘adequate safeg uards of t h e public health’

a n d ‘ s p eed[ y ] d eploy

ment o f co m p e t i t i v e w i r e l e s s tel ec o mmunications services.’” The F CC contended that litig ation such as plaintiffs’ “is especially disruptive to the F CC’s certification prog ram because plaintiffs seek r e l ief based on third-party testing that may have inaccurately measured the RF emissions of Apple’s iPhones.” Third, the F CC a rg ued t hat the district c ourt h ad no jurisdiction over plaintiffs’ state-law claims that A p p l e f a iled to disclose that iPhones emitted RF radiation at unsafe levels o r levels

ex c e eding the F CC’s RF limits. E v en if the district c ourt h ad jurisdiction, the F CC a

rg ued, fed e ral law preempted those claims.

I n its statement of interest, the F CC a sserted that Apple’s iPhone ( including the iPhone 7
, the iPhone X, and the iPhone XS) complied with federal RF radiation g uidelines. The F CC stated that it had tested e ach iPhone mode l f o r the specific bands o f operations investig a ted by the Chicago Tribune

, a nd had fo u nd that the tested phones p roduced max imum

measure d e x p osure of 0.946 W /kg for the iPhone 7, 0.799 W /kg for the iPhone X, and 1.35 W /kg f o r t h e iPhone XS—all well under the F CC’s permitted max i m u m o f 1.6 W /kg

.

I n October 2 020, the district court en t e r e d summary judg ment f

or Apple. The district court held tha t t h e F CC promulg a ted substantive RF r a d iation reg ulations under the 1934 Act rather than under N E P A

. The district court f ound that the 1996 Act’s g eneral saving s clause, 47 U.S.C. § 253, and § 601(c) of the 1996 Act d id not c h a ng e the normal operation o f conflict-preemption analy sis or limit the F CC’sC O H E N V

. A P P L E 24

statutory authority to reg ulate RF radiation. The district court concluded that the F CC’s reg ulation of RF radiation, as part of its equipment-authoriz ation reg ime, preempted plaintiffs’ claims. I n reaching this conclusion, the district c o urt relied

on Farina v. Nokia, Inc.
, 625 F .3d 97, 133–34 (3d Cir. 2010), in which the Third Circuit h eld that the F CC’s r eg ul a tions preempted similar claims under state law.

Plaintiffs timely

appealed. On appeal, they concede that RF radiation e missions from Apple’s iPhone are at levels below the max imum permitted by F CC reg ulation s

. Their primary arg uments on appeal are that (1) neither the 1934 Act, 1996 Act, nor NEPA g ives the F CC authority to preempt state law concerning c ell-ph o n e radiofrequency radiation, a nd (2) the F CC’s RF ra diation reg ulations do n ot preempt state-law causes of action tha t are premised on max imum levels o f RF radiation below the max imum level set by the F CC.

I I . Standard of Review

W e review a district court’s g rant of summary judg ment de novo

. See Zetwick v. County of Y olo

, 850 F .3d 436, 440 ( 9th Cir. 2 017). “Summary judg ment is appropriate whe n , viewing the evide n ce i n the lig ht most favorable to the nonmoving party , there is no g enuine dispu t e a s to any material fact.” Id. ( citation omitted).

I I I . Analy sis

A. Subject Matter J urisdiction Under the Hobbs Act

Under the Hobbs Act, federal courts o f a p peals ( e x cept the F e deral Circuit) have “ e x clusive jurisdiction to enjoin, setC O H E N V

. A P P L E 25

aside, suspend (in w h o l e o r in part), or to determine the validity of

. . . all final orders of the [ F CC] made reviewable b y [ 4 7 U.S.C. § 402(a)] .” 28 U.S.C. § 2342(1); s e e a l s o 47 U.S.C. § 4 02(a) (providing judicial review of F CC’s orders and decisions, including “ [a] ny proceeding to enjo i n , set aside, annul, or suspend any order of the [ F CC] ”)

. I n addition to d irect challeng es to ag ency orders, the Hobbs A ct g rants ex c lusive jurisdiction to courts of appeals over suits
ag ainst private parties that would require the court to enjoin,
set aside, suspend, or determine t h e validity of a final F CC order. W ilson v. A.H. Belo Corp.
, 87 F .3d 393, 3 9 9–400 (9th Cir. 1996); see also P u b. W atchdogs v. S. Cal. E d i son Co.
, 9 84 F

. 3d 744, 7 6 5 (9th Cir. 2 020) (Nuclear Reg ulatory Commission order).

Apple arg ues that the Hobbs Act broadly g rants ex clusive jurisdiction to c ourts of appeals o v e r private suits that implicate the substance of ag e ncy determinations. Citing two of our cases, Apple arg u es that “the Hobbs Act divests district courts of jurisdiction to pass on a ny issue that would require them to decide w hether they ‘ag reed’ o r ‘disag reed’ with a de t e rmination made in an F CC final o rder,” and that the district c ourt therefore did not have jurisdiction over this

case.

W e disag ree. Neither c ase cited by Apple g oes so far. I n W ilson

, 8 7 F

. 3d a t 395, plaintiffs broug h t suit in district court ag ainst California television stations to r ecover pay ments for campaig n advertisements that alleg edly ex ceeded limits imposed by § 315(b) of the 1 9 34 Act. The F CC had issued a declaratory ruling a sserting its ex clusive auth o r i ty to adjudicate and enforce all c l a i m s under § 3 15(b). Id. W e he l d that the Hobbs Act barred jurisdiction because the plaintiffs, in effect, had asked the district court to set aside o rC O H E N V

. A P P L E 26

determine the validity of the F CC’s declaratory ruling

. Id. at 4 0 0

. Similarly

, in Public W atchdogs

, 9 84 F .3d at 765, t h e plaintiff broug ht state-law claims ag ainst u t ility companies, alleg ing mishandling of nucl e a r w a ste, and arg uing that the Nuclear Reg ul a t ory Commission (“NRC”) had improperly
g ranted a licensing amendment. W e held that the Hobbs A ct barred the plaintiff’s “veiled challeng e” to th e NRC license
g rant in t h e d i s trict court. I d. I n both cases, plaintiffs’ lawsuits in effect would h ave required the district c ourt to set aside or determine the validity of an ag e ncy final order.

B y c ontrast, plaintiffs in this c a se do not challeng e the validity of any of the F CC’s final o r d e r s , either directly o r indirectly

. The issue i n t h is case is whether the F CC’s concededly valid o rders have preemptive eff ec t. A holding that the F CC o r ders d o, or do not, preempt plaintiffs’ statelaw claims has no effect on their validity

.

W e therefore hold that the H obbs Act does not deprive the district court of jurisdiction, and we reach the merit s of the appeal.

B . Preemption

Plaintiffs arg ue on two g rounds that their state-law c laims

are not preempted. F irst, they arg ue that t h e FC C
p r o mulg ated its RF Orders under NEPA. They arg u e t h at because NEPA is a purely procedural statute with no preemptive force, reg ulations promulgated under NEPA do
not preem p t t heir state-law causes o f action. Second, they
arg ue that even if the F CC’s RF Orders were pro m ulg atedC O H E N V

. A P P L E 27

under either, or b oth, of the twin Co m m u nications Acts, the saving s clauses in those Acts preserve their state-law causes of action.

W e disag ree with both g rounds.

1. NEPA

W e ag ree with plaintiffs that NEPA is a purely procedural statute and that it has no preemptive force. However, we do

no t a g ree with plaintiffs that the F CC’s RF O rders were promulg a ted under NEPA.

The twin C o m m u nications A cts g rant to the F CC broad

r eg ulatory p o wers over w ireless c ommunication devices. T h e 1934 Act authoriz es the F CC to: (1) “Reg ulate the k ind o f apparat u s t o b e used with respect to its ex ternal effects a nd the purity and sharpness of the emissions,” 4 7 U

. S

. C. § 303(e); (2) “Make such rules and r eg ulations a nd prescribe such restrictions and conditions, not inconsistent with law, a s may be necessary to carry out the provisions of [ the Communications Acts] ,” id. § 3 03(r); and (3) “[ P] erform any and all a cts, make such rules and reg ulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the ex e cution of its functions,” id. § 154(i).

The 1 996 Act directed the F CC to complete rulem a k i n g for RF radiation that had alre a d y b e en initiated under the 1934 Act. Section 704(b) of the 1996 A ct provides: “W ithin 180 d ay s after the e nactment of this Act, the [ F C C] shall complete a ction in E T D ocket 93-62 to prescribe and make effective rules reg arding the environmenta l effects of radio f r e q u e n cy emissions.” 1996 Act § 704(b), 110 Stat. at 152. Section 704(b) d oes not i tself g rant rulemaking a uthority

.C O H E N V

. A P P L E 28

Rather, i t r equires the F CC to complete its p reex isting rulemaking proceeding initiated in the 1993 NPRM under the authority of the 1934 Act. See Farina
, 625 F .3d at 128 & n.28.

The F CC has been consiste n t in stating that its authority
to reg u late RF radiation-emitting com m u nication devices

comes from the 1934 Act. The F CC w r o te in the 1982 NPRM that l ed to its 1985 RF Order, “The action proposed is

. . . in furt h e r a n c e o f §§ 4(i) and 303(r) o f the Communications Act o f 1934

. . . , which permits the [ F CC]
to make rules and reg

ulations . . . as may

be necessary in the

ex e c ution of its functions.” 1982 NPRM, 89 F .C.C.2d at 255. I t w r ote in connection with the 1985 RF Order itself, “Th i s action is

. . . in furtherance of § § 4 (i), 4(j), and 303(r) of the Communications Act of 1934[ .] ” 1 985 RF Or d e r , 1 00 F .C.C.2d at 565. I t wrote in the 1993 NPRM that l e d t o i ts 1996 RF O rder, “This action is

. . . in furtherance o f Sections 4(i), 4(j), and 303(r) of the Communications Act o f 1934[ .] ” 1 9 9 3 NPRM, 8 F CC Rcd. at 2854. I t wrote in its 2 0 1 9 R F Order, “The [ F CC’s] authority to adopt and enforce RF

ex p osure limits pursuant to the C o m m u n ications Act

. . . is well established.” 2019 RF Order, 34 F CC Rcd. at 1 1
, 6 89 n.5.

NEPA, by con t r a st, g rants no a f firmative reg ulatory
powers o v e r w ireless communications. I t is a procedural
statute desig ned to ensure that federal actions, including
reg ulatory actions, are reviewed for their environmental
consequences. See 4 2 U .S.C. § 4332. The F CC’s 1985, 1996 and 2019 RF Orders were not authoriz ed by NEPA. Rather,
t h e y were constrained by NEPA. Several of the F CC ’s
statements reflect this understanding of NEPA. F or ex ample, the F CC wrote in its 1985 RF Order, “This action is based onC O H E N V

. A P P L E 29

the o blig ations imposed on the [ F CC] by NEPA[ .] ” 1985 RF O r d e r , 100 F

. C.C.2d at 565. I t wrote in its 1996 RF Ord e r that it issued th e o r der “to fulfill [its] responsibilities under NEPA.” 1 996 RF Order, 1 1 F CC Rcd. at 15,183. I t wrote in its 2019 RF Order, “The Commission’s authority to adopt a nd enforce RF ex p osure limits

. . . consistent with NEPA is w ell established.” 2019 RF Order, 34 F CC Rcd. at 11,689 n.5.

W e therefore reject plaintiffs’ arg ument that t h e F CC’s RF Orders were promulg ated under NEPA.

2. The Twin Communications Acts

Alternatively

, plaintiffs arg ue t h a t neither the 1934 A ct

nor the 1996 Act preempts their state-law claims. They make essentially two arg uments. F irst, they arg ue that the 1934 A ct does not provide authority to the F CC to promulgate
reg ulations that preempt their state-law claims. Second, they
arg ue that reading the 1934 and 1996 A c t s t og ether “makes clear that Cong ress did not authoriz e the F CC’s reg ulations to displace state law here.” W e take each arg ument in turn.

a . Authority

under the 1934 Act

Pl a i n tiffs arg ue that the 1934 Act does not authoriz e pree mption by reg ulations promulg ated under the Act, a nd that it s s t at e

- law causes of action are not preempted by the F CC’s orders. W e disag ree.

“The Supremacy Clause p rovides the constitut i o nal foundation for federal authority to preempt sta t e law.” Beaver v. Tarsadia H

ot e l s , 8 1 6 F .3d 1170, 1178 (9th Cir. 2016) (citing U.S. Const. art. VI
, cl. 2 ; Kurns v. R.R. Friction Prods. Corp.
, 565 U.S. 625, 630 (2012)). “Preemption o fC O H E N V

. A P P L E 30

state law, by operation of the Supremacy Clause, can occur in

one of several way s: ex press, field, or conflict preemption.” Id. ( citing Kurns
, 5 6 5 U.S. a t 630–31). Absent ex press cong ressional preemption, f ederal law preempts sta te law “when the scope of a [ federal] statute indicates that Cong ress intended federal law t o o c cupy a field ex clusively

, ” Kurns
, 565 U.S. at 630 ( alteration in o rig inal) (quoting Freightliner Corp. v

. Myrick

, 514 U.S. 2 8 0
, 287 (1995)), or where “the
state law ‘stands as an obstacle to the accomplis h m e n t and

ex e c ution of the full purposes and objectives of Cong r ess,’” Beaver
, 816 F

. 3d at 1179 (quot i n g C rosby v. Nat’l F

o reign Trade Council

, 5 3 0 U.S. 3 63, 3 72 –73 (2000)). Our

“ p r e emption analy sis is d riven by the presumption that ‘the historic police powers of the States were not to be superseded by the F ederal Act unless that was the clear and manifest
purpose of Cong ress.’” Id. ( quoting W y eth v. Levine
, 555 U.S. 555, 565 (2009)).

A federal statute need not specify its preemptive force in order for the statute to have such force. The Supreme Court has stated, plainly and repeatedly : “A p re-emptive
reg ulation’s force does not depend on ex press cong ressional authoriz ation to displace state law[ .] ” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta
, 458 U.S. 141, 1 54 ( 1982); see also City of New Y ork v. FCC
, 486 U.S. 57, 64 (1988). W hile plaintiffs protest that “Apple dusts off two decades-old cases” (both de la Cuesta and City of New Y ork were d ecided in the 1980s), the Supreme Court has never overruled either case, and they remain g ood law. We have cited them as providing the standard g overning ag ency preemption. See MetroPCS Cal., LLC v. P icker

, 970 F .3d 11 0 6
, 1 117 (9th Cir. 2 020); Barrientos v. 1 801–1825 Morton LLC , 583 F .3d 1197, 1208 (9th Cir. 2009) (specifically citing de la Cuesta
, 458 U.S. at 154, for the proposition that “[ a] pre-emptive reg ulation’sC O H E N V

. A P P L E 31

force does not depend on e x press cong ressional authoriz ation
to d isplace state law”). W e therefore conclude that Cong ress need not ex pressly deleg ate p reemptive authority to the F CC for its reg ulations to preempt state law.

“Along with Cong ress, ‘ a federal ag ency acting within the
scope of its con g ressionally deleg ated authority may pre-empt state reg u lation.’” Barrientos
, 583 F .3d at 1208 (quoting City of New Y o rk

, 486 U.S. at 6 3–64). F ir s t , f o r a reg ulation to have p reemptive force, it must f a l l “ within the scope of the [ federal a g ency ’s] d eleg ated authority ,” id. at 583 F .3d
at 1208 ( a lteration in orig inal) ( q uoting d e la Cuesta
, 458 U.S. at 154), o r, in other word s , i t m u s t b e “statutorily

a u t h o r iz ed,” City of New Y ork

, 486 U.S. at 64. Second, t h e ag ency must have “meant to p re-empt” state law. MetroPCS
, 970 F .3d at 1 117 (quoting Barr i e n t os , 583 F .3d at 1208). “W h e re, a s here, we consider whether a federal ag ency has preempted state reg ulation, we do n ot focus on Cong ress’s ‘intent to supersede state law’ but instead ask ‘wheth e r [ the federal a g ency ] meant to pre-empt [ the sta t e law] .’” Id. (quoting Barrientos , 583 F .3d at 1208).

I mportantly

, the intent to pre-empt need not be ex p re ss

. Geier v. Am. Honda Motor Co.
, 5 2 9 U.S. 861, 884–85 (2000). Under the doctrine of implied conflict preemption, “[ t] he statutorily authoriz ed reg ulations of an ag ency will pre-empt any state or local law that conflicts w ith such r eg ul a t i ons o r frustrates the purposes thereof.” City of New Y ork

, 486 U.S.
at 63. I n other words, it must be either “impossible to comply with both s t ate and federal requirements,” or the state law
must stand “ as an obstacle to the accom p l i s h m ent a nd

ex e c ution of the full pu r

p o s es and objectives o f [ the federal
ag ency ] .” MetroPCS
, 970 F .3d a t 1118. State law may pose such an obstacle when it d isturbs a balance the federalC O H E N V

. A P P L E 32

reg ulation has struck between “ conflicting policies that were committed to t he a g ency ’s care by the statute.” Barrientos
, 583 F .3d a t 1208 (alteration in orig inal) (quoting City of New Y o rk

, 486 U.S. at 64). The b alance struck by the federal
ag ency should not be disturbed “unless it appears fro m the

s t atute o r its leg islative history that [ the balance] is not o ne tha t Cong r ess would have sanctioned.” City of New Y o rk

, 486 U.S. at 64 (quoting Uni t e d S tates v. Shimer

, 367 U.S. 374, 383 (1961)).

As a n initial matter, the plaintiffs arg ue that because
matters of health and safety

, such as the biolog ical effects o f cell phone RF rad i ation, fall within states’ historic police
powers, the presumption ag a inst preemption a p p l i es in this

case. We assume, w ithout d ec i d ing

, that the presumption applies. Nevertheless, the presumption is overcome because the conflict between the F CC’s RF radiation reg ulations and plaintiffs’ state law c l ai ms poses a sufficient obstacle to the full accomplishment of the F CC’s objectives. See Crosby v

. Nat’l Foreign Trade Council , 530 U.S. 363, 374 n.8 (2000).

As discussed a bove, the F CC’s RF radiation reg ulations

were promulg ated p ursuant to §§ 4(i), 4(j) and 3 03(r) of the 1934 A ct. The r eg ulat i o n s thus fall within the scope of the
ag ency ’s deleg ated authority unde r t he 1934 Act. The 1934 Act g rants b ro ad authority to the F CC to promulg ate reg ulations that strike a b a l ance among overlapping a nd potentially conflicting policies. These policies in c l u de the promotion of “ a rapid, efficient, [ n] ation-wide, a nd worldwide

. . . c o mmunication service,” the promotion of “safety of life and property th roug h the use of w ire and radio communications,” “national d e f e n s e , ” a n d t h e e n courag ement of “provision of new technolog ies a nd services to the public.” 47 U.S.C. §§ 1 51, 157(a). T he F CC’s RF radiationC O H E N V

. A P P L E 33

reg ulations, a s applied to cell phones, were intended to strike such a balance.

I n its 1979 N otice of I nq u i r y , the F CC noted that, in fulfilling its statutory m a n d a te u nder the 1934 A ct, “[ a] balance must be a chieved b etween serving the public interest by fulfilling its n eeds f or communica t i o n s services a nd adequately protecting the populace ag a i n s t p o t e n t i a l l y adverse biolog ical ef

f e c t s that may b e a ttributable to ex c essive RF radiation.” 1979 Notice of I n quiry

, 72 F

. C.C.2d at 4 89, ¶ 17. The 2013 Notice of I n quiry a ffirmed the F CC’s previous view that it must stri k e a b alance b etween public safety a nd the public’s access to new telecommunications services. See 2013 Notice of I

nquiry , 28 F CC Rcd. at 3,582, ¶ 236.

Plaintiffs’ state-law clai m s w ould disrupt the balance struck by the F CC. I n an analog ous case, the Th i r d C i rcuit has ex plained:

The r easo n why state law conflicts with federal law in these balancing si tuations is plain. W hen Cong ress c harg es an ag ency with balancing competing objectives, it intends the ag ency t o use its reasoned judg ment to weig h the relevant considerations and determine how best to prioritiz e b etween these objectives. Allowing s t a te law to impose a different standard pe r mits a rebalancing of those considerat ions. A statelaw standard that is more protective o f o neC O H E N V

. A P P L E 34

objective may r esult in a standard that is less protective of others.

Farina
, 625 F .3d at 123. The same reasoning applies in this

case. The F CC’s adoption of specific RF radiation limits for cell phones is the result of the ag ency ’s striking a b a lance between the conflicting po licies of public safety a nd the public’s access to telecommunications technolog ies.

The saving s clause in § 414 of the 1934 Act does not h elp plaintiffs. W e quoted it a b ove. F or the convenience of the reader, h ere it is ag ain: “Nothing in thi s c h apter contained shall in any way a

bridg e o r alter the remedies now ex isting at common law o r by statute, but the provisions of this chapter are in addition to such remedies.” 47 U.S.C. § 414.

On a ppeal, plaintiffs do not p ress the alleg ations in their complaint that Apple’s iPhones emit RF r adiation at levels above the m a x i m u m permitted b y F CC reg ulations. F o r purposes of appeal, they concede that Apple’s iPhones comply with the F CC’s RF radiation reg ulations. They write, “On appeal, [ p laintiffs] pursue only their claims that Apple d evices are u nsafe ‘in spite of’ compliance with fe d e ra l standards and that Apple fails to disclose their dang ers.” P l a intiffs’ concession that Apple’s iPhone complies with emission levels prescribed by the F CC is fatal to their appeal.

I f plaintiffs were to press the alleg ations in the complaint that Appl e ’s iPhones ex ceeded the max imum RF radiation levels permitted by the F CC, and were to arg ue that the statelaw remedies they seek w ere premised on Apple’s violations of the F CC’s RF r adiation standards, this would be a different appeal, and the saving s c lause mig h t have some force. Cf. Stengel v. Medtronic Inc.
, 7 0 4 F. 3d 1224, 1233 (9th Cir.C O H E N V

. A P P L E 35

2013) (en banc). However, th i s is not their arg ument. Plaintiffs’ arg ument on appeal is that state-law causes o f action premised o n RF r adiation emission standards more protective than those prescribed by the F CC are not preempted.

I n Geie r v. American H

onda M otor Co.
, 529 U.S. 861 (2000), the Supreme Court w rote that it “h a s r e peatedly ‘decline[ d] to g ive broad effect to saving clauses where doing

so would upset the careful reg ulatory scheme established b y federal l a w

. ’ ” Id. at 8 70 (quoting United States v. Locke

, 529 U .S. 89, 106–107 (2000)). Consistently with Geier
, we have held that § 414, the savings clause of the 1 934 Act,
preserves o nly those r ig hts not inconsistent with the statutory requirements. Telesaurus V PC, LLC v. Power
, 623 F .3d 998, 1010 (9th Cir. 2010). Section 414 cannot be read ex pansively
to “abrog ate the very federal reg ulation of mobile teleph o n e providers that the [ 1934 Act] intended to create.” Id. at 1011 (quoting Bastien v. AT& T W ireless Servs., Inc.
, 205 F .3d 983, 987 (7th Cir. 2000)). “Said otherwise, we infer that Cong ress did not intend the saving p rovisions i n a federal law to be interpreted in a way that causes the federal law ‘to defeat its

own objectives,’” including those implemented by fe d e r al
reg ulations. In re Volkswagen “Cl e a n D iesel” Mktg., Sales Pracs., & Prods. Liab. Litig.
, 9 59 F .3d 1 201, 1214 (9th Cir. 2020) (quoting Geier , 529 U.S. at 872).

I n American Telephone & Telegrap h Co. v. Central Office Telephone, Inc.
, 524 U .S. 214 (1998), t h e Supreme Court refused to construe § 414 as saving state-law tort and breach of contract claims from preemption under the 1 9 34 Act’s filed rate doctrine. The Court wrote:C O H E N V

. A P P L E 36

A claim f

or services that

. . . directly co nflict with the tariff—the basis for both the tort a nd
contract claims here—cannot be “saved” under § 414. “Th[ e saving ] clause

. . . cannot in reason be construed as c o ntinuing in [ customers] a common law ri gh t , the continued ex istence of wh i ch would be absolutely inconsistent with the provisions o f the act. I n o ther words, the act cannot be held to destroy itself.”

Id. at 227–28 ( alterat i o n a nd o mission in orig inal) (quoting Tex. & Pac. R

y. Co. v. A bilene Cotton Oil Co.
, 204 U.S. 426, 446 (1907)).

So too here. The 1934 A ct authoriz es the F CC to balance the overlapping and p otentially competing factors in sett ing safe and u niform limits for RF radiation from cell p hones. Allowing state tort law to prescribe lower l e v e l s of RF radiation t h a n the levels p rescribed by the F CC would interfere with the n ationwide u niformity of reg ulation that is the a im of the Act, and would r ender the F CC’s statutorily mandated balancing essentially meaning less

. I f state law

were allowed to prescribe such levels, it w ould “stand[ ] as an

o b s t a c le to the accomplishment and ex ecution of the full
purposes and objectives of Cong ress.” Beaver
, 816 F .3d at 1179 (quoting Crosby , 530 U.S. at 372–73).

W e theref

ore hold that the F CC’s reg ulations under the 1934 Act, setting upper limits on the levels o f perm i t t e d RF radiation, preempt state laws that impose liabi l i ty premised on levels of radiation below the limits set by the F CC.C O H E N V

. A P P L E 37

b. Reading the 1934 and 1996 Acts Tog ether

Plaintiffs arg ue that the preemptive scope of the F CC’s RF r adiation reg ulatio n s cannot be determined solely b y consulting the 1934 Act. They arg ue that the 1934 and 1996 A c ts must be read tog e ther. They write in their brief t h a t i t

was in the 1996 Act “ that Cong r ess carefully delineated the limited scope of the F CC’s preemptive authority .” W e disag ree. W e h old that the scope of preemption o f the F CC’s RF radiati o n r e g ulations is controlled by the 1934 Act, a nd that the preemption provisions of the 1996 Act are irrelevant.

A s d iscussed in detail above, the F CC’s RF radiat i o n reg ulations were promulg ated under §§ 4(i), 4(j), and 303(r) of the 1934 Act. The 1996 Act d irected the F CC to complete within 180 day s a pending rule m a k ing proceeding with respect to RF radiation for cell phones. 1996 Act § 704( b ), 110 Stat. at 152. B ut the 1996 Act d id not provide the underly ing authority f or adopting the R F radiation
reg ulations. I t merely

directed the F CC to complete quickly the pending rulemaking proceeding under the 1934 Act.

As also discussed above

, there are two preemption provisions in the 1996 Act. F irst, there is a narrowly focused saving s clause. Section 332(c)(7)(A) of the 1996 A ct p r o v ides, “[ N] othing in this chapter shall limit or affect the authority of a Sta t e or local g overnment or instrumentality thereof over decisions reg arding the placement, construction, and modification of personal w ireless service facilities.” 47 U.S.C. § 332( c )( 7 ) ( A). This provision protects the placement, construction, and modification of st a t e and local “facilities,” such as cell phone towers, f rom preemption under the 1996 Act. I t has n o t h i n g to d o with RF radiation emissions from cell phones.C O H E N V

. A P P L E 38

Second, there is a g eneral saving s clause. Section 601 o f the 1996 A ct provides: “ This Act a nd the amendments made by this Act shall not be construed to modify

, i m p a i r , o r supersede F e deral, State, or local law unless e x pressl y s o provided in such Act or amendments.” 1996 Act § 601(c)(1), 110 Stat. at 143 (emphasis added). B y its plain ter m s , this provision applies only to “this A ct”—that is, to the 1996 Act. I t does not apply

to the 1934 Act.

B e cause § 33 2(c)(7)(A) applies only to “ facilities,” a nd § 601(c)(1) app lies o nly to the 1996 Act, the preemption provisions of the 1996 Act do not affect the preemptive scope of the F CC’s RF radiation reg u lations under the 1934 Act.

Conclusion

W e hold that the Hobbs Act does n ot deprive the district
court of jurisdiction i n t h i s case. W e hold, further, that the FC C ’ s reg ulations of the RF radiation of cell p hones, promulg a ted under the 1934 Act, preempt plainti f f s ’ s t a te-law claims as they are presented to us on appeal.

AF F IRMED.