FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW COHEN; TIMOTHY

HORNICK; KALEAH C. ALLEN;

KIMBERLY BENJAMIN; MARK

WEILER; MATT KOPPIN; SCOTT

CISCHKE; PAUL COLETTI; KRYSTLE

FAERYN; RODOLFO CABRERA;

BRANDY DAVIS; WILLIAM ZIDE;

DAVID HEDICKER; NANCY

MAEKAWA; CATHERIN GOODWIN;

KATHLEEN BOGGS; MARK KUNZE;

ARIANA RYAN; BECKY

WELLINGTON; M. GAIL SUNDELL;

VICTOR PERLMAN; ZACHARY

GOMOLEKOFF; GLENN JACOBS; JUNE

A. HALL,

Plaintiffs-Appellants,

v.

APPLE INC.,

Defendant-Appellee,

and

SAMSUNG ELECTRONIC AMERICA,

INC.,

Defendant.

No. 20-17307

D.C. No.

3:19-cv-05322-

WHA

OPINION
2 COHEN V. APPLE

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted December 10, 2021

Pasadena, California

Filed August 26, 2022

Before: William A. Fletcher, Johnnie B. Rawlinson, and

John B. Owens, Circuit Judges.

Opinion by Judge W. Fletcher

SUMMARY*

Preemption / Federal Communications Commission

The panel affirmed the district court’s summary judgment

for Apple Inc., based on preemption of the state-law claims

by federal law, in an action bought by plaintiffs, who are

iPhone users, alleging that Apple breached state tort and

consumer-fraud laws by misrepresenting and failing to

disclose the amount of radiofrequency (“RF”) radiation

emitted by iPhones.

A regulatory scheme established by a Federal

Communications Commission 1996 RF Order set exposure

limits that included cell phones, and it remains largely intact

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
COHEN V. APPLE 3

today. Plaintiffs alleged that RF radiation emitted by iPhones

regularly exceeded the federal exposure limit, and they

brought eight claims against Apple under state tort and

consumer-fraud laws. The district court held that plaintiffs’

state-law claims were preempted by federal law.

The panel held that the Hobbs Act did not deprive the

district court of jurisdiction. The panel rejected Apple’s

argument that the Hobbs Act broadly granted exclusive

jurisdiction to courts of appeals over private suits that

implicated the substance of agency determinations, and

divested district courts of jurisdiction to pass on any issue

that would require them to decide on a determination made in

an FCC final order. Plaintiffs in this case did not challenge

the validity of any of the FCC’s final orders, either directly or

indirectly. The issue in this case was whether the FCC’s

concededly valid orders had preemptive effect. A holding

that the FCC orders do, or do not, preempt plaintiffs’ statelaw claims had no effect on their validity.

Turning to the merits of the appeal, the panel first

addressed plaintiffs’ argument that the FCC promulgated its

RF Orders under the National Environmental Policy Act

(“NEPA”), which was a purely procedural statute with no

preemptive force, and therefore regulations promulgated

under NEPA did not preempt plaintiffs’ state-law causes of

action. The panel agreed with plaintiffs that NEPA was a

purely procedural statute and that it had no preemptive force. 

However, the panel did not agree with plaintiffs that the

FCC’s RF Orders were promulgated under NEPA. The panel

held that the twin Communications Acts, the

Communications Act of 1934 and the Telecommunications

Act of 1996, granted to the FCC broad regulatory powers

over wireless communications devices. The 1996 Act
4 COHEN V. APPLE

directed the FCC to complete rulemaking for RF radiation

that had already been initiated under the 1934 Act. NEPA, by

contrast, granted no affirmative regulatory powers over

wireless communications. 

Next, plaintiffs argued that even if the FCC’s RF Orders

were promulgated under either, or both, of the two

Communications Acts, the savings clauses in those Acts

preserved their state-law causes of action. Specifically, first,

plaintiffs argued that the 1934 Act did not authorize

preemption by regulations promulgated under the Act, and

therefore their state-law causes of action were not preempted

by the FCC’s Orders. The panel held that a federal statute

need not specify its preemptive force in order for the statute

to have such a force, and Congress did not need to expressly

delegate preemptive authority to the FCC for its regulations

to preempt state law. The operative question was whether the

agencymeant to preempt the state law. The intent to preempt

need not be express. Under the doctrine of implied conflict

preemption, the agency’s statutorily authorized regulations

will preempt any conflicting state or local law. The panel held

that the conflict between the FCC’s RF radiation regulations

and plaintiffs’ state law claims posed a sufficient obstacle to

the full accomplishment of the FCC’s objectives. The

savings clause in § 414 of the 1934 Act did not help

plaintiffs. The panel concluded that the FCC’s regulations

under the 1934 Act, setting upper limits on the levels of

permitted RF radiation, preempted state laws that imposed

liability premised on levels of radiation below the limits set

by the FCC.

Second, plaintiffs argued that the preemptive scope of the

FCC’s radiation regulations could not be determined solely

by consulting the 1934 Act. The panel disagreed, and held
COHEN V. APPLE 5

that the scope of preemption of the FCC’s RF regulations was

controlled by the 1934 Act, and the preemption provisions of

the 1996 Act were irrelevant. The savings clause in Section

332(c)(7)(A) of the 1996 Act was a narrowly focused savings

clause and had nothing to do with RF radiation emissions

from cell phones. The general savings clause in Section 601

of the 1996 Act by its very terms applied only to the 1996 Act

and does not apply to the 1934 Act.

COUNSEL

Matthew W.H. Wessler (argued) and Linnet Davis-Stermitz,

Gupta Wessler PLLC, Washington, D.C.; Elizabeth A. Fegan

and Jessica H. Meeder, Fegan Scott LLC, Chicago, Illinois;

for Plaintiffs-Appellants.

Joseph R. Palmore (argued) and Adam L. Sorensen,

Morrison & Foerster LLP, Washington, D.C.; William F.

Tarantino and James R. Sigel, Morrison & Foerster LLP, San

Francisco, California; for Defendant-Appellee.

Leah M. Nicholls, Public Justice P.C., Washington, D.C., for

Amicus Curiae Public Justice.

Scott L. Nelson and Allison M. Zieve, Public Citizen

Litigation Group, Washington, D.C., for Amicus Curiae

Public Citizen.

Joshua S. Turner, Megan L. Brown, and William K. Lane III,

Wiley Rein LLP, Washington, D.C.; Paul V. Lettow and

Stephanie A. Maloney, U.S. Chamber Litigation Center,

Washington,D.C.;forAmicus Curiae Chamber of Commerce

of the United States of America.
6 COHEN V. APPLE

Terrence J. Dee and Jessica J. Thomas, McDermott Will &

Emery LLP, Chicago, Illinois, for Amicus Curiae

CTIA—The Wireless Association.

OPINION

W. FLETCHER, Circuit Judge:

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

course of their ordinary operation. Pursuant to the

Communications Act of 1934 and the Telecommunications

Act of 1996 (“twin Communications Acts”), the Federal

Communications Commission (“FCC”) has promulgated

regulations establishing RF radiation standards for cell

phones.

Plaintiffs-appellants (“plaintiffs”) Andrew Cohen and

other individuals are users of iPhones manufactured by

defendant-appellee Apple Inc. Plaintiffs brought suit against

Apple in the district court, alleging 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 court entered summary judgment for Apple,

holding that the plaintiffs’ state-law claims are preempted by

federal law.

We have jurisdiction under 28 U.S.C. § 1291 and affirm. 

We hold that the district court had subject matter jurisdiction

and that plaintiffs’ claims are preempted.
COHEN V. APPLE 7

I. Background

We begin with an overview of RF radiation, of the

relevant statutory structure, and of FCC regulation of devices

that emit RF radiation.

A. RF Radiation

Like radios and televisions, cell phones rely on

radiofrequency electromagnetic waves, otherwise known as

RF radiation, to receive signals. Cell phones also emit RF

radiation to send signals. RF radiation is a subset of

electromagnetic radiation. There are two forms of

electromagnetic radiation: ionizing and non-ionizing. 

Ionizing radiation can be extremely dangerous. Among other

things, it can alter a person’s DNA. Non-ionizing radiation

is much less dangerous and is incapable of damaging DNA. 

However, high levels of non-ionizing RF radiation can cause

biological effects by increasing the temperature of tissues. 

Federal Communications Commission, RF Safety FAQ,

https://www.fcc.gov/engineering-technology/electromagnet

ic-compatibility-division/radio-frequency-safety/faq/rf-safety

[https://perma.cc/DD6C-3SGM] (last visited July 18, 2022). 

For example, RF radiation is used to heat food in microwave

ovens. Id. Cell phones emit non-ionizing RF radiation, but

not at high enough levels to cause thermal effects. Id.

The effects of non-thermal RF radiation on human health

are controverted. Id. While some studies have described

adverse biological effects resulting from exposure to low

levels of RF radiation at levels emitted by cell phones, many

of these effects could not be replicated in later studies. Id. 

Current FCC regulations for cell phones set RF radiation
8 COHEN V. APPLE

limits far below the level at which adverse biological effects

in laboratory animals have been observed.

B. Statutory Background

Congress created the FCC through the Communications

Act of 1934 (“1934 Act”), Pub. L. No. 73-416, 48 Stat. 1064

(codified as amended at 47 U.S.C. § 151 et seq.). The 1934

Act, as amended, instructed the FCC “to make available . . .

a rapid, efficient, Nation-wide, and world-wide wire and

radio communication service with adequate facilities at

reasonable charges,” for three purposes: (1) national defense,

(2) “promoting safety of life and property through the use of

wire and radio communications,” and (3) “securing a more

effective execution of this policy by centralizing authority”

previously granted to multiple agencies and “granting

additional authority with respect to interstate and foreign

commerce in wire and radio communication.” 47 U.S.C.

§ 151. The 1934 Act, as amended, declared it a national

policy “to encourage the provision of new technologies and

services to the public.” Id. § 157(a).

The 1934 Act “endowed the [FCC] with comprehensive

powers to promote and realize the vast potentialities of

radio.” Nat’l Broad. Co. v. United States, 319 U.S. 190, 217

(1943). The Act, as amended, authorized the FCC to “[m]ake

such rules and regulations and prescribe such restrictions and

conditions, not inconsistent with law, as may be necessary to

carry out 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 regulations, and issue such orders,

not inconsistent with this chapter, as may be necessary in the

execution of its functions.”). The 1934 Act also authorized

the FCC, “as public convenience, interest, or necessity
COHEN V. APPLE 9

requires,” to “[r]egulate the kind of [radio] apparatus to be

used with respect to its external effects and the purity and

sharpness of the emissions from each station and from the

apparatus therein.” Id. § 303(e).

The 1934 Act contains a general savings clause. It

provides: “Nothing in this chapter contained shall in any way

abridge or alter the remedies now existing at common law or

by statute, but the provisions of this chapter are in addition to

such remedies.” Id. § 414.

In 1996, Congress passed the Telecommunications Act

(“1996 Act”). Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56. When the 1996 Act was passed, the

FCC had initiated but had not completed a rulemaking

proceeding concerning RF radiation. The 1996 Act directed

the FCC to “complete action . . . to prescribe and make

effective rules regarding the environmental effects of radio

frequency emissions” within 180 days after the enactment of

the Act. Id. § 704(b), 110 Stat. at 152.

The 1996 Act limits the FCC’s authority where its

regulations would conflict with state and local land-use

regulations. A specific savings clause provides, “[N]othing

in this chapter shall limit or affect the authority of a State or

local government or instrumentality thereof over decisions

regarding the placement, construction, and modification of

personal wireless service facilities.” 47 U.S.C.

§ 332(c)(7)(A). The Conference Report of the 1996 Act

describes § 332(c)(7) as “prevent[ing FCC] preemption of

local and State land use decisions and preserv[ing] the

authority of State and local governments over zoning and

land use matters.” H.R. Rep. No. 104-458, at 207–08 (1996)

(Conf. Rep.). That is, the limitation placed on the FCC’s
10 COHEN V. APPLE

preemptive powers by § 332(c)(7) “relate[s] to local land use

regulations and [is] not intended to limit or affect the

Commission’s general authority over radio

telecommunications, including the authority to regulate the

construction, modification and operation of radio facilities.” 

Id. at 209.

The 1996 Act also contains a general savings clause. It

provides: “This Act and the amendments made by this Act

shall not be construed to modify, impair, or supersede

Federal, State, or local law unless expressly so provided in

such Act or amendments.” 1996 Act § 601(c)(1), 110 Stat. at

143. The savings clause is not codified in the United States

Code, but is included as part of the notes to 47 U.S.C. § 152.

The Hobbs Act governs judicial review of FCC final

orders. Under the Hobbs Act, federal courts of appeals

(except the Federal Circuit) have “exclusive jurisdiction to

enjoin, set aside, suspend (in whole or in part), or to

determine the validity of,” inter alia, “all final orders of the

Federal Communications Commission made reviewable by

[47 U.S.C. § 402(a)].” 28 U.S.C. § 2342; see also 47 U.S.C.

§ 402(a) (providing judicial review of the FCC’s orders and

decisions, including “[a]ny proceeding to enjoin, set aside,

annul, or suspend any order of the [FCC]”).

FCC regulatory actions are subject to the National

Environmental Policy Act (“NEPA”). For “[f]ederal actions

significantlyaffecting the qualityof the human environment,”

NEPA requires federal agencies to include “a detailed

statement” regarding 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 on federal agencies with a particular focus on
COHEN V. APPLE 11

requiring agencies to undertake analyses of the environmental

impact of their proposals and actions.” Dep’t of Transp. v.

Pub. Citizen, 541 U.S. 752, 756–57 (2004) (first quoting

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

350 (1989); and then citing id. at 349–50). Because the

licensing of equipment that emits RF radiation may

significantlyaffect the environment, NEPA obligatestheFCC

in such cases to consider the environmental impact of its

proposed actions with respect to licensing.

C. FCC Regulation of Devices that Emit RF Radiation

In 1979, the FCC issued a notice of inquiry (“1979 Notice

of Inquiry”) to gather information relevant to “its regulatory

responsibility to promote communications by radio in light of

the increased concern about the biological effects of radio

frequency radiation.” In re Responsibility of the Federal

Communications Commission to ConsiderBiological Effects

of Radio Frequency Radiation When Authorizing the Use of

Radio Frequency Devices, 72 F.C.C.2d 482, 482, ¶ 1 (June

15, 1979).

The 1979 Notice of Inquiry was based on the FCC’s

responsibilities under two statutes. First, the 1934 Act directs

the FCC “to promote the use of radio communications service

. . . as the public convenience, interest, or necessity requires,”

and imposes on the FCC the “statutory obligation to make

available, so far as possible a rapid efficient communication

service at reasonable charges and to prevent interference

between stations.” Id. at 487–88, 489, ¶¶ 12, 16 (internal

ellipses and quotation marks omitted). The FCC noted that,

in fulfilling its statutory mandate under the 1934 Act, “[a]

balance must be achieved between serving the public interest

by fulfilling its needs for communications services and
12 COHEN V. APPLE

adequatelyprotecting the populace against potentiallyadverse

biological effects that may be attributable to excessive RF

radiation.” Id. at 489, ¶ 17. Second, the FCC was required to

comply with NEPA. The FCC noted its “explicit

responsibilities under NEPA.” Id. at 488, ¶ 13.

In 1982, pursuant to its 1979 Notice of Inquiry, the FCC

issued a notice of proposed rulemaking (“1982 NPRM”)

regarding the biological effects of RF radiation. In re

Responsibility of the Federal Communications Commission

to Consider Biological Effects of Radiofrequency Radiation

When Authorizing the Use of Radiofrequency Devices,

89 F.C.C.2d 214 (Feb. 18, 1982). The 1982 NPRM proposed

expanding the definition of “major actions” that would

subject RF radiation-emitting devices to FCC licensing

requirements. Id. at 215, ¶ 2. The FCC identified the “legal

basis” for its 1982 NPRM as follows:

The action proposed is based on the

obligations imposed on the [FCC] by the

National Environmental Policy Act of 1969

and is in furtherance of §§ 4(i) and 303(r) of

the Communications Act of 1934, as

amended, which permits the [FCC] to make

rules and regulations not inconsistent with

other existing laws, as may be necessary in

the execution of its functions, with the 

additional view of securing the public welfare.

Id. pt. VI(3), at 255 (citation omitted). The 1982 NPRM

acknowledged that NEPA required the FCC “to consider

whether the equipment and operations it authorizes will

‘significantly affect the quality of the human environment.’” 

Id. at 251, ¶ 183 (quoting 42 U.S.C. § 4332(2)(c)).
COHEN V. APPLE 13

In 1985, the FCC issued an order (“1985 RF Order”)

amending its “rules implementing” NEPA. In re

Responsibility of the Federal Communications Commission

to Consider Biological Effects of Radiofrequency Radiation

When Authorizing the Use of Radiofrequency Devices, 100

F.C.C.2d 543, 543, ¶ 1 (Mar. 14, 1985). The 1985 RF Order

adopted the 1982 Radio Frequency Protection Guides drafted

by the American National Standards Institute (“ANSI”). Id.;

see id. at 547, ¶ 9. In adopting the ANSI guidelines as a

standard, the FCC noted: “Although we have neither the

expertise nor the jurisdiction to develop our own radiation

exposure guidelines, we believe . . . that the [FCC] does have

the expertise and authority to recognize technically sound

standards promulgated by reputable and competent

organizations such as ANSI.” Id. at 551, ¶ 25 (emphasis in

the original).

The 1985 RF Order used the ANSI standard as a

“triggering mechanism for environmental assessment.” Id.

at 560, ¶ 51. Only applications for FCC authorization of

radio and broadcast facilities not in compliance with the

ANSI standard would require a thorough environmentalimpact analysis, including the submission of a narrative

environmental statement. Id. at 560–61, ¶¶ 51–54. The 1985

RF Order excluded from its requirements any “relatively lowpowered communications systems” such as mobile devices,

which had a low likelihood of causing exposure exceeding

the ANSI standard. In re Responsibility of the Federal

CommunicationsCommission to Consider Biological Effects

of Radiofrequency Radiation When Authorizing the Use of

Radiofrequency Devices, 2 FCC Rcd. 2064, 2065, ¶¶ 14–15

(Apr. 9, 1987); see 1985 RF Order, 100 F.C.C.2d at 561, ¶ 54. 

The ANSIstandard, which the FCC adopted through its 1985

RF Order, explicitly excluded “low power devices such as
14 COHEN V. APPLE

hand-held, mobile, and marine radio transceivers” on the

ground that while “[t]hese devices may emit localized fields

exceeding the protection guides, [they] will result in a

significantly lower rate of energy absorption than allowed for

the whole body average.” ANSI, American National

Standard Safety Levels with Respect to Human Exposure to

Radio Frequency Electromagnetic Fields, 300 kHz to

100 GHz 10 (1982).

The FCC identified the “legal basis” for its 1985 RF

Order as follows:

This action is based on the obligations

imposed on the [FCC] by NEPA, and is in

furtherance of §§ 4(i), 4(j), and 303(r) of the

Communications Act of 1934, as amended. 

These provisions permit the [FCC] to make

rules and regulations not inconsistent with

other existing laws, “as may be necessary in

the execution 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 then quoting 47 U.S.C.

§ 303(r)). The FCC identified two objectives in its 1985 RF

Order: (1) “to clarify its policy with regard to potential

hazards from RF radiation emitted by transmitting facilities

that [it] license[s] or authorize[s];” and (2) “to comply with

our legal obligations under NEPA.” Id. at 564.

In 1992, ANSI updated its guidelines, narrowing the

scope of the exclusion of low-powered devices. In 1993, the

FCC issued a notice of proposed rulemaking (“1993 NPRM”)
COHEN V. APPLE 15

to adopt ANSI’s updated 1992 guidelines, noting that the

narrower exclusion for low-powered devices was more

protective than the broader exclusion in ANSI’s 1982

guidelines. In re Guidelines for Evaluating the

Environmental Effects of Radiofrequency Radiation, 8 FCC

Rcd. 2,849, 2,849, 2,851, ¶¶ 1, 14 (Apr. 8, 1993). The FCC

identified the “legal basis” for its 1993 NPRM as follows:

This action is a result of the [FCC’s] legal

obligations under the NEPA to provide the

means by which to evaluate [FCC] actions

with respect to environmental significance,

and it is in furtherance of Sections 4(i), 4(j),

and 303(r) of the Communications Act of

1934, as amended.

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

After issuance of the 1993 NPRM and while the FCC’s

rulemaking was pending, Congress enacted the

Telecommunication Act of 1996. The 1996 Act directed the

FCC to “complete action . . . to prescribe and make effective

rules regarding the environmental effects of radio frequency

emissions” within 180 days after the effective date of the Act. 

1996 Act § 704(b), 110 Stat. at 152.

In 1996, the FCC issued an order (“1996 RF Order”)

adopting new RF radiation standards applicable to lowpowered portable devices, including cell phones. In re

Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, 11 FCC Rcd. 15,123 (Aug. 1,

1996). The 1996 RF Order noted that ANSI had adopted

updated RF radiation guidelines in 1992, and that the updated

ANSI standard was “more restrictive in the amount of
16 COHEN V. APPLE

environmental RF exposure permitted.” Id. at 15,126, ¶ 8. 

The more protective 1992 ANSI standard provided two tiers

of exposure criteria: (1) controlled environments, in which

those exposed to RF radiation are aware of their potential for

exposure (for example, as a condition of their employment),

and (2) uncontrolled environments, in which exposed

individuals have no knowledge or expectation that their RF

radiation exposure may exceed permitted levels. Id.

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

a specific absorption rate (“SAR”) limit of 0.4 W/kg as

averaged over the whole body and 8 W/kg for peak localized

exposure (i.e., for a specific area of the body) for cell phones

in controlled environments. Id. at 15,140, ¶ 46. It mandated

an SAR limit of 0.08 W/kg for whole-body average exposure

and 1.6 W/kg for peak localized exposure for cell phones in

uncontrolled environments. Id.

The 1996 RF Order adopted the distinction drawn by the

1992 ANSI guidelines between controlled/uncontrolled

environments. Id. at 15,139, ¶ 42. It also adopted the ANSI

guidelines’ requirements for low-power 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. at 15,146–47, ¶¶ 62–63. Because

most low-power, portable devices were intended for use by

consumers rather than solely in the workplace, the FCC

mandated a 1.6 W/kg maximum RF exposure for cell phones,

and routine SAR evaluation “either by laboratory

measurement techniques or bycomputational modeling, prior

to equipment authorization or use.” Id. at 15,147, ¶ 65.

The FCC’s 1996 RF Order satisfied FCC’s obligations

under § 704(b) of the 1996 Act, which directed the FCC to

“prescribe and make effective rules regarding the
COHEN V. APPLE 17

environmental effects of radio frequency emissions” within

180 days. 1996 Act § 704(b), 110 Stat. at 152. The FCC

noted that the updated RF radiation guidelines “will protect

the public and workers from exposure to potentially harmful

RF fields.” 1996 RF Order, 11 FCC Rcd. at 15,124, ¶ 1. The

FCC also noted that the guidelines “will be of benefit both to

the public and to the telecommunications industry [because

t]hey will provide assurance that recent scientific knowledge

is taken into account regarding future decisions on approval

of FCC-authorized facilities and equipment.” Id. at 15,184,

¶ 169. The FCC identified provisions of the 1934 Act, as

amended, as its statutory authority to issue the 1996 RF

Order. Id. at 15,185, ¶ 171.

The regulatory scheme established by the FCC’s 1996 RF

Order remains largely intact today. Under 47 C.F.R.

§ 2.1093(d)(1), “[a]pplicationsfor equipment authorization of

portable RF sources subject to routine environmental

evaluation must contain a statement confirming compliance

with the limits specified in § 1.1310 . . . .” In turn, 47 C.F.R.

§ 1.1310(c) provides: “The SAR limits for general

population/uncontrolled exposure are 0.08 W/kg, as averaged

over the whole body, and a peak spatial-average SAR of

1.6 W/kg, averaged over any 1 gram of tissue.” If the FCC

determines that a device, such as the iPhone, complies with

its RF radiation guidelines (tested at maximum power and

under more extreme conditions than normal use) and other

technical standards, the agency issues a certification

authorizing sale of the device. 47 C.F.R. § 2.907. If the

device “would cause human exposure to levels of RF

radiation in excess of the limits in § 1.1310,” the applicant for

equipment authorization must prepare an environmental

assessment. Id. § 1.1307(b)(1)(i)(C). The proposed device

can still be approved for sale if the FCC determines that it
18 COHEN V. APPLE

will not have a significant impact on the human environment. 

Id. § 1.1308(d). In practice, however, the FCC sees the RF

radiation limits as a “de facto compliance requirement.” 

1996 RF Order, 11 FCC Rcd. at 15226. According to an

amicus brief filed by the United States before the Supreme

Court in 2011, cell phone manufacturers “have never

attempted to obtain approval to sell non-compliant phones by

submitting an [environmental assessment]” since the

promulgation of the FCC’s RF radiation rules. Brief for the

United States as Amicus Curiae at 19–20, Farina v. Nokia,

Inc., 565 U.S. 928 (2011) (No. 10-1064), 2011 WL 3799082,

at *19–20.

In 2013, the FCC issued a notice of inquiry (“2013 Notice

of Inquiry”) soliciting public comments about whether the

1996 RF exposure limits should be reassessed. In re

Reassessment of Federal Communications Commission

Radiofrequency Exposure Limits and Policies, 28 FCC Rcd.

3,498, 3,498, ¶ 1 (Mar. 29, 2013). The 2013 Notice of

Inquiry affirmed the FCC’s previous view that it must strike

a balance between public safety and the public’s access to

new telecommunications services. The FCC explained:

The [FCC] has a responsibility to provide a

proper balance between the need to protect the

public and workers from exposure to

potentially harmful RF electromagnetic fields

and the requirement that industry be allowed

to provide telecommunications services to the

public in the most efficient and practical

manner possible. The intent of our exposure

limits is to provide a cap that both protects the

public based on scientific consensus and

allows for efficient and practical
COHEN V. APPLE 19

implementation of wireless services. The

present [FCC] exposure limit is a “bright-line

rule.” That is, so long as exposure levels are

below a specified limit value, there is no

requirement to further reduce exposure. The

limit is readily justified when it is based on

known adverse health effects having a

well-defined threshold, and the limit includes

prudent additional safety factors (e.g., setting

the limit significantly below the threshold

where known adverse health effects may

begin to occur). Our current RF exposure

guidelines are an example of such regulation,

including a significant “safety” factor,

whereby the exposure limits are set at a level

on the order of 50 times below the level at

which adverse biological effects have been

observed in laboratory animals as a result of

tissue heating resulting from RF exposure.

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

marks omitted).

In 2019, the FCC issued an order and resolution of notice

of inquiry (“2019 RF Order”) that left intact its 1996 RF

radiation guidelines, including for cell phones. In re

Proposed Changes in the Commission’s Rules Regarding

Human Exposure to RadiofrequencyElectromagnetic Fields,

34 FCC Rcd. 11,687, 11,688, ¶ 2 (Dec. 4, 2019); id at 11,696,

¶ 14. In Environmental Health Trust v. FCC, 9 F.4th 893

(D.C. Cir. 2021), the D.C. Circuit granted in part a petition

challenging the 2019 RF Order and remanded to the FCC for

further proceedings. The D.C. Circuit held that the FCC

“failed to provide a reasoned explanation for its
20 COHEN V. APPLE

determination that its guidelines adequately protect against

the harmful effects of exposure to radiofrequency radiation

unrelated to cancer.” Id. at 900.

D. Factual and Procedural Background

Plaintiffs-appellants Andrew Cohen and other individuals

are iPhone users. Defendant-appellee Apple, Inc., is a

California corporation. Apple designs, manufactures, and

sells consumer electronic products, including the iPhone.

In August 2019, the Chicago Tribune reported results of

its independent investigation of RF radiation levels of popular

cell phones sold in the United States. Sam Roe, We Tested

Popular Cellphones for Radiofrequency Radiation. Now the

FCC Is Investigating., Chi. Tribune, Aug. 21, 2019,

https://www.chicagotribune.com/investigations/ct-cell-phoneradiation-testing-20190821-72qgu4nzlfda5kyuhteiieh4dastory.html. According to the report, RF radiation exposure

from Apple’s iPhone 7 “measured over the legal safety limit

and more than double” what Apple found from its own

testing. Id.

Two days after publication of the Tribune’s report,

plaintiffs filed a putative class action in the district court

seeking to represent all iPhone users in the United States. 

Within a few weeks, a nearly identical complaint was filed in

the district court on behalf of different named plaintiffs. The

district court consolidated the two actions, and plaintiffs filed

a consolidated amended class action complaint.

The complaint alleged that RF radiation emitted by

iPhones regularly exceeded the federal exposure limit. The

complaint relied heavily on the Tribune’s testing of the RF
COHEN V. APPLE 21

radiation emitted by iPhones, citing the Tribune’s report of

data showing that RF radiation exposure to iPhone 7 models

averaged 2.59 W/kg and 3.225 W/kg in two tests, both of

which exceeded the federal exposure limit of 1.6 W/kg. 

Plaintiffs’ counsel also conducted their own testing, using the

same lab the Tribune had used. They tested additional iPhone

models, and they tested at a zero-millimeter distance to

replicate use of the iPhone against the skin. According to

their testing, RF radiation emitted by iPhone 7 models

reached 3.6 W/kg at a 5-millimeter separation distance. 

Based on data obtained from this testing, the complaint

alleged that Apple engaged in “deceptive and misleading”

marketing by advertising iPhones as safe when used against

the body (for example, by advertising the iPhone as “the

Internet in your pocket” or showing people holding iPhones

in their bare hands in commercials).

The Tribune’s story prompted the FCC to conduct further

testing of iPhones. In December 2019, the FCC published the

results of its own testing. The FCC’s further testing

measured RF radiation exposure from iPhones as well within

the safety limits. The testing revealed no evidence of

violation of the FCC’s technical standards.

Plaintiffs’ complaint alleged eight claims against Apple

under state tort and consumer-fraud laws: (1) Apple

intentionally misrepresented the safety of iPhones despite

knowing that their RF radiation exceeded federal limits;

(2) Apple failed to exercise reasonable care in not warning

plaintiffs about unsafe RF radiation emitted by iPhones;

(3) Apple violated California’s Unfair Competition Law by

failing to disclose that iPhones emitted RF radiation at unsafe

levels or levels exceeding the federal limit; (4) Apple violated

California’s Consumers Legal Remedies Act by failing to
22 COHEN V. APPLE

disclose that iPhones emitted RF radiation at unsafe levels or

levels exceeding the federal limit; (5) Apple violated

California’s false advertising law by failing to disclose that

iPhones emitted RF radiation at unsafe levels or levels

exceeding the federal limit; (6) Apple violated various states’

consumer protection acts due to its dissemination of

deceptive and misleading advertising materials; (7) Apple

was unjustly enriched because plaintiffs did not receive

products as marketed by Apple; and (8) Apple breached its

implied warranty that iPhones were safe for ordinary use. 

The complaint sought class certification, a finding of liability

against Apple, the establishment of a medical monitoring

fund under claims (1) and (2), money damages, appropriate

injunctive relief, and attorney’s fees.

On January 2, 2020, Apple moved to dismiss plaintiffs’

complaint. Apple argued, inter alia, that plaintiffs lacked

Article III standing and, assuming standing, that federal law

preempted plaintiffs’ claims. Following a hearing, the district

court found that Apple had presented matters outside of the

pleadings. The district court converted Apple’s motion to

dismiss into a motion for summary judgment.

The district court invited the FCC to participate as amicus

curiae. The FCC filed a statement of interest on April 13,

2020, in which it made three main arguments. First, the FCC

argued that “[t]o the extent that plaintiffs’ claims effectively

challenge the adequacy or reasonableness of FCC testing

procedures for assessing compliance with RF limits, the

[district court] lacks jurisdiction” under 28 U.S.C. § 2342(1). 

Second, the FCC argued that “plaintiffs’ claims are

preempted to the extent they suggest that RF emissions from

cell phones certified by the FCC for sale in the United States

are unsafe.” The FCC argued that the FCC’s regulations
COHEN V. APPLE 23

reflected congressional expectation that “the FCC . . . use its

expert judgment to balance different policy objectives,”

including “between ‘adequate safeguards of the public health’

and ‘speed[y] deployment of competitive wireless

telecommunications services.’” The FCC contended that

litigation such as plaintiffs’ “is especially disruptive to the

FCC’s certification program because plaintiffs seek relief

based on third-party testing that may have inaccurately

measured the RF emissions of Apple’s iPhones.” Third, the

FCC argued that the district court had no jurisdiction over

plaintiffs’ state-law claims that Apple failed to disclose that

iPhones emitted RF radiation at unsafe levels or levels

exceeding the FCC’s RF limits. Even if the district court had

jurisdiction, the FCC argued, federal law preempted those

claims.

In its statement of interest, the FCC asserted that Apple’s

iPhone (including the iPhone 7, the iPhone X, and the iPhone

XS) complied with federal RF radiation guidelines. The FCC

stated that it had tested each iPhone model for the specific

bands of operations investigated by the Chicago Tribune, and

had found that the tested phones produced maximum

measured exposure of 0.946 W/kg for the iPhone 7, 0.799

W/kg for the iPhone X, and 1.35 W/kg for the iPhone

XS—all well under the FCC’s permitted maximum of

1.6 W/kg.

In October 2020, the district court entered summary

judgment for Apple. The district court held that the FCC

promulgated substantive RF radiation regulations under the

1934 Act rather than under NEPA. The district court found

that the 1996 Act’s general savings clause, 47 U.S.C. § 253,

and § 601(c) of the 1996 Act did not change the normal

operation of conflict-preemption analysis or limit the FCC’s
24 COHEN V. APPLE

statutory authority to regulate RF radiation. The district court

concluded that the FCC’s regulation of RF radiation, as part

of its equipment-authorization regime, preempted plaintiffs’

claims. In reaching this conclusion, the district court relied

on Farina v. Nokia, Inc., 625 F.3d 97, 133–34 (3d Cir. 2010),

in which the Third Circuit held that the FCC’s regulations

preempted similar claims under state law.

Plaintiffs timely appealed. On appeal, they concede that

RF radiation emissions from Apple’s iPhone are at levels

below the maximum permitted by FCC regulations. Their

primary arguments on appeal are that (1) neither the 1934

Act, 1996 Act, nor NEPA gives the FCC authority to preempt

state law concerning cell-phone radiofrequencyradiation, and

(2) the FCC’s RF radiation regulations do not preempt

state-law causes of action that are premised on maximum

levels of RF radiation below the maximum level set by the

FCC.

II. Standard of Review

We review a district court’s grant of summary judgment

de novo. See Zetwick v. County of Yolo, 850 F.3d 436, 440

(9th Cir. 2017). “Summary judgment is appropriate when,

viewing the evidence in the light most favorable to the

nonmoving party, there is no genuine dispute as to any

material fact.” Id. (citation omitted).

III. Analysis

A. Subject Matter Jurisdiction Under the Hobbs Act

Under the Hobbs Act, federal courts of appeals (except

the Federal Circuit) have “exclusive jurisdiction to enjoin, set
COHEN V. APPLE 25

aside, suspend (in whole or in part), or to determine the

validity of . . . all final orders of the [FCC] made reviewable

by [47 U.S.C. § 402(a)].” 28 U.S.C. § 2342(1); see also

47 U.S.C. § 402(a) (providing judicial review of FCC’s

orders and decisions, including “[a]ny proceeding to enjoin,

set aside, annul, or suspend any order of the [FCC]”). In

addition to direct challenges to agency orders, the Hobbs Act

grants exclusive jurisdiction to courts of appeals over suits

against private parties that would require the court to enjoin,

set aside, suspend, or determine the validity of a final FCC

order. Wilson v. A.H. Belo Corp., 87 F.3d 393, 399–400 (9th

Cir. 1996); see also Pub. Watchdogs v. S. Cal. Edison Co.,

984 F.3d 744, 765 (9th Cir. 2020) (Nuclear Regulatory

Commission order).

Apple argues that the Hobbs Act broadly grants exclusive

jurisdiction to courts of appeals over private suits that

implicate the substance of agency determinations. Citing two

of our cases, Apple argues that “the Hobbs Act divests district

courts of jurisdiction to pass on any issue that would require

them to decide whether they ‘agreed’ or ‘disagreed’ with a

determination made in an FCC final order,” and that the

district court therefore did not have jurisdiction over this

case.

We disagree. Neither case cited by Apple goes so far. In

Wilson, 87 F.3d at 395, plaintiffs brought suit in district court

against California television stations to recover payments for

campaign advertisements that allegedly exceeded limits

imposed by § 315(b) of the 1934 Act. The FCC had issued a

declaratory ruling asserting its exclusive authority to

adjudicate and enforce all claims under § 315(b). Id. We

held that the Hobbs Act barred jurisdiction because the

plaintiffs, in effect, had asked the district court to set aside or
26 COHEN V. APPLE

determine the validity of the FCC’s declaratory ruling. Id. at

400. Similarly, in Public Watchdogs, 984 F.3d at 765, the

plaintiff brought state-law claims against utility companies,

alleging mishandling of nuclear waste, and arguing that the

Nuclear Regulatory Commission (“NRC”) had improperly

granted a licensing amendment. We held that the Hobbs Act

barred the plaintiff’s “veiled challenge” to the NRC license

grant in the district court. Id. In both cases, plaintiffs’

lawsuits in effect would have required the district court to set

aside or determine the validity of an agency final order.

By contrast, plaintiffs in this case do not challenge the

validity of any of the FCC’s final orders, either directly or

indirectly. The issue in this case is whether the FCC’s

concededly valid orders have preemptive effect. A holding

that the FCC orders do, or do not, preempt plaintiffs’ statelaw claims has no effect on their validity.

We therefore hold that the Hobbs Act does not deprive the

district court of jurisdiction, and we reach the merits of the

appeal.

B. Preemption

Plaintiffs argue on two grounds that their state-law claims

are not preempted. First, they argue that the FCC

promulgated its RF Orders under NEPA. They argue that

because NEPA is a purely procedural statute with no

preemptive force, regulations promulgated under NEPA do

not preempt their state-law causes of action. Second, they

argue that even if the FCC’s RF Orders were promulgated
COHEN V. APPLE 27

under either, or both, of the twin Communications Acts, the

savings clauses in those Acts preserve their state-law causes

of action.

We disagree with both grounds.

1. NEPA

We agree with plaintiffs that NEPA is a purely procedural

statute and that it has no preemptive force. However, we do

not agree with plaintiffs that the FCC’s RF Orders were

promulgated under NEPA.

The twin Communications Acts grant to the FCC broad

regulatorypowers over wireless communication devices. The

1934 Act authorizes the FCC to: (1) “Regulate the kind of

apparatus to be used with respect to its external effects and

the purity and sharpness of the emissions,” 47 U.S.C.

§ 303(e); (2) “Make such rules and regulations and prescribe

such restrictions and conditions, not inconsistent with law, as

may be necessary to carry out the provisions of [the

Communications Acts],” id. § 303(r); and (3) “[P]erform any

and all acts, make such rules and regulations, and issue such

orders, not inconsistent with this chapter, as may be necessary

in the execution of its functions,” id. § 154(i).

The 1996 Act directed the FCC to complete rulemaking

for RF radiation that had already been initiated under the

1934 Act. Section 704(b) of the 1996 Act provides: “Within

180 days after the enactment of this Act, the [FCC] shall

complete action in ET Docket 93-62 to prescribe and make

effective rules regarding the environmental effects of radio

frequency emissions.” 1996 Act § 704(b), 110 Stat. at 152.

Section 704(b) does not itself grant rulemaking authority. 
28 COHEN V. APPLE

Rather, it requires the FCC to complete its preexisting

rulemaking proceeding initiated in the 1993 NPRM under the

authority of the 1934 Act. See Farina, 625 F.3d at 128 &

n.28.

The FCC has been consistent in stating that its authority

to regulate RF radiation-emitting communication devices

comes from the 1934 Act. The FCC wrote in the 1982

NPRM that led to its 1985 RF Order, “The action proposed

is . . . in furtherance of §§ 4(i) and 303(r) of the

Communications Act of 1934 . . . , which permits the [FCC]

to make rules and regulations . . . as may be necessary in the

execution of its functions.” 1982 NPRM, 89 F.C.C.2d at 255. 

It wrote in connection with the 1985 RF Order itself, “This

action is . . . in furtherance of §§ 4(i), 4(j), and 303(r) of the

Communications Act of 1934[.]” 1985 RF Order, 100

F.C.C.2d at 565. It wrote in the 1993 NPRM that led to its

1996 RF Order, “This action is . . . in furtherance of Sections

4(i), 4(j), and 303(r) of the Communications Act of 1934[.]” 

1993 NPRM, 8 FCC Rcd. at 2854. It wrote in its 2019 RF

Order, “The [FCC’s] authority to adopt and enforce RF

exposure limits pursuant to the Communications Act . . . is

well established.” 2019 RF Order, 34 FCC Rcd. at 11,689

n.5.

NEPA, by contrast, grants no affirmative regulatory

powers over wireless communications. It is a procedural

statute designed to ensure that federal actions, including

regulatory actions, are reviewed for their environmental

consequences. See 42 U.S.C. § 4332. The FCC’s 1985, 1996

and 2019 RF Orders were not authorized by NEPA. Rather,

they were constrained by NEPA. Several of the FCC’s

statements reflect this understanding of NEPA. For example,

the FCC wrote in its 1985 RF Order, “This action is based on
COHEN V. APPLE 29

the obligations imposed on the [FCC] by NEPA[.]” 1985 RF

Order, 100 F.C.C.2d at 565. It wrote in its 1996 RF Order

that it issued the order “to fulfill [its] responsibilities under

NEPA.” 1996 RF Order, 11 FCC Rcd. at 15,183. It wrote in

its 2019 RF Order, “The Commission’s authority to adopt and

enforce RF exposure limits . . . consistent with NEPA is well

established.” 2019 RF Order, 34 FCC Rcd. at 11,689 n.5.

We therefore reject plaintiffs’ argument that the FCC’s

RF Orders were promulgated under NEPA.

2. The Twin Communications Acts

Alternatively, plaintiffs argue that neither the 1934 Act

nor the 1996 Act preempts their state-law claims. Theymake

essentially two arguments. First, they argue that the 1934 Act

does not provide authority to the FCC to promulgate

regulations that preempt their state-law claims. Second, they

argue that reading the 1934 and 1996 Acts together “makes

clear that Congress did not authorize the FCC’s regulations

to displace state law here.” We take each argument in turn.

a. Authority under the 1934 Act

Plaintiffs argue that the 1934 Act does not authorize

preemption by regulations promulgated under the Act, and

that its state-law causes of action are not preempted by the

FCC’s orders. We disagree.

“The Supremacy Clause provides the constitutional

foundation for federal authority to preempt state law.” 

Beaver v. Tarsadia Hotels, 816 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 of
30 COHEN V. APPLE

state law, by operation of the SupremacyClause, can occur in

one of several ways: express, field, or conflict preemption.” 

Id. (citing Kurns, 565 U.S. at 630–31). Absent express

congressional preemption, federal law preempts state law

“when the scope of a [federal]statute indicates that Congress

intended federal law to occupy a field exclusively,” Kurns,

565 U.S. at 630 (alteration in original) (quoting Freightliner

Corp. v. Myrick, 514 U.S. 280, 287 (1995)), or where “the

state law ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress,’”

Beaver, 816 F.3d at 1179 (quoting Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 372–73 (2000)). Our

“preemption analysis is driven by the presumption that ‘the

historic police powers of the States were not to be superseded

by the Federal Act unless that was the clear and manifest

purpose of Congress.’” Id. (quoting Wyeth 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 pre-emptive

regulation’s force does not depend on express congressional

authorization to displace state law[.]” Fid. Fed. Sav. & Loan

Ass’n v. de la Cuesta, 458 U.S. 141, 154 (1982); see also City

of New York v. FCC, 486 U.S. 57, 64 (1988). While plaintiffs

protest that “Apple dusts off two decades-old cases” (both de

la Cuesta and City of New York were decided in the 1980s),

the Supreme Court has never overruled either case, and they

remain good law. We have cited them as providing the

standard governing agency preemption. See MetroPCS Cal.,

LLC v. Picker, 970 F.3d 1106, 1117 (9th Cir. 2020);

Barrientos v. 1801–1825 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 regulation’s
COHEN V. APPLE 31

force does not depend on express congressional authorization

to displace state law”). We therefore conclude that Congress

need not expressly delegate preemptive authority to the FCC

for its regulations to preempt state law.

“Along with Congress, ‘a federal agency acting within the

scope of its congressionallydelegated authoritymaypre-empt

state regulation.’” Barrientos, 583 F.3d at 1208 (quotingCity

of New York, 486 U.S. at 63–64). First, for a regulation to

have preemptive force, it must fall “within the scope of the

[federal agency’s] delegated authority,” id. at 583 F.3d

at 1208 (alteration in original) (quoting de la Cuesta,

458 U.S. at 154), or, in other words, it must be “statutorily

authorized,” City of New York, 486 U.S. at 64. Second, the

agencymust have “meant to pre-empt” state law. MetroPCS,

970 F.3d at 1117 (quoting Barrientos, 583 F.3d at 1208). 

“Where, as here, we consider whether a federal agency has

preempted state regulation, we do not focus on Congress’s

‘intent to supersede state law’ but instead ask ‘whether [the

federal agency] meant to pre-empt [the state law].’” Id.

(quoting Barrientos, 583 F.3d at 1208).

Importantly, the intent to pre-empt need not be express. 

Geier v. Am. Honda Motor Co., 529 U.S. 861, 884–85 (2000). 

Under the doctrine of implied conflict preemption, “[t]he

statutorily authorized regulations of an agency will pre-empt

any state or local law that conflicts with such regulations or

frustrates the purposes thereof.” City of New York, 486 U.S.

at 63. In other words, it must be either “impossible to comply

with both state and federal requirements,” or the state law

must stand “as an obstacle to the accomplishment and

execution of the full purposes and objectives of [the federal

agency].” MetroPCS, 970 F.3d at 1118. State law may pose

such an obstacle when it disturbs a balance the federal
32 COHEN V. APPLE

regulation has struck between “conflicting policies that were

committed to the agency’s care by the statute.” Barrientos,

583 F.3d at 1208 (alteration in original) (quoting City of New

York, 486 U.S. at 64). The balance struck by the federal

agency should not be disturbed “unless it appears from the

statute or its legislative history that [the balance] is not one

that Congress would have sanctioned.” City of New York,

486 U.S. at 64 (quoting United States v. Shimer, 367 U.S.

374, 383 (1961)).

As an initial matter, the plaintiffs argue that because

matters of health and safety, such as the biological effects of

cell phone RF radiation, fall within states’ historic police

powers, the presumption against preemption applies in this

case. We assume, without deciding, that the presumption

applies. Nevertheless, the presumption is overcome because

the conflict between the FCC’s RF radiation regulations and

plaintiffs’ state law claims poses a sufficient obstacle to the

full accomplishment of the FCC’s objectives. See Crosby v.

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

As discussed above, the FCC’s RF radiation regulations

were promulgated pursuant to §§ 4(i), 4(j) and 303(r) of the

1934 Act. The regulations thus fall within the scope of the

agency’s delegated authority under the 1934 Act. The 1934

Act grants broad authority to the FCC to promulgate

regulations that strike a balance among overlapping and

potentially conflicting policies. These policies include the

promotion of “a rapid, efficient, [n]ation-wide, and worldwide . . . communication service,” the promotion of “safety

of life and property through the use of wire and radio

communications,” “national defense,” and the encouragement

of “provision of new technologies and services to the public.” 

47 U.S.C. §§ 151, 157(a). The FCC’s RF radiation
COHEN V. APPLE 33

regulations, as applied to cell phones, were intended to strike

such a balance.

In its 1979 Notice of Inquiry, the FCC noted that, in

fulfilling its statutory mandate under the 1934 Act, “[a]

balance must be achieved between serving the public interest

by fulfilling its needs for communications services and

adequatelyprotecting the populace against potentiallyadverse

biological effects that may be attributable to excessive RF

radiation.” 1979 Notice of Inquiry, 72 F.C.C.2d at 489, ¶ 17. 

The 2013 Notice of Inquiry affirmed the FCC’s previous

view that it must strike a balance between public safety and

the public’s access to new telecommunications services. See

2013 Notice of Inquiry, 28 FCC Rcd. at 3,582, ¶ 236.

Plaintiffs’ state-law claims would disrupt the balance

struck by the FCC. In an analogous case, the Third Circuit

has explained:

The reason why state law conflicts with

federal law in these balancing situations is

plain. When Congress charges an agency

with balancing competing objectives, it

intends the agency to use its reasoned

judgment to weigh the relevant considerations

and determine how best to prioritize between

these objectives. Allowing state law to

impose a different standard permits a rebalancing of those considerations. A statelaw standard that is more protective of one
34 COHEN V. APPLE

objective may result in a standard that is less

protective of others.

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

case. The FCC’s adoption of specific RF radiation limits for

cell phones is the result of the agency’s striking a balance

between the conflicting policies of public safety and the

public’s access to telecommunications technologies.

The savings clause in § 414 of the 1934 Act does not help

plaintiffs. We quoted it above. For the convenience of the

reader, here it is again: “Nothing in this chapter contained

shall in any way abridge or alter the remedies now existing at

common law or by statute, but the provisions of this chapter

are in addition to such remedies.” 47 U.S.C. § 414.

On appeal, plaintiffs do not press the allegations in their

complaint that Apple’s iPhones emit RF radiation at levels

above the maximum permitted by FCC regulations. For

purposes of appeal, they concede that Apple’s iPhones

comply with the FCC’s RF radiation regulations. They write,

“On appeal, [plaintiffs] pursue only their claims that Apple

devices are unsafe ‘in spite of’ compliance with federal

standards and that Apple fails to disclose their dangers.” 

Plaintiffs’ concession that Apple’s iPhone complies with

emission levels prescribed by the FCC is fatal to their appeal.

If plaintiffs were to press the allegations in the complaint

that Apple’s iPhones exceeded the maximum RF radiation

levels permitted by the FCC, and were to argue that the statelaw remedies they seek were premised on Apple’s violations

of the FCC’s RF radiation standards, this would be a different

appeal, and the savings clause might have some force. Cf.

Stengel v. Medtronic Inc., 704 F.3d 1224, 1233 (9th Cir.
COHEN V. APPLE 35

2013) (en banc). However, this is not their argument. 

Plaintiffs’ argument on appeal is that state-law causes of

action premised on RF radiation emission standards more

protective than those prescribed by the FCC are not

preempted.

In Geier v. American Honda Motor Co., 529 U.S. 861

(2000), the Supreme Court wrote that it “has repeatedly

‘decline[d] to give broad effect to saving clauses where doing

so would upset the careful regulatory scheme established by

federal law.’” Id. at 870 (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 1934 Act,

preserves only those rights not inconsistent with the statutory

requirements. Telesaurus VPC, LLC v. Power, 623 F.3d 998,

1010 (9th Cir. 2010). Section 414 cannot be read expansively

to “abrogate the very federal regulation of mobile telephone

providers that the [1934 Act] intended to create.” Id. at 1011

(quoting Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983,

987 (7th Cir. 2000)). “Said otherwise, we infer that Congress

did not intend the saving provisions in a federal law to be

interpreted in a way that causes the federal law ‘to defeat its

own objectives,’” including those implemented by federal

regulations. In re Volkswagen “Clean Diesel” Mktg., Sales

Pracs., & Prods. Liab. Litig., 959 F.3d 1201, 1214 (9th Cir.

2020) (quoting Geier, 529 U.S. at 872).

In American Telephone &Telegraph Co. v. Central Office

Telephone, Inc., 524 U.S. 214 (1998), the Supreme Court

refused to construe § 414 as saving state-law tort and breach

of contract claims from preemption under the 1934 Act’s

filed rate doctrine. The Court wrote:
36 COHEN V. APPLE

A claim for services that . . . directly conflict

with the tariff—the basis for both the tort and

contract claims here—cannot be “saved”

under § 414. “Th[e saving] clause . . . cannot

in reason be construed as continuing in

[customers] a common law right, the

continued existence of which would be

absolutely inconsistent with the provisions of

the act. In other words, the act cannot be held

to destroy itself.”

Id. at 227–28 (alteration and omission in original) (quoting

Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426,

446 (1907)).

So too here. The 1934 Act authorizes the FCC to balance

the overlapping and potentially competing factors in setting

safe and uniform limits for RF radiation from cell phones. 

Allowing state tort law to prescribe lower levels of RF

radiation than the levels prescribed by the FCC would

interfere with the nationwide uniformity of regulation that is

the aim of the Act, and would render the FCC’s statutorily

mandated balancing essentially meaningless. If state law

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

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” Beaver, 816 F.3d

at 1179 (quoting Crosby, 530 U.S. at 372–73).

We therefore hold that the FCC’s regulations under the

1934 Act, setting upper limits on the levels of permitted RF

radiation, preempt state laws that impose liability premised

on levels of radiation below the limits set by the FCC.
COHEN V. APPLE 37

b. Reading the 1934 and 1996 Acts Together

Plaintiffs argue that the preemptive scope of the FCC’s

RF radiation regulations cannot be determined solely by

consulting the 1934 Act. They argue that the 1934 and 1996

Acts must be read together. They write in their brief that it

was in the 1996 Act “that Congress carefully delineated the

limited scope of the FCC’s preemptive authority.” We

disagree. We hold that the scope of preemption of the FCC’s

RF radiation regulations is controlled by the 1934 Act, and

that the preemption provisions of the 1996 Act are irrelevant.

As discussed in detail above, the FCC’s RF radiation

regulations were promulgated under §§ 4(i), 4(j), and 303(r)

of the 1934 Act. The 1996 Act directed the FCC to complete

within 180 days a pending rulemaking proceeding with

respect to RF radiation for cell phones. 1996 Act § 704(b),

110 Stat. at 152. But the 1996 Act did not provide the

underlying authority for adopting the RF radiation

regulations. It merely directed the FCC to complete quickly

the pending rulemaking proceeding under the 1934 Act.

As also discussed above, there are two preemption

provisions in the 1996 Act. First, there is a narrowly focused

savings clause. Section 332(c)(7)(A) of the 1996 Act

provides, “[N]othing in this chapter shall limit or affect the

authority of a State or local government or instrumentality

thereof over decisions regarding the placement, construction,

and modification of personal wireless service facilities.” 

47 U.S.C. § 332(c)(7)(A). This provision protects the

placement, construction, and modification of state and local

“facilities,” such as cell phone towers, from preemption under

the 1996 Act. It has nothing to do with RF radiation

emissions from cell phones.
38 COHEN V. APPLE

Second, there is a general savings clause. Section 601 of

the 1996 Act provides: “This Act and the amendments made

by this Act shall not be construed to modify, impair, or

supersede Federal, State, or local law unless expressly so

provided in such Act or amendments.” 1996 Act § 601(c)(1),

110 Stat. at 143 (emphasis added). By its plain terms, this

provision applies only to “this Act”—that is, to the 1996 Act. 

It does not apply to the 1934 Act.

Because § 332(c)(7)(A) applies only to “facilities,” and

§ 601(c)(1) applies only to the 1996 Act, the preemption

provisions of the 1996 Act do not affect the preemptive scope

of the FCC’s RF radiation regulations under the 1934 Act.

Conclusion

We hold that the Hobbs Act does not deprive the district

court of jurisdiction in this case. We hold, further, that the

FCC’s regulations of the RF radiation of cell phones,

promulgated under the 1934 Act, preempt plaintiffs’state-law

claims as they are presented to us on appeal.

AFFIRMED.