Appeals from the Superior Court of the District of Columbia, (Nos. CA-8479-01, CA-1368-02, CA-1369-02, CA-1370-02, CA-1371-02 & CA-1372-02), (Hon. Cheryl M. Long, Motions Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before KRAMER, FISHER and THOMPSON, Associate Judges.
This appeal presents the question of whether federal law preempts any or all of plaintiffs'/appellants' numerous causes of action for damages against a group of cellular-telephone manufacturers, distributors, promoters, sellers, service providers, industry associations, and standards-setting entities. The Superior Court ruled that all of the claims are barred on the basis of both express and implied federal preemption. For the reasons that follow, although we find no express preemption, we conclude that federal law does impliedly preempt plaintiffs' claims insofar as they seek to hold defendants liable for bodily injuries from cell phones that met the radio frequency ("RF") radiation standard adopted by the Federal Communications Commission (the "FCC"). At the same time, we conclude that insofar as plaintiffs' claims are premised on allegations that they were injured through use of cell phones that did not meet the FCC standard, the claims are not federally preempted. We also conclude that plaintiffs' claims alleging violations of the District of Columbia Consumer Protection Procedures Act ("CPPA"), D.C. Code § 28-3904(2001), may survive the preemption challenge. We therefore affirm in part and reverse in part the judgment of the Superior Court dismissing the complaints, and we remand for further proceedings consistent with this opinion.
Through six separate complaints filed in November 2001 or February 2002 ("the Complaints"), plaintiffs/appellants (hereinafter, "plaintiffs")*fn1 sued defendants/appellees (collectively, "Motorola et al.," "defendants," or the "cell-phone companies"), alleging that plaintiffs suffered illness and injury (including brain cancer or tumors), or loss of consortium, as a result of using hand-held cellular telephones produced, sold, or promoted by defendants (hereinafter "cell phones," "mobile phones," or "hand-held phones"). The Complaints assert virtually identical causes of action for (1) intentional fraud and misrepresentation; (2) negligent misrepresentation; (3) strict product liability; (4) failure to warn and defective manufacture and design; (5) negligence; (6) gross negligence; (7) breach of express warranty; (8) breach of implied warranty; (9) conspiracy; (10) violations of the CPPA*fn2 ; (11) civil battery; and, except for the Schofield complaint, (12) loss of consortium. Motorola et al. thereafter attempted to remove the suits from the District of Columbia Superior Court, where they were filed, to the United States District Court for the District of Maryland. See In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 327 F. Supp. 2d 554 (D. Md. 2004) ("Wireless"). The District Court (the Honorable Catherine Blake) found no basis for removal*fn3 and remanded to the Superior Court. See id. at 559, 571.
Upon remand to the Superior Court, defendants filed a motion to dismiss, arguing that, because plaintiffs' claims are preempted by federal law, plaintiffs had failed to state a claim upon which relief could be granted. The FCC participated as amicus curiae, likewise arguing that plaintiffs' claims must fail on preemption grounds. The Superior Court consolidated the six suits for purposes of oral argument. In a comprehensive August 24, 2007, memorandum opinion and order ("Order"), the motions judge, the Honorable Cheryl Long, dismissed the Complaints with prejudice, ruling that the claims set forth in them are precluded under the doctrines of express preemption, conflict preemption, and field preemption. Our review of the dismissals is de novo. See Portuguese Am. Leadership Council of the U.S., Inc. v. Investors' Alert, Inc., 956 A.2d 671, 676 (D.C. 2008).
We begin with a close look at the Complaints that commenced this litigation. Plaintiffs allege that Motorola et al. have long been aware of numerous studies revealing that the radio frequency emissions ("RF emissions" or "RF radiation") from cell phones have both thermal and non-thermal effects that are severely harmful to human health. For example, according to plaintiffs, the studies leave room for no dispute that the thermal effects of RF radiation can cause tissue destruction, a precursor to cancer. Deliberately suppressing such studies, plaintiffs allege, defendants "set about to co-op [sic] the federal agencies which had the jurisdiction to force the industry to prove the safety of cell phones." According to plaintiffs, the cell-phone companies ultimately succeeded in "manipulat[ing] the research" of the American National Standards Institutes ("ANSI") and in causing cell phones initially to be "excluded from any testing, compliance, or monitoring by any safety standard, government agency, or regulatory body." Eventually (in 1992), ANSI did recommend specific absorption rate [SAR]*fn4 limits applicable to cell phones, and, effective August 1, 1996, the FCC adopted a standard based in part on the 1992 ANSI recommendations.*fn5 But, plaintiffs complain, the FCC has "allowed cell phone manufacturers to self certify their cell phones as within the SAR limits" even though "SAR results can be easily manipulated." As a result, the Complaints continue, the SAR values that defendants report to the FCC during self-certification "are below actual values" and "actual values exceed the SAR limits established by the FCC."*fn6 The Complaints further allege that federally adopted SAR limits are inadequate in any case because they do not take into account "'hot spots'*fn7 created by the convergence of airwaves."
Plaintiffs further charge that "[d]efendants were aware of numerous solutions that could virtually eliminate the health hazards of radiation from cell phones such as shielding, antenna phasing, use of low reluctance material pattern, shrouds, canting etc." The Complaints assert that, unwilling to sacrifice profits, defendants neither adopted these safety measures nor warned cell-phone users of potential risks or methods that could be used to minimize their exposure to radiation and to avoid injury. Instead, the Complaints allege, defendants led the public in general and plaintiffs in particular to believe that cell phones "do not pose any risk of harm to the user whatsoever" and that "there is absolutely no risk of harm associated with the use of cell phones."
Judge Long found that the gravamen of plaintiffs' Complaints is that the cell phones that defendants manufactured or promoted were unsafe because they emitted a dangerous level of RF radiation, notwithstanding any FCC approval of the phones. Through their strict-product-liability, breach-of-implied-warranty, negligence, and failure-to-warn/defective-manufacture-and-design counts, plaintiffs seek damages on the grounds that their cell phones were "defective" and "unreasonably dangerous" when they entered the market and that the phones "emit harmful radiation fields without adequate safeguards to protect the user," create a "risk of biological damage" and other "health risks" resulting from exposure to RF emissions, and do not include available exposure-reducing safeguards (e.g., headsets and speaker-phone adaptors). Plaintiffs' intentional-fraud-and-misrepresentation, negligent-misrepresentation, and breach-of-express-warranty claims seek damages on the grounds that defendants misrepresented that "cell phones are safe to use," that they failed to disclose that "there was a great risk of harm associated with the use of cell phones," and that cell phones "are not safe and have high potential for causing serious 8 biological and health effects . . . ." Through their civil-battery counts, plaintiffs seek damages for defendants' having "inflicted harmful or offensive contact" on plaintiffs by exposing them to "radiation fields which . . . could cause . . . significant health risks and effects."*fn8
Finally, Count Nine of each Complaint raises CPPA claims. Plaintiffs essentially have quoted from each of the paragraphs of D.C. Code § 28-3904, going so far as to include claims that appear to be unsupported by any of the other factual allegations of the Complaints (such as claims that defendants "falsely state[d] the reasons for offering and/or supplying goods or services at sale or discount prices" in violation of section 28-3904 (l), and misled plaintiffs "into believing deceptive representations or designations of geographic origin in connection with goods or services," in violation of section 28-3904 (t)). But, more apropos of other allegations of the Complaints that Count Nine incorporates by reference, plaintiffs also allege that defendants falsely represented that their goods have "approval, certification [or] characteristics" that they did not have, in violation of sections 28-3904 (a) and (b), and that defendants made false and misleading statements or omissions that had the "capacity, tendency or effect of deceiving or misleading consumers," in violation of D.C. Code §§ 28-3904 (e) and (f).
With this reading of the Complaints in mind, we turn to the preemption issues.
The Supremacy Clause, Article VI of the United States Constitution, declares that "the Laws of the United States . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI., cl. 2. Courts have identified three ways in which, pursuant to the Supremacy Clause, federal law may preempt state law, either expressly or impliedly. See In re Couse, 850 A.2d 304, 308 (D.C. 2004). There is express pre-emption "where statutory language 'reveals an explicit congressional intent to pre-empt state law' . . . ." Id. (quoting Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31 (1996)). Federal law supplants state law under the doctrine of "conflict preemption," the first type of implied preemption, where "compliance with both federal and state regulations is a physical impossibility, . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objecti[ves] of Congress." Id. (citations omitted); see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000) (clarifying that "both forms of conflicting state law are nullified by the Supremacy Clause") (citation and internal quotation marks omitted). Field preemption, the second type of implied preemption, occurs when "federal law so thoroughly occupies a legislative field 'as to make reasonable the inference that Congress left no room for the States to supplement it.'" Couse,850 A.2d at 308(quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)).*fn9 For preemption purposes, federal "law" includes federal regulations, Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985), and state "law" includes the common law as a basis for judgments in tort suits. Riegel v. Medtronic, Inc., 128 S.Ct. 999, 1008 (2008).*fn10
Two provisions of the federal Telecommunications Act of 1996 (the "Telecommunications Act"), Pub. L. No. 104-104, 110 Stat. 56 (1996), were the basis for the Superior Court's finding that the Complaints were barred on the basis of express preemption: 47 U.S.C. §§ 332 (c)(7)(B)(iv) and 332 (c)(3)(A).
A. Section 332 (c)(7)(B)(iv)
In relevant part, section 332 (c)(7) provides:
(7) Preservation of local zoning ...