The Third Circuit Court of Appeals which includes the U.S. Virgin Islands, has affirmed the dismissal of class action claims against cell phone manufacturers and retailers of wireless handheld telephones alleging they are unsafe to use without headsets because holding the antennas next to the head purportedly exposes the user to dangerous levels of radio frequency (RF) radiation. Farina v. Nokia, Inc., No. 08-4034 (3d Cir., decided October 22, 2010).    

According to the court, the Federal Communications Commission (FCC) has regulated human exposure to RF emissions since 1985 and first limited such emissions from cell phones in 1996 under a law that expressly expanded the FCC’s authority to preempt certain state and local regulations of these emissions. The court found that “allowing suits like Farina’s to continue is to permit juries to second-guess the FCC’s balance of competing objectives. The FCC is in a better position to monitor and assess the science behind RF radiation than juries in individual cases.”

"Farina v. Nokia may impact the cell tower legislation that is currently pending before the 28th Legislature of the Virgin Islands which as presently drafted requires information on RF frequencies to be filed with cell tower applications," noted U.S. Virgin Islands telecommuncations counsel Tom Bolt. 

The Third Circuit addressed jurisdictional issues at the outset of its opinion, reciting a circuitous procedural path the case had taken involving three amended complaints, one state court, two federal district courts, and the Judicial Panel on Multidistrict Litigation. The court determined that under the Class Action Fairness Act of 2005 (CAFA), it agreed with those circuit courts applying relation-back rules to at least some complaint amendments in the context of deciding when the lawsuit was commenced. In this regard, the Third Circuit rejected the Ninth Circuit’s approach, which “ignores amendments and looks only to the filing of the original complaint for commencement.”

The court determined that the plaintiff’s second amended complaint commenced a new action by adding new defendants unrelated to any of the named defendants. Because the complaint was filed after CAFA was enacted, the court determined that it was subject to CAFA’s provisions. Thus, the removal motion filed by a new defendant was timely, and the district court had no authority to remand because the plaintiff’s motion to remand was filed more than 30 days after the notice of removal. Accordingly, the Third Circuit concluded that it had jurisdiction to decide whether the district court properly dismissed the claims on preemption grounds.