Case3:10-cv WHA Document55 Filed10/04/11 Page1 of 8

Transcription

1 Case:0-cv-0-WHA Document Filed0/0/ Page of 0 Robert A. Mittelstaedt (#0) Craig E. Stewart (#0) JONES DAY California St., th Floor San Francisco, CA 0 Telephone: () - Fax: () -00 ramittelstaedt@jonesday.com Jane F. Thorpe (pro hac vice) Scott A. Elder (pro hac vice) ALSTON & BIRD LLP West Peachtree St., NW Atlanta, Georgia 00- Telephone: (0) - Fax: (0) - jane.thorpe@alston.com Terrence J. Dee (pro hac vice) KIRKLAND & ELLIS LLP 00 North LaSalle Chicago, IL 0 Telephone: () - Fax: () -0 tdee@kirkland.com Attorneys for Plaintiff CTIA The Wireless Association CTIA - THE WIRELESS ASSOCIATION, v. Plaintiff, THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, Defendant. Andrew G. McBride (pro hac vice) Joshua S. Turner (pro hac vice) WILEY REIN LLP K Street, N.W. Washington, DC 00 Telephone: ()-000 Fax: () -0 amcbride@wileyrein.com Seamus C. Duffy (pro hac vice) Susan M. Roach (pro hac vice) DRINKER BIDDLE & REATH LLP One Logan Square, Suite 00 Philadelphia, PA 0- Telephone: () -00 Fax: () - seamus.duffy@dbr.com UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No. :0-cv-0 WHA DECLARATION OF DOMENICO D AMBROSIO IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION Date: October, Time: :00 AM Place: Courtroom, th Floor No. C 0-0 WHA

2 Case:0-cv-0-WHA Document Filed0/0/ Page of 0 I, Domenico D Ambrosio, hereby declare under penalty of perjury as follows:. I make this Declaration in support of Plaintiffs Motion for a Preliminary Injunction in the above-captioned matter.. Verizon Wireless is an active member of CTIA.. Verizon Wireless will be regulated by the City of San Francisco s Cell Phone Right to Know Ordinance, San Francisco Environment Code Sections 0-0, if it is allowed to go into effect.. I am Director of Retail Stores for the Northern California, Nevada and Hawaii areas of Verizon Wireless. I am over the age of eighteen and am fully competent to make this Declaration. I make this Declaration based upon my personal knowledge and experience and upon information provided to me in the course of my employment by Verizon Wireless. I have been employed by Verizon Wireless for years in positions involving customer care and retail marketing. My expertise is in marketing, customer acquisition, customer service, and customer relations. I have been involved in many aspects of marketing, customer acquisition and customer service for Verizon Wireless, including managing and supervising retail sales at Verizon Wireless stores, authorized retailers, and outlets, coordinating direct mail and broadcast (newspaper, television, etc.) advertising campaigns, and training and supervising sales personnel.. I am familiar with Verizon Wireless s marketing, customer relations, and customer service operations, including, but not limited to, the marketing and product and service information presented to customers at the point of sale in our retail locations and those of our affiliates.. I am currently enrolled at the University of Bellevue, and am working towards obtaining a bachelor s degree in Business Administration and Planning. In addition, I have attended various training programs and seminars provided both by Verizon Wireless and by other entities on the topics of marketing, customer acquisition, and customer relations.. In my present position as Director of Retail Sales I am responsible for retail sales operations in Northern California, which includes the City and County of San Francisco (the City ). In this capacity, I supervise and coordinate all retail marketing and sales activities for -- No. C 0-0 WHA

3 Case:0-cv-0-WHA Document Filed0/0/ Page of 0 Verizon Wireless in San Francisco, and ensure that those activities are integrated and consistent with Verizon Wireless s marketing strategy. My duties include, but are not limited to, the coordination of advertising and marketing campaigns within retail locations, and studies of customer satisfaction and customer retentions.. I am well-versed in the company s approach to retail marketing and customer acquisition, and understand how important those activities are to the strength and growth of the company.. I have reviewed and am familiar with the City s Cell Phone Right to Know Ordinance, which imposes several obligations on cell phone retailers to post and disseminate information about what the City believes are risks from RF energy emitted from cell phones. 0. The market for wireless services, including voice telephony and data-transmission services, such as wireless and wireless Internet access, is among the most competitive in the country. Wireless carriers compete vigorously with each other throughout the country to acquire and retain subscribers. In addition, wireless carriers compete with traditional wireline providers in both local and long distance service. A large and increasing percentage of wireless customers have replaced a substantial portion of their wireline long-distance calling with wireless calls, and that trend is expected to continue.. As of the end of the third quarter of Verizon Wireless had over 0 million subscribers in all fifty states and the District of Columbia.. Verizon Wireless had nearly 0,000 customers in the City and County of San Francisco at the end of August and is actively engaged in marketing its services to both existing and potential new customers in San Francisco and the surrounding area.. Verizon Wireless owns and operates five branded retail stores in the City and County of San Francisco. It also markets and sells its products and services in other sales channels located in the City and County of San Francisco, including agent stores, so-called bigbox stores such as Best Buy and Staples, and chain stores such as Walgreens and Radio Shack.. Consumers enter Verizon Wireless stores for a number of reasons. Existing customers come, among other things, to purchase a new wireless device, to inquire about new or -- No. C 0-0 WHA

4 Case:0-cv-0-WHA Document Filed0/0/ Page of 0 existing wireless products and services, and to get technical advice about their wireless devices. Potential customers come, among other things, to inspect Verizon Wireless devices on display, and to inquire and gather information about Verizon Wireless products and services with a view to becoming a Verizon Wireless subscriber and purchasing a wireless device from Verizon Wireless.. Verizon Wireless has a highly efficient and multi-pronged marketing strategy to communicate with current and potential customers. The focal point of Verizon Wireless s marketing is the Verizon Wireless brand. A critical part of my responsibilities is to protect the brand from denigration and diminution that might be caused by customer confusion and/or misleading information concerning Verizon Wireless products and services. In executing my responsibilities, I seek to ensure that all information displayed in the store about Verizon Wireless products and services and all of the messages communicated in the store are consistent with Verizon Wireless s uniform, nationwide branding and marketing campaign.. Verizon Wireless works hard and invests substantially to design and maintain retail environments that provide existing and potential customers with product and service information in the most accessible, informative and appealing way. The Verizon Wireless retail store is one of the most important avenues of communication with consumers. We like to say that the Verizon Wireless store is 0% of the Verizon Wireless brand.. Displays in Verizon Wireless retail stores in San Francisco and across Verizon Wireless s nationwide footprint are carefully planned to ensure that all stores have the same look and feel. Customers entering a retail store in San Francisco should see the same marketing themes and messages that they would see in retail stores in New York or Texas or Florida or anywhere else in the country. To ensure consistent messaging in all of its stores, Verizon Wireless maintains a web-based On-Line Merchandising Manager (OMM), which lays out the floor plan and merchandising plan to be followed in every store. Verizon Wireless headquarters updates the OMM, as necessary, to advise stores of changes in the merchandising plan and of promotions of new products and services. -- No. C 0-0 WHA

5 Case:0-cv-0-WHA Document Filed0/0/ Page of 0. Verizon Wireless carefully selects the information and messages it wants to convey throughout its stores and in the limited space adjacent the phones and devices it sells. Through consumer research, Verizon Wireless has learned that consumers demand clear, concise messages, and reject and ignore what they regard as too much information and clutter.. All display and promotional materials are carefully developed and placed to communicate the most important information to consumers as effectively and efficiently as possible. Next to or very close to each phone displayed in a retail store, Verizon Wireless places an informational display known as a Call Out Card. These Call Out Cards inform potential customers of the phone s features, and its price that is, the information customers view as most critical when deciding whether to purchase a particular wireless device. A standard Call Out Card for a wireless phone, such as the Samsung Intensity II, is / inches wide and / inches long. An example of the Call Out Card for that device is attached hereto as Exhibit A.. Verizon Wireless uses its store space not merely to promote its goods and services but also to promote social causes that are important to Verizon Wireless and to provide consumers with information. For instance, Verizon Wireless sponsors the HopeLine program in which Verizon Wireless collects used cell phones from customers, refurbishes them and donates the refurbished phones to victims of domestic violence so that they can use the phones to call for emergency assistance in abuse situations. Verizon Wireless places in each store a receptacle where customers can place their phones for donation. A sign on the receptacle explains the HopeLine program and encourages customers to donate used phones to it.. At least one Verizon Wireless retail store in the San Francisco area post a LEED Gold plaque indicating the store has been certified green by the U.S. Green Building Council. By posting this plaque, Verizon Wireless means to convey to its customers that it is committed to environmental conservation and to promote conservation by example. Verizon Wireless also seeks to communicate its conservation message through the paperless store environmental initiative recently launched in Northern California. Through this initiative, Verizon Wireless has essentially eliminated use of paper receipts and all other paper materials that might have been provided to a customer at the point of sale in the past. -- No. C 0-0 WHA

6 Case:0-cv-0-WHA Document Filed0/0/ Page of 0. Verizon Wireless provides customers visiting its stores with other information as well. In every Verizon Wireless retail store, Verizon Wireless posts a framed sign near the sales registers that presents information about its Return and Exchange and Check Acceptance policies, and about Radio-Frequency Emissions and Responsible Driving. The sign (a copy of which is attached as Exhibit B) advises customers they can [a]sk your Sales Representative for a brochure that contains consumer information and addresses commonly asked questions about the health effects of wireless phones. The information in the brochure is the same as information posted on Verizon Wireless s website, which can be accessed via this link: Verizon Wireless s marketing materials, its information disclosures, its social initiatives and its substantial investments in communicating effectively with its customers have paid off in the form of substantial goodwill among Verizon Wireless subscribers. Verizon Wireless s customer goodwill and business reputation are among its most valuable assets.. The City s mandatory disclosure requirements run directly counter to Verizon Wireless s own, uniform nationwide strategy for communicating with consumers. Prominently displaying posters containing graphic images of red and orange waves radiating from cell phones into the head and mid-section of the human body will not only distract from the other information that Verizon Wireless conveys in its stores, including through posters and other displays, but also create customer confusion and anxiety concerning safe use of Verizon Wireless products and services.. These mandatory communications will also compete with Verizon Wireless own messages for the limited, valuable space that can be used for posting messages in retail stores. The City s requirement that Verizon Wireless prominently post a sign and place stickers on its displays near phones detracts from its efforts to maximize use of its retail store space to convey its own messages.. Indeed, given the extremely limited space that is available on the Call Out Cards posted near each device on display and the required dimensions of the stickers that Verizon Wireless would have to place on the Call Out Cards in order to comply with the City s Ordinance, -- No. C 0-0 WHA

7 Case:0-cv-0-WHA Document Filed0/0/ Page of 0 Verizon will likely be forced to eliminate or cover up (with the City s sticker) some of the device specifications that are now displayed on the Call Out Cards. And placing the sticker on the Call Out Card along with the other important information on which customers focus when deciding whether to purchase the device will elevate the significance of the fact that, as stated on the mandatory sticker, Your head and body absorb RF energy from cell phones.. The City s handout, which by law must accompany every phone sold and be provided to anyone who requests one, will likely be the only piece of paper that consumers will receive in the San Francisco retail stores. Here, too, the effects of the City s mandatory handout will likely be increased by the fact that Verizon Wireless will be providing customers with a single document that recommends, among other things, that users turn their cell phones off.. Displaying the mandatory poster in other Verizon Wireless sales outlets, such as the big-box stores, would be particularly problematic. In Best Buy stores, for example, Verizon Wireless, AT&T, Sprint and other carriers all sell their products and services in the limited space that Best Buy dedicates to sale of wireless services in its stores. There is typically no wall space on which to post promotional materials, and whatever limited space is made available must be allocated among the competing carriers for their limited promotional materials. If Best Buy were forced to comply with the City s requirement that it display the City s poster, Best Buy would likely be forced to eliminate some of the information that is currently displayed. Because the wireless carriers do not control the space, they have no control over which of their materials Best Buy might remove. Other, similar retail locations, particularly Walgreens and the like where even less space is available to sell and promote devices, would almost certainly face the same issues.. The messages that cell phones may be dangerous and that they should be used less or turned off, held away from the body and might be dangerous to children will cause damage to the Verizon Wireless brand, reputation and goodwill. They threaten to scare, alarm and mislead existing and potential customers. They effectively force Verizon Wireless to disparage its own products and services, and thus would conflict with the messages that Verizon Wireless seeks to convey in its marketing materials. -- No. C 0-0 WHA

8 Case:0-cv-0-WHA Document Filed0/0/ Page of 0 0. Enforcement of San Francisco s RF regime will be disruptive to Verizon Wireless s marketing, sales, training, and general business operations, and will impose costs and disruption. Compliance will require the creation and dissemination of appropriate revised display materials, decisions about appropriate posting of required posters in stores, and future effort to incorporate the materials in a visually unobtrusive way that harmonizes with Verizon Wireless s other displays, marketing materials, and product information. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on October, Domenico D Ambrosio SFI-v -- No. C 0-0 WHA

9 Case:0-cv-0-WHA Document- Filed0/0/ Page of

10 Case:0-cv-0-WHA Document- Filed0/0/ Page of

11 Case:0-cv-0-WHA Document- Filed0/0/ Page of

12 Case:0-cv-0-WHA Document- Filed0/0/ Page of

13 Case:0-cv-0-WHA Document- Filed0/0/ Page of