In Part 1 we built a Fifth Amendment (Takings Clause) theory. Here, we explain how Section 704 interacts with the First and Tenth Amendments—and exactly where advocates still have leverage.
1) The starting point: what Section 704 really does
Section 704, codified at 47 U.S.C. § 332(c)(7), preserves local zoning authority except it bars state or local decisions “on the basis of the environmental effects of radio‑frequency emissions” if a facility meets FCC exposure limits. It also requires written decisions supported by substantial evidence and provides expedited judicial review. Legal Information Institute+1
That one sentence—no health‑based siting denials if FCC‑compliant—drives almost all First‑ and Tenth‑Amendment fights. Legal Information Institute
2) The Tenth Amendment: “anti‑commandeering” vs. federal preemption
What cities argue: Section 704 “commandeers” local governments by telling them what reasons they can/cannot use in siting, violating state sovereignty.
What courts have said so far: Section 704 is valid federal preemption, not unconstitutional commandeering.
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The Second Circuit rejected a Tenth Amendment challenge head‑on in Cellular Phone Taskforce v. FCC (2000). The court held Congress may preempt state and local regulation of wireless facilities; Section 704 does not force local officials to administer a federal program—it limits what rationales can be used in local decisions. Justia Law
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The Ninth Circuit (reviewing the FCC’s 2018 “Small Cell” orders) likewise rejected Tenth Amendment challenges, while trimming parts of the FCC’s aesthetic rules; it left most federal streamlining intact. Ninth Circuit Court
Why that result makes doctrinal sense:
The Supreme Court’s anti‑commandeering cases—New York v. United States (1992), Printz v. United States (1997), and Murphy v. NCAA (2018)—forbid Congress from ordering states to legislate or administer federal schemes. But preemption—a valid federal rule governing private activity that nullifies conflicting state rules—remains constitutional. Courts have treated Section 704 as the latter: a federal limit inside a field Congress can regulate under the Commerce Clause. Legal Information Institute+2Legal Information Institute+2
Bottom line (Tenth Amendment): Today’s case law treats Section 704 as permissible preemption, not commandeering. The federal government has not been found to violate the Tenth Amendment by telling localities they can’t base siting decisions on RF‑health once FCC limits are met. Justia Law
Watch this space: In City of Arlington v. FCC (2013), the Supreme Court deferred to FCC interpretations of § 332(c)(7) (Chevron deference). In 2024, the Court overruled Chevron in Loper Bright, directing courts to interpret statutes without automatic agency deference. That shift could affect how much of the FCC’s implementation of § 332(c)(7) survives, even though the statutory text of Section 704 remains. Expect fresh litigation over the scope of shot clocks, “effective prohibition,” and aesthetic limits. Justia Law+1
3) The First Amendment: speech, public meetings, and the “right to petition”
Common claim: “Section 704 is a gag rule—we aren’t allowed to talk about health, or courts won’t even hear us.”
What the courts have actually held:
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Speech & Petition are not banned. The Tenth Circuit in Santa Fe Alliance v. City of Santa Fe (2021) said plainly: nothing in Section 704 punishes, restricts, or prohibits anyone from speaking about RF health or from petitioning the government or the courts. What Section 704 does is limit what local decisionmakers may rely on when they decide permit applications. The court rejected First Amendment speech and petition claims on that basis. Tenth Circuit Court of Appeals
Why that result tracks First Amendment doctrine:
Public‑meeting comments happen in a limited public forum. Government can impose subject‑matter rules tied to the forum’s purpose (e.g., “stick to land‑use criteria we’re legally allowed to consider”) so long as it does not discriminate by viewpoint. Cases like Perry Education Ass’n (1983) and Cornelius v. NAACP (1985) establish that subject‑matter limitations are allowed if they’re reasonable and viewpoint‑neutral—exactly the posture when a planning body says “we cannot consider health because Congress preempted that factor.” Legal Information Institute+1
Bottom line (First Amendment): You can speak and you can petition. Section 704 doesn’t criminalize or censor speech; it constrains official decision criteria. That’s why broad First Amendment attacks have failed in court. Tenth Circuit Court of Appeals
4) What local governments still can regulate (and how residents can win within those lanes)
Even with § 704’s health preemption, localities retain meaningful tools—if they use them correctly and build a record:
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Aesthetics, design, concealment, spacing, and height. The FCC’s 2018 Small Cell Order tried to require “objective” aesthetic rules published in advance and “no more burdensome” than other infrastructure. The Ninth Circuit vacated parts of that (the across‑the‑board “objective” and “no more burdensome” mandates) for lack of reasoned explanation—but left most of the Order intact. Localities can (and should) adopt clear, reasonable aesthetic standards and enforce them with evidence. Ninth Circuit Court
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Shot clocks & written reasons. Localities must act within “reasonable” times (the FCC “shot clocks” framework remains influential) and must issue written denials with reasons supported by “substantial evidence in a written record,” per § 332(c)(7)(B)(iii). The Supreme Court’s T‑Mobile South v. Roswell (2015) reinforced that written‑reasons requirement. Legal Information Institute
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Fees & right‑of‑way management. Most fee caps and ROW streamlining survived in City of Portland; charge cost‑based, nondiscriminatory fees and avoid rules that “materially inhibit” service. Ninth Circuit Court
Advocacy tips that win (and don’t trigger preemption):
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Build an evidence‑based record on non‑health criteria: neighborhood character, concealment, pole placement and clearance, traffic sightlines, tree removal, historic‑district design rules, fire/structural code compliance, noise from fans/back‑up power, and cumulative visual impacts. Tie objections to adopted standards, photosimulations, and expert memos—so there’s “substantial evidence” if the decision is reviewed. Ninth Circuit Court
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Demand a lawful denial memo. If a board denies, insist (politely) on a timely written decision with reasons (not “because people are worried about health”)—that’s what Roswell requires. Legal Information Institute
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Keep speech rights clean. Even if the board can’t rely on health concerns, you may still speak about them during public comment (consistent with meeting rules). Don’t let anyone misstate the law as a gag on your comments; Santa Fe confirms it’s not. Tenth Circuit Court of Appeals
5) The arguments you will hear—and how to answer them
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“Section 704 forces us to approve towers—commandeering!”
Answer: No. Courts say § 704 limits the bases for local decisions; it doesn’t order approvals or conscript officials (that would be Printz/New York territory). It is treated as federal preemption in a field Congress can regulate. Justia Law -
“You can’t even mention health at a hearing.”
Answer: You can speak; officials just cannot rely on health effects as a decision ground if the site is FCC‑compliant. That’s the Santa Fe holding. Tenth Circuit Court of Appeals -
“The FCC said our rules must be purely ‘objective,’ so we can’t have design judgment.”
Answer: The Ninth Circuit vacated the FCC’s categorical “objective” mandate; reasoned, published aesthetic standards remain valid tools if they’re not used to effectively prohibit service. Ninth Circuit Court
6) Strategy for communities and parents (a practical playbook)
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Adopt (or update) a defensible ordinance focusing on aesthetics, concealment, siting priorities, spacing, height, and design in historic/sensitive areas, with clear findings requirements—not health. Use photo standards and objective criteria where feasible; be prepared to justify reasonableness. Ninth Circuit Court
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Train boards on what they can consider (design, placement, ROW safety, visual burden, noise, traffic control plans, tree/streetscape impacts, code compliance) and what they cannot (RF‑health if FCC‑compliant). Provide a model denial template that tracks § 332(c)(7) and Roswell. Legal Information Institute
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Build the administrative record: require complete application packets (site alternatives, maps, photo sims, noise specs, power & back‑up plans, structural drawings), then make findings connected to adopted standards. This is how you win under the “substantial evidence” rule. Legal Information Institute
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Use fees lawfully (cost‑based, nondiscriminatory) and manage ROW construction with neutral dig and traffic rules. Don’t overreach with de facto moratoria. Ninth Circuit Court
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For residents: submit written comments that translate your concerns into lawful criteria (e.g., “The proposed height and shroud massing are inconsistent with § X.Y’s design standard and will create an incongruous streetscape; alternatives exist two blocks east that meet spacing rules”). Preserve health concerns in separate policy advocacy (legislative channels), but don’t make them the legal basis for a siting decision.
7) Where the doctrine may shift next
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Post‑Chevron (2024+): With Chevron gone, courts will scrutinize FCC interpretations of ambiguous parts of § 332(c)(7) (e.g., “effective prohibition,” aspects of the shot clocks) with independent judgment. That could modestly expand local discretion at the margins—or reorder the FCC’s 2018 framework—while leaving § 704’s health‑preemption text in place unless Congress amends it. Supreme Court+1
8) Key takeaways you can quote
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Tenth Amendment: Section 704 has survived anti‑commandeering attacks as preemption, not forced administration. Cellular Phone Taskforce and City of Portland are the anchors here. Justia Law+1
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First Amendment: You can speak and petition; Section 704 doesn’t gag citizens. It limits what officials may rely on. Santa Fe Alliance says so explicitly. Tenth Circuit Court of Appeals
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Local leverage remains: Use aesthetics/design/placement with evidence and written reasons. Roswell and the Ninth Circuit’s City of Portland decision show the path. Legal Information Institute+1
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The ground is moving (slowly): After Loper Bright, courts won’t automatically defer to FCC gloss—expect new test cases on the outer edges of § 332(c)(7). Supreme Court
9) Fast reference (authorities you’ll want to link)
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Statute: 47 U.S.C. § 332(c)(7) (health preemption; written decisions; judicial review). Legal Information Institute
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Tenth Amendment anchor: Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000) (preemption, not commandeering). Justia Law
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Ninth Circuit (2018 Orders): City of Portland v. United States/FCC, 969 F.3d 1020 (9th Cir. 2020) (most streamlining upheld; parts of aesthetic mandates vacated; Tenth challenge rejected). Ninth Circuit Court
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First Amendment (speech/petition): Santa Fe Alliance v. City of Santa Fe, 993 F.3d 802 (10th Cir. 2021). Tenth Circuit Court of Appeals
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Written reasons: T‑Mobile South, LLC v. City of Roswell, 574 U.S. 293 (2015). Legal Information Institute
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Anti‑commandeering framework: New York v. United States (1992); Printz v. United States (1997); Murphy v. NCAA (2018). Legal Information Institute+2Legal Information Institute+2
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Agency deference (changed landscape): City of Arlington v. FCC (2013) (pre‑Loper); Loper Bright v. Raimondo (2024) (Chevron overruled). Justia Law+1
Final word
Your First‑ and Tenth‑Amendment messaging should be honest and strategic: courts have not struck § 704 on those grounds, but they do leave room for smart local regulation and sharp records that win on aesthetics, design, and placement. Keep pushing Congress and agencies for reforms on RF health—but in the meantime, use the tools that work today to protect neighborhoods and schools.
