Section 704, RF Emissions, and the Constitution:

Why the Fifth, First, and Tenth Amendments all point to immediate repeal

Core thesis (one sentence): Section 704’s health‑effects preemption functions as a federal gag on local governance, creates serious Takings risk by authorizing continuous RF intrusions onto private land, and warps federalism by dictating what reasons state and local governments may not use—so Congress should repeal § 332(c)(7)(B)(iv) now. GovInfo

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What Section 704 actually does (the hinge of everything)

Congress preserved local zoning over wireless siting except it forbids state or local decisions “on the basis of the environmental effects of [RF] emissions” where facilities meet FCC limits. In the same paragraph, it micromanages process (written reasons, “substantial evidence,” expedited review). This is codified at 47 U.S.C. § 332(c)(7). Legal Information Institute+1

Why this matters: In the real world, that one sentence removes health from local decision criteria even when families live feet from antennas. If emissions are “compliant,” boards must pretend health is irrelevant. Legal Information Institute

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The Fifth Amendment: “RF Easement” takings—why Congress should repeal 704 to avoid liability

Takings rule of thumb: When government authorizes a continuous, directed physical invasion of private property—even by intangible forces—courts treat it like an easement and require just compensation. The Supreme Court has compensated for low overflights (Causby), flight‑path easements (Griggs), and tunnel fans channeling smoke/gases onto a specific parcel (Richards). RF is a physical field that can be main‑lobed, continuous, and parcel‑specific; if the state authorizes it, it fits that template. Justia Law+2Justia Law+2

• Authorization: Between FCC spectrum licensing, the FCC’s 2019 RF order (which reaffirmed the 1996 limits), and §704’s health‑effects preemption, government actors enable and protect the very emissions at issue; local permits implement that framework. FCC Policies+2Federal Register+2

• Continuity & directionality: Sector azimuths, down‑tilt, and EIRP show main‑lobe exposure on particular façades/bedrooms—this is Richards’ “direct, peculiar, substantial” invasion, not diffuse background. (Your measurement plan below operationalizes this.) Justia Law

• Per se vs. not per se: Loretto/Cedar Point hold that government‑authorized third‑party access is a per se taking; Florida Power is distinguishable because it addressed voluntary pole‑attachment leases without compelled access. RF spillover is like Causby/Griggs/Richards—a government‑enabled, parcel‑specific physical invasion—not mere rate regulation. Justia Law+2Supreme Court+2

• Not only “permanent”: Even non‑permanent or intermittent physical invasions can be takings (Arkansas Game & Fish), further supporting claims where RF exposure varies over time. Justia Law

Why repeal now: The D.C. Circuit already held the FCC failed to reasonably explain retaining 1996 limits regarding non‑cancer and environmental effects, remanding for better reasoning. Yet §704 forces localities to accept that baseline and bars them from acting on health even while that baseline is under judicial remand. Congress should repeal the gag to reduce federal Takings exposure and restore normal police powers while the science and federal standards are reconsidered. Justia Law

Bottom line: If the federal government both (a) disables local health‑based denial and (b) authorizes 24/7 emissions that cross onto private land, that looks like a de facto RF easement—a compensable taking risk Congress can (and should) avoid by repealing 704’s gag and letting local risk‑reduction happen upstream. Legal Information Institute

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The First Amendment: repeal the federal gag on truthful risk governance

Section 704 guarantees that health evidence presented at hearings is legally irrelevant to the decision—an explicit, topic‑based prohibition in the very forum where communities govern themselves. The Ninth Circuit once allowed Berkeley’s factual point‑of‑sale notice, but after the FCC’s 2019 RF order a federal court enjoined the ordinance as preempted, illustrating how the current regime suppresses even modest, factual health disclosures. Repeal ends this chilling effect and restores local capacity to inform and protect. Ninth Circuit Court of Appeals+1

Courts have said 704 doesn’t ban speaking (e.g., Santa Fe Alliance rejected a broad 1A claim), but that only shows why legislative repeal is the right lever: it restores decision‑relevance of health evidence without litigating abstract speech doctrine. Tenth Circuit Court of Appeals

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The Tenth Amendment: after Murphy, Congress shouldn’t micromanage what reasons states may not use

The Supreme Court’s anti‑commandeering rule forbids federal direct orders to state lawmakers; in Murphy v. NCAA, even a federal “may not authorize” command to states was unconstitutional. Section 704 tells local governments they “may not regulate… on the basis of [RF] environmental effects” when facilities are FCC‑compliant—a negative command about the content of state/local lawmaking and adjudication. Regardless of how courts have historically treated §704 as “preemption,” Congress should remove this post‑Murphy constitutional irritant and restore federalism’s proper balance. Supreme Court+1

(Yes, courts like the Second and Ninth Circuits have upheld the federal framework against Tenth‑Amendment attacks as “preemption,” not commandeering. That’s precisely why Congressional repeal is the efficient fix: it cures the federalism friction without waiting for a Supreme Court test case.) Justia Law+1

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Science that helps judges and lawmakers see RF as a material physical invasion

You do not need to prove health harm to win a taking—but showing RF is a non‑trivial physical force helps courts analogize to Causby/Griggs/Richards.

• WHO‑commissioned animal systematic review (2025): High certainty of evidence for malignant heart schwannomas in male rats, with additional signals across the animal literature; this review is part of WHO’s RF project. PubMed+1

• U.S. NTP (final): “Clear evidence” of malignant heart schwannomas (male rats) and “some evidence” of brain gliomas (male rats). NIEHS+1

• Ramazzini Institute (far‑field, base‑station‑like): Increased heart schwannomas in male rats at highest exposure; aligns directionally with NTP. ScienceDirect

• Mechanism (non‑thermal): The ion forced‑oscillation model explains how polarized/pulsed RF can dysregulate voltage‑gated ion channels, driving oxidative stress and downstream damage even below heating thresholds. (Mechanism evidence, not unanimity.) PMC

• IARC status: RF EMF remains Group 2B (possibly carcinogenic) pending re‑evaluation; advisory groups have prioritized a new review. IARC+1

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How to plead (and win) the Fifth Amendment claim today

Claim: Government effected a taking by authorizing a continuous physical invasion of Plaintiff’s land by high‑intensity RF energy, creating a de facto RF easement.

Prove with:

• Authorization: Identify FCC license, local permit, and cite § 332(c)(7)(B)(iv) (the gag). Legal Information Institute

• Continuity/directionality: Sector maps (azimuth/tilt), antenna patterns, EIRP, and 24‑hour calibrated logs on façades/bedrooms attributing power‑density to this site (by band/ARFCN/PCI). (Richards’ “direct, peculiar, substantial.”) Justia Law

• Impact: Appraisal showing diminution in value (use overflight‑easement methods); document functional loss of use (e.g., bedrooms rendered unusable by measured fields).

• Forum: If in public right‑of‑way or on government land → inverse condemnation against the local proprietor (Griggs‑style). For federal authorization itself (when needed) → Tucker Act route. Justia Law

Model paragraph (ready to paste):
“Section 704’s preemption—combined with FCC licensing and local permits—has created a government‑authorized, continuous invasion of private property by radiofrequency energy. Like the overflight and smoke easements in Causby, Griggs, and Richards, emissions from the [SITE] cross the boundary of neighboring parcels 24/7, appropriating an RF easement that directly and peculiarly burdens those properties. The Takings Clause requires just compensation for this permanent physical invasion; at minimum, compensation under Causby for direct, immediate interference with use and value.” Justia Law+2Justia Law+2

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What local governments can still do today (and should do, hard)

Even before repeal, locals can win on non‑health grounds—if they build proper records: aesthetics/design/concealment/spacing/height, ROW safety, noise, power/back‑up plans, tree/street impacts, photo‑simulations, and written denials backed by substantial evidence. The Ninth Circuit’s City of Portland preserved most FCC streamlining but rejected parts of the “objective aesthetics” mandate; Roswell requires reasons in writing. Train boards; adopt clean templates. Ninth Circuit Court of Appeals+1

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Why First/Tenth still matter for repeal messaging

• First Amendment: 704 silences governance, not citizens—an unhealthy design choice for a democracy. Berkeley’s experience shows how preemption suppresses even factual risk notices. Congress should lift the gag so local truth‑telling can happen. Courthouse News

• Tenth Amendment: Post‑Murphy, negative federal commands to state/local decisionmakers are constitutionally suspect. Even if courts have treated 704 as preemption, Congress should remove the direct command rather than bet on litigation uncertainty. Supreme Court

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Model repeal text (drop‑in bill section)

Sec. __. Repeal of 47 U.S.C. § 332(c)(7)(B)(iv).
(a) Strike 47 U.S.C. § 332(c)(7)(B)(iv).
(b) Savings clause. Nothing in this Act preempts a State or political subdivision from adopting or enforcing health or environmental protections related to RF emissions for wireless facilities, in addition to any federal minimums, provided such measures do not impose technical requirements that prevent compliant operation.
(c) Transparency clause. States and political subdivisions may require factual, non‑misleading RF safety disclosures to the public and workers, consistent with federal device certifications.
(d) No effect on emergency service. Nothing herein constrains reasonable, nondiscriminatory measures needed to ensure reliable public‑safety communications.

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Fast evidence blueprint (communities can run this playbook now)

• Get the file: Application/permit, RF design (sectors, tilt, EIRP, antenna patterns). Legal Information Institute

• Measure & attribute: 24‑hour calibrated spectrum‑analyzer logs at façades/bedrooms tying power‑density to this site (band/ARFCN/PCI).

• Model propagation: Show your parcel is in the main lobe/high‑field zone.

• Appraise impact: Use overflight‑easement valuation methods. Justia Law

• Science pack: NTP 2018 (rats: clear heart schwannomas, some gliomas), Ramazzini 2018 (far‑field), WHO‑commissioned 2025 animal review (high certainty for male‑rat heart schwannomas). NIEHS+2ScienceDirect+2

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Anticipate (and answer) the usual pushback

• “No compelled access = no taking.” Florida Power addressed voluntary pole‑attachment leases; it did not involve continuous emissions invading neighboring land. Your claim is the Causby/Griggs/Richards line: easement‑like invasion across your boundary. Justia Law+2Justia Law+2

• “RF is intangible—no occupation.” Courts compensate noise, smoke, gases when invasions are direct, peculiar, substantial. RF is a physical field with measurable on‑parcel intensities. Justia Law

• “Compliant = safe = no taking.” Takings turns on appropriation/invasion and property impact, not the agency’s current safety claims—especially where the D.C. Circuit remanded the FCC’s 2019 rationale on non‑cancer and environmental effects. Justia Law

• “Courts already rejected RF‑as‑taking.” Santa Fe Alliance was dismissed on threshold issues (standing/traceability), not after parcel‑specific engineering/appraisal proof. Target the right defendant and build the record. Tenth Circuit Court of Appeals

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One‑page leave‑behind (ready to hand to staff)

Ask: Repeal 47 U.S.C. § 332(c)(7)(B)(iv) this Congress.
Why:

1. Takings risk: Federal policy authorizes continuous RF intrusions while disabling local health protections—inviting Causby‑style easement claims. Justia Law

2. Speech & governance: 704 gags local boards from using health evidence; even factual consumer notices get crushed by preemption (see Berkeley). Courthouse News

3. Federalism: After Murphy, negative commands to state/local decisionmakers are a constitutional minefield; repeal avoids unnecessary litigation. Supreme Court

4. Unsettled baseline: D.C. Circuit remanded the FCC’s 2019 decision on non‑cancer and environmental harms; don’t hard‑wire a gag to a moving target. Justia Law
   Solution: Repeal the gag; retain a federal floor, but let states/localities add prudent, non‑technical health protections and require truthful RF disclosures.

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Citations (quick reference)

• Statute (what we repeal): 47 U.S.C. § 332(c)(7)(B)(iv). Legal Information Institute+1

• Takings pillars: United States v. Causby (1946); Griggs v. Allegheny County (1962); Richards v. Washington Terminal Co. (1914); Arkansas Game & Fish (2012). Justia Law+3Justia Law+3Justia Law+3

• Per se access vs. not: Loretto (1982); Cedar Point (2021); FCC v. Florida Power Corp. (1987). Justia Law+2Supreme Court+2

• FCC framework: 2019 RF Order (FCC 19‑126) and Federal Register notices. FCC Policies+1

• D.C. Circuit remand: Environmental Health Trust v. FCC (2021). Justia Law

• First Amendment cautionary: Santa Fe Alliance v. City of Santa Fe (10th Cir. 2021). Tenth Circuit Court of Appeals

• Federalism landscape: Murphy v. NCAA (2018). Supreme Court

• Local powers that remain: City of Portland v. United States/FCC (9th Cir. 2020); T‑Mobile South v. Roswell (2015). Ninth Circuit Court of Appeals+1

• Science (selected): WHO‑commissioned animal review (2025); NTP (2018/2025 page); Ramazzini (2018); mechanism overviews. PMC+3PubMed+3National Toxicology Program+3

• IARC status: Group 2B (2011); re‑evaluation prioritized 2024‑2025. IARC+1

1) Science: exact findings, no wiggle room

WHO‑commissioned animal SR (Environment International, 2025).
The review explicitly rates the certainty of evidence (CoE) as “high” for gliomas in male rats and malignant heart schwannomas in male rats. That is the review’s own language:

“The CoE for an increased risk in glioma was judged as high… Based on 2 bioassays… the CoE was judged as high for an increase in heart schwannomas in male rats.” PubMed

U.S. NTP (final reports, 2018; updated 2025 page).
NTP’s official summary uses the program’s formal categories: “Clear evidence” for malignant heart schwannomas (male rats) and “Some evidence” for malignant gliomas (male rats). Those are the exact words NTP uses on its public-facing page. National Toxicology Program

Bottom line: WHO SR = high CoE for glioma and heart schwannoma (male rats). NTP = clear evidence (heart schwannomas, male rats) and some evidence (gliomas, male rats). Both sets of statements are accurate and fully compatible. PubMed+1

For completeness on the far‑field/base‑station analogue: Ramazzini (2018) reported increased male‑rat heart schwannomas at the highest exposure, directionally aligned with NTP. PubMed+1

Mechanism (non‑thermal). The ion forced‑oscillation model lays out how polarized/pulsed RF can dysregulate voltage‑gated ion channels, driving oxidative stress and downstream damage—an extensively described, peer‑reviewed framework you can cite when judges ask “what’s the physical interaction?” PMC

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2) Law: what the Ninth Circuit did (and did not) do in League of California Cities v. FCC (2024)

The decision you cited is real and important—but let’s characterize it precisely so your advocacy can’t be undercut on a technicality.

• The panel granted the petition as to the FCC’s “Concealment” and “Siting Approval Conditions” clarifications (finding they were legislative rules adopted without APA procedures), and denied the petition as to the Shot Clock and Equipment Cabinet clarifications (treating those as interpretive and consistent with the 2014 order). In short: parts vacated for APA reasons; parts upheld. Ninth Circuit Court of Appeals+2Ninth Circuit Court of Appeals+2

• Judge Bennett’s partial dissent argued the Shot Clock change was also a legislative rule and should be invalidated; the majority did not go that far. Ninth Circuit Court of Appeals

• The case does not concern “fee caps” and it is not a “2023 Shot Clock Order” case; it addresses the FCC’s 2020 ruling interpreting Section 6409(a) modification rules vis‑à‑vis the 2014 Infrastructure Order. (Fee caps were central in 2018 “Small Cell” litigation, City of Portland, not here.) Ninth Circuit Court of Appeals

• En banc status: As of Oct. 1, 2025, the Ninth Circuit’s “Status of Pending En Banc Cases” page does not list League of California Cities v. FCC as pending en banc. Ninth Circuit Court of Appeals

Why this still helps you: League shows a Ninth Circuit appetite to check FCC overreach when the agency strays procedurally or substantively. That climate matters when you press due‑process and federalism critiques tied to Section 704’s health‑effects gag. Ninth Circuit Court of Appeals

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3) Fifth Amendment takings (your core lever): keep it crisp and forceful

• Rule: Government‑authorized continuous, directed physical invasions of private property—including intangible but physical forces—are takings (think low overflights in Causby, flight‑path easements in Griggs, and directed smoke/gases in Richards). RF is physical energy that can be main‑lobed onto specific façades/rooms 24/7. Treat it as an RF easement.

• Authorization: The invasion rides on FCC licensing + Section 704 preemption + local permits. That combination authorizes and protects the emissions while disabling local health‑based denials. Legal Information Institute+1

• Procedural perversity (due process): The D.C. Circuit’s 2021 remand held the FCC failed to provide a reasoned explanation for retaining its 1996 limits for non‑cancer and environmental effects—yet §704 still forbids locals from acting on health even while the federal baseline is under remand. That is textbook arbitrary line‑drawing; it strengthens both due‑process and takings narratives. Justia Law+1

• Evidence pack (what courts will respect): parcel‑specific RF attribution (sector azimuth/tilt, EIRP), 24‑hour calibrated logs tied to this site’s IDs, and an appraisal using overflight‑easement methods—plus the WHO SR (high CoE: glioma & schwannoma) and NTP (clear evidence: heart; some evidence: glioma) to show the invasion is material, not trivial. PubMed+1

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4) En banc path: how to set it up correctly in the Ninth Circuit

What en banc is for (FRAP 35): “exceptional importance” or to maintain intra‑circuit uniformity. You’ll need a clean vehicle that squarely tees up the constitutional problem §704 creates post‑EHT remand and post‑Loper Bright (Chevron overturned). Supreme Court

Clean vehicle (two realistic routes):

1. Direct constitutional challenge to §704’s health‑effects preemption (as‑applied): a locality denies or conditions a site on health grounds because the federal baseline is under judicial remand and the record shows parcel‑specific high‑field intrusion; the carrier sues under §332(c)(7); the city defends by arguing §704—as applied—violates due process (irrationality/blindfolding) and effects a taking by authorizing an RF easement while foreclosing upstream mitigation. Panel loss ⇒ petition en banc on constitutional “exceptional importance.”

2. Takings case (inverse condemnation) where the facility is in the public right‑of‑way: sue the governmental proprietor on a Griggs theory; build a merits record that forces the question whether §704’s gag creates federal liability exposure by authorizing continuous parcel invasions without local recourse. Parallel amicus briefing flags the EHT remand and WHO/NTP evidence to show the invasion’s materiality. If the panel ducks the constitutional issues, seek en banc on the Fifth‑Amendment question of intangible but physical invasions in the RF context.

Why 2024–25 Ninth Circuit context helps:

• League signals skepticism of FCC micromanagement when rules exceed statutory footing or skip APA steps—use that posture to argue §704’s categorical blindfold is untenable once the RF “safety” premise is under judicial remand. Ninth Circuit Court of Appeals

• Loper Bright (2024) removes Chevron deference; courts now read §332(c)(7) de novo. That heightens judicial responsibility to reconcile §704’s text with constitutional constraints and a moving safety baseline (EHT remand). Supreme Court

Don’t overclaim: League did not vacate shot‑clock rules wholesale and did not address fee caps; keep your characterizations tight so opponents can’t tag you as inaccurate. Ninth Circuit Court of Appeals

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5) Tight, reusable language (drop‑in)

• WHO/NTP science line (litigation‑ready):
  “A WHO‑commissioned 2025 animal cancer review judged the certainty of evidence high for glioma and for malignant heart schwannomas in male rats. The U.S. National Toxicology Program found clear evidence of malignant heart schwannomas and some evidence of malignant gliomas in male rats. Courts should treat RF as a material physical force, not a harmless abstraction.” PubMed+1

• Takings paragraph:
  “Section 704’s health‑effects preemption—combined with FCC licensing and local permits—creates a government‑authorized, continuous invasion of private property by RF energy. Like Causby, Griggs, and Richards, this directed, parcel‑specific invasion appropriates an RF easement. The Takings Clause requires just compensation for that physical occupation; at minimum, compensation under Causby for direct, immediate interference with use and value.”

• Due‑process line (post‑EHT remand):
  “It is irrational to forbid local health‑based siting decisions while the FCC’s 1996 limits remain under a judicial remand for failing to explain non‑cancer and environmental protections. §704’s categorical blindfold violates due process.” Justia Law

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6) Quick accuracy checklist for your draft (what to fix so it’s bullet‑proof)

• WHO review: say “high certainty of evidence for glioma and heart schwannoma in male rats.” (Not just “heart schwannoma.”) Quote the PubMed abstract sentence if you like. PubMed

• NTP: keep “clear evidence” (heart, male rats) and “some evidence” (glioma, male rats); those are the program’s terms of art. National Toxicology Program

• League of California Cities v. FCC: describe the holding accurately—vacatur of Concealment/Siting Approval Conditions (APA), Shot Clock upheld, Equipment Cabinet upheld. No fee‑caps issue; not “2023 Shot Clock Order.” Ninth Circuit Court of Appeals

• En banc status: you can say the Ninth Circuit’s Oct. 1, 2025 “pending en banc” list does not include League. Ninth Circuit Court of Appeals

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7) Why repeal of §704(b) is still the cleanest fix

Even if you win tactical battles (APA, interpretive limits, or a takings judgment), Congressional repeal of § 332(c)(7)(B)(iv) removes the gag at its root, lets states/localities adopt prudent health protections, and reduces federal takings exposure from government‑enabled RF easements—especially while the FCC remains under the EHT remand cloud. Justia Law