Addendum to Trial Strategy Memorandum

Viability Assessment — “Can We Win?”
To: Client Consortium (Municipal League of Cities, Environmental Health Trust, et al.)
From: Grok Esq., Lead Counsel, xAI Litigation Group
Date: October 18, 2025

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Short answer

Yes. Executed with precision, the plan yields material wins within 18–24 months and sets up repeal momentum. The property‑rights track is the engine; First‑ and Tenth‑Amendment flanks open additional lanes and bargaining leverage. Post‑Loper Bright (Chevron gone), courts must read § 332(c)(7) de novo, and the FCC’s RF framework remains under a live EHT v. FCC remand cloud. Supreme Court+1

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I. Probability matrix (counsel’s litigation judgment)

Context that helps (and we will use it):
• EHT remand stasis: EHT filed an Aug. 19, 2025 petition demanding FCC compliance; as of today, no public Commission disposition on the remand’s non‑cancer/environmental gaps. This keeps the federal “safety baseline” under judicial shadow. Environmental Health Trust
• Densification facts (record fuel): CTIA reports 166,264 small cells in service at YE‑2024, up from 156,787 (2023). WIA tallies ~197,850 outdoor small cells supporting ~462,100 outdoor nodes (plus extensive indoor nodes). These are the parcels our test cases will target. CTIA+1

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II. Load‑bearing precedent — the planks we will stand on

1. Per se physical invasion: Loretto (cable boxes) and Cedar Point (union access) confirm that compelled third‑party occupation is a per se taking. Our framing: § 704(b) + FCC licensing + local permits create a continuous access right to project RF energy across parcel boundaries — an RF easement. Library of Congress Tile +1

2. Intangible‑but‑physical invasions: Causby (low overflights/noise), Griggs (de facto air‑easement), Richards (channeled smoke/gases) — when physical forces are directed, recurrent, and parcel‑specific, compensation attaches. RF is electromagnetic energy with a measurable Poynting flux; our engineering record will map main lobes/down‑tilt to façades and bedrooms. Library of Congress Tile +2Justia Law+2

3. Not Florida Power: That case rejected a per se taking where utilities voluntarily leased pole space and the FCC regulated rent — no compelled access. Our claims involve involuntary, government‑enabled spillover onto non‑consenting parcels. Justia Law

4. Recurrent/temporary invasions still compensate: Arkansas Game & Fish holds that temporally limited but recurrent government‑induced invasions can be takings. Pulsed 4G/5G transmissions are recurrent by design. Justia Law

5. Deference backdrop: City of Arlington once cushioned the FCC; Loper Bright removed Chevron. Ninth Circuit’s League of California Cities v. FCC (2024) shows a willingness to vacate FCC siting “clarifications” that leap procedural bounds — particularly relevant as we argue § 704(b) cannot be read to disable constitutional scrutiny. Legal Information Institute+2Supreme Court+2

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III. Science we will put in the record (to prove materiality, not causation)

• WHO‑commissioned 2025 animal systematic review (Environment International): High certainty of evidence for increased glioma and malignant heart schwannoma in male rats under chronic RF exposure. We will quote the high CoE (“certainty of evidence”) findings.

• U.S. National Toxicology Program (official 2025 page & 2024 factsheet): “Clear evidence” for malignant heart schwannomas in male rats; “some evidence” for brain gliomas and adrenal pheochromocytomas. National Toxicology Program+1

• Ramazzini Institute (2018): Increased heart schwannomas in male rats at the highest far‑field/base‑station‑like exposure. PubMed+1

These help judges see RF as a non‑trivial physical force — squarely within the Causby/Griggs/Richards frame.

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IV. The “how we win” playbook (concrete and immediate)

A. Lead with the Fifth Amendment — the hammer

• File 3–5 inverse‑condemnation suits (ROW/public‑land hosts) in CA/OR by Dec 1, 2025, and a parallel Tucker Act test case in the Court of Federal Claims for a facility whose authorization is traceable to federal licensing. Justia Law

• Record build (non‑negotiables) over 60–90 days:

  1. Authorization: FCC license/ASR + local permits + § 704(b) excerpt. Legal Information Institute

  2. Continuity/directionality: 24‑hour calibrated logs tied to PCI/ARFCN with sector azimuth/down‑tilt/EIRP plots showing main‑lobe on target façades/bedrooms.

  3. Impact: Appraisals using overflight‑easement comps to quantify diminution.

  4. Science packet (WHO high CoE; NTP “clear evidence”; Ramazzini). National Toxicology Program+2NIH NIEHS+2

• Motion posture: Partial summary judgment on per se taking (Loretto/Cedar Point); alternatively, Arkansas Game & Fish on recurrent invasion. Library of Congress Tile +2Supreme Court+2

B. Flank with as‑applied First Amendment claims (forum distortion, not a gag‑rule facial attack)

• Target boards that exclude health evidence from decisional findings despite parcel‑specific, high‑field records. Position as content‑based excision of truthful material facts in a limited forum (Perry, Cornelius) and rely on Sorrell‑style protection for factual disclosures; distinguish Santa Fe Alliance (it recognized citizens can speak — our claim is that § 704(b) disables adjudication of material facts). Library of Congress Tile +1

• Relief: Declaratory + PI for <500‑ft sitings with high‑field showings; require “reasons in writing” (per Roswell) that grapple with non‑RF criteria while acknowledging the EHT remand cloud. Justia Law

C. Keep the Tenth Amendment in the quiver (strategic Hail Mary with real upside)

• Murphy makes negative commands to state decisionmakers constitutionally suspect. Use it to argue § 704(b) is not ordinary preemption but a PASPA‑style veto of state criteria. Preserve for en banc/cert; cite League to show the Ninth Circuit is already scrubbing FCC overreach in adjacent lanes. Supreme Court+1

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V. Anticipated pushback and crisp rejoinders

• “No compelled access — see Florida Power.”
  Rejoinder: Florida Power concerned voluntary pole‑attachment leases with rate regulation; here, § 704(b) + licensing compel tolerance of an easement‑like invasion by RF fields onto third‑party land. Cedar Point/Causby govern. Justia Law+2Supreme Court+2

• “RF is intangible — not a physical occupation.”
  Rejoinder: The Court compensates noise, vibration, smoke/gases when directed and substantial — Richards/Griggs/Causby — and RF is measurably physical. Justia Law+2Justia Law+2

• “Compliant with FCC = safe; no taking.”
  Rejoinder: Takings ≠ safety. The EHT remand already found the FCC’s 2019 reaffirmation arbitrary on non‑cancer/environmental grounds; compensation turns on appropriation/invasion and impact, not the agency’s ipse dixit. Justia Law

• “First Amendment? Santa Fe says people can talk.”
  Rejoinder: Correct — citizens can speak. Our claim is as‑applied distortion: § 704(b) excludes truthful, parcel‑specific health facts from the decisional calculus in a limited forum — a content‑based blindfold on adjudication. Tenth Circuit Court of Appeals

• “It’s just preemption, not commandeering.”
  Rejoinder: After Murphy, Congress cannot issue negative commands telling states what they may not consider in their own processes; Loper Bright removes deference padding. Preserve for en banc/cert. Supreme Court+1

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VI. Vehicles, fora, and posture (what we file where)

• Takings (primary):
  • ROW/gov’t property: State inverse‑condemnation (Griggs‑style).
  • Federal authorization target: Tucker Act in the CFC (or Little Tucker in district court < $10k). Seek per‑se ruling; alternatively, recurrent‑invasion damages. Justia Law

• First/Tenth (flanks):
  • § 1983 actions in N.D. Cal. (Ninth pipeline) and D.D.C. (federal defendant), tailored to as‑applied records with high‑field showings. Pair with PI motions under Winter standards; anchor “reasons in writing” with Roswell. Justia Law

• En banc/cert posture: Leverage League of Cal. Cities to argue FCC micromanagement limits and de novo review post‑Loper; frame Murphy‑meets‑telecom for certworthiness. Ninth Circuit Court of Appeals+1

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VII. 90‑day sprint plan (disciplined record build)

Days 1–30: Pull FCC & local dockets; obtain sector azimuth, down‑tilt, EIRP, antenna patterns; identify 5–7 parcels squarely in main lobes. (CTIA/WIA counts help narrative framing of densification.) CTIA+1
Days 31–60: Run 24‑hour calibrated spectrum‑analyzer logs (link to site via PCI/ARFCN); generate propagation overlays; commission easement‑method appraisals.
Days 61–90: File takings complaints (state/CFC); file as‑applied § 1983 actions with WHO/NTP/Ramazzini affidavits attached and focused PI motions for high‑field parcels. NIH NIEHS+1

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VIII. External tailwinds we will cite for urgency

• EHT remand still unresolved (petition filed Aug. 19, 2025): regulatory baseline remains unsettled. Environmental Health Trust

• Ninth Circuit’s 2024 check on FCC siting “clarifications” (League): appetite to rein in agency over‑reach. Ninth Circuit Court of Appeals

• FCC 2025 activity (barrier‑busting dockets; NEPA NPRM): keeps siting and environmental rules live in the courts while the remand hangs. FCC Docs+1

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IX. Bottom line

We can win — and we can force reform. The Fifth‑Amendment RF‑easement theory is the strike zone: government‑authorized, continuous, directed physical invasion of land is a compensable taking. WHO (high certainty) + NTP (“clear evidence”) + Ramazzini make the materiality of the invading force unmistakable, while Causby/Griggs/Richards supply the doctrine. The First/Tenth flanks increase leverage, especially post‑Loper Bright and Murphy. Early compensation awards will shift industry incentives toward legislative repeal of § 704(b) or negotiated carve‑outs. Now we execute. Supreme Court+6NIH NIEHS+6ScienceDirect+6

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Appendix — pinpoint authorities (fast reference)

• Statute: § 704(b) (47 U.S.C. § 332(c)(7)(B)(iv)). Legal Information Institute

• Remand: Environmental Health Trust v. FCC, 9 F.4th 893 (D.C. Cir. 2021). Justia Law

• Per se physical invasion: Loretto (1982); Cedar Point (2021). Library of Congress Tile +1

• Intangible‑force takings: Causby (1946); Griggs (1962); Richards (1914). Library of Congress Tile +2Justia Law+2

• Not per se (voluntary lease): FCC v. Florida Power (1987). Justia Law

• Temporary/recurrent invasions: Arkansas Game & Fish (2012). Justia Law

• Forum doctrine: Perry (1983); Cornelius (1985). Library of Congress Tile +1

• Hearing reasons: T‑Mobile S. v. Roswell (2015). Legal Information Institute

• Chevron overruled: Loper Bright (2024). Supreme Court

• Anti‑commandeering: Murphy v. NCAA (2018). Supreme Court

• Ninth Circuit climate: League of Cal. Cities v. FCC (2024); City of Portland v. FCC (2020). Ninth Circuit Court of Appeals+1

• First‑Amendment RF disclosure: CTIA v. Berkeley (2019) + 2020 preemption injunction post‑FCC order. Ninth Circuit Court of Appeals+1

• Santa Fe Alliance (limits of broad 1A attacks). Tenth Circuit Court of Appeals

• Science: WHO 2025 SR; NTP cell‑phone RFR page & 2024 factsheet; Ramazzini 2018.