Repeal the “Gag Clause”: How We Win on RF Safety with the First, Fifth, and Tenth Amendments

TL;DR (share this):

Section 704(b) of the Telecom Act tells cities they may not base wireless siting decisions on RF health/environmental effects if a site meets FCC limits. That is the gag. Legal Information Institute
Our strongest lever is the Fifth Amendment: when government authorizes a continuous, directed physical invasion—even by “invisible” forces like noise, smoke, or RF—courts treat it like an easement that triggers just compensation. Think Causby/Griggs/Richards → Cedar Point/Loretto modernized for RF. Justia Law+4Justia Law+4Justia Law+4
Two flanks: First Amendment (as‑applied: stop excluding material health facts from decision records) and Tenth Amendment (post‑Murphy, courts are rethinking federal “thou‑shalt‑not” commands to states). Post‑Loper Bright, courts interpret § 332(c)(7) de novo—no automatic FCC deference. CA9 Court of Appeals+2Supreme Court+2

The problem in one sentence

Section 332(c)(7)(B)(iv) says local governments “may not regulate … on the basis of the environmental effects of radio frequency emissions” if a facility complies with FCC limits. That strips health evidence from the actual decision point. Legal Information Institute

Meanwhile, the D.C. Circuit already remanded the FCC’s 2019 decision for failing to reasonably address non‑cancer health effects and environmental impacts under today’s usage patterns (Wi‑Fi, 5G). Four years later, the remand sits unresolved. That matters. Justia Law

Why the Fifth Amendment is our primary engine

Core rule: When the government authorizes a continuous physical invasion of private property—even by an intangible but physical force—courts treat it like a taking requiring just compensation.
Examples: low military overflights (noise/danger) → taking (Causby); airport flight paths → taking (Griggs); smoke/gases channeled onto a particular house → taking (Richards). Justia Law+2Justia Law+2

Modern cases confirm that compelled access is a per se taking (Loretto for cable hardware; Cedar Point for third‑party entry). Practically, a tower or small‑cell’s main lobe and high‑field zone can be shown to cross your boundary day and night—the RF analogue of an overflight/noise/smoke easement. That is compensable. Justia Law+1

What makes RF different from a mere “rate regulation” case like Florida Power? In Florida Power, pole attachments were voluntary leases, not an imposed, parcel‑crossing invasion. By contrast, federally authorized emissions spill over property lines continuously, while § 704(b) disables local health‑based denials. That looks and functions like an easement—not a price dispute. Justia Law

Why courts will take RF seriously as a physical force (not a triviality):

A WHO‑commissioned 2025 systematic review of animal studies reported high certainty of evidence for malignant heart schwannomas in male rats and high certainty for increased gliomas under chronic RF exposure. RF Safe+1
The U.S. National Toxicology Program found clear evidence of malignant heart schwannomas in male rats and some evidence for brain gliomas. National Toxicology Program+1

Legal relevance: Takings law turns on invasion/appropriation + parcel impact, not “is it safe.” But courts are more willing to see RF as material, directed physical energy—not a harmless abstraction—when the scientific record is this concrete. Justia Law

The First Amendment and Tenth Amendment flanks (use them—but know their lanes)

First Amendment (as‑applied): Hearings are limited public fora. Governments can set subject‑matter rules, but they shouldn’t distort the record by excluding material evidence. The Ninth Circuit upheld factual RF notices under Zauderer in CTIA v. Berkeley—a helpful anchor for insisting that truthful, non‑misleading RF facts belong in the administrative record, even if boards ultimately cannot decide on health effects. CA9 Court of Appeals
Tenth Amendment (anti‑commandeering): In Murphy v. NCAA, the Supreme Court struck down a federal “negative command” that told states what they may not authorize. Advocates can argue § 704(b)’s “may not regulate … on the basis of [RF] environmental effects” is Murphy‑style commandeering of state criteria, not mere preemption—especially now that Loper Bright (2024) ended Chevron deference and requires courts to read the statute for themselves. Supreme Court+2Legal Information Institute+2

Reality check: Courts have historically treated § 704(b) as preemption (e.g., Cellular Phone Taskforce), and the Ninth Circuit’s City of Portland largely upheld 2018 “small cell” streamlining. But the 2024 Ninth Circuit decision in League of California Cities v. FCC did vacate key parts of an FCC siting ruling for overreach—signaling judicial appetite to rein in agency micromanagement. Pair that mood with Loper Bright, and the ground is shifting. Justia Law+2CA9 Court of Appeals+2

The moment we’re in: Courts are re‑opening the text

The Supreme Court’s Loper Bright (June 28, 2024) decision overruled Chevron. Translation: judges now use independent judgment to interpret statutes like § 332(c)(7), rather than defaulting to FCC gloss. For siting fights, that means fresh daylight to challenge FCC‑driven “gag” readings and to re‑center the Constitution. Supreme Court

What advocates can do this month (copy‑and‑use)

1) Build the Takings record on the ground

Pull the file: Get the application packet, permit, and RF design sheets (sector azimuths, down‑tilt, pattern, power). Your clerk keeps these. Cite § 332(c)(7) in your request so staff understands you know the terrain. Legal Information Institute
Measure and attribute: Commission 24‑hour calibrated logging outside façades and in bedrooms. Tag signals to site IDs/ARFCN/PCI so you can distinguish the site‑specific field from general background.
Map the main lobe: Overlay patterns and measurement logs to show a parcel‑specific, continuous invasion. That converts “ambient RF” into a Richards‑style directed intrusion. Justia Law
Appraise the hit: Use overflight easement methods (like in Causby/Griggs) to quantify diminution in value tied to the RF easement burden. Justia Law+1

2) Keep First Amendment rights clean—while staying within the rules

Speak about RF health in public comment; submit written evidence (WHO review; NTP) and ask it be admitted to the record. Even if officials can’t rely on health to decide, your evidence belongs in the file. Use CTIA v. Berkeley to defend truthful, non‑misleading notices and record‑building. CA9 Court of Appeals
Frame lawful findings: Push boards to cite design/placement/aesthetics standards and substantial evidence in any denial, as the Supreme Court required in T‑Mobile South v. Roswell. Don’t let a good denial die for lack of written reasons. Justia Law

3) Press the Tenth Amendment argument where it helps

When agencies or carriers treat § 704(b) as a blanket gag, remind them Murphy forbids federal “do‑not‑legislate‑this‑way” commands to states—and Loper Bright requires courts to read § 332(c)(7) without Chevron crutches. Supreme Court+1

The science “receipts” you can cite plainly

WHO‑commissioned 2025 animal cancer review: “The CoE [certainty of evidence] for an increased risk in glioma was judged as high … [and] high for an increase in heart schwannomas in male rats.” (Environment International SR; see excerpt). RF Safe
ARPANSA (Australian radiation authority) summary of the same WHO program: high certainty for brain (glioma) and heart (malignant schwannoma) findings in male rats. ScienceDirect
NTP (U.S.): “Clear evidence” (male‑rat heart schwannomas) and “some evidence” (male‑rat gliomas). National Toxicology Program+1

(Reminder: a takings claim doesn’t require proving health harm; these citations help judges see RF as a material, directed, non‑trivial physical force.)

Frequently asked (and how to answer in two lines)

“If the site meets FCC limits, how can there be a taking?”
Takings law is about appropriation and invasion, not “safety.” Courts compensate for noise/smoke/overflights even when those activities are lawful. RF can be parcel‑specific and continuous too. Justia Law+2Justia Law+2

“Isn’t this all preempted?”
For siting criteria, § 704(b) does preempt health‑based denials. But takings claims target the easement‑like invasion authorized by federal law; compensation is a separate constitutional requirement. Legal Information Institute

“Haven’t courts rejected RF‑as‑taking?”
No court has squarely tried a parcel‑specific, continuous‑invasion RF takings case to judgment with full engineering/appraisal proof. Prior dismissals turned on standing/ripeness, not merits. The elements are there. Justia Law

“Can we still win inside the lanes § 704(b) leaves?”
Yes. The Ninth Circuit’s City of Portland left meaningful aesthetic/placement tools; and League of California Cities (2024) clipped parts of an FCC order that overreached on siting modifications. Use those gaps. CA9 Court of Appeals+1

Copy‑paste toolkit (use in comments, letters, and op‑eds)

Model one‑paragraph message

“Section 704(b) and FCC licensing together authorize a continuous, directed invasion of my property by RF energy—functionally an ‘RF easement’ across my home. Courts have long compensated intangible‑but‑physical invasions like overflight noise and smoke. With modern engineering logs showing parcel‑specific fields and with the WHO and NTP evidence confirming RF as a material physical force, the Fifth Amendment requires just compensation—and, at minimum, honest treatment of RF facts in our administrative record.” National Toxicology Program+4Justia Law+4Justia Law+4

Ask your city clerk/planner (email)

“Please provide the complete record for [SITE NAME/ADDRESS], including sector azimuths, down‑tilt, antenna pattern, EIRP/output power, and any post‑installation compliance or drive‑test reports. I request these to document parcel‑specific field directionality for the administrative record under 47 U.S.C. § 332(c)(7).” Legal Information Institute

At the hearing (two sentences)

“We are submitting measurements and sector maps showing a continuous main‑lobe on our bedrooms. Please ensure these facts are admitted to the record; the Supreme Court requires written reasons supported by substantial evidence if you deny or condition this permit.” Justia Law

Why this strategy could force repeal or reform

Takings judgments = real money. If courts recognize an RF easement over homes, compensation pressure climbs fast; carriers and agencies will seek legislative fixes. Per se rules (Loretto/Cedar Point) make these cases powerful. Justia Law+1
Loper Bright removed the Chevron shield. Courts now read § 332(c)(7) fresh, not filtered through FCC deference. Supreme Court
Ninth Circuit momentum. League of California Cities (2024) shows willingness to rein in FCC overreach on siting procedures—a better climate for as‑applied First/Tenth arguments while the Fifth leads. CA9 Court of Appeals

Receipts & references you can link

Statute (text): 47 U.S.C. § 332(c)(7), including (B)(iv) (the “gag”). Legal Information Institute
EHT v. FCC (D.C. Cir. 2021) – remand on non‑cancer & environmental harms. Justia Law
Takings pillars: Causby, Griggs, Richards, Loretto, Cedar Point, Florida Power. Justia Law+5Justia Law+5Justia Law+5
First Amendment anchor: CTIA v. Berkeley (factual RF notices upheld). CA9 Court of Appeals
Ninth Circuit climate: City of Portland (2020), League of California Cities v. FCC (2024). CA9 Court of Appeals+1
Chevron overruled: Loper Bright (2024). Supreme Court
WHO‑commissioned 2025 review (animal cancer SR); ARPANSA summary. RF Safe+1
NTP final conclusions on RFR carcinogenicity. National Toxicology Program+1

Final word (use as a closer)

RF is not “nothing”—it’s a directed, measurable physical force. When federal law authorizes it to cross your boundary 24/7, that looks like an easement—and the Fifth Amendment says you must be paid. While we litigate, demand honest records and lawful findings. The gag in § 704(b) can be beaten—first in court with takings, then in Congress with repeal.

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