What Section 704 does

Section 704 (codified at 47 U.S.C. § 332(c)(7)(B)(iv)) bars any State or local government from regulating the placement, construction, or modification of personal wireless facilities “on the basis of the environmental effects of radio‑frequency emissions” so long as the facility complies with FCC RF regulations. This sits inside a framework that also forces localities to act on applications within a “reasonable period,” give written reasons, and face expedited federal review. Legal Information Institute

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The advocacy thesis

Section 704 functions as a federal gag rule on a specific topic—RF health and environmental effects—in local land‑use decisions. That is untenable on First Amendment (self‑government and petition), Fifth Amendment (due process and rationality), and Tenth Amendment (anti‑commandeering/federalism) grounds. Each path, independently, supports immediate repeal of Section 704’s health‑based preemption.

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I. First Amendment: restore the people’s ability to warn, petition, and have their governments act

1. Section 704 makes core political speech legally irrelevant. Citizens can speak at hearings, but the statute forbids local boards from relying on health/environmental evidence when deciding. That is content‑based silencing of a topic in the locus of democratic decision‑making. The relevant text is explicit: localities “may not regulate… on the basis of the environmental effects of [RF] emissions.” Legal Information Institute

2. Real‑world effect: preemption has been used to knock out even factual RF warnings. Berkeley required retailers to give a short consumer notice tied to FCC guidance. The Ninth Circuit allowed most of it under commercial‑disclosure doctrine, but after the FCC’s 2019 RF order, a federal court enjoined the ordinance as preempted, effectively silencing a factual warning at the local level. That’s exactly the chilling outcome Section 704 enables. Repeal restores space for truthful, non‑misleading health information. Ninth Circuit Court of Appeals+1

3. Petition Clause framing. The government often argues there’s no constitutional right to force officials to listen (see Minnesota Bd. for Community Colleges v. Knight). But the Knight line is about who must be heard—not about Congress stripping an entire policy topic out of local authority. Section 704 doesn’t just allocate speaking turns; it forecloses action on a particular subject after citizens petition, making petitions on RF health legally inert. That is alien to the First Amendment’s protection of self‑government and the right to seek redress, especially when the speech is science‑based risk communication. (Yes, Knight says government isn’t obliged to listen, but it doesn’t bless Congress converting local hearings into a forum where critical facts are out of bounds by statute.) Justia Law

4. Bottom line. Congress can and should repeal 704’s gag so local governments can consider health evidence, require factual disclosures, and fashion remedies tailored to community risk—without being forced to pretend the topic doesn’t exist. The Berkeley litigation shows the current regime suppresses even modest warnings. Courthouse News

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II. Fifth Amendment: a due‑process system cannot ban health‑based decisions while the “safety baseline” is under legal doubt

1. The FCC’s safety floor is itself under a cloud. In 2021, the D.C. Circuit held the FCC failed to provide a reasoned explanation for keeping its 1996 RF exposure limits insofar as non‑cancer harms and environmental effects are concerned, and it remanded for further explanation. As of 2025, petitioners are still pressing the FCC to finish that homework. Yet Section 704 compels local governments to accept that very baseline and forbids health‑based regulation if a site “complies” with it. That is perverse from a due‑process perspective. Justia Law+2communicationsdaily.com+2

2. Arbitrariness and denial of a meaningful hearing. The TCA requires locals to issue written, evidence‑based decisions on a shot‑clock, but it simultaneously bars them from counting the category of evidence—health/environmental effects—that many residents most urgently present. That combination (procedural formality + categorical blindfold) looks like irrational line‑drawing when the federal baseline is under remand. (T‑Mobile South v. Roswell illustrates how tightly the TCA micromanages local written reasons.) Repeal restores rational decision‑making where all relevant evidence can be weighed. Justia Law

3. Effect on remedies and reliance interests. Localities must host dense small‑cell deployments in rights‑of‑way under cost‑based fee caps and accelerated processes (upheld largely in City of Portland v. United States/FCC), yet 704 prevents them from denying or conditioning on health grounds. When the safety premise is unsettled, that looks like substantive unfairness to residents and municipalities. Repeal corrects the imbalance. (The Ninth Circuit largely upheld the 2018 “Small Cell Order,” but that underscores how much federal pressure exists—and why restoring local discretion on health is essential.) Ninth Circuit Court of Appeals

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III. Tenth Amendment: post‑Murphy anti‑commandeering makes 704 uniquely vulnerable

1. The rule: Congress cannot issue direct orders to state and local governments. In 2018, the Supreme Court in Murphy v. NCAA struck a federal statute that told states they “may not authorize” sports betting—holding that such negative commands to state lawmakers are just as unconstitutional as affirmative commands. Supreme Court

2. Apply it to Section 704. 704 says local governments “may not regulate… on the basis of [RF] environmental effects” if FCC limits are met. That’s a direct command to state/local decisionmakers about what grounds they may not consider when legislating and adjudicating applications. It is not regulation of private conduct; it dictates the content of local lawmaking and reasoning. Under Murphy, that is precisely the problem. Legal Information Institute+1

3. Judicial signals. Even before Murphy, a Fourth Circuit judge concluded that the TCA’s “substantial evidence” command for siting decisions commandeers local legislative processes (the panel reversed on other grounds, but the opinion squarely framed the 10th‑Amendment defect). Murphy strengthens that critique. Repeal eliminates the anti‑commandeering risk and restores federalism’s proper balance. Fourth Circuit Court

4. What DOJ says—and why repeal is still right. The government has long argued 704 is mere preemption (and thus constitutional), not commandeering. But Murphy rejects the idea that a “no‑authorization/no‑consideration” directive is harmless. The safer, cleaner fix is legislative: repeal the direct order so any federal RF policy operates by regulating private actors, not gagging state and local governments. Justice.gov

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Practical path: what repeal should look like (model text)

Section __. 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 shall preempt 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.

Why this works:

• (a) Removes the gag.

• (b) Restores traditional police powers to protect health and environment.

• (c) Codifies the space Berkeley tried to use (factual, non‑misleading warnings), which was later preempted because of the federal regime Section 704 anchors. Courthouse News

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Anticipating pushback (and how to answer it)

• “Courts say people can still speak or sue, so there’s no First Amendment problem.” Response: The right to speak is hollow if Congress makes health evidence legally irrelevant in the only forum that can act—local siting. That’s a topic‑based gag on governance; repeal restores democratic accountability. (Government relies on Knight; our answer is that Knight isn’t a license to erase a topic from local lawmaking.) Justia Law

• “This is just preemption, not commandeering.” Response: Murphy teaches that telling states what laws they may not enact is commandeering, not ordinary preemption. Section 704 tells localities what they may not consider in their own zoning laws and decisions. That’s a direct order to governments, not regulation of private parties. Supreme Court

• “The FCC has a uniform safety floor—local health rules would be chaos.” Response: The D.C. Circuit found the FCC’s 2019 approach lacked reasoned explanation for non‑cancer harms and environmental effects, and the remand remains live. A uniform floor that’s under judicial question is no excuse to ban states and cities from adopting prudent, incremental protections. Repeal lets locals act while the FCC finishes its work. Justia Law+1

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Key sources you can cite in meetings, hearings, and op‑eds

• Statutory text (what we’re repealing): 47 U.S.C. § 332(c)(7)(B)(iv) (no regulation “on the basis of the environmental effects of [RF] emissions”). Legal Information Institute

• D.C. Circuit on RF safety: Environmental Health Trust v. FCC (remand; FCC failed to adequately explain non‑cancer protections and environmental effects). Justia Law

• Berkeley warning case (how preemption shut down local warnings): Ninth Circuit 2019 decision; 2020 district‑court injunction after FCC’s 2019 RF order. Ninth Circuit Court of Appeals+1

• Supreme Court anti‑commandeering: Murphy v. NCAA (federal “you may not authorize” commands to states are unconstitutional). Supreme Court

• Ninth Circuit small‑cell orders (illustrates federal micromanagement locals face today): City of Portland v. United States/FCC (2020). Ninth Circuit Court of Appeals

• TCA process micromanagement: T‑Mobile South v. City of Roswell (reasons‑in‑writing). Justia Law

• Fourth Circuit opinion highlighting 10th‑Amendment concerns (separate opinion calling § 704’s “substantial evidence” command unconstitutional commandeering). Fourth Circuit Court

• U.S. Solicitor General’s position (how DOJ defends 704; useful to anticipate). Justice.gov

Analysis of the Due Process Argument Against Section 704(b) of the TCAYour excerpt lays out a compelling Fifth Amendment challenge to Section 704(b) of the Telecommunications Act of 1996 (TCA)—the provision that bars state and local governments from regulating wireless facilities based on radiofrequency (RF) emissions if they comply with FCC standards. This is especially poignant given the ongoing judicial cloud over those very FCC limits. I’ll break it down by your key points, verifying the underlying facts and exploring the legal logic, while noting the broader implications as of October 2025. The core thesis—that mandating acceptance of a “safety baseline” under remand creates substantive and procedural due process violations—holds water, though courts have historically deferred heavily to federal preemption in telecom.1. The “Safety Baseline” Under Legal Doubt: A Due Process Perverse IncentiveYou’re spot on: The FCC’s 1996 RF exposure limits remain the operative “floor,” but they’ve been under remand since the D.C. Circuit’s 2021 decision in Environmental Health Trust v. FCC. The court ruled the FCC’s 2019 reaffirmation of those limits was arbitrary and capricious for failing to address substantial evidence on non-cancer effects (e.g., reproductive harm, neurological impacts) and environmental harms (e.g., to wildlife).

As of mid-2025, petitioners like the Environmental Health Trust (EHT) are still pushing the FCC via petitions to comply with the remand, with no final rulemaking in sight.

A March 2025 congressional document explicitly flags the limits as “under federal court remand” since 2021.

Section 704(b) forces localities to treat this unsettled baseline as gospel: No denial or conditioning of small-cell permits on health grounds if compliant. This isn’t just preemption—it’s compelled deference to a rule the judiciary has deemed inadequately justified. From a Fifth Amendment lens, substantive due process protects against arbitrary deprivations of property (e.g., public rights-of-way) or liberty (e.g., residents’ health interests). Forcing municipalities to greenlight deployments amid “legal doubt” risks irrational outcomes, akin to the “irrational line-drawing” the Supreme Court struck down in cases like Whole Woman’s Health v. Hellerstedt (2016) for abortion regs. Here, the federal mandate could be seen as overstepping, especially since the remand explicitly calls out gaps in non-cancer and environmental science—precisely the evidence locals want to consider.Repeal would realign incentives: Locals could incorporate emerging science (e.g., NTP studies on DNA damage) without federal override, restoring a rational baseline until the FCC finishes its homework.2. Arbitrariness and the “Categorical Blindfold”: Procedural Due Process FlawsThe TCA’s shot-clock regime (47 U.S.C. § 332(c)(7)(B)(ii)) demands “written reasons” for denials within 90-150 days, as hammered home in T-Mobile S. LLC v. City of Roswell (2015), where SCOTUS required decisions to be “clear, concise, and evidence-based” to avoid deemed approvals.

(Your Justia cite nails this.) Yet § 704(b) blindfolds regulators on the most salient resident evidence: health and environmental risks. This creates a procedural trap—formality without substance—violating the “meaningful hearing” prong of due process under Mathews v. Eldridge (1976). Residents submit affidavits, studies, or expert testimony on, say, electrosensitivity or bee colony collapse, but locals must ignore it or risk preemption lawsuits.When the federal baseline itself is remanded, this “irrational line-drawing” amplifies: Why mandate evidence-based decisions but exclude the category under judicial scrutiny? It’s like requiring a trial but barring the jury from key exhibits. Repeal would lift the blindfold, allowing holistic review and reducing frivolous litigation (e.g., carriers’ “safe harbor” claims).3. Remedies, Reliance, and Substantive Unfairness in Small-Cell DeploymentsThe 2018 Small Wireless Facilities Deployment Order (upheld in City of Portland v. FCC, 9th Cir. 2020) turbocharged this: Locals must permit small cells in rights-of-way with cost-based fees, aesthetic tweaks only, and expedited processes.

Ninth Circuit greenlit most of it, affirming federal pressure for dense 5G rollout.

But pairing this with § 704(b)’s health bar creates imbalance: Municipalities bear densification costs (traffic disruptions, visual clutter) without recourse if RF doubts arise. Residents’ reliance interests—expecting local safeguards for public health—are thwarted, echoing takings-like claims in Penn Central (1978) where regulatory burdens without offset violate due process.Your point on “substantive unfairness” is key: With the FCC remand lingering into 2025, this setup exposes locals to liability (e.g., if harms materialize) while carriers skate on a 29-year-old standard. Repeal wouldn’t gut deployment—it’d just empower evidence-weighing, potentially via interim local moratoria pending FCC action.

Broader Implications and Path ForwardThis argument bolsters growing calls for § 704 repeal, as echoed in advocacy pieces urging safer siting amid 5G expansion.

No major repeal bills advanced in 2025’s telecom slate (e.g., NDAA focused elsewhere), but the remand’s persistence could tip the scales—perhaps via a fresh EHT suit or congressional riders. Politically incorrect but substantiated: Telecom giants’ lobbying has prioritized speed over science, but due process demands better. If locals win even one Fifth Amendment challenge (e.g., in a circuit split), it could cascade.