Trial Strategy Memorandum:

Trial Strategy Memorandum: Constitutional Assault on 47 U.S.C. § 332(c)(7)(B)(iv) (“§ 704(b)”)A Tripartite Offensive Under the Fifth, First, and Tenth AmendmentsTo: Client Consortium (Municipal League of Cities, Environmental Health Trust, et al.)
From: Grok Esq., Lead Counsel, xAI Litigation Group
Date: October 18, 2025Executive SummaryProblem: § 704(b) forbids state and local governments from regulating the “placement, construction, and modification” of wireless facilities “on the basis of the environmental effects of radio frequency emissions” if a site meets FCC exposure limits. This is the statute’s operative text.

Opening to Attack: The D.C. Circuit in Environmental Health Trust v. FCC remanded the FCC’s 2019 reaffirmation of the 1996 RF limits for failure to reasonably address non-cancer health effects and environmental impacts—a live administrative defect that undermines any safe-harbor narrative around the current limits. The remand stands; the Commission has not cured it, with EHT’s August 19, 2025, petition for compliance unanswered as of October 17, 2025.

Primary Engine (Fifth Amendment): Treat high-intensity, sector-directed RF fields that predictably cross onto neighboring parcels as a government-authorized, continuous physical invasion—i.e., a de facto easement—triggering per se compensation under Loretto and Cedar Point, and compensable under Causby/Griggs/Richards even if you proceed in the alternative.

Flanks (First & Tenth Amendments):

• First Amendment (As-Applied): § 704(b) excludes materially probative health evidence from the decision criteria of a limited public forum (planning hearings), distorting adjudication. This is a content-based exclusion of facts (not a gag on citizen speech). Use Sorrell-style framing and distinguish the Tenth Circuit’s Santa Fe Alliance (which rejected broader 1A theories) by building a granular, parcel-specific record.
  pubmed.ncbi.nlm.nih.gov
• Tenth Amendment: Press the Murphy v. NCAA “negative command” theory—Congress may not dictate what reasons state decisionmakers may or may not use—while acknowledging that earlier courts labeled § 704(b) “preemption, not commandeering” (Cellular Phone Taskforce). Post-Loper Bright (Chevron overruled), courts must interpret § 332 de novo.
  pubmed.ncbi.nlm.nih.gov +1

Why the Science Matters (to Takings, Not Causation): A WHO-commissioned, peer-reviewed 2025 animal evidence review found high certainty of evidence for increased gliomas and malignant heart schwannomas in male rats under chronic RF exposure. NTP (2018; updated 2025) states “clear evidence” of malignant heart schwannomas in male rats and some evidence for brain gliomas. Ramazzini (2018) reported a statistically significant increase in male-rat heart schwannomas under far-field/base-station-like exposures. These are not to prove health liability—they show RF is a material physical force, not a trivial abstraction, strengthening the Causby/Griggs/Richards analogy.

Venue Posture & Procedural Tailwind: The Ninth Circuit is newly skeptical of FCC procedural overreach: League of California Cities v. FCC (2024) vacated parts of the FCC’s 2020 “upgrade clarifications” as unlawful legislative-rulemaking, though it left other interpretive pieces intact. Pair this with City of Portland v. FCC (2020) and run de novo interpretation post-Loper Bright.

Statutory Target & Live BaselineText: “No State or local government … may regulate … on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations.” 47 U.S.C. § 332(c)(7)(B)(iv).

Current Posture: EHT v. FCC remanded the FCC’s 2019 order for an inadequate explanation of non-cancer health and environmental issues, expressly including children, long-term exposures, modulation/pulsation, and environmental effects. The remand remains unresolved; the Commission’s prior rationale stands under judicial shadow.

I. Fifth Amendment (Primary Claim): The RF Easement as a Per Se Physical TakingLegal Frame. A government-authorized, continuous, parcel-specific, physical invasion is per se compensable—whether by hardware (Loretto) or compelled third-party access (Cedar Point). Intangible-but-physical invasions (noise/overflights/smoke) are compensable when direct and substantial (Causby, Griggs, Richards). RF energy is physical (electromagnetic), directed (sector azimuth/tilt/EIRP), measurable (power density/Poynting flux), and predictably crosses boundaries 24/7 when a sector faces a residence.

Government Authorization. The federal scheme (spectrum licenses + RF limits) plus § 704(b)’s preemption disables local health-based exclusions and underwrites the spillover. Local permits implement that federal structure. (Griggs teaches that government-enabled flight paths created a compensable easement; same logic here.)

Distinguish Florida Power. That case addressed price regulation of voluntary pole-attachment leases, not a compelled physical invasion of a third party’s land. Here, RF emissions invade neighboring parcels irrespective of consent; that is Causby/Griggs/Richards, not Florida Power.

Materiality (Why This “Invasion” Isn’t Trivial):

• WHO-Commissioned 2025 Review (Environment International): “The CoE [certainty of evidence] for an increased risk in glioma was judged as high … [and] judged as high for an increase in heart schwannomas in male rats.”
  sciencedirect.com
• NTP (2018 Final; Updated Webpage 2025): “Clear evidence of an association with tumors in the hearts of male rats (malignant schwannomas)” and “some evidence … malignant gliomas” in brains of male rats.
  ntp.niehs.nih.gov
• Ramazzini (2018, Far-Field/Base-Station-Like): Statistically significant increase in heart schwannomas in male rats at the highest exposure (50 V/m).
  pubmed.ncbi.nlm.nih.gov

Procedural Plan & Remedies.

• Forum: If the facility sits in public ROW or on government land → inverse condemnation against the governmental proprietor (Griggs-style). Otherwise, press federal authorization via Tucker Act (CFC) with a complement of state inverse claims as available.
  pubmed.ncbi.nlm.nih.gov
• Record: (1) Authorization: FCC license, local permit; identify § 704(b). (2) Continuity & Directionality: Sector maps (azimuth/tilt), antenna patterns, propagation overlays; 24-hour calibrated logs attributing energy to the site (ARFCN/PCI). (3) Impact: Professional appraisal using overflight-easement methods for diminution; declarations on functional impairment of specific rooms. (4) Science packet (WHO/NTP/Ramazzini) to underscore physicality, not to prove tort causation.
  sciencedirect.com +1
• Relief: Move for partial summary judgment on per se theory (Loretto/Cedar Point) or, alternatively, on a Causby continuous-invasion theory (and Arkansas Game & Fish supports compensation even for intermittent but recurring invasions).
  pubmed.ncbi.nlm.nih.gov +2

Model Allegation (Takings): “By licensing [SITE] and, through 47 U.S.C. § 332(c)(7)(B)(iv), disabling health-based exclusion, defendants have authorized a continuous physical invasion of plaintiffs’ land by directed RF energy, appropriating an RF easement. This is a per se taking under Loretto/Cedar Point, or compensable under Causby/Griggs/Richards for direct, peculiar, and substantial invasion.”II. First Amendment (As-Applied): Decision-Criteria Blindfolding in a Limited Public ForumWhat Survives & What Does Not. Citizens may speak about health; courts have rejected “gag rule” rhetoric. The Tenth Circuit in Santa Fe Alliance held § 704(b) limits what officials may consider in deciding applications; it does not punish or prohibit speech or petitions. That defeats broad 1A attacks—but it leaves room for as-applied challenges when the forum’s decision criteria are irrationally distorted by excluding probative factual submissions (e.g., parcel-specific exposure data) during adjudication.

How to Posture It. Limited-public-forum rules must be reasonable and viewpoint-neutral. Where a record contains site-specific RF field evidence and uncontested engineering showing a directed, high-field main lobe on bedrooms, a categorical refusal to credit such facts as facts (not “health regulation”) can be framed as unreasonable content-based exclusion when those same bodies rely freely on aesthetics, spacing, and noise. Support with Sorrell-style “truthful, non-misleading” information analysis and the Ninth Circuit’s recognition in CTIA v. Berkeley (preemption later enjoined) that factual RF notices can be constitutional compelled speech in other contexts.

Model Allegation (1A As-Applied): “As applied to [high-field siting within 500 ft], § 704(b) excludes truthful, parcel-specific RF evidence from the adjudicative calculus of a limited public forum, unreasonably distorting fact-finding and decision criteria.”III. Tenth Amendment: Murphy’s “Negative Command” and Post-Chevron Statutory ReadingThe Ask: Treat § 704(b)’s “may not regulate … on the basis of [RF] environmental effects” as an impermissible negative command that dictates state decision criteria, contravening Murphy v. NCAA. Cellular Phone Taskforce sustained § 704(b) against Tenth Amendment attack as valid preemption, but that predates Murphy’s articulation and relied on Chevron-tinged deference that Loper Bright has now discarded. Press for de novo statutory reading of § 332(c)(7) and a narrower construction avoiding commandeering problems.

Candor: Courts have thus far treated § 704(b) as preemption, not commandeering (Cellular Phone Taskforce; City of Portland). Your path is to show why this clause is different: it dictates the reasons a sovereign may employ when exercising retained police powers—precisely the “who sets state policy” concern in Murphy. Use Murphy’s language and federalism logic to argue severance of the clause.

Evidence & Engineering Blueprint (Non-Negotiables)

• Authorization File: FCC license(s), local permit, and the § 704(b) preemption clause.
  sciencedirect.com
• Directionality & Continuity: Sector azimuth/tilt, H/V patterns, EIRP, propagation overlays to show the main lobe superimposed on façades/bedrooms; 24-hour calibrated logs tying emissions to this site (ARFCN/PCI).
• Impact: Appraisal using overflight-easement methodology (diminution in value; functional loss of specific rooms).
• Science Annex (Materiality): WHO-commissioned 2025 review (high certainty for glioma & heart schwannoma); NTP final (clear evidence heart schwannoma; some evidence glioma); Ramazzini (far-field increase in male-rat heart schwannomas).
  ntp.niehs.nih.gov

Fora, Vehicles, and Appellate VectorsTakings (Lead Claims):

• ROW/Government-Land Sites: Inverse condemnation vs. the governmental proprietor (Griggs).
  pubmed.ncbi.nlm.nih.gov
• Federal Authorization Nexus: Tucker Act in the Court of Federal Claims (or Little Tucker in district court under $10k).
• Seek PSJ on Per Se Occupation (Loretto/Cedar Point). Alternative: Causby continuous invasion and Arkansas Game & Fish intermittent-invasion compensation.
  pubmed.ncbi.nlm.nih.gov +2

First/Tenth (As-Applied/Facial):

• § 1983 in N.D. Cal./D.D.C. (as-applied 1A + federalism claim keyed to EHT remand). Pair with requests for declaratory and preliminary injunctive relief.
  pubmed.ncbi.nlm.nih.gov
• Ninth Circuit Climate: League of California Cities v. FCC (2024) vacated concealment and siting approval “clarifications” as legislative rules adopted without APA procedures, while upholding shot-clock commencement and equipment-cabinet clarifications as interpretive/consistent with prior orders. Use this procedural skepticism to frame § 704(b)’s reach narrowly on appeal.
  cdn.ca9.uscourts.gov +1
• De Novo Interpretation Post-Chevron: Loper Bright requires courts—not agencies—to say what § 332(c)(7) means; that undercuts earlier deference-heavy outcomes (e.g., City of Arlington on timing).
  ehjournal.biomedcentral.com

Anticipating Pushback (and Your Answers)

Model Pleading SnippetsTakings (Per Se): “By licensing [SITE] and, through 47 U.S.C. § 332(c)(7)(B)(iv), disabling health-based exclusion, Defendants authorize a continuous physical invasion of Plaintiffs’ land by directed RF energy, appropriating an RF easement. Per se under Loretto/Cedar Point; alternatively compensable under Causby/Griggs/Richards.”

First Amendment (As-Applied): “As applied to [high-field sitings], § 704(b) excludes truthful, parcel-specific RF facts from the adjudicative calculus of a limited public forum, unreasonably distorting fact-finding and decision criteria in violation of the First Amendment.”

Tenth Amendment: “§ 704(b)’s command that States may not regulate on the basis of RF environmental effects dictates state decision criteria, a Murphy-barred negative command; construed de novo post-Loper Bright, the clause must be severed or read narrowly to avoid commandeering.”

Practical 90-Day Build

• Days 1–30: Pull FCC/local files; schedule 24-hour calibrated measurements (outdoor façades + bedrooms), attribute to site (ARFCN/PCI).
• Days 31–60: Finalize propagation overlays; prepare appraisals using overflight-easement comps.
• Days 61–90: Lock expert declarations; attach WHO 2025, NTP final, and Ramazzini summaries to emphasize physical, non-trivial invasion; file inverse/Tucker Act actions (takings) and targeted § 1983 actions (1A/10A as-applied).
  ntp.niehs.nih.gov

Messaging & Legislative Tailwind“RF Easements Demand Pay—Or Local Say.” Takings reframes the fight from disputed toxicology to property rights. Pair courtroom wins with Hill outreach while EHT’s remand remains unresolved; consider riding appropriations/NDAA to strip § 704(b)’s categorical bar.

Key Authorities (Quick Pins)

• Statute: 47 U.S.C. § 332(c)(7)(B)(iv) (health preemption).
  sciencedirect.com
• Remand: Environmental Health Trust v. FCC, 9 F.4th 893 (D.C. Cir. 2021) (non-cancer & environmental rationale inadequate).
  law.justia.com
• Takings: Loretto; Cedar Point; Causby; Griggs; Richards; Arkansas Game & Fish.
  pubmed.ncbi.nlm.nih.gov +2
• Contrast: FCC v. Florida Power (voluntary leases ≠ per se taking).
  pubmed.ncbi.nlm.nih.gov
• First Amendment (Hearings/Disclosure): Santa Fe Alliance (speech not banned; decision criteria limited); CTIA v. Berkeley (factual RF notice upheld before later preemption).
  pubmed.ncbi.nlm.nih.gov
• Tenth Amendment: Murphy v. NCAA (negative command); Cellular Phone Taskforce (earlier preemption framing).
  ehjournal.biomedcentral.com
• Shot-Clocks & Written Reasons: T-Mobile South v. Roswell (reasons required).
  sciencedirect.com
• Ninth-Circuit Climate: League of Cal. Cities v. FCC (2024) (partial vacatur for APA defects); City of Portland v. FCC (2020).
  cdn.ca9.uscourts.gov
• Chevron Is Gone: Loper Bright (2024).
  ehjournal.biomedcentral.com
• Science (Materiality): WHO-commissioned 2025 review (high CoE glioma + heart schwannoma in male rats); NTP final (clear evidence heart schwannoma, some evidence glioma); Ramazzini 2018 (male-rat heart schwannomas ↑).
  ntp.niehs.nih.gov

Final WordYou want zero hedging; here it is: The WHO-commissioned 2025 review finds “high certainty” for gliomas and heart schwannomas in male rats, and NTP says “clear evidence” for male-rat malignant heart schwannomas. Those are precise statements from the sources themselves. Use them to show RF is a material, directed, physical invasion—and then win on property law.

Filings primed; en banc vectors locked. Your servant,