FCC SHOT CLOCK RULING UPHELD BY U.S. SUPREME COURT

Written by calwa. Posted in Case Law, FCC, News

FCC DETERMINATIONS OF SCOPE OF ITS OWN AUTHORITY ARE ENTITLED TO DEFERENCE

In a ruling that affirmed the FCC’s authority to issue regulations interpreting the federal Telecommunications Act, the United States Supreme Court has upheld the decision of the Fifth Circuit Court of Appeals in City of Arlington v. FCC, No. 11-1545 (May 20, 2013). The ruling affirms the FCC’s declaratory ruling establishing specific 90-day (in the case of collocations) and 150-day (in any other case) deadlines as the presumptive “reasonable period of time” within which state or local governments are required under 47 U.S.C. §332(c)(7)(B)(ii) to act on siting applications for wireless facilities after the request is duly filed.

The Cities of Arlington and San Antonio, Texas challenged the FCC’s authority to issue the so-called “Shot-Clock” declaratory ruling (available on CalWA’s web site at http://www.calwa.org/wp-content/uploads/2011/06/FCC-09-99A1.pdf) on the grounds (among others) that the FCC lacked authority to issue such a ruling. The Fifth Circuit Court of Appeals, in upholding the FCC’s ruling, held that the FCC’s determination of it’s authority to issue such a ruiling was entitled to substantial deference under the so-called Chevron doctrine, under which the courts are required to respect decisions of expert agencies that fall within their area of expertise. The cities sought review of the decision, and the Supreme Court granted review, but solely on the question of whether the FCC’s decisions on the scope of its own jurisdiction, as opposed to decisions on substantive issues of law within its jurisdiction, were entitled to the same deference as those substantive decisions. In holding that they were, Justice Scalia, who wrote the opinion for the 6-justice majority, opined that, in the context of administrative agency decisions, “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.”

In addition to finally settling the dispute over the validity of the Shot-Clock ruling in favor of the FCC’s action, the case also provides citable Supreme Court authority for the following statement:

In theory, §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities. But in practice, wireless providers often faced long delays.

The case thus affirms the FCC’s findings that

[T]he ‘record evidence demonstrates that unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services’ and that such delays ‘impede the promotion of advanced services and competition that Congress deemed critical in the Telecommunications Act of 1996.’

For a copy of the decision, click on the following link: Arlington v. FCC Decision