October 8, 2012 – The U.S. Supreme Court has agreed to review whether the Federal Communications Commission’s shot clock – the period of time in which local government must act upon an application for a wireless antenna co-location or a new site build – is legal.
The high court will hear arguments stemming from two petitions alleging that the FCC has exceeded its authority by setting a standard for jurisdictional review that is allowing it to override state and local zoning laws for wireless facilities.
The court has joined the petitions brought by the Cities of Arlington and San Antonio, TX, and the Cable, Telecommunications and Technology Committee of the New Orleans City Council, allowing the petitioners an hour’s worth of argument before the justices.
The announcement provided an industry shockwave to the many state and national associations that were involved in shepherding passage of the wireless development ruling by the FCC in 2009.
When the 5th Circuit Court of Appeals affirmed the FCC’s authority to impose a shot clock and ruled against a petition by the cities of Arlington and San Antonio, Tex. last January, legal observers said it seemed improbable that a petition for a writ of certiorari – an appellate review by the Supreme Court – would be accepted given the nature of the ruling.
Court said it followed Chevron
The 5th Circuit court said it relied upon administering the Chevron two-step standard of review as the basis for its decision.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. was a 1984 case in which the Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers.
Getting the Supreme Court to grant a review – requiring a minimum of four of the nine Justices to agree – is seldom achieved since the vast majority of petitions for certiorari are routinely denied without comment. The grant rate of those petitions the court feels are sufficiently important is approximately 1% of all requests.
Attorneys for CTIA – The Wireless Association and Verizon filed a briefafter the petitions were presented, stating that the FCC’s jurisdiction in the declaration was
in fact clear under the statute and therefore, no Chevron issue was presented. They were relieved when Solicitor General Donald Verrilli, Jr. recommended to the Supreme Court on August 29 that both petitions had no merit and should be denied. The Supreme Court didn’t agree. The industry’s short-lived exuberance ended upon the Supreme Court’s announcement it would hear arguments.
The Justices said that they are going to review: “Whether contrary to the decisions of at least two other circuits, and in light of this Court’s guidance, a court should apply Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) to review an agency’s determination of its own jurisdiction.”
The Supreme Court will decide whether the FCC has authority to interpret the phrase, “a reasonable period of time,” as that term is used in The Telecommunications Act of 1996 under Chevron.
It appears that the high court, while addressing the FCC telecom issue, will also speak to Chevron itself, an undecided question of administrative law.
The 5th Circuit had joined the 10th Circuit and the 3rd Circuit in applying Chevron deference to disputes over the scope of an agency’s jurisdiction. However, the federal appeals court in New Orleans acknowledged that the Supreme Court “has not yet conclusively resolved the question of whether Chevron applies in the context of an agency’s determination of its own statutory jurisdiction, and the circuit court of appeals have adopted different approaches to this issue.”
Conversely, the 7th Circuit and the Federal Circuit have chosen not to apply Chevron deference.
On all of the issues brought forth in the Arlington and San Antonio petition, the court ruled in favor of the FCC, in general by applying existing Fifth Circuit precedent on the specific issues in question.
The Fifth Circuit covers the states of Texas, Mississippi and Louisiana.
Verrilli said that dissimilar to the petitioners’ suggestion, the FCC’s declaratory ruling did not adopt a federal zoning policy.
“It simply established presumptively reasonable timeframes for processing wireless facility siting applications. As the court of appeals correctly understood, those timeframes ‘are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction.’ Ultimately, the courts, not the Commission, will resolve issues of timing in lawsuits brought under Section 332(c)(7),” he stated in his request to deny the petitioners’ writ of certiorari.
Shot clock sets 90 and 150-day guidelines
The FCC has defined the reasonable time for communities to process an application as being 90 days for a co-location site, and 150 days for a new site and other types of applications. It was based upon a large majority of community officials who said that they processed applications for wireless facilities in that timeframe.
When there is a failure to act on an application within the applicable time period, the aggrieved party can file a suit with a court of competent jurisdiction within 30 days and that court shall hear and decide such action on an expedited basis.
A review period of 30 days set by the FCC’s mandate gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that those applications should be denied as incomplete.
The FCC says the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete.
Ambiguous “reasonable” time frame helped the Fifth Circuit to deny
“We do not read the [FCC’s] declaratory ruling as creating a scheme in which a state or local government’s failure to meet the FCC’s time frames constitutes a violation of the [Communications Act],” Circuit Judge Priscilla Owen wrote for the Fifth Circuit Court of Appeals’ three-judge panel.
Whereas Congress was clear in The Telecommunications Act of 1996 that the FCC would not have authority to make new rules limiting or affecting state and local government, the court said that leaving in “within a reasonable period of time” was purposely ambiguous and allowed the FCC to use its general rulemaking power to provide guidance.
Some federal appeals courts have applied the standards outlined in Chevron, which requires courts to defer to an agency’s interpretation of an ambiguous law, so long as that interpretation is reasonable and “permissible.”
The FCC insisted that its jurisdiction fell within its general authority to carry out provisions of the Communications Act of 1934.
Justice Kagan might be the one to watch
It is unknown why the Supreme Court didn’t agree with Verrilli’s recommendation to deny certiorari. The Solicitor General has oftentimes been called the “10th Justice” due to the relationship of mutual respect that develops between the Justices and the Solicitor General.
Supreme Court Justice Elena Kagan was the previous Solicitor General and it appears that her briefs might have been influential in many of the court’s decisions.
In 2009, Kagan expressed the federal government’s view that the Eight Circuit and Ninth Circuit correctly interpreted The Telecommunications Act of 1996 in their rulings in favor of local governments.
The Supreme Court agreed with her and denied certiorari in both cases.
The PCIA – The Wireless Infrastructure Association’s new President and CEO, Jonathan Adelstein, who earlier this month said he would be working to build on the FCC’s 2009 shot clock ruling, will now be occupied with ensuring that the federal siting foundation remains in place.
Adelstein is a former FCC Commissioner and former Administrator of the U.S. Department of Agriculture’s Rural Utilities Service.
A spokesperson for CTIA said that they were not going to release a statement regarding the Supreme Court’s decision to review the circuit court’s ruling.
The Supreme Court is likely to hear arguments in the case in January or February. We’ll provide updates and court filings as they occur, as the outcome could have huge implications for local government..
When the FCC’s rules were upheld in the Arlington decision, FCC Chairman Julius Genachowski said, “The FCC’s tower siting policy upheld today advances the crucial national priority of ensuring American leadership in mobile innovation and is part of the FCC’s relentless focus on unleashing the opportunities of wired and wireless broadband for all Americans, including job creation, increased investment, innovation and economic growth.”