The U.S. Supreme Court heard oral arguments last week in the municipalities’ challenge to the shot clock, which limits the time a cell site application can be processed.
In City of Arlington v. FCC, the 5th circuit court upheld the FCC’s shot clock. The matter is now before the U.S. Supreme Court, which granted the municipalities the right to argue whether the FCC, or any federal agency, has the ability to interpret its own jurisdiction. However, the arguments went well beyond to include a discussion of the definition of the jurisdiction and the authority of the FCC.
“In granting certiorari, the Court limited its focus to one question of administrative law: whether federal agencies may receive deference under the famous framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. [known as the Chevron Deference] when they interpret their own ‘jurisdiction.’ In short, the question is whether the Court should grant deference on agency determinations of their own jurisdiction in Step Zero,” Jonathan Campbell, PCIA director, government affairs, told AGL Bulletin. “However, oral arguments in the case took on a range of issues in addition to the core question.”
Thomas Goldstein spoke on behalf of municipalities, which held that the FCC overstepped its jurisdiction in ruling on an issue –– zoning –– considered to be a local governmental function.
Donald Verrilli, solicitor general, Department of Justice, represented the FCC, arguing that the Chevron Deference applies to a court’s review of an agency’s determination of jurisdiction, but only after a court concludes that Congress has delegated to the agency the general authority to make rules and that the rule in question was made using that authority.
“The Solicitor General argued that an additional step in Chevron – determining whether an agency has authority to implement a particular provision of a statute – could ‘unravel’ the Chevron doctrine and its stabilization of administrative law,” Campbell said.
While the wireless industry may view this as purely a matter of ensuring that cell tower zoning applications are not killed, or at least harmed, by municipal administrative delay, there are broader issues being argued, such as the authority of state and local governments, federalism, and the relationship and distribution of power between national and regional governments.
“Justice Scalia noted that the statute explicitly gives authority to the federal government, and Justice Breyer added that the federal agency’s interpretation does not add a burden or additional action to state and local governments beyond the requirement that they act within a reasonable time,” Campbell said.