Early in 2012, the federal Fifth Circuit Court of Appeals, in City of Arlington and City of San Antonio v. Federal Communications Commission, upheld a Federal Communications Commission (FCC) order imposing certain requirements on cities relating to cell tower applications.  The cities appealed to the U.S. Supreme Court, which heard oral arguments this week.

The case began in 2008 when the international association of cell phone providers (CTIA) filed a “petition for declaratory ruling” with the FCC. The petition asked the FCC to preempt local zoning of wireless phone tower locations.

In 2009, the FCC unanimously adopted an order on CTIA’s petition. While not as burdensome as some feared, the order did the following:

  • Set presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a city must act on wireless applications.
  • Concluded that a city that denies a tower-siting application solely because “one or more carriers serve a given geographic market” has engaged in unlawful regulation that “prohibits or ha[s] the effect of prohibiting the provision of personal wireless services” within the meaning of the Act. In other words, the fact that another carrier or carriers provide service to an area is an inadequate defense for denying a new carrier’s application.
  • Rejected CTIA’s request that the FCC preempt any variance procedure under a city’s ordinance. The FCC concluded that whether a variance procedure is too burdensome depends on the city’s actual process.

The order was troubling because it preempts certain aspects of local zoning authority and to some extent makes the FCC a “national zoning board.” Shortly following the order, the National League of Cities, joined by the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a petition for reconsideration with the FCC. The FCC denied that petition.

While the FCC was deciding the petition, the City of Arlington (later joined by the City of San Antonio) challenged the FCC’s authority to issue the order by appealing to the Fifth Circuit Court of Appeals. In 2012, the court of appeals issued an opinion that upheld, but limited the effect of, the FCC order.    The lengthy opinion addressed many issues related to FCC authority, but the most relevant substantive portion concluded that the “shot clock” time frames are not hard and fast rules, but instead exist to guide courts in their consideration of cases challenging state or local government inaction.

The larger question on appeal to the U.S. Supreme Court relates to FCC (and other federal agencies) authority in general.  An analytical tool used by courts and referred to as the “Chevron Doctrine” is at issue.  The Chevron Doctrine essentially provides that a court will defer to a federal agency’s own interpretation of whether it has the authority to enact a regulation under its enabling legislation.  The cities in the case claim that the FCC simply lacked the authority to issue its order, and that – if courts follow the Chevron Doctrine – any challenge to federal agency authority is precluded.

In an interesting procedural twist, various state and national associations (e.g., the Texas Coalition of Cities for Utilities Issues, the International Municipal Lawyers Association, and the other national associations mentioned above) that often file briefs of amicus curiae in cases of this nature are actually parties at the U.S. Supreme Court.

More information will be provided when the Supreme Court issues its opinion.

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