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Supreme Court: FCC can speed up local land-use siting decisions regarding cell phone towers

David StanishThe United States Supreme Court recently upheld the Federal Communications Commission’s authority to force local or state governments to speed up cell phone tower siting approvals. The court’s decision appears to continue its trend of deferring to federal agencies’ statutory interpretations, encouraging incremental growth of federal agency power in this area.

The case, City of Arlington (Texas) v. Federal Communications Commission, challenged the FCC’s jurisdiction to implement the 1934 Communications Act. The act requires local or state governments to decide on wireless facility siting applications “within a reasonable period of time.” In 2008, CTIA – a group representing the wireless communications industry – petitioned the FCC to intervene in local zoning processes that were severely delaying construction of wireless infrastructure. The FCC agreed and issued a declaratory ruling concluding that the term “reasonable period of time” would presumptively require local zoning authorities to process an application to place a new antenna on an existing tower within 90 days and all other applications within 150 days.

The cities of Arlington and San Antonio sought review of the declaratory ruling before the federal Fifth Circuit Court of Appeals. Under the Communications Act, judicial review of the FCC’s orders goes directly to the federal courts of appeals. The Fifth Circuit upheld the declaratory ruling, concluding that the court must defer to the FCC’s determination that it has authority to interpret the “reasonable period of time” limitations and that the FCC’s decision setting the time limits was not arbitrary or capricious.

In a 6-3 decision written by Justice Scalia, who often writes the opinions in administrative law cases like this, the Supreme Court held that courts must defer to an agency’s interpretation of an ambiguous statute, even if the ambiguity relates to the scope of the agency’s own power. The fact that the FCC asserted jurisdiction over matters of traditional state or local concern was irrelevant.

“This case has nothing to do with federalism,” the court noted. Rather, the Communications Act explicitly supplants state authority by requiring zoning authorities to render a decision within a “reasonable period of time.” The meaning of that phrase “is indisputably a question of federal law.” The court affirmed the Fifth Circuit’s decision, which upheld the FCC’s time limits as a permissible interpretation of the Communications Act.

Jerry Long, a professor at the University of Idaho College of Law, says the decision might not have significant practical effects: “While on its surface the case might seem troubling for local governments because it appears to limit a quintessential … power (reserved to the states), ultimately it may not have much effect. This was not a case about Congress, or the FCC, pushing the bounds of its Commerce Clause authority. … To the contrary, with this particular statute, Congress intended to preserve local governments’ substantive authority while ensuring it be exercised in a timely fashion.”

The Supreme Court’s leanings toward “judicial restraint” appear to be accreting more and more power to federal agencies under the guise of staying the court’s hand. In a 2001 case, United States v. Mead Corporation, the court ruled it must defer to the federal agency’s statutory interpretation contained in the agency’s policy statements, agency manuals, or guidelines. In 2006, the court concluded in Coeur Alaska Inc. v. Southeast Alaska Conservation Council that courts must defer to a federal agency’s interpretations of its regulatory regime contained in an internal memorandum. However, in a 1962 decision, Burlington Truck Lines Inc. v. United States, the court warned that, “unless (the court) make(s) the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion. Congress did not purport to transfer its legislative power to the unbounded discretion of the regulatory body.” The court’s recent decisions repeatedly deferring to the federal agencies’ statutory interpretations, under the guise of judicial restraint, appear to discount or ignore the court’s own warning.

The immediate effect of the City of Arlington case on Idaho citizens and businesses is that local land-use planning and zoning authorities must promptly process wireless facility siting applications within the 90- and 150-day time frames established by the FCC. Moreover, the decision might affect Idaho interests more broadly if federal agencies seek to apply the decision in construing their own authority to expand the reach of their regulations by, for example, limiting an employer’s ability to contract with employees regarding wage and hour requirements, offering premium subsidies to certain and not all employers through the Affordable Care Act federal health care exchanges, or increasing the reach of Clean Water Act permitting requirements. Under the City of Arlington decision, if there is a statutory ambiguity regarding the federal agency’s power to create regulations on the subject, the courts must defer to the agency on that issue.

David Stanish is an environmental attorney with Holland & Hart LLP in Boise and works on natural resources, land use, endangered species and water law issues. He previously served as a deputy attorney general in the Natural Resources Division of the Idaho Attorney General’s Office.

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