A wireless service provider wants to put a new cell tower in your city. A vocal segment of the community is outraged. The tower is big, disruptive and dangerous, they contend. The provider, meanwhile, threatens to sue your city. The issue is now on your desk. You have reviewed the application, and you have important questions. How quickly must we act? Do our community’s policies control the outcome? Can the Federal Communications Commission say otherwise? A U.S. Supreme Court case to be argued this January may begin to suggest answers to these and other important questions that cities in California and across the country are asking. The case, Arlington v. FCC, asks the nation’s high court to resolve whether a court must accept a federal agency’s determination of its own jurisdiction when, under the controlling statute, that question is uncertain. The case arises out of the FCC’s effort to impose “shot clocks” limiting the time that local governments can consider wireless facility applications, under a statute that does not directly grant the federal agency this authority. Local government officials and staff interested in wireless facility siting and the limits of a federal agency’s authority should watch the case closely. The decision may clarify how far the FCC — or any federal agency — may expand its authority into matters of concern to your community.
Local Zoning Authority Preserved
In 1996, Congress adopted the chief statute addressing local zoning authority over wireless service facilities as part of a major update of the Communications Act. For advocates of preserving local government authority over cell tower placement, the statute was a significant victory. Two years earlier, the situation looked dire. An industry trade group, the Cellular Telephone Industry Association, had petitioned the FCC to make rules to bar state and local governments from “interfering with the build out” of wireless infrastructure through zoning and other similar regulations. The House of Representatives then passed a bill that would have empowered the FCC to create a policy about state and local regulation of wireless facilities and require that local governments act within a reasonable period of time.
But Congress rejected this “national” model, and replaced it with the 1996 statute that most local government advocates found vastly superior. The statute, Preservation of Local Zoning Authority, prevented FCC preemption of local and state land use decisions and preserved their authority over zoning and land use matters except in limited circumstances. The statute provided a role for the FCC in one (and only one) respect: the Commission may resolve disputes regarding radiofrequency emissions concurrent with the courts.
Local advocates had little reason to doubt this view for the next decade. Local governments and industry frequently clashed over whether and where facilities may be placed, but these disputes were not resolved by a federal agency in Washington D.C. Instead, they were resolved by a state or federal court that would often give substantial deference to a local government’s decision so long as it did not defy the statute’s five express limitations.
“Shot Clock” Adopted
In 2009, everything changed. Thirteen years after Congress adopted the Preservation of Local Zoning Authority statute, the FCC claimed it had authority to implement the statute with its own federal administrative policy framework. Granting an industry petition, the FCC created 90- and 150-day “shot clocks” for state and local governments to approve or turn down a completed application. The FCC ruled that if a state or local government did not act within these time frames (absent an agreement to extend the deadlines between the locality and the applicant), a “failure to act” under the 1996 statute will have occurred.
The most surprising aspect of the FCC’s decision was the agency’s conclusion that it had authority to address this area at all. Questioning this conclusion, the city of Arlington, Texas, sought review by the Court of Appeals for the Fifth Circuit in early 2010. Arlington and supporting intervenors noted that the FCC’s jurisdictional conclusion could not be squared with the federal statute’s plain language and history. The FCC relied on its general authority under the Communications Act in sections outside of the statute. But the agency did not directly explain how it could use these provisions to affect state and local authority when the statute states that “[e]xcept as provided in this paragraph, nothing in this Act shall limit or affect” state and local authority.
To the local governments’ disappointment, the Fifth Circuit upheld the FCC’s order in a decision released last January. Importantly, however, the court did not uphold the order because it agreed that the FCC had presented the better reading of the jurisdictional statutes. Instead, the court found that its precedent required it to apply the deferential Chevron doctrine, which the Fifth Circuit interpreted to mean that in every circumstance—even where the issue is whether an agency has jurisdiction—a court must defer to an agency’s reasonable statutory interpretation. The court found that the statute does not “unambiguously preclude” the FCC from regulating in this area, and that the agency’s determination that it could implement the statute was “permissible.”
Supreme Court Takes The Case
Petitioning the U.S. Supreme Court to take the case, Arlington and other local governments noted that the Fifth Circuit’s view that Chevron applies to jurisdictional issues is at odds with decisions of several other federal appellate courts. On Oct. 5, the Supreme Court agreed to take the case, and arguments will be heard on Jan. 16. A decision, which will be rendered no later than July, could have widespread ramifications on local control of wireless facilities, and on the limits of federal agencies’ authority in other areas.
Matthew K. Schettenhelm is an attorney in Best Best & Krieger LLP’s Municipal Law practice group in the firm’s Washington, D.C. office and is among the firm’s attorneys working on the Arlington v. FCC case for various cities and counties. He has drafted briefs in cases before the Supreme Court, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, and in various other federal and state courts. Schettenhelm also assists local governments and other clients with various telecommunications matters. He has developed wireless facility, right-of-way and cable ordinances for local governments, and has assisted with the negotiation and drafting of agreements regarding cable franchising, municipal Wi-Fi and 700 MHz public safety communications. He can be reached at Matthew.Schettenhelm@bbklaw.com.