Wireless Industry Asks Court to Reject Zoning Shot Clock Appeal
The FCC acted within its authority under the Communications Act in approving in 2008 a shot clock for wireless tower zoning decisions, CTIA and Verizon Wireless said in a filing with the 5th U.S. Circuit Court of Appeals in New Orleans. The court hasn’t set a date for oral argument in a challenge to the rule filed in October by Arlington and San Antonio, Texas.
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"The Ruling is a lawful, much-needed, and reasonable solution to the problems of delay and obstruction in local zoning decisions about wireless facility siting,” CTIA and Verizon said. Wireless makes substantial contributions to the U.S. economy, they said. “For that technology to achieve its potential, however, wireless service providers must be free to build their networks across the country. … Local resistance to wireless facility construction and upgrades is an unfortunate but well-established phenomenon in a significant number of jurisdictions around the country."
The FCC’s shot clock order was based on “a well-developed record,” CTIA and Verizon said. The commission concluded that CTIA and individual carriers had offered “extensive statistical evidence” to support a finding of “unreasonable delays” in some localities, they said. The FCC also found that “state and local governments that had attempted to rebut that evidence had produced no more than ‘isolated anecdotes.'”
The FCC defended its decision to the court last month. The commission said Section 332(c)(7) of the act, which deals with the limitations that Congress imposed on zoning authorities, is “ambiguous” and open to FCC interpretation. “Courts have repeatedly held that terms such as ‘reasonable’ and ‘unreasonable’ are inherently ambiguous and subject to interpretation by administrative agencies,” the commission said. “Congress and the courts have long recognized that an agency entrusted with implementing a federal statute is authorized to interpret the statute’s ambiguous terms to fill any gaps left by Congress."
Many other local governments and organizations of them, including the National Association of Telecommunications Officers and Advisors, the U.S. Council of Mayors, the National Association of Counties and National League of Cities, joined the appeal by the two Texas cities. They contend that the commission’s failure to consider arguments against the shot clock and the rules established were “arbitrary and capricious.” They also argue that the FCC exceeded its statutory authority in handing down the order. Those challenging the commission action are scheduled to file a reply brief this week.