Court Rejects City’s Arguments Against Wireless Zoning Shot Clock
The U.S. 5th Circuit Court of Appeals upheld the FCC’s 2009 wireless zoning shot clock order, in a decision handed down Monday. That was a win for wireless carriers who sought the shot clock, over broad opposition from many local government groups. The New Orleans court rejected arguments by Arlington, Texas, that the way the order was developed was “arbitrary and capricious” and a violation of the Administrative Procedure Act (APA). The court dismissed a second petition from San Antonio outright on the grounds that it was filed too late and thus the court lacks jurisdiction.
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The court rejected claims by Arlington that the order was arbitrary and capricious. “Whether the FCC’s decision in this case was ideal, or even necessary, is irrelevant to the question of whether it was arbitrary and capricious,” said the decision written by Judge Priscilla Owen for the three-member panel. “We cannot conclude that there has been a clear error of judgment in this case. The record reflects the FCC issued the Declaratory Ruling only after receiving dozens of comments from wireless service providers, local zoning authorities, and other interested parties, and many of those comments supported the FCC’s conclusion that wireless service providers often face lengthy delays in the consideration of collocation and new wireless facility zoning applications.” Arlington had also argued that the FCC violated the APA by not allowing for the comment period required for a rulemaking before handing down its “declaratory ruling” on the shot clock. The FCC countered that the order was an adjudication not subject to the same requirements.
"As we have previously recognized, we ‘accord significant deference to an agency’s characterization of its own action,'” the court said, though this deference isn’t “absolute. … Otherwise, an agency would be able to escape the APA’s notice-and-comment requirements simply by labeling a rulemaking an adjudication.” The court has also previously ruled that declaratory rulings issue by an agency pursuant to its grant of authority are informal adjudications under the APA, it said: “We see no reason to treat the Declaratory Ruling differently: it was the product of adjudication."
The 5th Circuit also said the FCC sought comment before issuing its declaratory ruling. “The FCC received and considered comments from dozens of interested parties, including several of the cities involved in this litigation,” the court said. “Many of those comments raised the very issues now raised before this court, and the FCC addressed those issues in its Declaratory Ruling. Indeed, we are not aware of a single argument the cities now present to this court that was not considered by the FCC."
"I am pleased that the court of appeals upheld the FCC’s ruling, which removes unreasonable roadblocks to the nationwide build-out of cutting edge wireless broadband networks,” said FCC Chairman Julius Genachowski. “The FCC’s tower siting policy upheld today advances the crucial national priority of ensuring American leadership in mobile innovation and is part of the FCC’s relentless focus on unleashing the opportunities of wired and wireless broadband for all Americans, including job creation, increased investment, innovation and economic growth.”
Municipal communications lawyer Joe Van Eaton of Best Best & Krieger, who represented Arlington, said his team is still reviewing the ruling, and it’s too early to say what the next step will be. “As our initial petition called for, and as the FCC, and now the Court of Appeals recognized, providing a tower siting shot clock for local zoning authorities to act on tower siting requests is important,” said CTIA President Steve Largent. “Today’s ruling proves the FCC struck the right balance in interpreting the law and ensuring our members can provide their customers with improved access to wireless broadband services.”