Supreme Court Shouldn’t Hear Wireless Zoning Shot Clock Case, FCC Argues
The U.S. Supreme Court shouldn’t hear an appeal of a decision upholding the FCC’s 2009 wireless zoning shot clock order, the commission argued in a brief to the court Wednesday (http://xrl.us/bnnnk8). The FCC submitted its brief in opposition to motions for writ of certiorari filed after the 5th U.S. Circuit Court of Appeals rejected arguments by Arlington, Texas, that the order was “arbitrary and capricious” and a violation of the Administrative Procedure Act (CD Jan 24 p4). Lacking statutory guidance, the FCC Wireless Bureau had adopted deadlines of 90 days for processing collocation applications, and 150 days for other applications, with the ability to extend the timeframe “by mutual consent” of the carrier and local government.
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In its brief, the commission argued the circuit court “correctly upheld the FCC’s interpretation” of Section 332(c)(7)(B) of the Communications Act, which requires state and local governments to “act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed,” the commission said. The appellate court correctly applied the Chevron doctrine to find the FCC has authority to interpret ambiguous provisions, it said.
Petitioners argue the court should grant review to resolve a circuit split about whether courts should apply Chevron when examining an agency’s interpretation of the scope of its own statutory authority, but no such split exists, the FCC said. “Although dressed in the garb of a general question of administrative law ... petitioners’ real argument is simply that the FCC and the court of appeals misinterpreted Section 332(c)(7). That issue is not the subject of any circuit conflict, and it does not warrant this Court’s review."
Nor do petitioners identify any “plausible reason” why Congress would have excepted this section from the commission’s general authority to construe ambiguous provisions of the Communications Act, the FCC said. “Based on its pre-existing expertise and on the information it acquired through the notice-and-comment process, the FCC was clearly better-positioned than any court to determine what period of time is generally ‘reasonable’ for acting on the pertinent applications,” it said.
The argument that the case warrants review because it concerns “important issues involving federal infringement of state and local zoning authority” lacks merit, the commission said. The declaratory ruling “did not adopt ‘a federal zoning policy,'” the FCC wrote, quoting petitioners’ brief. “It simply established presumptively reasonable timeframes for processing wireless facility siting applications.” Ultimately, courts can use those guidelines to resolve issues of timing in any lawsuits brought under Section 332, the commission said.