FCC Local Zoning Shot Clock Upheld by Supreme Court

The U.S. Supreme Court upheld FCC authority to impose in 2009 a shot clock on cell tower zoning decisions, rejecting the arguments of cities, led by Arlington, Texas. When the case was argued in January (CD Jan 17 p1), the main question was whether the high court would add to already complicated case law on the Chevron doctrine, in a case examining whether federal agencies should receive deference in interpreting their own jurisdiction. In January 2012, the 5th U.S. Circuit Court of Appeals upheld the order, which set up a showdown before the Supreme Court. The court’s conservatives split on the decision Monday. Justice Antonin Scalia wrote the majority opinion, while Chief Justice John Roberts dissented, joined by justices Clarence Thomas and Samuel Alito.

For the wireless industry, the importance of the decision is that it upholds a November 2009 declaratory order imposing a shot clock of 90 days for local governments to act on a collocation request and 150 days on other tower applications (CD Nov 19/09 p1). CTIA had sought the deadlines, complaining in a petition that of 3,300 pending zoning applications for wireless facilities, more than 760 had been pending for more than a year and 180 had been pending for more than three years. Former Chairman Julius Genachowski said the zoning shot clock was critical to wireless broadband deployment.

"These rules require local governments to review tower siting requests within reasonable timeframes and help the industry deliver fast and reliable wireless service to all Americans,” said CTIA General Counsel Michael Altschul in a statement Monday. Other associations said they supported the ruling, which some professors said is one of the most important decisions on the Chevron doctrine. Solicitor General Donald Verrilli, who argued the case on behalf of the government, warned during oral argument that changing Chevron could open a “Pandora’s box” of problems. “Our view is that Chevron does provide a stable framework for the development of administrative law,” he said. “The commission’s rulemaking power, as you know, is very broad,” Justice Ruth Bader Ginsburg said as oral argument unfolded. “They have power to make the rules needed to carry out provisions of the act."

"The question here is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction),” Scalia wrote Monday (http://1.usa.gov/17U60jb). “The argument against deference rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations -- the big, important ones, presumably -- define the agency’s ‘jurisdiction.’ Others -- humdrum, run-of-the-mill stuff -- are simply applications of jurisdiction the agency plainly has.” This difference between jurisdiction and nonjurisdictional interpretations is a “mirage,” Scalia said.

"In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional,'” Scalia argued. “Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.” But, “fortunately,” he said, the high court has “consistently held ’that Chevron applies to cases in which an agency adopts a construction of a jurisdictional provision of a statute it administers.'"

Scalia countered arguments of those who contend that letting agencies determine their own jurisdiction “leaves the fox in charge of the henhouse.” That view overlooks “the reality that a separate category of ‘jurisdictional’ interpretations does not exist,” he said. “The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority."

In response, Roberts quoted James Madison writing more than 200 years ago: “Accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.” Roberts said the decision was not a difficult one from his viewpoint. “My disagreement with the Court is fundamental,” he wrote. “It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue.” An agency like the FCC “cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency,” he said. Justice Stephen Breyer concurred with the majority opinion, though he said he would have arrived at the decision differently than did Scalia.

"The opinion basically drops a deference anvil on the D.C. Circuit and other courts of appeals,” said Public Knowledge Senior Vice President Harold Feld. The language of the opinion repeatedly “goes out of its way” to say that the FCC has “general authority” pursuant to Section 201, Feld told us. One page 7, the majority opinion poses a hypothetical about the agency deciding that the term “common carrier” includes ISPs, thereby asserting its jurisdiction over Internet prices. That “made it clear that this would be totally within the agency’s jurisdiction and therefore would get Chevron deference, which cuts against all of the games that the providers have been playing on exactly this point where they don’t want the court to defer to the FCC’s determination of its jurisdiction,” Feld said. A later reference to the data roaming case reads to Feld “like a finger wag explicitly to the D.C. Circuit, but to other courts of appeals as well, to say ‘Stop trying to rewrite the statute! The FCC gets deference.'"

Feld expects the D.C. Circuit will open up a new round of briefings about how this case might affect the challenge of the agency’s Open Internet Order. And this case sends a “strong signal -- that the judges are likely to hear -- that this is not an opportunity to act to broadly undercut the FCC’s authority,” Feld said. If the D.C. Circuit issues a sweeping decision, the FCC would have a good shot at getting the Supreme Court to reverse it, Feld said. “Those betting on the net neutrality rules surviving judicial review got a serious boost in their odds today."

"If not the most important case the court has rendered” since Chevron, it is a “close second” after U.S. v. Mead, said Columbia Law School Professor Thomas Merrill, an expert on Chevron deference. Mead said a precondition of Chevron deference was that an agency be delegated authority to act with the force of law. Scalia’s majority opinion is “interesting rhetorically,” Merrill said on a Federalist Society conference call. The main thrust of the opinion is that it’s “impossible to distinguish between agency jurisdiction and whether not the agency was right on the merits,” said Merrill. Because the distinction is “so intractable,” Scalia concluded it couldn’t have any place in the Chevron-type analysis, he said: So as long as agency has authority with force of law, it gets deference even if it concerns the scope of jurisdiction. “This is a big day for the administrative state,” Merrill said.

Ohio State law Professor Christopher Walker was “somewhat surprised” by the decision, he told us. “Because this is a case about the agency’s ability to determine its own authority or jurisdiction, I thought the Court could have gone in the direction of no deference,” he said by email. He analogized it to authority questions in arbitration, where courts -- not arbitrators -- generally have the authority to determine whether the parties agreed to arbitrate. “The Court’s decision should make it easier for agencies to win the deference lottery,” Walker said. “Justice Scalia’s opinion for the Court clears out some of the underbrush caused by the Court’s previous decision in Mead about when Chevron deference applies.” Walker said Scalia provided a bright-line rule when he wrote that “the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.”

"By upholding the shot clock, the Supreme Court properly recognizes that the FCC was well within its authority to clarify a reasonable period of time for local consideration of wireless facility siting applications,” said PCIA President Jonathan Adelstein in a statement. “It’s an example of forward-thinking agency action to enable wireless infrastructure, the backbone of wireless networks, to expand access to innovative services and devices.”

The Competitive Carriers Association “applauds” the decision, which affirms the commission’s interpretation of the phrase “reasonable period of time,” said CCA President Steven Berry. CCA and T-Mobile in December filed a joint amicus brief in support of the FCC. “Consumers should not have to bear the burden of delays in network expansion because their carriers’ applications are tied up in administrative processes,” said Berry in a statement. “The Court made the right decision today, and I am hopeful state and local authorities will move these applications more quickly in the future for the benefit of the industry and consumers.” T-Mobile said it was “pleased” by the decision.

Free Press is glad to see the Supreme Court affirming the FCC’s discretion to interpret the statute properly,” said Policy Director Matt Wood, not commenting on the merits of the agency’s tower-siting shot clock. “Of course, that doesn’t mean that the FCC always gets it right.” Wood expects the decision will help the agency in its court battles over net neutrality and other issues.