Last month, the U.S. Supreme Court ruled in a 6-3 decision that the Federal Communications Commission (FCC) had authority under the Telecommunications Act of 1996 to impose time limits for state and local governments to act on zoning and land use applications for wireless service facilities.
In City of Arlington, Texas, et al. v. Federal Communications Commission, the Court ruled that the FCC's interpretation of a statutory ambiguity concerning the scope of its regulatory authority was entitled to deference and was based on a permissible construction of the statute under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Section 332(c)(7) of the Telecommunications Act provides limited preemption of state and local zoning and land use regulation of wireless service facilities. At issue in City of Arlington was the FCC’s declaratory ruling in November 2009 regarding the meaning of Section 332(c)(7)(B)(ii) of the Act, which states, in part, that “[a] State or local government or instrumentality thereof shall 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.”
Because wireless service providers have faced long delays by state and local authorities acting on zoning and land use applications, CTIA –The Wireless Association petitioned the FCC for clarification of the meaning of “within a reasonable period of time.” In response, the FCC found evidence demonstrating that “unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services” and impeded “the promotion of advanced services and competition that Congress deemed critical in the Telecommunications Act of 1996.” Accordingly, the FCC determined that a “reasonable period of time” under Section 332(c)(7)(B)(ii) is presumptively 90 days to process a collocation application and 150 days to process all other applications.
Petitioners in City of Arlington argued that the FCC “lacked authority to interpret ambiguous provisions of Section 332(c)(7)” of the Act. The Supreme Court, in applying the doctrine articulated in Chevron, stated that if the statute was “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Further, there is a “presumption of congressional intent,” namely, that Congress, in leaving an ambiguity in a statute administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency.” The Court went on to state that the question is “always, simply, whether the agency has stayed within the bounds of its statutory authority.”
Unlike in other zoning and land use matters, a wireless service provider has a direct avenue to federal court under Section 332(c)(7)(B)(v) of the Telecommunications Act if a state or local decision runs afoul of the Act's limited preemption provisions. In City of Arlington, the Court clarifies the broad regulatory authority of the FCC in this area, which may provide further opportunities for wireless service providers to seek a federal remedy.
If you would like more information on the Supreme Court ruling and its implications for the wireless industry, please contact Eileen B. Quigley at 215.864.8720 or quigleye@ballardspahr.com.
