U.S. Supreme Court Allows FCC to Determine its Own Authority - Decision Upholds FCC Time Restrictions on Local Government Consideration of Cell Tower Applications

by Best Best & Krieger LLP
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The United States Supreme Court issued its decision in City of Arlington v. FCC, ruling that if an agency has general rulemaking or adjudicative power under a statute, courts must defer to all of the agency’s reasonable interpretations under the statute, including those about the scope of the agency’s own authority. The case involved the Federal Communications Commission (FCC), but the principle would apply to many federal agencies whose rules affect local governments.

The decision leaves in place the Fifth Circuit’s opinion upholding the FCC’s rules, which both forbid local governments from rejecting a cell tower application due to the presence of another carrier and require local governments to act on applications within defined “shot clocks.” The decision’s most immediate effect related to communications issues is to make it more important for local governments to participate at the federal level to protect their interests. Notably, we expect the FCC to issue new cell tower siting rulemakings soon.

The decision settles a long-standing administrative law issue. Under the “Chevron” doctrine, a court reviewing an agency action first asks whether the law is clear; if not, the court defers to the agency’s reading and upholds its reasonable implementing regulations. Petitioners argued that this general “deference” rule could not constitutionally apply where the issue is whether the agency has authority to act at all. Otherwise, agencies could define their own powers. However, the Supreme Court (with Justice Scalia writing for the majority) ruled that Chevron does apply to jurisdictional questions.But in something of a concession to petitioners’ concerns, the court also explained that this does not give an agency a free pass to regulate as it pleases. Instead, courts applying Chevron must do so by “taking seriously, and applying rigorously, in all cases, statutory limits on agencies' authority.”

Chief Justice Roberts wrote a powerful dissent, joined by Justices Alito and Kennedy. Calling his disagreement with the majority “fundamental,” the chief justice cites James Madison, Marbury v. Madison, and Chevron itself to defend the jurisdictional test that the local government petitioners had proposed.  

The  decision is a disappointment, because it gives federal agencies significant additional latitude in defining their own authority. But it is also critical to recognize that this does not mean that the FCC, or any other agency, will have carte blanche to regulate as it pleases. Courts will still "rigorously" review agency claims; they will just do so within the Chevron two-step. The opinion underscores the need for local governments to participate actively before federal agencies, especially at early points, before an agency adopts rules adverse to local government interests. The FCC, for example, had already announced it is considering new rules affecting local zoning authority. While localities will want to participate in the rulemaking, they may also be able to affect the FCC’s direction by meeting with the agency now.

For more information about this decision or its impact on your city, county or special district, please contact Matthew Schettenhelm in Best Best & Krieger’s telecommunications group or your BB&K attorney.

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