Supreme Court Upholds FCC Authority to Address Wireless Siting

by Davis Wright Tremaine LLP

The Supreme Court today issued its decision in City of Arlington v. FCC—the case challenging the FCC’s 2009 “Shot Clock” declaratory ruling. The Supreme Court affirmed the Fifth Circuit, holding that Chevron deference applies to the FCC’s own interpretation that it has authority to interpret Section 332(c)(7)(B) of the Communications Act, including authority to establish a shot clock, as well as to the details of the shot clock it set. Although the case was a challenge to the FCC’s declaratory ruling, the decision of the Court has broad implications for all federal agency actions, as the Court ruled that deference is due when an agency interprets ambiguous provisions in its statute, even when the ambiguity goes to the scope of the agency’s own authority.

As discussed in our prior advisories, in 2009, the FCC issued a Declaratory Ruling in which it addressed the problem of municipal delay of applications to install wireless facilities. The FCC held that under Section 332(c)(7)(B)(ii), 90 days was a presumptively reasonable time for a local government to act on an application to collocate and 150 days was a presumptively reasonable time for local government action on any other wireless facility application. The FCC also addressed a split among the federal Circuit Courts of Appeal regarding the Section 332(c)(7)(B)(i)(II) “effective prohibition” claim, rejecting the “one provider” rule adopted in the First and Third Circuits, as well as the “blanket ban” standard adopted by the Fourth Circuit. The FCC declared that those standards were inconsistent with the language and purpose of the Act. Several local governments appealed the so-called “Shot Clock Order,” alleging among other things that the FCC lacked authority to interpret Section 332(c)(7). In 2012, the Fifth Circuit rejected the municipal challenges to the Shot Clock Order.

Municipal interests, led by the City of Arlington, Texas, petitioned for certiorari. In 2012, the Supreme Court granted cert, but only on the specific issue of whether Chevron deference applies when the agency’s interpretation of a statutory ambiguity concerns the scope of the agency’s authority (i.e., the scope of its jurisdiction).

Because of the fairly narrow issue on which cert was granted, the decision is primarily a debate between the justices regarding the appropriate scope of Chevron and the balance between agency and judicial power. Nonetheless, the decision contains several statements that are important to clarify the preemptive effect of Section 332(c)(7). For example, citing the Court’s decision in Rancho Palos Verdes v. Abrams, the Court confirms that Section 332(c)(7)(B) was intended to limit the scope of local governments’ authority. This is contrary to the view advanced by many cities and even some courts that Section 332(c)(7) was intended to preserve and protect municipal authority.

Moreover, the Court rejected the argument by municipal amici curiae that Chevron deference was inappropriate because the FCC had “assert[ed] jurisdiction over matters of traditional state and local concern.” The Court responds that the case has “nothing to do with federalism” because Section 332(c)(7)(B)(ii) “explicitly supplants state authority.” While brief, this recognition that Section 332 supplants traditional state and local authority is critical, as some courts continue to grant cities significant deference in Section 332(c)(7) cases, mistakenly believing that “traditional” local authority was preserved by Section 332(c)(7).

The Court’s decision is ultimately about much more than wireless deployment and the FCC. As expected, the decision reflects differences among the justices regarding the Chevron doctrine and ultimately even the role and power of administrative agencies. The majority opinion by Justice Scalia rejects attempts to label the question as one of the agency’s “jurisdiction,” calling the distinction between jurisdiction and non-jurisdictional interpretations a “mirage” and a “false dichotomy.” Instead, the majority holds that Chevron deference applies without reference to whether the issue concerns the agency’s authority. Ultimately, Justice Scalia’s opinion is premised on the idea that “[n]o matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.” (Emphasis in original). Because the Fifth Circuit applied Chevron deference in upholding the FCC’s declaratory ruling, the Court affirms the Fifth Circuit.

Justice Breyer filed a separate opinion in which he concurs in part and concurs in the judgment. Justice Breyer’s opinion appears primarily intended to address Justice Scalia’s strict textualism, explaining that “the statute’s text, its context, the structure of the statutory scheme, and canons of textual construction are relevant in determining whether the statute is ambiguous and can be equally helpful in determining whether such ambiguity comes accompanied with agency authority to fill a gap.” Fundamentally, Justice Breyer would go beyond even a statute’s text to determine whether deference to an expert agency’s interpretation is appropriate.

The three-justice dissent, written by Chief Justice Roberts and joined by Justices Kennedy and Alito, opens with a lengthy discussion of the perceived problems of the “administrative state,” with “hundreds of federal agencies poking into every nook and cranny of daily life,” that appears to reflect those justices’ desire to reign in the authority of administrative agencies. The dissent argues that no deference should be given to questions about whether an agency has authority to take certain actions or make certain interpretations. Notably, however, for the Shot Clock Order, the dissent never says that the FCC lacked authority to adopt the shot clock rules, only that the Fifth Circuit should have looked at that question without deference to the FCC’s interpretation of the Act.

The Court’s opinion in this case has been widely anticipated, including beyond the confines of the wireless industry or even the communications industry. The Court’s decision makes it more difficult to challenge agency actions based on claims that the agency “lacks jurisdiction,” but Chevron still provides the latitude to challenge agency action as beyond the bounds of its statutory authority or permissible construction of statute.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.