A boom in wireless communications has prompted the building of more facilities for wireless services. While necessary to manage the growing demand for wireless services, these facilities can be unpopular neighbors in a community. Although the Communications Act requires a local government to respond within a reasonable time period to requests for building these facilities, the law does not specify what exactly is a reasonable time period. In 2008, the Federal Communications Commission ("FCC") set timeframes on zoning authorities for processing requests to build wireless facilities. The Petitioner Cities of Arlington, Texas, and New Orleans, Louisiana, challenged the FCC’s timeframes by arguing that the FCC overstepped its power under the Communications Act. When the Fifth Circuit Court of Appeals concluded that the FCC acted within its power, Arlington and New Orleans challenged that the Fifth Circuit improperly submitted its own judgment to that of the FCC on the question of the FCC’s scope of authority. Arguing to uphold the decision of the Fifth Circuit, Respondent FCC contends that Congress intended to empower the FCC to interpret the Communications Act in all its provisions. Differing from the FCC, Respondent Cellco (a partnership of four corporations) argues that although Congress did not empower the FCC to determine the limits of its own authority, the Fifth Circuit was right to defer to the FCC on these timeframes in particular. If the U.S. Supreme Court holds for Arlington and New Orleans, the uniformity in timely construction of wireless facilities may suffer. However, a holding for the FCC may allow the FCC and other agencies to expand their own powers at the expense of local governments. Further, if the U.S. Supreme Court holds for Cellco and the FCC, local governments may lose the flexibility and power to respond to local concerns.
This case involves a challenge to the FCC's jurisdiction to implement §332(c)(7) of the Communications Act of 1934, titled "Preservation of Local Zoning Authority." Section 332(c)(7) imposes certain limitations on State and local zoning authority over the placement of wireless service facilities, but authorizes the FCC to address only one of these limitations; it states that no other provision "in this Act" may ''limit'' or "affect" State and local authority over wireless facilities placement. The FCC concluded that other provisions "in this Act" authorize it to adopt national zoning standards to implement §332(c)(7). The Fifth Circuit deferred to the FCC's jurisdictional determination applying Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), but acknowledged that "[t]he Supreme Court has not yet conclusively resolved the question of whether Chevron applies in the context of an agency's determination of its own statutory jurisdiction, and the circuit courts of appeals have adopted different approaches to this issue."
City of Arlington, Texas, et al., v. Federal Communications Commission, et al.
1. Whether, contrary to the decisions of at least two other circuits, and in light of this Court's guidance, a court should apply Chevron to review an agency's determination of its own jurisdiction; and
2. Whether the FCC may use its general authority under the Communications Act to limit or affect State and local zoning authority over the placement of personal wireless service facilities.
Cable, Telecommunications, and Technology Committee of the New Orleans City Council v. Federal Communications Commission
1. Should Chevron deference be afforded to an administrative agency's interpretation of its own statutory jurisdiction?
2. If it is determined that an agency's interpretation of its own statutory jurisdiction should be evaluated under Chevron, did the Fifth Circuit improperly apply Chevron?
3. Did the FCC usurp the jurisdiction and authority reserved for State and local governments by Congress in its interpretation of 47 U.S.C.A. § 332(C)(7) by creating additional limitations on state and local governments beyond those provided for in the statute?
Should a court defer to the decision of an administrative agency when determining the limits of the agency’s power? Additionally, did the Federal Communications Commission exceed its power by setting timeframes on local governments for processing requests to build wireless service facilities?