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?
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.
Questions as Framed for the Court by the Parties
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?
According to the Fifth Circuit Court of Appeals, in the Communications Act of 1996, Congress balanced the power of local governments to regulate their local land with the goal of allowing telecommunications technologies to develop. The Fifth Circuit explained that Congress enacted § 332(c)(7(A) to protect the authority of local governments over the “placement, construction, and modification of personal wireless service facilities,” and at the same time imposed procedural limits on the local governments through § 332(c)(7)(B). To the Fifth Circuit, limitations included requiring local authorities to respond to applications to construct wireless facilities within “a reasonable amount of time” and provided a cause of action for the applicant in the case of a government’s “failure to act.”
In 2008, CTIA-The Wireless Association ("CTIA") asked for clarification from the Federal Communications Commission ("FCC") about the limitations on local governments to respond to requests to build wireless service facilities. The CTIA asked the FCC for a declaratory judgment on what was a reasonable amount of time to process a request under Section 332(c)(7)(B). In particular, CTIA requested that the FCC set a timeframe for local governments to either grant or deny applications to build wireless communications facilities. The FCC issued a public notice seeking comment on CTIA’s petition and received comments from wireless service providers, local governments, and other interested parties. The FCC issued a declaratory judgment, interpreting “reasonable period” to mean 90 days for applications for permission to build personal wireless infrastructure and 150 days for all other applications. According to the Fifth Circuit, if a local government or zoning authority failed to meet the applicable time frame, the applicant could sue in court. The Fifth Circuit also noted that the local government or zoning authority was also free to argue in court that in their specific case, their delay was “reasonable." Several municipalities filed a motion with the FCC to reconsider its decision, but the FCC denied their motion.
The City of Arlington ("Arlington") filed a petition for appeal of the FCC’s declaratory judgment, and the Cable and Telecommunications Committee of the New Orleans City Council ("New Orleans") intervened. The Fifth Circuit Court of Appeals applied Chevron deference to the FCC’s decision and upheld the FCC’s interpretation of the Communications Act. Arlington and New Orleans appealed to the Supreme Court of the United States, which granted certiorari.
Petitioner Cities of New Orleans and Arlington argue that the Fifth Circuit Court of Appeals was wrong to allow the Federal Communications Commission ("FCC") to interpret its own authority under §332(c)(7) of the Communications Act of 1996. In contrast, Respondent FCC argues that the Fifth Circuit was right to allow the FCC to interpret the limitations of its authority, and an explicit grant of authority to impose a reasonable time period for processing requests is unnecessary. Although Respondent Cellco (doing business as Verizon Wireless) agrees that the conclusion of the Fifth Circuit was right, Cellco argues that the court should not allow the FCC to determine the limitations on its own authority.
Delegation of Authority
In arguing that the Fifth Circuit Court was wrong to uphold the FCC ruling, New Orleans argues that, under the prior case Chevron, U.S.A., v. Natural Res. Def. Counsel, before a court defers to the decision of an agency, the court must first decide whether Congress gave power either to the agency or to the courts to interpret the law in question. According to New Orleans, only if Congress granted an agency the authority to construe the limitations on its own authority may a court then defer to the agency’s decision. New Orleans argues that the language of Section 332(c)(7) of the Communications Act suggests that Congress withheld from the FCC this authority to interpret its own power and reserved it in the courts instead. Offering as evidence that Section 332(c)(7) reserves authority in the courts, not the FCC, in interpreting the scope of the FCC’s authority, New Orleans argues that Section 332(c)(7) does not explicitly allow the FCC to impose a timeframe for processing requests and provides anyone who is harmed by a city government’s delay in processing a request to sue in federal court. Additionally, Arlington contends that that the U.S. Supreme Court has never deferred to an agency on the question as to whether Congress intended that the agency have authority. To Arlington, the Fifth Circuit applied the legal principles of Chevron incorrectly by initially deferring to the FCC instead of deciding on its own about whether Congress intended to delegate authority to the FCC under Section 332(c)(7).
In response, the FCC argues that Chevron requires a court to look first to the interpretation of an agency where there is ambiguity in the law. According to the FCC, Chevron stands for the principle that because an agency has some connection to the constituencies of Congress, the agency is in a better position than a court to resolve ambiguity within the law. The FCC asserts that under Chevron a court must defer to an agency if Congress has not given explicit instructions on how to interpret the law properly. Additionally, the FCC argues that this deference to an agency applies to ambiguity that pertains to the scope of an agency’s authority under the law. To the FCC, if a court were to follow the suggestions of New Orleans and Arlington, a court would be changing established rules of legal interpretation by carving out exceptions. The FCC further argues that treating an agency’s authority under law differently from other provisions in the law would defy the expectations of the agency’s expertise altogether. The FCC also notes that drawing a line between defining the authority of an agency and defining applications of its authority would be unworkable, and this line drawing would be best left to the agency anyway rather than courts.
Whether The Fifth Circuit Applied Chevron Correctly
New Orleans and Arlington argue that the Fifth Circuit improperly applied Chevron by looking to the FCC to answer the initial question as to whether Congress granted the FCC with the power to interpret its own authority. According to New Orleans, because principles of administrative law require that a court determine whether and how a law is ambiguous, the court and not the agency must be the one to decide whether to use Chevron at all. To New Orleans, the Fifth Circuit did not do what it should have done to identify ambiguity in the Communications Act. New Orleans asserts that a law is ambiguous only if “it is reasonably susceptible of more than one accepted meaning.” The Fifth Circuit, as New Orleans argues, manufactured ambiguity in the provision of the Communications Act pertaining to the authority of the FCC by emphasizing what the law did not say rather than what the law did say. According to New Orleans, because the law was clear in its terms and did not explicitly allow the FCC to impose a time limit on zoning authorities for processing requests to build wireless service facilities, the Fifth Circuit should not have deferred to the FCC. Similarly, Arlington notes that because the question here involves the power of a city or state to regulate its own land, it is not at all clear that the FCC has the power to impose a time limit on a city or state without clear approval from Congress.
In contrast, Respondents FCC and Cellco argue that the conclusion of the Fifth Circuit was correct and that the FCC imposed a reasonable time limit on zoning authorities to process applications to install telecommunications lines. According to the FCC, Congress empowered the FCC to administer the law and policies of the Communications Act. The FCC argues that its power to administer the law does not exclude the courts from the process entirely but rather allows the FCC’s regulations to coexist with the interpretations of the courts. For example, as the FCC argues, while the courts may determine what counts as a reasonable amount of time to process an application, the FCC is well within its power to provide guidance on what amount of time is reasonable. Additionally, Cellco argues that Section332(c)(7)(B) is precisely the kind of provision that the FCC has the power to interpret. To support this assertion, Cellco makes an analogy to a prior U.S. Supreme Court case which held that the FCC had the power to impose pricing standards on telephone companies even though the regulation of local telephone markets is an area of state power and local concern. Pointing to the language of Section 332(c)(7), Cellco also argues that the law explicitly acknowledges that the FCC’s authority cuts into the power of the states to regulate their land and so offers no indication that the FCC lacked the power to impose a time limit on zoning authorities.
Petitioners Arlington and New Orleans argue that the Fifth Circuit Court should not have deferred to the Federal Communications Commission ("FCC") on the question of the FCC’s scope of authority. In contrast, Respondents FCC and Cellco (doing business as Verizon Wireless) argue that the Fifth Circuit rightly upheld the FCC’s timeframes for local governments to process requests to build wireless facilities.
Consistency in Application Versus Case-by-Case Flexibility
As a specialized agency, the FCC argues that it is more qualified than the courts to determine what constitutes a “reasonable” time period under Section 332(c)(7). The FCC claims that enforcing its decision about reasonable time periods would help ensure nationwide consistency and predictability of results for all the major stakeholders, including wireless facility applicants, regulators, and courts. However, the City of Arlington contends that the FCC’s expertise does not extend to local zoning matters. According to Arlington, planning how to use local land is traditionally an area of state regulation. Arlington asserts that Section 332(c)(7) allows for case-by-case determinations guided by the expertise of local zoning officials who can best account for relevant local conditions. In the same vein, Cellco argues that the courts are better equipped than the FCC to interpret the statute that granted authority to the FCC and to reconcile the conflicting policy goals of Congress.
Political Accountability and Self-Aggrandizement Concerns
Cellco contends that allowing an agency to determine the scope of its own power would allow Congress to escape political accountability for deciding how much power to grant government agencies. Agreeing that the court should not defer to the FCC for questions about the scope of the FCC’s authority, the Cato Institute asserts that even if the FCC possessed some special insight regarding timely filings under the Communications Act, the risk that the FCC would grab more power than allowed by the law is too great to ignore. In other words, according to the Cato Institute, giving agencies this authority could result in agencies absorbing powers beyond those that Congress intended to grant, thus undermining the careful balance of power that Congress laid out in the Communications Act. Similarly, the International Municipal Lawyers Association ("IMLA") warns that allowing the FCC to define the limits of its own authority would subvert the democratic process by empowering an unelected agency to regulate itself without judicial oversight.
Arguing that the court should defer to the FCC in deciding the scope of the FCC’s authority, the FCC asserts that Congress intended to make federal agencies the experts on the laws that granted them authority. According to the FCC, administrative law recognizes that there are competing policy concerns woven into laws, and, in creating a federal agency to administer a law, Congress equips the agency to reconcile these competing policy concerns, even when construing its own authority. Additionally, the FCC notes that a government agency is more accountable to voters than the courts. In other words, the FCC argues that, because federal judges as a group are neither experts in the specific law in dispute nor elected officials, courts should protect the intent of the elected legislators of Congress to allow expert agencies to interpret their grant of authority. Arguing to uphold its decision regarding the reasonable time period, the FCC claims that the concern about enlarging its own authority is also irrelevant here because the Communications Act empowered the FCC with broad authority to administer and enforce its provisions.
The National Governors Association ("NGA") and supporting organizations characterize the FCC’s decision as a threat to federalism because allowing the FCC to set reasonable time periods would prevent states from setting their own. In support of state sovereignty, the NGA notes that allowing local governments to experiment with regulations promotes narrowly tailored regulations to specific problems, whereas imposing a national standard under the FCC would gloss over local concerns.
Cellco contends, however, that this dispute is not about federalism but instead about the specific meaning of a provision in the Communication Act and whether the FCC or a court has the power to interpret that provision. The FCC likewise claims that federalism concerns do not pertain to whether the FCC can set a reasonable time period for filing, because the Communications Act itself constrains state and local zoning authorities.
In this case, the Supreme Court will determine whether a court must defer to an administrative agency in determining the limits of an agency’s power. Petitioners Arlington and New Orleans argue that Congress did not give to the Federal Communications Commission ("FCC") the power to interpret the limits of its own authority. In response, whereas Respondent Cellco agrees that, unless Congress indicates otherwise, a court cannot defer to an agency’s interpretation on the scope of its authority, Cellco also argues that the FCC’s decision to impose a time limit fell within the FCC’s power and deserved deference from the court. Further, Respondent FCC argues that Congress did empower the FCC to interpret the scope of its authority. A holding for New Orleans and Arlington may frustrate the purpose of the Communications Act to advance national communications standards and uniformity, whereas a holding for the FCC and Cellco may hinder the ability of cities and states to respond to local concerns.