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A Lawyer’s Take on the Court’s Shot Clock Decision

A legal brief on City of Arlington, Texas, et al. v. FCC, et al.,


Michael L. Higgs Jr.,


Shulman, Rogers, Gandal, Pordy & Ecker

The holding in the proceeding of City of Arlington, Texas, et al. v. Federal Communications Commission, et al. (11-1545) is that the FCC’s interpretation of the statute in question is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  That portion of the statute here at issue is codified in 47 U.S.C. §332(c)(7)(B)(ii), and it requires state or local governments to act on wireless siting applications “within a reasonable period of time after the request is duly filed.”  In response to a petition filed by CTIA, the FCC in November of 2009 issued a declaratory ruling that a “reasonable period of time” under the statute is presumptively (but rebut-ably) 90 days to process a collocation application and 150 days to process all other applications.

The majority opinion, authored by Justice Scalia, found that the Chevron line of cases “provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. . .  Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”  Petitioners argued that the Commission lacked authority to interpret the ambiguous provisions of §332(c)(7), and pointed to alleged evidence of congressional intent to withhold from the Commission authority to interpret the limitations in §332(c)(7)(B).  The Court disagreed with Petitioners’ assertion of Congressional intent, and found that the agency settled upon a reasonable interpretation of the statute.  “If the agency’s answer is based on a permissible construction of the statute, that is the end of the matter.”

Another argument advanced in this case contended that application of Chevron was inappropriate because the FCC asserted jurisdiction over matters of traditional state and local concern.  However, the federal statute in question explicitly supplants state authority by requiring that zoning authorities render a decision “within a reasonable period of time.”  Borrowing from the holding in the Iowa Utilities Board case, “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U.S. 379, n. 6.

The three Justices in dissent, as authored by Chief Justice Roberts, believe that the federal bureaucracy has, in essence, become so large and powerful that judicial oversight of its jurisdictional reach is imperative.  “A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.”