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FEDERALISM, ZONING, AND CHEVRON

A Discussion ofCity of Arlington, et al v. FCC“Shot Clock” case

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BACKGROUND

Land Use Decisions Historically Local in Nature

local bodies thought to have expertise on the local conditions, conflict resolution, and order

Congress passes Communications Act of 1934

FCC has general administrative authority

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1994 Cellular Telephone Industry Association (CTIA) petitions

FCC for rulemaking to preempt state and local government zoning procedures regarding cell tower siting.

CTIA claimed zoning and other regulations interfered with deployment of mobile communications facilities.

House passed a “national model” bill that would have empowered FCC to:

make policy regarding local regulation of placement, construction, modification, or operation of facilities for provision of commercial mobile services, and

make policies requiring local govt. to act within a reasonable period of time.

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1996 Congress replaces “national model” with

Sec. 332(c)(7):

Preservation of Local Zoning Authority

(A) General authority. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

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LIMITATIONS OF LOCAL REGULATION

Shall not unreasonably discriminate among providers of functionally equivalent services; [clause (i)(I)]

Shall not prohibit or have the effect of prohibiting the provision of personal wireless services; [clause (i)(II)]

Shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable time taking into account the nature and scope of the request; [clause (ii)]

Shall not regulate based on environmental effects of RF emissions to extent such facilities comply with FCC regs concerning emissions; [clause (iv)]

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WHO RESOLVES DISPUTES?

Any person adversely affected by any final action or failure to act by a State or local govt. that is inconsistent with this subparagraph may:

within 30 days after such action or failure to act, file a lawsuit in any court of competent jurisdiction

the court shall hear and decide on an expedited basis

Any person adversely affected by an act or failure to act by a State or local govt. that is inconsistent with clause (iv) (e.g. RF emissions) may petition the FCC for relief.

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LEGISLATIVE HISTORYCONFERENCE AGREEMENT

“Prevents Commission preemption of local and State land use decisions.”

“Preserves the authority of State and local govts. over zoning and land use matters except in the limited circumstances set forth in the conference agreement.”

“It is the intent of the conferees that other than under section 332(c)(7)(B)(iv) [RF emissions]. . . the courts shall have exclusive jurisdiction over all other disputes arising under this section.”

“Any pending Commission rulemaking concerning the preemption of local zoning authority over the placement, construction or modification of CMS facilities should be terminated.”

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LEGISLATIVE HISTORY (CONTINUED)

“Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.”

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SO, WHAT HAPPENED? 1996-2009

FCC did not regulate local zoning authority under Sec. 332(c)(7) except to address RF emissions matters.

Courts applied Sec. 332(c)(7) to the facts in what one court described as a “refreshing experiment in federalism.”

Then, in 2008, CTIA petitioned the FCC for a declaratory ruling —

asked the FCC to establish a uniform deadline for State and local govts. to act under Sec. 332(c)(7).

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2009 FCC’S DECLARATORY ORDERAN EXPERIMENT IN FEDERALISM FEDERALIZATION?! State and local govts. must act on a zoning application

within a reasonable time:

new facility—150 days “shot clock” to act on a complete application

collocation—90 days “shot clock” to act on a complete application

if local govt. fails to act within shot clock (and absent agreement to extend time), the provider can sue within 30 days and the local govt. is presumed to have unreasonably delayed, with burden on local govt. to rebut presumption.

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“WAIT A MINUTE. THEY CAN’T DO THAT!”

2010—Cities of Arlington and San Antonio, Texas filed petitions for review of the FCC’s order with 5th Circuit

Intervenors supporting were Carlsbad CA, Dallas TX, Dubuque IA, Los Angeles CA, Glendale CA, Portland OR, Los Angeles County CA, San Diego County CA, Cable & Telecom Committee of the New Orleans City Council LA, Fairfax County VA, IMLA, NACo, NATOA, NLC, TCCUI, USCM

Respondents were U.S.A. and FCC, and CTIA

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ARGUMENTS Local Govt. Petitioners

FCC has no jurisdiction, citing Sec.332(c)(7) and legislative history.

Respondents FCC has general authority under the

Communications Act, citing four sections [1, 4(i), 201(b), and 303 (r)]—all appear outside Sec. 332(c)(7).

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“SAY WHAT?”—5TH CIRCUIT UPHOLDS FCC ORDER!668 F3D 1229(5TH CIR. 2012) Ruled that 5th Circuit’s precedent was that Chevron,

U.S.A., Inc. v. NRDC, Inc. , 467 U.S. 837 (1984) required it to defer to the FCC’s own assessment of its jurisdiction.

Acknowledged there was a split in the circuits: applying Chevron— 3rd, 8th, & 10th Circuits de novo review of jurisdictional determination—7th &

DC Circuits Acknowledged the U.S. Supreme Court had not

resolved this issue. 5th Circuit did not uphold Order because it agreed that

FCC presented the better reading of the jurisdictional statutes.

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FIFTH CIRCUIT DECISION (CONTINUED)

Court found that Sec. 332(c)(7)(A) does not “unambiguously preclude” the FCC from regulating in this area.

Court found that the FCC’s determination that it could implement Sec. 332(c)(7) was “permissible.”

En banc review was denied.

Arlington and others petitioned the Supreme Court for certiorari review.

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SUPREME COURT GRANTS REVIEW

Question Presented: Whether a court must defer to an agency’s own determination of its jurisdiction?

Or must a court make a threshold determination of the agency’s interpretive jurisdiction (Step 0) before applying Chevron deference analysis?

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PETITIONERS AND AMICUS Petitioners: Arlington TX; Dallas TX; Los Angeles CA; Los

Angeles County CA; San Antonio TX; Texas Coalition of Cities for Utility Issues; San Diego County CA

Amicus briefs: State and Local Legal Center (National Conference of Legislators, Council of State Govts., ICMA, GFOA, NARUC); Cato Institute; American Farm Bureau (U.S. Chamber of Commerce, National Association of Home Builders, NFIB, Small Business Legal Center, National Mining Association, Retail Litigation Center) ; Southern Company (Alabama Power, Georgia Power Company, Gulf Power, Mississippi Power Company); National Water Resources Association (Association of California Water Agencies, Wetlands Water District); Verizon Wireless; AT&T

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PETITIONERS ARGUMENTS Agencies have no comparative advantage over courts in

determining jurisdiction.

An agency’s self-interest may cloud its judgment.

Independent judicial review furthers due process and perception of fairness.

Ensures Congress’ judgment on the scope of an agency’s authority will be honored.

An agency shouldn’t be entrusted to police the limits of its own regulatory authority.

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PETITIONERS ARGUMENTS Local Govts.’ Attorney: Thomas Goldstein.

Distinguished an agency’s “interpretive jurisdiction” (whether Congress empowered the agency, rather than the courts, to resolve ambiguities in the statute) from the agency’s “substantive jurisdiction” (the agency’s power to fill statutory gaps in particular ways—by virtue of the agency’s substantive expertise over technical areas).

Issues of federalism and separation of power are involved.

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FCC’ S ARGUMENTS

FCC Attorney: U.S. Solicitor General Donald Verrilli, Jr.

Chevron deference applies if the agency has a general power under an organic statute.

A court doesn’t have to search further within the Act for a grant or exclusion of authority.

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ORAL ARGUMENT AND THE JUSTICES

Justices quickly divided into two camps: (1) those primarily interested about the jurisdictional question, and (2) those who wished to discuss the merits.

Justice Scalia appeared to favor deference to an agency’s interpretation of its own jurisdiction if the agency has a general power under an organic statute without having to do any kind of section by section determination.

Justice Roberts at one point noted the federalism issue and the effect of a federal agency unilaterally expanding the scope of its own regulatory jurisdiction.

Justice Ginsberg and others wanted to go to the merits of Sec. 332 (c)(7).

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WHAT’S NEXT? Expect Court Decision by June.

Ramifications for FCC in other areas—Net Neutrality.

Ramification for other regulatory agencies.

A busy schedule of significant Supreme Court cases, e.g., Defense of Marriage Act; Voting Rights Act.