Feeds

Supreme Court sides with FCC in NIMBY wireless tower spat

Local governments must follow agency's rules

5 things you didn’t know about cloud backup

The US Supreme Court has sided with the Federal Communications Commission (FCC) that local governments must act within a "reasonable period" – as defined by the FCC – to approve or deny requests by telcos to build new wireless towers.

The ruling upholds an earlier decision by the Federal Fifth Circuit Court of Appeals, which affirmed that the FCC did indeed have authority to set such time limits under the Federal Communications Act.

The FCC did so in November 2009, when it issued a rule establishing a "shot clock" – a basketball reference – that required local authorities to approve or deny new mobile-tower site applications within 150 days, and to respond within 90 days when a carrier wanted to install new equipment on existing towers.

The rule was widely seen as an effort to prevent municipalities from dragging their feet over controversial tower installations. Opposition to new tower sites has cropped up regularly since the 1990s, with complaints ranging from health concerns over electromagnetic radiation to neighbors arguing that the towers are just plain ugly.

Opponents of the "shot clock", including the Texas cities of Arlington and San Antonio, argued that Congress had never given the FCC the authority to set such rules, and that their own local zoning laws should take precedence. But after some deliberation, the Fifth Circuit Court deferred to the FCC's rulemaking, in effect saying that, on the contrary, the FCC did have that power.

Arlington and San Antonio took the case to the Supreme Court, and the cities of Los Angeles and New Orleans joined them in their appeal. But with the Supremes' 6-3 decision to uphold the earlier decision on Monday, it looks as though the cities have exhausted their legal options in the matter.

In the majority opinion, the Justices argued that it was a "waste of time" to ask whether an agency, such as the FCC, had exceeded the bounds of its statutory authority.

"The label is an empty distraction because every new application of a broad statutory term can be reframed as a questionable extension of the agency's jurisdiction," the opinion explains. "Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not."

In other words, has Congress granted the agency specific, limited authority, or is the agency's mandate a broad one?

In this wireless-tower case, the Justices argue, Congress had "unambiguously vested the FCC with general authority to administer the Communications Act," and that the FCC's creation of the "shot clock" rule was merely one example of the agency exercising that authority.

In a dissenting opinion, Justice John Roberts argued that this thinking was all wrong, and that instead of simply deferring to the FCC, the Fifth Circuit Court should have used its own authority to determine whether the FCC had jurisdiction.

"My disagreement with the Court is fundamental," Roberts wrote. "It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference."

Two justices – Anthony Kennedy and Samuel Alito – agreed with Roberts, but the other six didn't, in a decision that should remove some roadblocks to the expansion of nationwide high-speed wireless networks in the US.

"I am pleased that, as a result of the Supreme Court's decision today, one of the Commission's major achievements in promoting broadband access will continue to protect consumers and drive investment," acting FCC chairwoman Mignon Clyburn said in a brief statement. "Removing obstacles to the timely build-out of wireless broadband services remains a key priority." ®

The essential guide to IT transformation

More from The Register

next story
Britain's housing crisis: What are we going to do about it?
Rent control: Better than bombs at destroying housing
Top beak: UK privacy law may be reconsidered because of social media
Rise of Twitter etc creates 'enormous challenges'
GCHQ protesters stick it to British spooks ... by drinking urine
Activists told NOT to snap pics of staff at the concrete doughnut
What do you mean, I have to POST a PHYSICAL CHEQUE to get my gun licence?
Stop bitching about firearms fees - we need computerisation
Ex US cybersecurity czar guilty in child sex abuse website case
Health and Human Services IT security chief headed online to share vile images
We need less U.S. in our WWW – Euro digital chief Steelie Neelie
EC moves to shift status quo at Internet Governance Forum
Oz biz regulator discovers shared servers in EPIC FACEPALM
'Not aware' that one IP can hold more than one Website
prev story

Whitepapers

Endpoint data privacy in the cloud is easier than you think
Innovations in encryption and storage resolve issues of data privacy and key requirements for companies to look for in a solution.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Advanced data protection for your virtualized environments
Find a natural fit for optimizing protection for the often resource-constrained data protection process found in virtual environments.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Next gen security for virtualised datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.