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Supreme Court sides with FCC in NIMBY wireless tower spat

Local governments must follow agency's rules

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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." ®

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