Leonard Bernstein reportedly said that to achieve great things, two things are needed: a plan, and not quite enough time.

In that vein, the U.S. Supreme Court, by a 6-3 vote, has upheld the Federal Communications Commission’s interpretation of provisions of the Communications Act of 1934 that require state and local zoning authorities to act on certain wireless service providers’ antenna-siting applications within a “reasonable period of time.” More broadly, the Court’s decision addresses the degree of deference that reviewing courts must give a federal agency’s interpretation of statutory provisions that define the agency’s legal authority.

City of Arlington v. FCC involves a petition brought by certain state and local governments.  In 2009, the FCC issued a Declaratory Ruling establishing its interpretation of what constitutes a “reasonable period of time” for state and local governments to process antenna-siting applications under Section 332(c)(7)(B)(ii) of the Communications Act. The Declaratory Ruling acted on a petition filed by CTIA – The Wireless Association on behalf of certain wireless service providers. While state and local governments have legal authority to regulate the location, construction and modification of certain defined “personal wireless facilities,” the Communications Act places specific limits on this authority, such as the requirement to process wireless-siting applications within “a reasonable period of time.”

The FCC stated in the Declaratory Ruling that “unreasonable delays” in the siting process had “obstructed the provision of personal wireless services.” The FCC determined that a “reasonable period of time” is presumptively 90 days to process a collocation application and 150 days to process all other applications. 

The Petitioners challenged the FCC’s authority to interpret “ambiguous provisions” of the statute; here, relating to judicial review of wireless-siting decisions and a savings clause that provided that only those provisions in Section 332(c)(7)(B) “shall limit or affect the authority of a State or local government” over siting decisions. While the law requires reviewing courts to afford an agency a measure of discretion in the agency’s interpretation of ambiguous statutes, the Petitioners characterized the FCC’s action as that agency’s effort to interpret “its own jurisdiction.”

Generally, a reviewing court considers a federal agency’s construction of the statute it administers based on two principles: whether Congress has spoken directly to the precise question at issue, and if not, whether the agency has addressed the issue with a permissible construction of the statute. Justice Scalia, writing for the majority, rejected the Petitioners’ objection to the FCC’s interpretation of its jurisdiction. He stated that “judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ 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.” Justices Thomas, Ginsburg, Sotomayor and Kagan joined in the opinion, and Justice Breyer filed an opinion concurring in part and concurring in the judgment. Justices Roberts, Kennedy and Alito dissented. 

The City of Arlington decision could shape other pending cases where the scope of the FCC’s regulatory authority is at issue.  For example, Verizon has a case before the U.S. Court of Appeals for the D.C. Circuit that challenges the FCC’s authority to regulate Internet Service Providers via the “Open Internet” rules.  Elsewhere, a separate pending case in the U.S. Court of Appeals for the 10th Circuit involves petitions for review of the FCC’s “USF/ICC Transformation Order” establishing the Connect America Fund for federal broadband subsidies.  While these cases involve different facts and may lead to different results, there’s good reason to think that the City of Arlington precedent will be reflected in these and other future cases.  In the meantime, the decision confirms that providers whose services are covered by the statute now have additional legal support in seeking timely approvals for sites for towers and antennas.