- Court: U.S. Supreme Court Certiorari Granted
- Area(s) of Law: Administrative Law
- Date Filed: October 5, 2012
- Case #: 11-1545
- Judge(s)/Court Below: Court Below: Court of Appeals for the Fifth Circuit, 668 F.3d 229 (2012).
- Full Text Opinion
The FCC issued a Declaratory Ruling and Order of Reconsideration after a trade association of wireless telephone service providers, CTIA—The Wireless Association® (CTIA) filed a petition seeking a declaratory ruling clarifying two sections (§§ 253 and 332(c)(7)) of the Communications Act of 1934 (47 U.S.C. 151 et seq.) as amended by the Telecommunications Act of 1996. Specifically CTIA claimed that local governments were impeding the placement and construction of personal wireless service facilities (“towers”), thereby harming consumers' access to wireless services due to ambiguities in the statute.
The FCC issued a public notice of CTIA’s petition and received hundreds of comments from wireless service providers, local and state governments, and other interested parties. In general, the service providers supported the petition and the government entities were opposed.
In 2009, the FCC issued its Declaratory Ruling defining a “reasonable period of time” before government inaction on a tower siting application would be deemed a “failure to act”; declared that state and local governments were violating the Communications Act by denying tower siting applications solely because another provider was already providing service; and denied CTIA’s request for an order that government regulations requiring a variance for each tower siting violated the Communications Act. Petitioners, a collection of city and state governments, filed a petition for review with the Court of Appeals for the Fifth Circuit in part challenging the FCC’s statutory authority to issue the ruling. The court of appeals reviewed the FCC interpretation of its own jurisdiction within the ambit of the analysis developed in Chevron, U.S.A. v. NRDC and found that the challenged section of the Communications Act was in fact ambiguous regarding the FCC’s jurisdiction, that FCC’s interpretation of its own jurisdiction was a permissible construction of the statute, and the findings in the ruling were reasonable. Further, the court did not find the ruling to be arbitrary or an abuse of respondent’s discretion and rejected Petitioners’ petition on the grounds that it was untimely filed and because an order which merely denies a rehearing on matters addressed in a ruling is not reviewable. The Fifth Circuit then deferred to the FCC’s jurisdictional determination, and upheld the FCC’s Declaratory Ruling.
On appeal to the Supreme Court, Petitioner argues that Congress intentionally created §332(c)(7) of the Communications Act to prevent respondent from interfering with local government zoning decisions.