Supreme Court Limits Local Permitting Authority

May 22, 2013

By Lars Etzkorn

The Supreme Court ruled against local governments this week in Arlington v. FCC when it upheld limits on the time allowed to review wireless facility applications.

Arlington, Texas, and New Orleans, Louisiana, challenged the Federal Communications Commission's (FCC) "shot clocks," 90- and 150-day periods for local governments to approve or turn down a completed application to build cell phone towers and other wireless facilities.

Although the Communications Act requires a local government to respond within a reasonable time period to requests for building these facilities, the law does not specify what is a "reasonable time." After industry petitioned, in 2008, the FCC created the time limits. Industry sought to avoid taking cell-tower sighting disputes to courts that would often defer to local governments.

The FCC claimed it had authority to implement the rule within its policy framework, though its enabling statute does not directly grant the agency such power.

The cities challenged the FCC's timeframes arguing it overstepped the Communications Act. The FCC argued that, even if Congress did not clearly give it the authority to set shot clocks, the court should defer to the FCC when determining its own jurisdiction.

The Court of Appeals for the Fifth Circuit agreed and allowed the FCC to determine the scope of its own authority.

NLC joined an amicus brief filed by the International Municipal Lawyers Association (IMLA) supporting Arlington's claim that the Fifth Circuit improperly submitted its own judgment to that of the FCC on the question of its scope of authority.

"The dissent, essentially adopted our argument, but unfortunately, it was the dissent," said Charles Thompson, IMLA Executive Director and General Counsel.

The decision opens the door to federal agencies expanding their reach into local government operations and shows the importance of working with federal agencies as they draft rules because judicial review is unpredictable.