By Paul Barbagallo
The Supreme Court has agreed to consider whether an appellate court properly
granted the Federal Communications Commission Chevron case deference in
affirming the agency's authority to set “shot clocks” for state and local
governments to approve or deny cell tower-siting applications (City of
Arlington, Texas and City of San Antonio, Texas v. Federal Communications
Commission, U.S., 11-1545; 11-1547, 10/05/12).
In a decision
Oct. 5, the high court granted two petitions for writs of certiorari which asked
the court to review the U.S. Court of Appeals for the Fifth Circuit's January
decision [48 CR 1271] to leave in place an FCC order declaring that a
“reasonable period of time” for state and local governments to act on
applications for co-located sitings is 90 days, and for all other applications
is 150 days.
The question the Supreme Court will now consider is whether “a court should
apply Chevron to review an agency's determination of its own
The FCC and the wireless industry have argued that the order in question is
entitled to the highest degree of deference, known as Chevron deference
after a 1984 Supreme Court decision, Chevron v. Natural Resources Defense
The petitioners, including the cities of Arlington and San Antonio, Texas,
have claimed, meanwhile, that other courts have concluded that such
Chevron deference should not be allowed.
For the court order, visit http://www.supremecourt.gov/orders/courtorders/100512zra2b4.pdf.