High Court to Hear Appeal of FCC Decision To Speed Local Tower-Siting Approvals

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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 jurisdiction.”

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 Council.

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.