May 20, 2013

Supreme Court Decides City of Arlington, Texas, et al. v. Federal Communications Commission et al.

On May 20, 2013, the Supreme Court decided City of Arlington v. Federal Communications Commission, Nos. 11-1545 and 11-1547. The question before the justices was whether a court should apply the deference prescribed by Chevron U.S.A. Inc. v. NRDC, Inc. "to an agency's determination of its own jurisdiction." The Court held that "[n]o matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority."

Under 47 U.S.C. §332(c)(7)(B)(ii), the FCC requires state and local governments to act on a wireless siting application "within a reasonable period of time after the request is duly filed." The FCC found, in a declaratory ruling, that a "reasonable period of time" is "presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications." Relevant to the case, the "savings clause" found at §332(c)(7)(A) "provides that nothing in the [Communications] Act [of 1934], except those limitations provided in §332(c)(7)(B), 'shall limit or affect the authority of a State or local government' over siting decisions." In addition, §332(c)(7)(B)(v) "authorizes a person who believes a state or local government's wireless-siting decision to be inconsistent" with the Communications Act's limitations to "commence an action in any court of competent jurisdiction." Some state and local governments opposed the FCC's declaratory ruling, arguing that the judicial review provision and the savings clause, taken together, displayed congressional intent to withhold from the FCC the authority to interpret §332(c)(7)(B)'s limitations.

The Fifth Circuit held that the Chevron framework applied to whether the FCC possessed authority to adopt the 90- and 150-day timeframes. The Fifth Circuit also held, on the merits, that the deadlines were a permissible construction of the statute.

The Court granted certiorari and affirmed the Fifth Circuit's decision. The Court rejected the "jurisdictional" and "nonjurisdictional" labels Arlington sought to use as a measure of when Chevron deference applied. It stated that both an agency's power to act and how it is to act are "authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires." "[J]udges should not waste their time in the mental acrobatics needed to decide whether an agency's interpretation of a statute is 'jurisdictional' or 'nonjurisdictional'…" "The question is always whether the agency has gone beyond what Congress has permitted it to do…"

Justice Scalia authored the opinion of the Court in which Justices Thomas, Ginsburg, Sotomayor and Kagan joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment. Chief Justice Roberts filed a dissent, joined by Justices Kennedy and Alito.

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