On Monday the Supreme Court ruled in favor of the FCC in a dispute about rules concerning permits for new cellular towers. The Supreme Court ruling is here: Arlington vs. the FCC.
The dispute arose over the FCC’s interpretation of their powers. The Telecommunications Act of 1996 had granted some local rights for zoning and placement of cellular towers. But the Act also said that local jurisdictions had to act “within a reasonable amount of time” in acting on requests for new tower sites. The FCC got a number of complaints from cellular providers over the years that local jurisdictions were dragging their feet and not responding to requests for new towers. The FCC responded by issuing a ruling that local jurisdictions had to act within 90 days to process a collocation application to add to an existing tower and within 150 days for a request for placing a new cellular tower.
The City of Arlington, TX, joined by San Antonio, San Diego, Los Angeles and other cities then sued to block this regulation, making the argument that the FCC was overstepping its authority in making the ruling.
The Supreme Court ruled 6 – 3 in favor of the FCC with an opinion written by Justice Antonin Scalia. This leaves in place the Fifth Circuit’s ruling that the FCC was within its jurisdiction to issue these rules. The FCC original ruling had said that a local jurisdiction could not reject a cell tower application due to the presence of another carrier, and that it also had to act within the above-mentioned time frames.
There have been a number of disputes about the location of cell towers. People all want good cell service, but nobody seems to want a tower in their back yard (or within sight of their back yard). The original cell tower systems were designed for a very different world than what we live in today. The originally sited towers in many places are far apart and were designed to handle a far smaller volume of voice traffic. And the original siting of towers is not at all adequate for data coverage since the strength of the data signal from a tower decreases quickly as you get further from a tower. To make the cellular networks do what customers want today, cell phone companies have to build additional towers within the boundaries of the older towers to create smaller ‘cells’ around each tower site. Each ‘cell’ can serve the same number of voice and data customers, so with more ‘cells’ a cellular company can accommodate more customers and provide better coverage and faster data. This problem is just going to get worse as more and more people rely on data for their mobile devices and we need more and more cell sites.
Eventually in the future the large ‘big stick’ towers will probably go away and be replaced by numerous small cellular transmitters dispersed throughout a neighborhood. But a full transition to that kind of technology is at least several decades away. And even after that is introduced the existing tall towers will probably be kept in service for an additional decade or two simply because they work well.
The ruling will have only a minor impact on the cell phone industry. Cities will no longer be able to use administrative delays as a passive-aggressive tool to say no to a new cell tower. Cities will still have the power to say no to a request for a new tower as long as they do it within the FCC timeline.
The real impact of the ruling is that the Court has backed the FCC and other federal agencies in the way that the agencies make their rulings. Most of the Court’s discussion centered around a doctrine known as the Chevron doctrine. That has meant that whenever a Court has been asked whether a federal agency has interpreted a ruling from a federal agency the Court has first asked if the underlying law was clear, generally being some law passed by Congress. If the law was not clear, under the Chevron doctrine the Courts have then generally deferred to agency’s interpretations of the law and have found in the past that federal agencies had the authority to interpret ambiguity in the law.
The Cities in this case had argued that the deference that Courts had granted to federal agencies could not constitutionally apply if the agency had no authority to act at all. They argued that this interpretation of the law effectively gives federal agencies the ability to define their own powers. This ruling addresses that question and says that Chevron does not apply to jurisdictional questions about the authority of an agency to make rulings. The Court did concede that their ruling does not give an agency the right to regulate as it pleases and that Courts interpreting Chevron in the future must do so by “taking seriously, and applying rigorously, in all cases, statutory limits on agency authority.”
Justice Roberts, joined by Justices Alito and Kennedy, wrote a dissent and he argued that the jurisdictional test that the cities had proposed was correct and that federal agencies are widely overstepping their authority.
While the ruling doesn’t do much for the cell phone companies it is a victory for the FCC and other federal agencies. I don’t follow what goes on at too many other agencies, but it seems like almost every major decision made by the FCC in the last decade has been challenged in terms of the agency even having the authority to issue rules. This Court ruling bolsters the FCC’s ability to interpret their own authority within the bounds of the specific laws they are implementing. But it does not give them unlimited authority and they still must act reasonably. Courts will still be able to review complaints against the FCC and other agencies, but they will have to do so by applying the Chevron test.