Eds Note: Click here to read the brief in the case filed by BB&K on Nov. 19, 2012.
For Immediate Release: Oct. 5, 2012
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com
WASHINGTON, D.C. _ The U.S. Supreme Court on Friday decided to hear a case brought by cities and counties across the country challenging the Federal Communications Commission’s authority to establish federal regulations governing local zoning of wireless cell towers.
The nation’s highest court granted the petition for certiorari filed by the cities of Los Angeles, San Antonio and Arlington, Texas; Los Angeles County, San Diego County and the Texas Coalition of Cities for Utility Issues.
“We’re very pleased with the court’s decision,” said Joseph Van Eaton, a Best Best & Krieger attorney based in Washington D.C., who represents several of the petitioners.
“The outcome could have huge implications for local and state governments, which are dealing with increasing efforts by the telecommunications industry to push the federal government to interfere with basic local functions such as zoning, right-of-way management and compensation,” Van Eaton said.
Local and state governments have long regulated the placement of cell towers through local zoning processes and right-of-way rules. In November, 2009, at the request of the cellular industry, the FCC issued an order that, among other things, established national deadlines for acting on applications filed with state and local governments for construction of cell towers.
The FCC rejected local and state government arguments that it lacked authority to regulate these local processes. A coalition of local governments appealed the FCC’s ruling to the U.S. Fifth Circuit Court of Appeals. Rather than reviewing the FCC’s authority independently, the Fifth Circuit deferred to the FCC’s interpretation of its own authority.
At issue with the Supreme Court challenge is whether the Fifth Circuit properly deferred to the FCC’s interpretation of its own authority when the federal agency established the tower-siting “shot clock” rules.
“But the issue the Supreme Court has decided to address is not just a telecommunications issue,” Van Eaton emphasized. “The question of how courts should decide whether an agency can define the scope of its own jurisdiction arises in many cases, in many different areas of the law. It is a basic, undecided question of administrative law.”
The Supreme Court is likely to hear arguments in the case in January or February, Van Eaton said.