Federalism, Zoning, and Chevron

1. A Discussion of City of Arlington, et al v. FCC “Shot Clock” case Federalism, Zoning, and Chevron

2. Land Use Decisions Historically Local in Nature • local bodies thought to have expertise on the local conditions, conflict resolution, and order • Congress passes Communications Act of 1934 • FCC has general administrative authority Background

3. Cellular Telephone Industry Association (CTIA) petitions FCC for rulemaking to preempt state and local government zoning procedures regarding cell tower siting. • CTIA claimed zoning and other regulations interfered with deployment of mobile communications facilities. • House passed a “national model” bill that would have empowered FCC to: • make policy regarding local regulation of placement, construction, modification, or operation of facilities for provision of commercial mobile services, and • make policies requiring local govt. to act within a reasonable period of time. 1994

4. Congress replaces “national model” with Sec. 332(c)(7): Preservation of Local Zoning Authority (A) General authority. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. 1996

5. Shall not unreasonably discriminate among providers of functionally equivalent services; [clause (i)(I)] Shall not prohibit or have the effect of prohibiting the provision of personal wireless services; [clause (i)(II)] Shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable time taking into account the nature and scope of the request; [clause (ii)] Shall not regulate based on environmental effects of RF emissions to extent such facilities comply with FCC regs concerning emissions; [clause (iv)] Limitations of Local Regulation

6. Any person adversely affected by any final action or failure to act by a State or local govt. that is inconsistent with this subparagraph may: • within 30 days after such action or failure to act, file a lawsuit in any court of competent jurisdiction • the court shall hear and decide on an expedited basis • Any person adversely affected by an act or failure to act by a State or local govt. that is inconsistent with clause (iv) (e.g. RF emissions) may petition the FCC for relief. Who Resolves Disputes?

7. “Prevents Commission preemption of local and State land use decisions.” “Preserves the authority of State and local govts. over zoning and land use matters except in the limited circumstances set forth in the conference agreement.” “It is the intent of the conferees that other than under section 332(c)(7)(B)(iv) [RF emissions]. . . the courts shall have exclusive jurisdiction over all other disputes arising under this section.” “Any pending Commission rulemaking concerning the preemption of local zoning authority over the placement, construction or modification of CMS facilities should be terminated.” Legislative HistoryConference Agreement

8. “Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.” Legislative History (continued)

9. 1996-2009 • FCC did not regulate local zoning authority under Sec. 332(c)(7) except to address RF emissions matters. • Courts applied Sec. 332(c)(7) to the facts in what one court described as a “refreshing experiment in federalism.” • Then, in 2008, CTIA petitioned the FCC for a declaratory ruling — • asked the FCC to establish a uniform deadline for State and local govts. to act under Sec. 332(c)(7). So, what happened?

10. State and local govts. must act on a zoning application within a reasonable time: • new facility—150 days “shot clock” to act on a complete application • collocation—90 days “shot clock” to act on a complete application • if local govt. fails to act within shot clock (and absent agreement to extend time), the provider can sue within 30 days and the local govt. is presumed to have unreasonably delayed, with burden on local govt. to rebut presumption. 2009 FCC’s Declaratory OrderAn Experiment in Federalism Federalization?!

11. 2010—Cities of Arlington and San Antonio, Texas filed petitions for review of the FCC’s order with 5th Circuit Intervenors supporting were Carlsbad CA, Dallas TX, Dubuque IA, Los Angeles CA, Glendale CA, Portland OR, Los Angeles County CA, San Diego County CA, Cable & Telecom Committee of the New Orleans City Council LA, Fairfax County VA, IMLA, NACo, NATOA, NLC, TCCUI, USCM Respondents were U.S.A. and FCC, and CTIA “Wait a minute. They can’t do that!”

12. Local Govt. Petitioners • FCC has no jurisdiction, citing Sec.332(c)(7) and legislative history. • Respondents • FCC has general authority under the Communications Act, citing four sections [1, 4(i), 201(b), and 303 (r)]—all appear outside Sec. 332(c)(7). Arguments

13. Ruled that 5th Circuit’s precedent was that Chevron, U.S.A., Inc. v. NRDC, Inc. , 467 U.S. 837 (1984) required it to defer to the FCC’s own assessment of its jurisdiction. • Acknowledged there was a split in the circuits: • applying Chevron— 3rd, 8th, & 10th Circuits • de novo review of jurisdictional determination—7th & DC Circuits • Acknowledged the U.S. Supreme Court had not resolved this issue. • 5th Circuit did not uphold Order because it agreed that FCC presented the better reading of the jurisdictional statutes. “Say what?”—5th Circuit Upholds FCC Order!668 F3d 1229(5th Cir. 2012)

14. Court found that Sec. 332(c)(7)(A) does not “unambiguously preclude” the FCC from regulating in this area. Court found that the FCC’s determination that it could implement Sec. 332(c)(7) was “permissible.” En banc review was denied. Arlington and others petitioned the Supreme Court for certiorari review. Fifth Circuit Decision (continued)

15. Question Presented: Whether a court must defer to an agency’s own determination of its jurisdiction? Or must a court make a threshold determination of the agency’s interpretive jurisdiction (Step 0) before applying Chevron deference analysis? Supreme Court Grants Review

16. Petitioners: Arlington TX; Dallas TX; Los Angeles CA; Los Angeles County CA; San Antonio TX; Texas Coalition of Cities for Utility Issues; San Diego County CA Amicus briefs: State and Local Legal Center (National Conference of Legislators, Council of State Govts., ICMA, GFOA, NARUC); Cato Institute; American Farm Bureau (U.S. Chamber of Commerce, National Association of Home Builders, NFIB, Small Business Legal Center, National Mining Association, Retail Litigation Center) ; Southern Company (Alabama Power, Georgia Power Company, Gulf Power, Mississippi Power Company); National Water Resources Association (Association of California Water Agencies, Wetlands Water District); Verizon Wireless; AT&T Petitioners and Amicus

17. Agencies have no comparative advantage over courts in determining jurisdiction. An agency’s self-interest may cloud its judgment. Independent judicial review furthers due process and perception of fairness. Ensures Congress’ judgment on the scope of an agency’s authority will be honored. An agency shouldn’t be entrusted to police the limits of its own regulatory authority. Petitioners Arguments

18. Local Govts.’ Attorney: Thomas Goldstein. Distinguished an agency’s “interpretive jurisdiction” (whether Congress empowered the agency, rather than the courts, to resolve ambiguities in the statute) from the agency’s “substantive jurisdiction” (the agency’s power to fill statutory gaps in particular ways—by virtue of the agency’s substantive expertise over technical areas). Issues of federalism and separation of power are involved. Petitioners Arguments

19. FCC Attorney: U.S. Solicitor General Donald Verrilli, Jr. Chevron deference applies if the agency has a general power under an organic statute. A court doesn’t have to search further within the Act for a grant or exclusion of authority. FCC’ s Arguments

20. Justices quickly divided into two camps: (1) those primarily interested about the jurisdictional question, and (2) those who wished to discuss the merits. Justice Scalia appeared to favor deference to an agency’s interpretation of its own jurisdiction if the agency has a general power under an organic statute without having to do any kind of section by section determination. Justice Roberts at one point noted the federalism issue and the effect of a federal agency unilaterally expanding the scope of its own regulatory jurisdiction. Justice Ginsberg and others wanted to go to the merits of Sec. 332 (c)(7). Oral Argument and the Justices

21. Expect Court Decision by June. Ramifications for FCC in other areas—Net Neutrality. Ramification for other regulatory agencies. A busy schedule of significant Supreme Court cases, e.g., Defense of Marriage Act; Voting Rights Act. What’s Next?