The United States Supreme Court agreed to review the United States Court of Appeals for the Fifth Circuit decision in City of Arlington, Texas v. FCC, limited to the question of whether courts should apply Chevron deference in reviewing an agency’s determination of its own jurisdiction. This grant of certiorari sets the stage for resolution of the fundamental question on which the lower courts conflict. A Supreme Court decision may clarify delegated authority to agencies like no other decision since Chevron itself.
Issue: In granting review, the Court specified that it would consider whether a court should apply Chevron in reviewing an agency’s determination of its own jurisdiction. The Court declined to consider whether the FCC may use its general authority under the Communications Act to affect state and local zoning authority over the placement of cell towers, thereby avoiding a statutory interpretation question and clearing the path for the question on which it granted review. The question, therefore, encompasses an aortic issue of how specifically Congress must circumscribe the scope of agency delegations.
The Court’s interpretation in AT&T Corp. v. Iowa Utils. Bd, that another grant of authority in the Telecommunications Act of 1996 carries with it the general authority of FCC in the original Communications Act of 1934 complicates the present issue. In essence, the statutory interpretation issue is whether courts presume Congress to confer jurisdiction by silence in a subsequent amendment or whether Congress must express that grant of jurisdiction.
Statute: Congress attempted to balance competing federal (nationwide communications needs) and local (zoning regulation) concerns about siting wireless telecommunications facilities in the Telecommunications Act of 1996. Congress did not resolve the issue, but set parameters reinforcing a State or local government’s primacy, along with antidiscrimination provisions and a requirement that the State or local government “shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed….”
One more complicating factor may be that this “reasonable period of time” may not be materially different except in form from the concept that a court may require agency action “unreasonably delayed” under the Administrative Procedure Act (APA)’s familiar scope of judicial review provisions. “Reasonable period of time” is not an agency-specific term, but a general term, and ambiguous temporal requirements beg for interpretation in all cases.
FCC Position: The underlying statutory issue is straightforward: If a State or local government fails to decide a zoning application “within a reasonable period of time” to locate or co-locate a cell phone tower, an applicant may seek judicial review. The FCC, beginning with the proposition that State and local governments have many different zoning requirements, adopted national standards that a State or local government’s “failure to act” would occur 90 days after an applicant files or 150 days after the filing of all applications.
The FCC, as an initial matter, determined that it had the authority this provision of the amended Communications Act of 1934 based on other grants of authority to the FCC in other sections of the Act that grant the FCC authority to interpret and implement the Act’s provisions. With that authority in hand, the FCC adopted what it considered presumptively reasonable processing deadlines that were “based on actual practice as shown in the record.”
Conflict: The United States Court of Appeals for the Fifth Circuit concluded that it must defer to the FCC’s interpretation of its own authority and that the FCC’s time frames were based on a permissible construction of the Telecommunications Act amendments and entitled to Chevron deference. In cases not related to the FCC, the Seventh Circuit and the Federal Circuit have taken the opposite position: on questions of agency authority / jurisdiction, the court must decide the issue de novo and grant no deference to the agency view.
Opposition: The Solicitor General (SG) (on behalf of the United States and the FCC) attempted to minimize the conflict: “Although there is some disagreement among the courts of appeals on that issue, that abstract question is not presented by this case.” The SG acknowledged that the Seventh and Federal Circuits’ view, but argued that this statutory interpretation does not implicate the agency’s jurisdiction to make rules or adjudicate particular disputes. The SG argued that the statute “merely permits the FCC to offer guidance to the courts, which remain the ultimate arbiters of disputes over whether state or local governments have addressed wireless siting applications ‘within a reasonable period of time.’”
This distinction may be true, but it does not make a different – the point of Chevron is precisely the question of whether a court defers to an agency’s “authoritative” interpretation. If, on the other hand, the FCC’s “rules” are no more than “guidance” to the federal courts, then the “guidance” does not belong in a formal FCC proceeding. The SG’s argument was unavailing.
Agency Self-Interest: Unlike the programmatic provisions that an agency administers, and necessarily interprets, jurisdiction to regulate or adjudicate is organic in nature – it is not a delegated function but Congress’ circumscription of the delegation. In a well-argued article, Nathan Sales and Jonathan Adler conclude that neither administrative law principles nor public policy choices support judicial deference to an agency’s interpretation of its own jurisdiction. Examples of agency attempts to expand their own authority abound and the natural human tendency is to permit one’s self more leeway than others. The Supreme Court should make clear that courts grant no more than Skidmore deference – “to claim respect according to its persuasiveness” – to an agency interpretations of its own jurisdiction.