Fifth Circuit Upholds FCC's Shot Clock Order

City of Arlington, Texas v. FCC (5th Circuit, January 23, 2012).


Most of the decision deals with the FCC's authority and the deference given to an agency's determination. I found the following excerpt instructive (spacing added):

In short, we believe the cities’ challenges to the reasonableness of the 90- and 150-day time frames stem from a misunderstanding of the time frames’ effect on the wireless zoning application process. We do not read the Declaratory Ruling as creating a scheme in which a state or local government’s failure meet the FCC’s time frames constitutes a per se violation of § 332(c)(7)(B)(ii). The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction. It is true that courts considering such cases will owe deference to the FCC’s determination that a state or local government’s failure to comply with the time frames constitutes unreasonable delay.

In the rare case in which a state or local government fails to submit any evidence demonstrating the reasonableness of its inaction, the government’s failure to comply with the FCC’s time frames will likely be dispositive of the question of the government’s compliance with § 332(c)(7)(B)(ii). The more likely scenario, however, is that a state or local government that has failed to act within the time frames will attempt to rebut the presumption of unreasonableness by pointing to reasons why the delay was reasonable. It might do so by pointing to extenuating circumstances, or to the applicant’s own failure to submit requested information. Or it might note that it was acting diligently in its consideration of an application, that the necessity of complying with applicable state or local environmental regulations occasioned the delay, or that the application was particularly complex in its nature or scope. All of these factors might justify the conclusion that a state or local government has acted reasonably notwithstanding its failure to comply with the FCC’s time frames.

We do not list these possibilities to establish a definitive list of the circumstances that might cause a state or local government to have acted reasonably, however, as adjudications of specific disputes under the statute will ultimately determine how specific circumstances relate to the FCC’s time frames. Our point here is simply to note both that a variety of circumstances can affect the consideration and determination of a wireless facility zoning application, and that these circumstances remain relevant even after the FCC issued its time frames.

Anthony Dorland
Dorlanda@moss-barnett.com
(612) 877-5258