The Supreme Court stated that 47 U. S. C. §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities (“within a reasonable period of time after the request is duly filed”). But in practice, the Court stated that wireless providers often faced long delays. The Court upheld the FCC’s authority to determine that a “reasonable period of time” under §332(c)(7)(B)(ii), is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications.
Most of the opinion relates to the scope of a federal agency’s authority to interpret a statute it administers. In response to one group of respondents that contended that agency deference was inappropriate because the FCC asserted jurisdiction over matters of traditional state and local concern (zoning), the Supreme Court stated that the case had nothing to do with state authority. The Court stated that Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. The Court stated that it rejected a similar faux-federalism argument before and stated that this is a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew. The Court stated these lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges.
Anthony Dorland
DorlandA@moss-barnett.com