City of Arlington v. Fed. Commc'ns Comm'n, 10–60039.

• Decision Date: 23 January 2012
• Docket Number: No. 10–60039.,10–60039.
• Citation: 668 F.3d 229,55 Communications Reg. (P&F) 294
• Parties: CITY OF ARLINGTON, TEXAS; City of San Antonio, Texas, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

55 Communications Reg. (P&F) 294

668 F.3d 229

CITY OF ARLINGTON, TEXAS; City of San Antonio, Texas, Petitioners,

v.FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents.

No. 10–60039.

United States Court of Appeals, Fifth Circuit.

Jan. 23, 2012.

Joseph Leonard Van Eaton (argued), James Richmond Hobson, Matthew K. Schettenhelm, Best, Best & Krieger, L.L.P., Tillman Lowry Lay, Spiegel & McDiarmid, Washington, DC, DeWayne Larry Williams, Aaron, P.L.C., New Orleans, LA, for Petitioners.

Whitney North Seymour, Jr., New York City, for EMR Policy Institute, Intervenor.

James Michael Carr, Counsel (argued), Daniel M. Armstrong, III, Associate Gen. Counsel, Federal Communications Com'n, Office of the Gen. Counsel, Washington, DC, for Respondent.Helgard Clarice Walker, Brendan Thomas Carr, Thomas R. McCarthy, Wiley Rein, L.L.P., Washington, DC, William D. Aaron, Jr., Maria Brenda Kim Nguyen, Aaron, P.L.C., New Orleans, LA, for Intervenors.On Petitions for Review of an Order of the Federal Communications Commission.

Before DAVIS, PRADO and OWEN, Circuit Judges.

OWEN, Circuit Judge:

The City of Arlington, Texas and the City of San Antonio, Texas seek review of a Declaratory Ruling and subsequent Order on Reconsideration that the Federal Communications Commission (FCC or Commission) issued in response to a petition for a declaratory ruling by a trade association of wireless telephone service providers, CTIA—The Wireless Association (CTIA). In the proceeding before the FCC, CTIA sought clarification of Sections 253 and 332(c)(7) of the Communications Act of 1934, as amended,¹ regarding local review of wireless facility siting applications. We deny Arlington's petition for review on the merits. We dismiss San Antonio's petition for review because we lack jurisdiction to consider it.

I

As part of the Telecommunications Act of 1996 (TCA or the Act),² Congress amended the Communications Act of 1934 by adding Section 332(c)(7). That provision, codified as 47 U.S.C. § 332(c)(7), restricts the authority of state and local governments with respect to decisions regarding the placement and construction of wireless communications facilities. It provides:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this chapter 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.

(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof 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 with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

Section 332(c)(7) seeks to reconcile two competing interests—Congress's desire to preserve the traditional role of state and local governments in regulating land use and zoning and Congress's interest in encouraging the rapid development of new telecommunications technologies by removing the ability of state and local governments to impede the construction and modification of wireless communications facilities through delay or irrational decisionmaking. ³ Section 332(c)(7)(A), by providing that “nothing in this chapter 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,” acts to protect state and local government authority. Section 332(c)(7)(B), on the other hand, imposes “several substantive and procedural limitations that subject [state and local governments] to an outer limit upon their ability to regulate personal wireless services land use issues.”⁴

In 2008, CTIA filed a petition for a declaratory ruling with the FCC in which it requested that the FCC clarify certain provisions of the Communications Act of 1934, including several of § 332(c)(7)(B)'s limitations. The petition asserted that ambiguities in the statute had allowed local governments to impede the placement and construction of wireless facilities, harming consumers' access to wireless services. CTIA's petition made four specific requests.

First, CTIA requested that the FCC provide guidance on what constitutes a “failure to act” for purposes of § 332(c)(7)(B)(v). The FCC was requested to clarify the time periods within which a state or locality must act on wireless facility siting applications. The petition suggested that the Commission find that there has been a failure to act if there is no final action within 45 days from the submission of a wireless facility application and within 75 days from submission of other wireless siting facility applications.

Second, CTIA asked the FCC to find that, in the event no final action was taken within the suggested 45– and 75–day time periods, the application would be deemed granted. Alternatively, CTIA proposed that the FCC establish a presumption that, if a zoning authority could not explain a failure to act within the time frames, a reviewing court should find a violation of § 332(c)(7)(B)(ii) and issue an injunction granting the underlying application.

Third, CTIA requested that the FCC interpret § 332(c)(7)(B)(i), which bars state and local governments from taking action that would “prohibit or have the effect of prohibiting the provision of personal wireless services.” ⁵ CTIA noted that federal courts had split on the question of whether that provision prevented state and local governments from barring entry of additional wireless service providers into a given market based solely on the existence of another provider within that market.⁶ CTIA suggested that the FCC declare that the existence of one or more other carriers in a given geographic market is not by itself a sufficient defense against a suit seeking to enforce § 332(c)(7)(B)(i)(II).

Fourth and finally, CTIA requested the FCC to declare that the TCA preempts any ordinance that automatically requires a wireless carrier to seek a variance, regardless of the type and location of the wireless siting proposal. As support for this request, CTIA pointed to 47 U.S.C. § 253, which provides in pertinent part: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”⁷

The FCC issued a public notice seeking comment on CTIA's petition, and the record reflects that, in response to the notice, the FCC received dozens of comments from wireless service providers, local zoning authorities, and other interested parties. In 2009, the FCC issued the Declaratory Ruling, in which it granted in part and denied in part CTIA's petition.⁸

With respect to CTIA's request that the FCC establish time frames in which state and local governments must act on zoning requests, the FCC declared that “a reasonable period of time” for purposes of § 332(c)(7)(B)(ii) presumptively would be 90 days for personal wireless service facility siting applications requesting collocations⁹ and 150 days for all other applications.¹⁰ The FCC further determined that a lack of decision within these time frames would constitute a failure to act under § 332(c)(7)(B)(v).¹¹ The FCC stated, however, that personal wireless service providers and state or local governments could, by mutual consent, extend the prescribed time frames.¹² In addition, the FCC concluded that, if an applicant submits an incomplete application, the time it takes for the applicant to respond to a state or local government's request for additional information would not count toward the 90– or 150–day time frame if the state or local government notified the applicant that the application was incomplete within 30 days of receiving the application.¹³

The FCC rejected CTIA's proposal that the FCC deem as granted applications on which final action was not taken within the prescribed time frames.¹⁴ The FCC observed that § 332(c)(7)(B)(v)'s provision for a cause of action in a court of competent jurisdiction based on a state or local government's “failure to act” indicated Congress's “intent that courts should have the responsibility to fashion appropriate case-specific remedies.”¹⁵...