The Supreme Court ruled against Arlington, TX, Glendale and other cities, saying that the FCC has the authority to set “shot clock” deadlines for permitting decisions on new cellphone towers.
The Federal Communications Commission set those deadlines in response to wireless industry pressure to speed up the permit process. The industry pitted itself against municipalities and citizens all over the country who are concerned about the proliferation of wireless infrastructure. Now cities will have even less authority over where and how these installations are constructed.
The reason this case rose to the U.S. Supreme Court is that an executive agency assumed powers which Congress presumably reserved for itself or local governments. The FCC took the industry’s side, as did six of the nine Supreme Court justices. The industry-requested action, and its affirmation by the Supreme Court, should raise concerns about the announced FCC review of outdated radiofrequency exposure standards. The EMF Safety Network has organized a petition against Tom Wheeler, now nominated to head the FCC, formerly chair of the wireless lobby CTIA.
The full opinion is here: CITY OF ARLINGTON, TEXAS, ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 11–1545.
Chief Justice John Roberts (joined by Justices Anthony Kennedy and Samuel Alito) dissented, writing about the problem of government overreach (their opinion is worth reading even if you know nothing about the Chevron case cited frequently). Excerpt:
The Court sees something nefarious behind the view that courts must decide on their own whether Congress has delegated interpretative authority to an agency, before deferring to that agency’s interpretation of law. What is afoot, according to the Court, is a judicial power-grab . . . But there is another concern at play, no less firmly rooted in our constitutional structure. That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.