* FCC power to set own jurisdiction challenged
* Case involved siting of wireless phone towers
By Jonathan Stempel
WASHINGTON, Jan 16 The power of federal
government agencies over local authorities was at issue before
the U.S. Supreme Court on Wednesday, in two complex cases whose
outcome could affect the spread of wireless telephone services
The specific issue was whether the Federal Communications
Commission had authority to step in and try to speed up the
process for installing wireless communications towers when state
and local authorities were slow to act.
A broad ruling against the FCC could set standards that make
courts more willing to limit agencies' authority to interpret
and apply laws, which some critics say belongs with elected
officials or the courts themselves.
"The dividing line between state authority and federal
authority is a more significant one than some of the other
questions as to which agencies get deference," Chief Justice
John Roberts told Solicitor General Donald Verrilli, who argued
on the FCC's behalf.
Roberts described as "vastly different propositions" having
the federal judiciary define the limits between state and
federal power, and having "an agency of unelected bureaucrats
responsible to the executive" do so.
Wednesday's cases involved a federal law requiring state and
local governments to act on tower siting applications within a
"reasonable period of time."
The FCC decided that 90-day and 150-day deadlines were fair,
and a federal appeals court upheld its decision. AT&T Inc,
Deutsche Telekom AG's T-Mobile USA Inc and Verizon
Wireless, a venture of Verizon Communications Inc and
Vodafone Group Plc in court papers support that view.
But Los Angeles, San Antonio, Arlington, Texas, and the New
Orleans city council said this interfered with their power to
enforce local zoning standards. They argued that the court
should have exercised its own judgment rather than deferred to
In 1984, the Supreme Court in Chevron USA Inc v. Natural
Resources Defense Council Inc set out a test for when to defer
to a government agency's interpretation of a law it administers.
Under that test, if Congress addressed the issue in dispute,
then a court must honor that intent. But if the law were silent
or ambiguous, then a court should defer to the agency so long as
its interpretation is "permissible."
Thomas Goldstein, a lawyer representing the cities,
countered that this was the wrong standard, and that Congress
did not give the FCC power to set the time limits.
"We recognize that it has its expertise," he said, referring
to the FCC. "The question is, do we have to, when the statute is
ambiguous, as it will often be, accept as a matter of law their
view that they do have jurisdiction."
Verrilli countered that agencies should not be forced to
distinguish between jurisdictional and nonjurisdictional issues.
"Chevron does provide a stable framework for the development
of administrative law," he said. Ignoring it, he said, could
prompt demands that courts delve into too many agency decisions,
and result in the "ossification of the administrative process."
A decision is expected by the end of June.
The cases are City of Arlington et al v. U.S., No. 11-1545;
and Cable, Telecommunications, and Technology Committee of the
New Orleans City Council v. FCC, No. 11-1547.