By Lisa Soronen
Most Supreme Court cases cannot be neatly summarized by clever clichés. But the fox guarding the henhouse is both a vivid and accurate description of City of Arlington & Cable, Telecommunications, and Technology Committee v. FCC.
First, a little background: The Telecommunications Act of 1996 requires state and local governments to respond to requests to place, construct, or modify personal wireless service facilities within a “reasonable period of time.” The Federal Communications Commission (FCC) interpreted a “reasonable period of time” as being 90 to 150 days.
The City of Arlington argued that the FCC lacked statutory authority to interpret this language. The FCC disagreed and claimed that its interpretation of its jurisdiction is subject to deferential review under Chevron v. NRDC. The Fifth Circuit, relying on past circuit court precedent, applied Chevron deference to the FCC’s interpretation of its own statutory authority under the Telecommunications Act and concluded, not surprisingly, that the FCC had jurisdiction to interpret a “reasonable period of time.”
So the issue the Supreme Court will decide in this case is whether courts should defer to a federal agency’s determination that it has authority to interpret a statute.
Now, back to the fox and the henhouse. If an agency (fox) wants to interpret a statute (enter the henhouse) of course it is going to say it has the authority to do so. And if a court must defer to its conclusion that it has such authority well...hens beware!
The State and Local Legal Center’s amicus curiae brief argues, among other things, that state and local governments are often regulated by federal agencies and often regulate the same subject matter as federal agencies. As a result, allowing federal agencies to determine the scope of their own jurisdiction, with only deferential review by courts, would allow federal agencies to encroach upon the authority of state and local governments, as illustrated by this case. NCSL signed onto the SLLC’s brief.
Oral argument will be heard in this case on January 16, 2013. The Supreme Court will issue an opinion in this case by June 30, 2013.