City of Arlington v. Federal Communications Commission
668 F.3d 229
| 5th Cir. | 2012Background
- Arlington and San Antonio challenged the FCC Declaratory Ruling and Reconsideration Order on wireless facility siting rules under § 332(c)(7).
- CTIA petitioned the FCC to clarify sections of the Communications Act, including time frames for action and environmental RF-emission considerations.
- FCC issued Declaratory Ruling (2009) granting some CTIA requests, establishing presumptive 90-day/150-day time frames and a framework for “failure to act.”
- FCC later denied reconsideration; Arlington petitioned for review; San Antonio joined Arlington’s petition for review.
- The court addressed jurisdiction, APA notice-and-comment validity, statutory authority to set time frames, due process, and Chevron/constitutional standards, finally denying Arlington’s petition and dismissing San Antonio’s for lack of jurisdiction.
- The opinions’ ultimate holding: Arlington’s petition denied on the merits; San Antonio’s petition dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to set time frames | Arlington argues the FCC lacked authority to establish 90/150 days. | FCC contends it has authority under 201(b) to implement § 332(c)(7)(B). | FCC authority recognized; deference applied; not lacking authority. |
| APA notice-and-comment | Procedural flaws in using adjudication rather than rulemaking. | Declaratory Ruling via adjudication can be permissible; minor defects harmless. | Any APA error deemed harmless; no remand required. |
| San Antonio's timeliness jurisdiction | San Antonio timely under 60-day review after Declaratory Ruling. | San Antonio failed to file within 60 days of Declaratory Ruling; review jurisdiction lacking. | Lacked jurisdiction to review the Declaratory Ruling; dismissal. |
| Due process under CTIA petition | CTIA petition not served on certain governments; due process violation. | Service not required; proceeding akin to rulemaking; adequate notice and opportunity to comment. | Due process satisfied; no dismissal for service deficiency. |
Key Cases Cited
- Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788 (5th Cir. 2000) (agency can announce general rules via adjudication in appropriate contexts)
- Mobil Exploration & Producing N. Am., Inc. v. FERC, 881 F.2d 193 (5th Cir. 1989) (adjudication may support prospective rule guidance in some contexts)
- Alliance for Cmty. Media v. FCC, 529 F.3d 763 (6th Cir. 2008) (supports reading that agency can issue guidance while preserving review rights)
- Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442 (9th Cir. 1994) (due process considerations in agency adjudication vs rulemaking)
- Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771 (5th Cir. 2010) (Chevron step analysis applied to agency interpretations of statutes)