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May 21, 2013

Supreme Court rules in favor of FCC vs. City of Arlington

 
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There has been a huge problem over the past few years with municipalities dragging their feet on approving permits to allow cell phone towers to be constructed, or even to allow new transmitters to be added to existing towers or to buildings.

Municipalities have been doing this on purpose, largely at the urging of consultants, who suggest the delays at least in part as a way to extract concessions from the wireless companies. It’s been a big problem, with municipalities complaining to the wireless companies about poor service coverage and then at the same time unnecessarily delaying permits to address the problem.

IPI has written about this problem several times, and one of the solutions we suggested was that municipalities should be put on a shot clock and given only a limited amount of time that they could delay such applications.

Which the Federal Communications Commission (FCC) did.

Upon which action the City of Arlington, Texas, which is just about 30 miles from where I sit, challenged the regulation, claiming that the FCC didn’t have the authority to regulate how they approved applications for cellphone towers.

The case worked its way through the courts, and yesterday the Supreme Court found for the FCC. In other words, the FCC has the right to place such regulations upon municipalities.

It’s undoubtedly good for the economy and for the continued rollout of broadband that municipalities are on a time limit for such approvals.

Some, however, have pointed out that we should be concerned about bigger questions; namely, upon what basis can a regulatory agency simply claim authority that is not apparently clearly delegated to it.

As someone who believes in the rapid rollout of technology, I’m a fan of the FCC’s shot clock. But as a fan of limited government, I have to admit being troubled by not having clearly defined areas of regulatory reach.

And for those who follow the Court, it was an interesting decision because the conservatives were oddly split on the decision. Scalia and Thomas were in the majority siding with the FCC, while Alito, Roberts and Kennedy dissented.




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