• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
No. 10-60039CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS,Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA,Respondents.On Petitions for Review of an Order of theFederal Communications CommissionBefore DAVIS, PRADO, and OWEN, Circuit Judges.PRISCILLA R. OWEN
,
Circuit Judge:The City of Arlington, Texas and the City of San Antonio, Texas seekreview of a Declaratory Ruling and subsequent Order on Reconsideration thatthe Federal Communications Commission (FCC or Commission) issued inresponse to a petition for a declaratory ruling by a trade association of wirelesstelephone service providers, CTIA—The Wireless Association® (CTIA). In theproceeding before the FCC, CTIA sought clarification of Sections 253 and332(c)(7) of the Communications Act of 1934, as amended, regarding local
1
United States Court of AppealsFifth Circuit
F I L E D
January 23, 2012Lyle W. CayceClerk
47 U.S.C. §§ 253, 332(c)(7).
1
Case: 10-60039 Document: 00511733094 Page: 1 Date Filed: 01/23/2012
 
No. 10-60039review of wireless facility siting applications. We deny Arlington’s petition forreview on the merits. We dismiss San Antonio’s petition for review because welack jurisdiction to consider it.
I
 As part of the Telecommunications Act of 1996 (TCA or the Act), Congress
2
amended the Communications Act of 1934 by adding Section 332(c)(7). Thatprovision, codified as 47 U.S.C. § 332(c)(7), restricts the authority of state andlocal governments with respect to decisions regarding the placement andconstruction of wireless communications facilities. It provides:(7) Preservation of local zoning authority(A) General authorityExcept as provided in this paragraph, nothing in thischapter shall limit or affect the authority of a State or localgovernment or instrumentality thereof over decisionsregarding the placement, construction, and modification of personal wireless service facilities.(B) Limitations(i) The regulation of the placement, construction, andmodification of personal wireless service facilities by anyState or local government or instrumentality thereof– (I) shall not unreasonably discriminate amongproviders of functionally equivalent services; and(II) shall not prohibit or have the effect of prohibiting the provision of personal wirelessservices.(ii) A State or local government or instrumentalitythereof shall act on any request for authorization to place,construct, or modify personal wireless service facilities withina reasonable period of time after the request is duly filed withsuch government or instrumentality, taking into account thenature and scope of such request.
Pub. L. No. 104–104, 110 Stat. 56.
2
2
Case: 10-60039 Document: 00511733094 Page: 2 Date Filed: 01/23/2012
 
No. 10-60039(iii) Any decision by a State or local government orinstrumentality thereof to deny a request to place, construct,or modify personal wireless service facilities shall be inwriting and supported by substantial evidence contained in awritten record.(iv) No State or local government or instrumentalitythereof may regulate the placement, construction, andmodification of personal wireless service facilities on the basisof the environmental effects of radio frequency emissions tothe extent that such facilities comply with the Commission’sregulations concerning such emissions.(v) Any person adversely affected by any final action orfailure to act by a State or local government or anyinstrumentality thereof that is inconsistent with thissubparagraph may, within 30 days after such action or failureto act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action onan expedited basis. Any person adversely affected by an actor failure to act by a State or local government or anyinstrumentality thereof that is inconsistent with clause (iv)may petition the Commission for relief.Section 332(c)(7) seeks to reconcile two competing interests—Congress’sdesire to preserve the traditional role of state and local governments inregulating land use and zoning and Congress’s interest in encouraging the rapiddevelopment of new telecommunications technologies by removing the ability of state and local governments to impede the construction and modification of wireless communications facilities through delay or irrational decisionmaking.
3
 
See City of Rancho Palos Verdes, Cal. v. Abrams
, 544 U.S. 113, 115 (2005) (“Congress
3
enacted the [TCA] to promote competition and higher quality in American telecommunicationsservices and to encourage the rapid deployment of new telecommunications technologies. Oneof the means by which it sought to accomplish these goals was reduction of the impedimentsimposed by local governments upon the installation of facilities for wireless communications,such as antenna towers.” (internal quotation marks and citations omitted));
T-Mobile Cent.,LLC v. Unified Gov’t of Wyandotte Cnty., Kan. City, Kan.
, 546 F.3d 1299, 1306 (10th Cir. 2008)(“Congress adopted the TCA in order to promote competition and higher quality intelecommunications services and to encourage the rapid deployment of newtelecommunications technologies. The TCA furthered these goals by reducing the
3
Case: 10-60039 Document: 00511733094 Page: 3 Date Filed: 01/23/2012
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...