Supreme Court shot clock review

Discussion in 'Wireless Estimator Site Discussions' started by Janfree, Oct 9, 2012.

  1. Janfree

    Janfree Industry Observer

    The court usually agrees with the solicitor general, but in this case there may be a bigger picture as you point out and they might want to reach a consensus on how the circuit courts should use Chevron. If the FCC's shot clock is found to be invalid this would be terrible for wireless. Cities would then go back to their old ways of doing business - keep asking for information and keep delaying the application.
  2. Kelly Calders

    Kelly Calders Frequent Poster

    I could see if the 5th found a federal law to be unconstitutional then the supremes would step in. This seems like they're using the shot clock to get the circuits in lockstep with their belief that chevron is the only thing the courts should use...because in 1984 they basically said so. They'll probably affirm the 5th's decision, but by doing so, will establish a precedent. This could be a wild ride. I'm glad Verizon and CTIA are picking up the legal tab
  3. Proximity

    Proximity Friend of the Community

    It's obvious that in this case the justices looked under their robes and discovered they weren't lemmings. Great article.
  4. Wireless Estimator

    Wireless Estimator Administrator Staff Member

    This is a huge deal for the FCC and the siting community at large since the FCC's Chevron deference is at risk.

    At issue is whether or not the Constitution and the Supreme Court's interpretation of the law are the final authority or whether regulatory agencies are.

    The FCC says it is the authority, based upon the ambiguous language in The Telecommunications Act of 1996 since it was never clearly defined as to what a "reasonable" period of time should be for communities to act upon a siting application.

    It makes sense that someone had to identify what that period of time should be and the FCC did it through many months of amassing information from communities and everyone else who had a vested interest. They ignored the isolated anecdotes and delivered a reasonable compromise.

    If the shot clock is thrown out, the dilemma becomes, if a carrier went before a Circuit Court because a municipality had been delaying an application for an unreasonable amount of time - let's say 250 days - who would be the arbiter of defining unreasonable when there is no municipal standard for performance?

    At least with the shot clock's 90 and 150 days respectively for co-locations and new builds, courts can use those as baselines for their decisions. But they could easily rule in certain cases that 250 days - due to the complexity of an application - was clearly reasonable.

    In order to satisfy the Supreme Court's desire for separation of power, one option would be to have the telecom act revised with the identified timeframes. However, good government oftentimes works at glacial speeds and the nation's broadband rollout would suffer. The 1996 revision took 62 years.

    What is perplexing is the noticeable lack of interest by the media in this colossal Supreme Court turnaround. Perhaps it is because it is not as titillating as the Supreme Court's refusal to hear an appeal of Janet Jackson's indecency case when her breast was accidentally bared on TV during the 2004 Super Bowl.

    It took four SCOTUS Justices to agree to review the shot clock decision and it's likely that there will be others that might also concur that they would rather err on preserving constitutional limits rather than providing federal agencies such as the FCC with unlimited power.

    Be assured that as the Justices listen to an hour's worth of oral arguments in their judicial robes there will be no wardrobe malfunction, but an adverse ideological breast thumping decision could set back for years the strides the industry has obtained in furthering the nation's wireless and economic growth.
  5. spudw

    spudw Friend of the Community

    Great analysis of the arguments. It looks like this is just an exercise to reaffirm the current doctrine. That is great for the industry.

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