City of Arlington, Texas, et al., v. Federal Communications Commission, et al. and Cable, Telecommunications, and Technology Committee of the New Orleans City Council, v. Federal Communications Commission

Docket No., 11-1545 and Docket No., 11-1547 Consolidated

Arguement Date: Wednesday, January 16, 2013

QUESTION PRESENTED 11-1545:

This case involves a challenge to the FCC's jurisdiction to implement §332(c) (7) of the Communications Act of 1934, titled "Preservation of Local Zoning Authority." Section 332(c)(7) imposes certain limitations on State and local zoning authority over the placement of wireless service facilities, but authorizes the FCC to address only one of these limitations; it states that no other provision "in this Act" may ''limit'' or "affect" State and local authority over wireless facilities placement. The FCC concluded that other provisions "in this Act" authorize it to adopt national zoning standards to implement §332(c)(7). The Fifth Circuit deferred to the FCC's jurisdictional determination applying Chevron U. S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), but acknowledged that "[the Supreme Court has not yet conclusively resolved the question of whether Chevron applies in the context of an agency's determination of its own statutory jurisdiction, and the circuit courts of appeals have adopted different approaches to this issue."

The case presents two questions:

1. Whether, contrary to the decisions of at least two other circuits, and in light of this Court's guidance, a court should apply Chevron to review an agency's determination of its own jurisdiction; and

2. Whether the FCC may use its general authority under the Communications Act to limit or affect State and local zoning authority over the placement of personal wireless service facilities.

Source

QUESTION PRESENTED 11-1547:

1. Should Chevron deference be afforded to an administrative agency's interpretation of its own statutory jurisdiction?

2. If it is determined that an agency's interpretation of its own statutory jurisdiction should be evaluated under Chevron, did the Fifth Circuit improperly apply Chevron?

3. Did the FCC usurp the jurisdiction and authority reserved for State and local governments by Congress in its interpretation of 47 U.S.C.A. § 332 (C)(7) by creating additional limitations on state and local governments beyond those provided for in the statute?

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