T-Mobile South case argued before US Supreme Court

Monday the US Supreme Court heard arguments in the case of T-Mobile South v. City of Roswell, a case interpreting the “in writing” requirement of the Federal Telecommunications Act.

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia (the respondent). The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements in relevant city ordinances, and recommended approval of the application subject to several conditions. The city then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

47 U.S.C. § 332(c)(7)(B)(iii) – a provision of the Federal Telecommunications Act – requires that state or local government decisions denying wireless infrastructure requests “shall be in writing and supported by substantial evidence contained in a written record.” The question in front of the Supreme Court is  “Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s ‘in writing’ requirement.”

A recap of Monday’s arguments by Miriam Seifter with SCOTUSblog can be found here.  From this summary the reader is left with the impression that the city of Roswell was not particularly interested in standing up for the interests of other local governments in how it focused its argument.

Supreme Court agrees to hear case on prayer at government meetings

by Gary Taylor

Congress shall make no law respecting an establishment of religion….

Yesterday the U.S. Supreme Court agreed to hear the case of Greece, NY v. Galloway, which focuses on the first ten words of the First Amendment, commonly referred to as the Establishment Clause.  The Second Circuit Court of Appeals ruled last year that the Establishment Clause was violated when the Greece Town Board repeatedly used Christian clergy to conduct prayers at the start of its public meetings. The decision created split with other appeals courts that have upheld prayer at public meetings.  This split among the appeals courts led to the Supreme Court taking the case.  The Court will hear the case in its next term, which begins in October. Its decision should come in the spring of 2014, and could have broad implications for public schools and public events.

Analysis from Scotusblog is here.

US Supreme Court validates FCC’s shot clock ruling for local decisions on cell tower permits

by Gary Taylor

City of Arlington, Texas v. Federal Communications Commission
(U.S. Supreme Court, May 20, 2013)

This case was previously discussed in this blog here.  On Monday, the U.S. Supreme Court issued its opinion, which effectively validates the FCC’s shot clock declaratory ruling.  A summary of the Court’s opinion:

The Federal Telecommunications Act (FTA) requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the FTA, the Federal Communications Commission (FCC) issued a Declaratory Ruling (the shot clock) concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, argued that the Commission lacked authority to interpret the language “within a reasonable period of time” because doing so amounted to determining the jurisdictional limits of its own authority – a task exclusively within the province of Congeress. The Fifth Circuit Court of Appeals applied precedent from the case of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the FTA’s broad grant of regulatory authority empowered it to adopt the Declaratory Ruling.

In a 6-3 decision, the U.S. Supreme Court affirmed the Fifth Circuit.  Writing for the majority, Justice Scalia found no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdiction—but not to prescribe how they decide those cases. For agencies charged with administering congressional statutes, however, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is beyond their authority and can be struck down by a court.  Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. If, however the statute is silent or ambiguous, the court must defer to the administering agency’s construction of the statute so long as it is permissible. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court rejected Arlington’s contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The case does not implicate any notion of federalism: The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. In this case, the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency’s interpretation of “reasonable period of time” at issue was promulgated in the exercise of that authority.

US Supreme Court says ethics laws do not violate First Amendment speech rights

by Gary Taylor

Nevada Commission on Ethics v Carrigan
(United States Supreme Court, June 13, 2011)

The Nevada Commission on Ethics administers and enforces Nevada’s Ethics in Government Law, Nev. Rev. Stat. §281A.420(2), which requires public officials to recuse themselves from voting on, or advocating the passage or failure of, “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by…his commitment in a private capacity to the interests of others,” which includes a “commitment to a [specified] person,” such as a member of the officer’s household or the officer’s relative, or “any other commitment or relationship that is substantially similar.”

In 2005 the Commission investigated Michael Carrigan, an elected member of the Sparks, Nevada city council, who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under the “any other commitment or relationship that is substantially similar” catchall provision of the Ethics in Government Law.  The Commission censured him for failing to abstain from voting on the project, but did not impose a fine on him because the violation was not willful (the Sparks city attorney had advised Carrigan that disclosing the relationship with his campaign manager would satisfy his obligation under the law). Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment. The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech, and that the law’s catchall definition was unconstitutionally overbroad.

The United States Supreme Court disagreed with the Nevada Supreme Court. The Court found restrictions on legislators’ voting are not restrictions on legislators’ protected speech. A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. He casts his vote “as trustee for his constituents, not as a prerogative of personal power.” Moreover, voting is not a symbolic action, and the fact that it is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech. Even if the mere vote itself could express depth of belief (which it cannot), the Court noted that in previous cases it had rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.

The Court found support for its decision in “early congressional enactments,” which offer “contemporaneous and weighty evidence of the Constitution’s meaning.” Within 15 years of the founding, both the United States House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding. “[A] ‘universal and long-established’ tradition of prohibiting certain conduct creates ‘a strong presumption’ that the prohibition is constitutional.” The notion that Nevada’s recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States, most of which have some type of recusal law.

The Court also found that laws that prohibit a legislator who has a conflict from advocating its passage or failure are also valid. If it is constitutional to exclude an elected official from voting, then his exclusion from advocating during a legislative session is similarly constitutional.  Such speech limitations are reasonable time, place, and manner limitations.

The U.S. Supreme Court reversed and remanded the case.





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