U.S. Supreme Court Hears Oral Argument in FCC “Shot Clock” Case

On January 16, the U.S. Supreme Court heard oral argument regarding the City of Arlington, Texas’s challenge to an FCC rule mandating a time within which municipalities must rule on certain cell tower applications.  The transcript and audio of the argument is available here.  Previously, we have written a thorough explanation of the so-called “shot clock” rule that readers will find here. The transcript and audio are a great example of two seasoned appellate attorneys arguing before the Court.  While one is never certain how the Court will rule until it issues its opinion (remember its decision in the Affordable Care Act case?) the justices’ questions indicate that the Court may ultimately affirm the FCC’s rule.

We will monitor this case and discuss the Court’s decision when it is issued later this term.

Further "shot clock" developments

On January 23, 2012, the Fifth Circuit Court of Appeals affirmed the FCC's "shot clock" order, but limited its effect.  The order allows providers to file suit in the event that a municipality takes longer than 90 - 150 days to act on cell tower zoning requests. The court said if a municipality has a reasonable excuse for exceeding the shot clock, then the presumption that it acted improperly does not apply, and the courts are able to independently examine the facts, and make a decision as to whether taking more time was actually reasonable.

This is certainly a good case for municipalities.  However, it must be noted that the Ninth Circuit has not yet ruled on this matter.  We will continue to monitor developments on this issue and provide updates accordingly.