June 25, 2013 By Wayne Hanson
On June 24, the National Association of Telecommunications Officers and Advisors (NATOA) held a webinar regarding what authority the FCC has when it comes to limiting state and local zoning authority over "the placement of personal wireless service facilities" -- antennas that provide coverage for cell phones -- and what standard courts should use to review an agency’s "determination of its own jurisdiction."
The webinar referenced a Supreme Court decision in the case of City of Arlington v. FCC, which challenged the FCC’s jurisdiction to implement a section of the Communications Act of 1934 titled “Preservation of Local Zoning Authority.”
The FCC prevailed in the case and, to some experts, appears to have acquired additional authority over state and local government's ability to regulate broadband and wireless deployment -- although that authority is somewhat restricted and can be reined in by the courts.
The next logical questions are: What kind of impacts will the decision have? And what can local jurisdictions do?
Joe Van Eaton, a partner in Best Best and Krieger LLP -- the firm presenting the cities' case before the Supreme Court -- said that while the academic community is split on potential effects, the decision could encourage other federal agencies, such as the EPA, to change its jurisdiction over lead emissions, stormwater and other areas. And it could affect the FCC's ability to regulate the Internet on issues such as net neutrality.
Van Eaton said the federal government could have a much more prominent role in areas formerly under the authority of state and local jurisdictions. Therefore, he said, it is more important than ever to have a strong local and state presence in federal agency deliberations, helping to present the local government point of view.
NATOA Executive Director Steve Traylor said that while NATOA members were hoping for a different outcome, the association and other local government group members should keep their eyes on issues such as co-location, rights of way and tower siting.