#SCOTUS should ask first if agency action impedes capital flow.

I’m reading the U.S. Supreme Court’s holding in Arlington v. FCC where the court addressed whether the Federal Communications Commission went outside its statutory authority by issuing rules that specify the amount of time local and state jurisdictions have to review petitions by wireless carriers to deploy tower and other wireless facilities. The Court held that the FCC did not go beyond its statutory authority even in the face of a statute that was ambiguous as to reasonable review of petitions.

The holding has upside in speeding up the approval process, allowing carriers to serve a growing number of subscribers to wireless services. Consumers don’t like driving through dead zones right in the middle of using an app to order books or stream a video. (I know. Books and video in the same sentence sounds scary.)

It’s great that Scalia and company addressed the lack of relevance between jurisdictional and non-jurisdictional and that the case was not about federalism given Congress’ explicit intent that the section of the Communications Act in question supplant state law. To me the real issue here is the regulatory agency’s role in facilitating the flow of capital through the conduit of commerce. I’m sure lurking somewhere in the background was a commerce clause approach that could have been dragged by the ears and pulled to the front of the stage. Given that the FCC, combined with local and state jurisdictions, are the gatekeepers to the natural capital that commercial enterprises such as wireless carriers must access in order to serve consumers, the question, whether the FCC’s actions help facilitate the flow of capital and the leveraging of investment should be the first question addressed.

Unfortunately it wasn’t, leaving Arlington v. FCC to be just another nerdy exercise for jurisprudential geeks. Fortunately for me, Justice Scalia wrote the opinion which made it easier for me to read given his clarity and ability to get to the point, something I’ve always admired about him.

About Alton Drew

Alton Drew brings a straight forward and insightful brand of political market intelligence. Alton Drew graduated from the Florida State University with a Bachelor of Science in economics and political science (1984); a Master of Public Administration (1993); and a Juris Doctor (1999). You can also follow Alton Drew on Twitter @altondrew.
This entry was posted in commerce, Federal Communications Commission, regulation, wireless and tagged , , , . Bookmark the permalink.

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