New Cingular Wireless PCS, LLC v. Stoddard, Town of, et al

Filing 66

ORDER re 44 Motion for Summary Judgment and 47 Motion for Summary. Parties to respond as outlined by October 12, 2012. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
New Cingular Wireless PCS, LLC
v.

Civil No. 11-cv-388-JL

Town of Stoddard, New
Hampshire, and Zoning Board of
Adjustment of the Town of
Stoddard, New Hampshire
O R D E R
At issue in this case is whether the Town of Stoddard’s
zoning board of adjustment, in granting rehearing of its decision
to approve plaintiff New Cingular Wireless PCS, LLC’s application
to construct a wireless telecommunications facility, violated
§ 704(a) of the Telecommunications Act of 1996 by failing to act
on the application “within a reasonable period of time.”
U.S.C. § 332(c)(7)(B)(ii).

47

Central to that question is the so-

called “Shot Clock Ruling,” in which the Federal Communications
Commission (“FCC”) adopted guidelines requiring local governments
to act on siting applications like New Cingular’s within 150 days
and pronounced that a failure to act within this time was
presumptively unreasonable under § 704(a).

See In the Matter of

Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B) to Ensure Timely Siting Review, 24 F.C.C.R. 13994
(FCC 2009).

New Cingular’s complaint, and the parties’ memoranda

in support of their respective motions for summary judgment,
assume that the Shot Clock Ruling governs this case.

As this court noted in its order on the defendants’ motion
to dismiss, a recent decision by the Court of Appeals for the
Fifth Circuit held that the Shot Clock Ruling was a valid
exercise of the FCC’s authority, entitled to Chevron deference.
See City of Arlington v. FCC, 668 F.3d 229, 247-61 (5th Cir.
2012) (analyzing Shot Clock Ruling pursuant to framework
established by Chevron, U.S.A, Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984)).
that decision.

The parties’ memoranda rely upon

On Friday, however, the Supreme Court granted

certiorari in City of Arlington, see 568 U.S. —, 2012 WL 4748083
(Oct. 5, 2012), and its decision may ultimately render the Shot
Clock Ruling invalid.
Because the parties have proceeded upon the assumption that
the Shot Clock Ruling is valid and applicable here, the court is
prepared to address the pending motions for summary judgment
notwithstanding this recent development.

If any party desires

some relief as a result of the Supreme Court’s grant of
certiorari, or an alternative approach, it shall contact the
Deputy Clerk no later than the close of business on Friday,
October 12, 2012, to schedule a conference call with the court.
Silence will be construed as implicit assent to the court’s
resolution of the summary judgment motions within the guidelines
set forth in the Shot Clock Ruling.

2

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated: October 9, 2012
cc:

Melissa C. Allison, Esq.
Anne Robbins, Esq.
Stephen D. Anderson, Esq.
Jeffrey C. Spear, Esq.
John J. Cucchi (pro se)
Anne F. Cucchi (pro se)

3