Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Brief for AT&T, City of Arlington, Nos. 11-1545 & 11-1547 (Sup. Ct.)

Download Options

Released: December 21, 2012
Nos. 11-1545 & 11-1547


IN THE
Supreme Court of the United States
__________

CITY OF ARLINGTON, TEXAS, ET AL.,

AND

CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
Petitioners,
v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Respondents.
__________

On Writs of Certiorari

to the United States Court of Appeals
for the Fifth Circuit
__________

BRIEF OF AT&T SERVICES INC. AND

UNITED STATES TELECOM ASSOCIATION

AS AMICI CURIAE

IN SUPPORT OF AFFIRMANCE

__________

D. WAYNE WATTS
MICHAEL K. KELLOGG
PEGGY GARBER
GREGORY G. RAPAWY
GARY L. PHILLIPS
Counsel of Record
AT&T SERVICES INC.
KELLOGG, HUBER, HANSEN,
1120 20th Street, N.W.
TODD, EVANS & FIGEL,
Suite 1000
P.L.L.C.
Washington, D.C. 20036
1615 M Street, N.W.
(202) 457-3053
Suite 400

Washington, D.C. 20036
JONATHAN B. BANKS
(202) 326-7900
UNITED STATES TELECOM
(grapawy@khhte.com)
ASSOCIATION

607 14th Street, N.W.

Suite 400

Washington, D.C. 20005

(202) 326-7300
December 19, 2012


TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY ......................... 2
ARGUMENT ............................................................... 6
I. THERE IS A FEASIBLE DISTINC-
TION BETWEEN JURISDICTIONAL
AND NONJURISDICTIONAL QUES-
TIONS FOR CHEVRON PURPOSES ............. 6
A. This Court Has Distinguished Juris-
dictional from Nonjurisdictional Ques-
tions in Mead and Other Cases .................. 9
B. Telecommunications Law Has Long
Recognized the Distinction Between
Jurisdictional and Nonjurisdictional
Questions .................................................. 13
1. This Court Has Treated the Com-
mission’s Jurisdiction as a Distinct
Legal Issue ........................................... 13
2. The Commission Also Treats Its
Own Jurisdiction as a Distinct
Legal Issue ........................................... 16
3. This Case Illustrates the Feasi-
bility of Distinguishing Juris-
dictional from Nonjurisdictional
Questions ............................................. 19
C. Any Line-Drawing Difficulty Does
Not Justify Chevron Deference for
Agency Determinations of Jurisdic-
tion ............................................................. 20

ii
II. THE COMMISSION HAS CLEAR
JURISDICTION TO INTERPRET AND
ENFORCE § 332(c)(7)(B)(i) AND (ii) ............. 23
A. Section 201(b) Gives the Commission
Jurisdiction To Enforce § 332(c)(7) as
Part of the Communications Act .............. 25
B. None of Petitioners’ Arguments
Creates Ambiguity About the Appli-
cation of § 201(b) ....................................... 27
1.
Neither § 332(c)(7)(A) nor
§ 332(c)(7)(B)(v) Withdraws Juris-
diction from the Commission .............. 27
2. Principles of Federalism Do Not
Restrict the Commission’s Juris-
diction over Substantive Provi-
sions of the Communications Act ....... 31
CONCLUSION .......................................................... 33





iii

TABLE OF AUTHORITIES

Page
CASES
Adams Fruit Co. v. Barrett, 494 U.S. 638
(1990) ................................................................... 21
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366
(1999) ......................................... 3, 6, 15, 16, 24, 25,
26, 27, 28, 29, 30, 31, 32
Barnhart v. Walton, 535 U.S. 212 (2002) ............22, 23
Bowen v. Georgetown Univ. Hosp.
, 488 U.S.
204 (1988) ............................................................ 21
Cellco P’ship v. FCC, Nos. 11-1135 & 11-1136,
2012 WL 6013416 (D.C. Cir. Dec. 4, 2012) ......... 18
Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)................ passim
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir.
2010) ................................................................18, 27
Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986) ........................................... 7, 8
FCC v. Midwest Video Corp., 440 U.S. 689
(1979) ................................................................... 14
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ................................................ 22
Gonzales v. Oregon, 546 U.S. 243 (2006) .............5, 10,
11, 12, 22
Household Credit Servs., Inc. v. Pfennig,
541 U.S. 232 (2004) ............................................. 12
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) ............................................... 9

iv
Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S.
355 (1986) .......................................... 15, 26, 27, 28
Mayo Found. for Med. Educ. & Research v.
United States, 131 S. Ct. 704 (2011) ..............11, 12
Milner v. Department of Navy, 131 S. Ct. 1259
(2011) ................................................................... 29
Mississippi Power & Light Co. v. Mississippi
ex rel. Moore, 487 U.S. 354 (1988) ..................... 4, 7
National Broad. Co. v. United States, 319 U.S.
190 (1943) ............................................................ 13
National Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005) ................... 12
Russello v. United States, 464 U.S. 16 (1983) .......... 28
Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83 (1998) ................................................................ 7
United States v. Mead Corp., 533 U.S. 218
(2001) ............................................................. 3, 4, 8,
9, 11, 21, 33
United States v. Midwest Video Corp., 406 U.S.
649 (1972) ............................................................ 14
United States v. Southwestern Cable Co.,
392 U.S. 157 (1968) ........................................13, 14
United States v. Tinklenberg, 131 S. Ct. 2007
(2011) ................................................................... 24
Verizon Communications Inc. v. FCC, 535 U.S.
467 (2002) ............................................................ 16


v
ADMINISTRATIVE DECISIONS
First Report and Order, Review of the Com-
mission’s Program Access Rules and Exam-
ination of Programming Tying Arrange-
ments, 25 FCC Rcd 746 (2010), petitions for
review granted in part and denied in part,
vacated and remanded in part, Cablevision
Sys. Corp. v. FCC, 649 F.3d 695 (D.C. Cir.
2011) ................................................................ 18-19
First Report and Order and Notice of Proposed
Rulemaking, IP-Enabled Services, 20 FCC
Rcd 10245 (2005), petition for review denied,
Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir.
2006) ..................................................................... 17
Memorandum Opinion and Order, AT&T Co.,
23 FCC 689 (1957) ............................................... 18
Memorandum Opinion and Order, General
Communication, Inc. v. Alaska Communi-
cations Sys. Holdings, Inc., 16 FCC Rcd
2834 (2001), petition for review granted
in part and denied in part, vacated and
remanded in part, ACS of Anchorage, Inc.
v. FCC, 290 F.3d 403 (D.C. Cir. 2002) ........... 16-17
Report and Order and Further Notice of
Inquiry, Implementation of Sections 255
and 251(a)(2) of the Communications Act of
1934, as Enacted by the Telecommunica-
tions Act of 1996, 16 FCC Rcd 6417 (1999) ......... 17
Report and Order and Further Notice of
Proposed Rulemaking, Exclusive Service
Contracts for Provision of Video Services in
Multiple Dwelling Units and Other Real
Estate Developments, 22 FCC Rcd 20235
(2007), petitions for review denied, National
Cable & Telecomms. Ass’n v. FCC, 567 F.3d
659 (D.C. Cir. 2009) ............................................. 17

vi
Report and Order and Further Notice of
Proposed Rulemaking, Implementation of
Section 621(a)(1) of the Cable Communica-

tions Policy Act of 1984 as amended by the
Cable Television Consumer Protection and

Competition Act of 1992, 22 FCC Rcd 5101
(2007), petitions for review denied, Alliance
for Cmty. Media v. FCC, 529 F.3d 763 (6th
Cir. 2008) ............................................................. 19



CONSTITUTION, STATUTES, AND RULES
U.S. Const. art. III .................................................... 30
Act of May 31, 1938, ch. 296, 52 Stat. 588 ............... 25
Administrative Procedure Act, 5 U.S.C. § 701
et seq. ................................................................... 20
Cable Communications Policy Act of 1984,
Pub. L. No. 98-549, 98 Stat. 2779 ....................... 14
Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-
385, 106 Stat. 1460 .............................................. 14
Communications Act of 1934, 47 U.S.C. § 151
et seq. ............................................................ passim

47 U.S.C. § 151 (§ 1) .......................................25, 26

47 U.S.C. § 152(b) (§ 2(b)) ........................ 26, 28, 29

47 U.S.C. § 154(i) (§ 4(i)) ................................25, 26

47 U.S.C. § 201(b) ................... 12, 24, 25, 26, 27, 32
47
U.S.C. § 251 .................................................... 26
47
U.S.C. § 252 .................................................... 26
47
U.S.C.
§ 303(i) ................................................. 13

vii
47
U.S.C.
§
303(r) ...........................................25, 26
47
U.S.C.
§
332 note ............................................ 26

47 U.S.C. § 332(c)(7) ....................... 8, 25, 27, 28, 29
47
U.S.C.
§
332(c)(7)(A) ...................... 27, 28, 29, 30
47
U.S.C.
§
332(c)(7)(B) ....................... 8, 20, 24, 26,
28, 29, 30, 33

47 U.S.C. § 332(c)(7)(B)(i) ................. 5, 6, 23, 24, 27

47 U.S.C. § 332(c)(7)(B)(i)(II) .........................19, 26

47 U.S.C. § 332(c)(7)(B)(ii) .................... 5, 6, 19, 20,
23, 24, 26, 27
47
U.S.C.
§
332(c)(7)(B)(v) ........................ 27, 29, 30
Controlled Substances Act, 21 U.S.C. § 801
et seq. ..............................................................10, 11

21 U.S.C. § 830(b)(3)(A)(ii) .................................. 10
Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 ................ 2, 15, 24, 26, 29, 32

§ 704(a), 110 Stat. 151-52 .................................... 26
Truth in Lending Act, 15 U.S.C. § 1601 et seq. ........ 12

15 U.S.C. § 1604(a) ................................................ 12
26 U.S.C. § 7805(a) ................................................... 11
Sup. Ct. R. 37.6 ........................................................... 1



OTHER MATERIALS
Stephen Breyer, Judicial Review of Questions
of Law and Policy, 38 Admin. L. Rev. 363
(1986) ................................................................... 23

viii
William N. Eskridge, Jr. & Lauren E. Baer,
The Continuum of Deference: Supreme
Court Treatment of Agency Statutory Inter-

pretations from Chevron to Hamdan, 96
Geo. L.J. 1083 (2008) ......................................10, 23
Elena Kagan, Presidential Administration,
114 Harv. L. Rev. 2245 (2001) ............................ 21



INTEREST OF AMICI CURIAE

1
AT&T has an interest in this case for two reasons.
First, AT&T’s subsidiaries provide a broad range of
telecommunications and information services, includ-
ing voice, Internet, and video programming services.
Accordingly, the extent to which particular services
are within the regulatory jurisdiction of the Federal
Communications Commission (“FCC” or “Commis-
sion”) is an important issue to AT&T, as it is to the
industry generally. AT&T believes that independent
judicial review of the Commission’s attempts to assert
jurisdiction over new technologies and new services
is vital, and therefore urges this Court to hold that
Chevron deference does not apply to statutory inter-
pretations that the Commission adopts in determin-
ing the extent of its own jurisdiction.
Second, because some of AT&T’s subsidiaries
provide wireless service, AT&T also has a particular
interest in the FCC order under review. AT&T
participated in the proceedings before the FCC and

1 Pursuant to Supreme Court Rule 37.6, counsel for amici
represent that they authored this brief in its entirety and that
(except as follows) none of the parties or their counsel, nor any
other person or entity other than amici, their counsel, or their
members, made a monetary contribution intended to fund the
preparation or submission of this brief. Certain counsel for
amici also serve as counsel for respondent CTIA—The Wireless
Association and participated in (among other work for CTIA on
this case) the preparation of the joint brief in opposition to cer-
tiorari of CTIA and respondent Cellco Partnership d/b/a Verizon
Wireless (“Verizon”). CTIA has not filed a brief at the merits
stage of this case. After CTIA determined that it would not file
a merits brief, counsel were retained to prepare this amicus brief
for AT&T and the United States Telecom Association. Petition-
ers and respondents have consented to the filing of this brief,
and letters granting their blanket consent to the filing of amicus
briefs are on file with the Clerk.

2
submitted information showing that local zoning
authorities around the country were unreasonably
delaying action on wireless facility siting requests.
However the Court may rule on the question pre-
sented, AT&T urges the Court to uphold the Com-
mission’s order on the ground that the Commission
clearly did have jurisdiction to interpret and enforce
the local zoning provisions of the Telecommunica-
tions Act of 1996.
The United States Telecom Association
(“USTelecom”) is the premier trade association
representing service providers and suppliers for the
telecommunications industry. USTelecom’s member
companies offer a wide range of services across
communications platforms, including voice, video and
data over local exchange, long distance, wireless,
Internet, and cable. They range from large, publicly
traded companies to small rural cooperatives,
spanning all seven continents and more than 225
countries. Collectively, they represent hundreds
of billions of dollars in investment, have annual
revenues in the tens of billions of dollars, and employ
millions of workers.

INTRODUCTION AND SUMMARY

AT&T and USTelecom support the position of
respondent Verizon: this Court should hold that
Chevron2 deference does not apply to an agency’s
interpretation of its own statutory jurisdiction, but
should nevertheless affirm the judgment of the court
of appeals on the alternative ground that the Federal
Communications Commission (“FCC” or “Commission”)
had clear, unambiguous jurisdiction to issue the order
under review based on the text of the Communica-

2 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).

3
tions Act of 1934 (“Communications Act” or “Act”) and
on this Court’s decision interpreting that Act in
AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366
(1999).
Verizon and other parties and amici in this case
have ably set forth reasons that the structure of the
Chevron doctrine and underlying principles of the
separation of powers require independent judicial
review when agencies interpret statutes to resolve
questions about their own jurisdiction – and, in
particular, whether Congress has authorized them to
speak with the force of law on particular topics.
Thus, for example, Verizon and others persuasively
rely on the rule of United States v. Mead Corp., 533
U.S. 218 (2001), under which the question whether
an agency can speak with the force of law precedes
(rather than follows) the question whether its pro-
nouncements should receive Chevron deference. See
Verizon Br. 12-14; see also Arlington Br. 18-24;
Int’l Municipal Lawyers Ass’n et al. Br. 22-26
(“IMLA Br.”). As Verizon points out, agencies have
no authority except that which Congress grants them.
Thus, while agencies enjoy some judicial deference
when filling in the details of a statutory scheme that
Congress has charged them with administering, the
Chevron doctrine necessarily “rests on the fundamen-
tal assumption that Congress has delegated to the
agency policymaking authority over the particular
matter at issue.” Verizon Br. 12.
Further, Verizon and others argue forcefully that
independent judicial review of agencies’ jurisdictional
determinations is necessary to protect important
separation-of-powers principles by ensuring that
those unelected agencies exercise only jurisdiction
that Congress actually meant to grant them – as

4
opposed to jurisdiction that Congress might have
intended to grant and did not clearly withhold. See
id. at 17-24; see also IMLA Br. 27-32. Independent
review is also necessary to provide an adequate check
on agencies that attempt to expand their jurisdiction
beyond the boundaries that Congress intended. See,
e.g., American Farm Bureau et al. Br. 10-26 (“AFB
Br.”) (collecting examples of “agency aggrandize-
ment”). AT&T and USTelecom fully endorse these
arguments.

I.

This brief primarily addresses a countervailing
argument that is based not on core principle, but on a
more practical concern – specifically, the concern
that it is impossible to draw a workable line between
questions about agency jurisdiction and other ques-
tions about whether an agency’s actions are con-
sistent with nonjurisdictional statutory mandates.
This argument is usually traced to Justice Scalia’s
concurrence in the judgment in Mississippi Power &
Light Co. v. Mississippi ex rel. Moore
, 487 U.S. 354
(1988), which contended that “there is no discernible
line between an agency’s exceeding its authority
and an agency’s exceeding authorized application of
its authority.” Id. at 381 (Scalia, J., concurring in
the judgment). AT&T and USTelecom respectfully
contend that this line can be drawn: this Court has
frequently distinguished between jurisdictional and
nonjurisdictional questions in administrative law
generally and in telecommunications law specifically.

A.

In administrative law generally, the question
whether an agency is authorized to speak with the
force of law on a particular subject matter has
become very important in this Court’s Chevron cases
since Mead. Nothing in the Court’s experience since
that time suggests that an agency’s jurisdiction

5
(or lack thereof) is inextricably entangled with the
substantive merits of its pronouncements. On the
contrary, in Gonzales v. Oregon, 546 U.S. 243
(2006), and other cases, this Court has distinguished
between these different issues without difficulty.

B.

In telecommunications law specifically, this
Court has frequently distinguished questions that
relate to the scope of the Commission’s jurisdiction
under the Communications Act from those that
relate to how the Commission exercises that jurisdic-
tion. Further, the Commission itself has maintained
the distinction between jurisdictional and non-
jurisdictional issues in its own decisionmaking,
showing that this distinction is useful analytically
even apart from its significance for judicial review.
This case is a further illustration. Petitioners have
contended that the Commission lacks jurisdiction
to interpret and enforce the federal restrictions on
local zoning authority contained in 47 U.S.C.
§ 332(c)(7)(B)(i) and (ii), which prevent local authori-
ties from using that authority to impede the site-by-
site construction of a nationwide, seamless, competi-
tive wireless network. In their view, the Commission
has nothing (or at least nothing binding) to say about
these provisions, because Congress instead intended
them to be interpreted exclusively by the courts.
Congress certainly could have limited the Commis-
sion’s authority as petitioners suggest – though their
evidence that it actually did so is lacking. Such a
limitation (if it existed) would be a jurisdictional one,
so petitioners are entitled to independent judicial
review of their contentions.

C.

Although some hard cases will raise jurisdic-
tional issues that are more difficult to distinguish
from the merits of agency action, that is not a reason

6
to abandon the distinction entirely. The need for an
effective judicial check on expansions of administra-
tive jurisdiction is too great. Instead, this Court
should give the lower courts guidance for resolving
close cases based on the principles underlying
Chevron deference. Of these, the most important is
whether the agency is seeking a major expansion of
its mandate that Congress would not likely have con-
ferred through ambiguity or silence; or, on the other
hand, whether the issue at stake is a smaller, inter-
stitial one that Congress might so have delegated.

II.

Regardless of this Court’s answer to the
question presented, it should affirm the judgment
below on the alternative ground that the Commission
clearly had jurisdiction to interpret and enforce
§ 332(c)(7)(B)(i) and (ii). This alternative ground for
affirmance was properly preserved by private respon-
dents CTIA—The Wireless Association (“CTIA”) and
Verizon in opposing certiorari; it follows clearly from
the text of the Communications Act and from Iowa
Utilities Board
; and it is important enough to war-
rant this Court’s attention in a case that has already
received plenary briefing and argument.

ARGUMENT

I. THERE IS A FEASIBLE DISTINCTION

BETWEEN JURISDICTIONAL AND NON-
JURISDICTIONAL QUESTIONS FOR

CHEVRON

PURPOSES

Petitioners and respondent Verizon have made a
strong case in favor of denying Chevron deference
to questions of statutory construction concerning
the scope of an agency’s jurisdiction. This brief
addresses a particular counter-argument: the idea
that, whether or not it might be desirable in principle
to distinguish between those jurisdictional and non-

7
jurisdictional issues for Chevron purposes, it is not
feasible to do so in practice. The leading authority
for this argument is Justice Scalia’s concurrence in
the judgment in Mississippi Power & Light Co. v.
Mississippi ex rel. Moore
, 487 U.S. 354 (1988), which
contended that “giving deference to an administra-
tive interpretation of [agency] statutory jurisdiction
or authority is . . . necessary” because
there is no discernible line between an agency’s
exceeding its authority and an agency’s exceed-
ing authorized application of its authority.
To exceed authorized application is to exceed
authority. Virtually any administrative action
can be characterized as either the one or the
other, depending upon how generally one wishes
to describe the “authority.”
Id. at 381 (Scalia, J., concurring in the judgment).
AT&T and USTelecom respectfully contend that,
on the contrary, a line can be drawn that separates
jurisdictional questions from nonjurisdictional ones.
In drawing that line it is important to recognize
that “[j]urisdiction,” here as elsewhere, “is a word of
many, too many, meanings.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 90 (1998) (internal quota-
tion marks omitted). Although the word “jurisdic-
tion” can be and often has been used by this Court
and others to refer to many types of limits on an
agency’s ability to act,3 this case presents a particu-

3 For example, in Commodity Futures Trading Commission v.
Schor, 478 U.S. 833 (1986), the Court deferred to the CFTC on
the question whether that agency could “exercise jurisdiction
over counterclaims arising out of the same transaction as [a] . . .
reparations dispute” under the CFTC’s statute. Id. at 845-46;
see Mississippi Power, 487 U.S. at 381 (Scalia, J., concurring
in the judgment) (citing Schor as a case in which the Court

8
lar type of question about an agency’s jurisdiction:
whether Congress has authorized an agency to speak
(by rule or by order) with the force of law as to a par-
ticular statutory provision or subject matter. In this
case, that question manifests concretely as a dispute
over whether the FCC can issue a declaratory ruling
that becomes binding in subsequent litigation under
47 U.S.C. § 332(c)(7) in the district courts. See, e.g.,
Arlington Br. 13 (identifying this case as a “challenge
[to] the validity of rules promulgated by the FCC
that purport to adopt binding interpretations of Sec-
tion 332(c)(7)”).
Practice and precedent show that this Court can
and does distinguish at least this type of jurisdic-
tional dispute (that is, a dispute about agency au-
thority to speak with the force of law on a given sub-
ject matter) from disputes about the merits of a par-
ticular action that the agency has taken. Similarly,
in telecommunications law (including many cases
that precede Chevron and United States v. Mead
Corp.
, 533 U.S. 218 (2001)), both this Court and the
FCC itself have long analyzed the existence and
extent of the Commission’s jurisdiction separately
from the merits of its actions. This case itself is an
example: petitioners’ arguments that the Commission
lacks authority to interpret and enforce § 332(c)(7)(B)
are unmistakably jurisdictional arguments (though
not in our view strong ones). There will of course be
harder cases than this one. But the mere possibility
of hard cases should not persuade this Court to

deferred to “an agency’s interpretation of its own statutory
authority or jurisdiction”). The counterclaims in Schor arose
under state common law. See 478 U.S. at 837-39. The adjudi-
catory jurisdiction that the CFTC sought to exercise over them
was thus far removed from the jurisdiction that the FCC has
asserted here to interpret and enforce the Communications Act.

9
abandon the distinction between jurisdictional and
nonjurisdictional issues, because – as Verizon and
others have persuasively argued – that distinction
is grounded in the separation of powers and other
important concerns.

A. This Court Has Distinguished Jurisdic-

tional from Nonjurisdictional Questions in

Mead

and Other Cases
This Court has drawn the necessary distinction
between jurisdictional and substantive review of
administrative action in cases applying Mead. Under
that case, the question whether a statutory inter-
pretation put forward in the course of agency action
warrants deference under Chevron itself turns on
whether Congress has “expressly delegated authority
or responsibility to implement a particular provision
or fill a particular gap,” or whether it is otherwise
“apparent from the agency’s generally conferred
authority and other statutory circumstances that
Congress would expect the agency to be able to speak
with the force of law when it addresses ambiguity
in the statute or fills a space in the enacted law.”
Mead, 533 U.S. at 229-30.4 As several parties have
observed, Mead implies that a reviewing court must
determine without deference whether Congress has
given an agency the authority to speak with the force
of law on a particular subject, because the court
must make that initial determination before it knows

4 See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158,
173-74 (2007) (listing whether an agency “rule falls within the
statutory grant of authority” as one of the factors to be consid-
ered in determining whether “Congress intended [a court] to
defer to the agency’s determination”).

10
whether deference is due. See Verizon Br. 12-14; see
also
Arlington Br. 18-24; IMLA Br. 22-26.5
The Court has applied this standard in later cases
without apparent difficulty – including in one case,
Gonzales v. Oregon, 546 U.S. 243 (2006), that called
for fine distinctions about the scope of administra-
tive jurisdiction. In Gonzales, this Court confronted
the question whether the Attorney General should
receive Chevron deference for an interpretive rule
that had found that prescriptions of medications for
assisted suicide were not for a “‘legitimate medical
purpose’” within the meaning of the Controlled Sub-
stances Act (“CSA”). Id. at 258 (quoting 21 U.S.C.
§ 830(b)(3)(A)(ii)). The Court opened the section of
its opinion dealing with Chevron by observing that
the phrase “legitimate medical purpose” itself is
“susceptible to more precise definition and open to
varying constructions,” id.; thus, it is the kind of am-
biguous provision to which Chevron deference could
have applied if the Attorney General had been acting
“pursuant to authority Congress has delegated.” Id.
But the Court nevertheless did not defer, because
it found that “the CSA does not give the Attorney
General authority to issue the Interpretive Rule as
a statement with the force of law.” Id. at 268. In
reaching this conclusion, it employed the traditional
tools of statutory construction, considering matters

5 See also William N. Eskridge, Jr. & Lauren E. Baer, The
Continuum of Deference: Supreme Court Treatment of Agency
Statutory Interpretations from
Chevron to Hamdan, 96 Geo. L.J.
1083, 1130 (2008) (“Eskridge & Baer”) (observing that, in light
of “Mead ’s holding that Chevron rests upon Congress’s delega-
tion of lawmaking authority to the agency[,] . . . one would
expect the Court to take care that there actually has been such
a delegation”) (emphasis omitted).

11
including the “language of the delegation provision
itself,” which granted the Attorney General only
“limited powers,” id. at 258-59; the “anomalous”
nature of the Attorney General’s assertion that the
statute gave him the power to “criminalize . . . the
actions of registered physicians, whenever they
engage in conduct he deems illegitimate,” id. at
262; and the “design of the statute” as a whole and
its “allocat[ion] [of] decisionmaking powers among
statutory actors,” including the Secretary of Health
and Human Services, id. at 265. As Arlington notes
(at 22-23), nothing in Gonzales suggests that the
Court deferred to the Attorney General concerning the
limits of his authority under the CSA. Nor is there
any suggestion that the Gonzales Court had difficulty
drawing a line between the question whether “the
CSA . . . g[a]ve the Attorney General authority to
issue the Interpretive Rule as a statement with the
force of law” and the question whether “his substan-
tive interpretation is correct.” 546 U.S. at 268; see
id. (stating that the latter question “remain[ed]” to
be answered after the former was resolved).
In other post-Mead cases, the Court likewise
considered whether the agency was authorized to
speak with the force of law as to the meaning of the
statutory provision at issue before applying Chevron
deference to the agency’s interpretation of that statute.
Thus, in Mayo Foundation for Medical Education
& Research v. United States
, 131 S. Ct. 704 (2011),
the Court applied Chevron deference to a Treasury
Department rule but only after finding clear jurisdic-
tion from the “explicit authorization” given the Trea-
sury Department “to ‘prescribe all needful rules and
regulations for the enforcement’ of the Internal Rev-
enue Code.” Id. at 714 (quoting 26 U.S.C. § 7805(a)).

12
In National Cable & Telecommunications Ass’n v.
Brand X Internet Services
, 545 U.S. 967 (2005), the
Court treated the FCC’s authority under § 201(b), the
same provision at issue in this case, as a necessary
predicate for applying Chevron deference to the
FCC’s regulation in that case. See id. at 980-81. And
in Household Credit Services, Inc. v. Pfennig, 541
U.S. 232 (2004), the Court applied Chevron deference
after finding clear jurisdiction of the Federal Reserve
Board to promulgate certain regulations as (among
other things) “‘necessary or proper to effectuate the
purposes of’” the Truth in Lending Act. Id. at 238
(quoting 15 U.S.C. § 1604(a)).
To be sure, the agency-jurisdictional questions in
Mayo Foundation, Brand X, and Household Credit
were not difficult ones: unlike Gonzales, those cases
did not feature dissents on the jurisdictional issues,
and indeed this Court noted in two instances that the
jurisdiction of the relevant agency was not even in
dispute. See Brand X, 545 U.S. at 981; Household
Credit
, 541 U.S. at 238. But that does not under-
mine the ability of those cases to show that a work-
able distinction between jurisdictional and nonjuris-
dictional arguments can be drawn for purposes of
Chevron deference. On the contrary, the fact that
there were no contested questions of agency jurisdic-
tion in those cases – where there were parties with
an obvious interest in raising any such arguments
that were available – only strengthens the inference
that the line was a clear one.

13

B. Telecommunications Law Has Long Rec-

ognized the Distinction Between Jurisdic-
tional and Nonjurisdictional Questions
1. This Court Has Treated the Commis-

sion’s Jurisdiction as a Distinct Legal

Issue

In telecommunications law in particular, this Court
has spent much time and effort on determining the
extent of the FCC’s jurisdiction over particular types
of communications and other activities, in cases that
distinguished the agency’s jurisdiction from the sub-
stance of any particular action that the agency might
take. National Broadcasting Co. v. United States,
319 U.S. 190 (1943), was one of this Court’s first
major cases interpreting the Communications Act,
and it concerns almost entirely whether the Commis-
sion’s “authority to make special regulations applica-
ble to radio stations engaged in chain broadcasting,”
47 U.S.C. § 303(i), among other provisions, applied
merely to “technical and engineering impediments”
that might arise from chain broadcasting, or whether
it also had “power to deal with network practices
found inimical to the public interest.” 319 U.S. at
217-19. The Court addressed this basic question of
authority separately from “the claim that the Com-
mission’s exercise of such authority was unlawful.”
Id. at 224.
Later cases have continued to treat the extent of
the Commission’s jurisdiction as a threshold question
to be addressed separately – often in separate cases –
from the substantive merits of a particular action
within that jurisdiction. In United States v. South-
western Cable Co., 392 U.S. 157 (1968), the Court
considered whether the Commission had jurisdiction

14
to regulate cable television6 and concluded that it
did. In reaching that conclusion, the Court distin-
guished the question “whether the Commission has
authority under the Communications Act to regulate
[cable] systems” from any “questions as to the valid-
ity of the specific rules promulgated by the Commis-
sion for the regulation of [cable].” Id. at 167; see id.
(“emphasiz[ing]” that the latter questions were “not
. . . before the Court”).7 It held that the Commission
had authority to regulate cable so long as its regu-
lations were “reasonably ancillary to the effective
performance of [its] various responsibilities for the
regulation of television broadcasting,” id. at 178, and
left elaboration of that standard to later cases.8

6 Congress later granted the Commission express regulatory
jurisdiction over certain aspects of cable television in the Cable
Communications Policy Act of 1984, Pub. L. No. 98-549, 98
Stat. 2779, and the Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460.
Southwestern Cable concerned the Commission’s jurisdiction
prior to those amendments.
7 Southwestern Cable also considered a separate question of
the Commission’s “authority under the Communications Act,”
namely, whether the Commission could “issue the particular
prohibitory order in question.” 392 U.S. at 178. Although it
called this a question of “authority,” the Court was not address-
ing the type of jurisdiction at issue in this case. All that was at
stake was whether the Commission had been required to hold a
hearing. See id. at 179-80; see also supra pp. 7-8 & n.3.
8 The Court returned to the question of the FCC’s pre-1984
authority to regulate cable television in the Midwest Video
cases. See United States v. Midwest Video Corp., 406 U.S. 649,
670 (1972) (plurality opinion) (upholding as “within the Com-
mission’s authority recognized in Southwestern [Cable] ” FCC
regulations requiring cable companies to originate their own
programming); FCC v. Midwest Video Corp., 440 U.S. 689, 707-
08 (1979) (striking down rules requiring cable companies to
carry public access programming as outside that authority).

15
In Louisiana Public Service Commission v. FCC,
476 U.S. 355 (1986) (“Louisiana PSC”), the Court
held that the Commission lacked jurisdiction to regu-
late the way in which telecommunications carriers
depreciated telephone plant and equipment insofar
as it was used to provide intrastate services. The
Louisiana PSC Court observed that this jurisdictional
decision had nothing to do with “the wisdom of the
asserted federal policy of encouraging competition
within the telecommunications industry,” or even
“whether the FCC should have the authority to
enforce, as it sees fit, practices which it believes would
best effectuate this purpose.” Id. at 359. Instead,
the Court focused exclusively on determining “where
Congress has placed the responsibility for prescribing
depreciation methods to be used by state commissions
in setting rates for intrastate telephone service.” Id.
After concluding that this responsibility belonged to
the states, the Court went no further.
Perhaps more than any other case, AT&T Corp. v.
Iowa Utilities Board, 525 U.S. 366 (1999) (which also
controls the particular issue of jurisdiction at stake
in this case, see infra Part II), illustrates the feasibil-
ity of distinguishing the Commission’s jurisdiction to
regulate a particular area and other questions about
its compliance with substantive statutory restrictions
and mandates. In that case, the Court upheld
against a “jurisdictional” challenge, 525 U.S. at 374,
the FCC’s rules requiring that prices for the inter-
connection and unbundling that incumbent carriers
must offer to their competitors under the Telecom-
munications Act of 1996 (“1996 Act”) be set according
to “Total Element Long Run Incremental Cost,” or
“TELRIC.” See id. at 377-86. The Court made clear
that it was deciding only the question whether the

16
Commission had the authority to set some pricing
methodology and that “the merits of TELRIC [were]
not before” the Court at the time. Id. at 374 n.3. The
Court indeed did not reach those merits until several
years later. See Verizon Communications Inc. v.
FCC, 535 U.S. 467, 493 (2002) (“In [Iowa Utilities
Board
], this Court upheld the FCC’s jurisdiction
to impose a new methodology on the States when
setting [1996 Act] rates. The attack today is on the
legality and logic of the particular methodology the
Commission chose.”).
In sum, judicial review of FCC actions has
routinely required this Court to distinguish between
questions concerning the subjects over which the
Commission may properly exercise jurisdiction and
questions concerning the “legality and logic,” id.,
of such an exercise. These questions can be and
are appealed separately, analyzed separately, and
decided differently with respect to an individual rule
or order. There is no reason to think that this exist-
ing distinction will cease to be workable if this Court
holds that the Commission should not receive Chev-
ron deference in cases of the former kind.
2. The Commission Also Treats Its Own

Jurisdiction as a Distinct Legal Issue

The Commission’s own decisions frequently draw
the same distinction between the agency’s jurisdic-
tion and the statutory viability of decisions it makes
in exercising that jurisdiction.9 Often, the Commis-

9 Indeed, the Commission has expressly distinguished “a
challenge to the Commission’s ultimate ‘jurisdiction’ or author-
ity over [certain] traffic under section 2 of the [Communications]
Act” from “a challenge to the manner in which the Commission
exercised its jurisdiction over [that] traffic in the circumstances
presented.” Memorandum Opinion and Order, General Commu-

17
sion has framed the jurisdictional inquiry in the
specific language of whether its “subject matter juris-
diction” extends to a particular area of conduct, such
as services that use Internet Protocol to carry voice
messages and are interconnected with the public
switched telephone network;10 voicemail and inter-
active phone menu services;11 and the practice by
incumbent cable operators of entering into exclusive
arrangements with the owners of large residential
buildings to provide video programming to the resi-
dents of those buildings.12 Nor is this approach new:

nication, Inc. v. Alaska Communications Sys. Holdings, Inc.,
16 FCC Rcd 2834, ¶ 28 (2001) (correcting a party for failing to
observe this distinction in its arguments), petition for review
granted in part and denied in part, vacated and remanded in
part on other grounds, ACS of Anchorage, Inc. v. FCC
, 290 F.3d
403 (D.C. Cir. 2002).
10 See First Report and Order and Notice of Proposed Rule-
making, IP-Enabled Services, 20 FCC Rcd 10245, ¶ 28 (2005)
(finding that “these services come within the scope of the Com-
mission’s subject matter jurisdiction granted in section 2(a) of
the [Communications] Act”), petition for review denied, Nuvio
Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006).
11 See Report and Order and Further Notice of Inquiry,
Implementation of Sections 255 and 251(a)(2) of the Communi-
cations Act of 1934, as Enacted by the Telecommunications Act

of 1996, 16 FCC Rcd 6417, ¶ 95 (1999) (asserting “subject mat-
ter jurisdiction over . . . voicemail and interactive menus”).
12 See Report and Order and Further Notice of Proposed
Rulemaking, Exclusive Service Contracts for Provision of Video
Services in Multiple Dwelling Units and Other Real Estate

Developments, 22 FCC Rcd 20235, ¶¶ 53-54 (2007) (asserting
the “subject matter jurisdiction granted in Title I” of the
Communications Act as an alternative basis for regulating
such practices), petitions for review denied, National Cable &
Telecomms. Ass’n v. FCC
, 567 F.3d 659 (D.C. Cir. 2009).

18
similar cases can be found going back decades.13
More recently, the extent of the Commission’s juris-
diction over wireless and wireline Internet services
has been hotly contested in proceedings before the
D.C. Circuit.14
Further, even in cases where the Commission
has not used explicitly jurisdictional language, it
has nevertheless observed the distinction between
its authority to issue binding rules or orders on a
particular subject and the substantive justification
for its use of that authority. Thus, the Commission
has a well-established practice of breaking out issues
of jurisdiction and rulemaking authority from the
merits of particular regulatory endeavors.15 That

13 See Memorandum Opinion and Order, AT&T Co., 23 FCC
689, ¶ 3 (1957) (noting, with regard to a proposed tariff filed by
AT&T, that “[o]nly if the question of our jurisdiction . . . is
resolved in the affirmative will it be necessary or proper for the
Commission to consider the merits of the tariff under the
standard of justness and reasonableness which is the statuto-
ry test”).
14 See Cellco P’ship v. FCC, Nos. 11-1135 & 11-1136, 2012
WL 6013416, at *1, *4-7 (D.C. Cir. Dec. 4, 2012) (designated for
publication) (upholding the FCC’s jurisdiction to regulate the
terms of “roaming agreements” between providers of mobile
wireless Internet services); Comcast Corp. v. FCC, 600 F.3d 642,
644, 651-61 (D.C. Cir. 2010) (vacating for lack of sufficient
explanation the FCC’s attempt to exercise jurisdiction of the
network management practices of Internet service providers).
15 See, e.g., First Report and Order, Review of the Commis-
sion’s Program Access Rules and Examination of Programming
Tying Arrangements, 25 FCC Rcd 746, ¶ 18 (2010) (addressing
the FCC’s “statutory authority . . . to consider complaints alleg-
ing unfair acts involving terrestrially delivered, cable-affiliated
[video] programming” before considering the rules it would ap-
ply in resolving such complaints), petitions for review granted in
part and denied in part, vacated and remanded in part on other
grounds
, Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C. Cir.

19
practice helps to show that it would be unwarranted
for this Court to accord Chevron deference to the
Commission’s conclusions about the extent of its
own jurisdiction out of a concern that no distinction
between jurisdictional and nonjurisdictional ques-
tions can be maintained. In all likelihood, the agency
itself would continue to draw the same distinctions
in its own cases, but the courts’ ability to review its
reasoning and check it when it overreaches would be
needlessly impaired.
3. This Case Illustrates the Feasibility of

Distinguishing Jurisdictional from Non-

jurisdictional Questions
Another illustration of the viable distinction
between jurisdictional and substantive questions in
review of agency action can be found in this very
case. Petitioners and their supporters have argued
persistently throughout these proceedings that Con-
gress intended the courts, and not the Commission,
to decide what types of local-government conduct
“prohibit[s] or ha[s] the effect of prohibiting the
provision of personal wireless services” within the
meaning of § 332(c)(7)(B)(i)(II), and what is a “reason-
able period of time” for a locality to consider a tower
siting application under § 332(c)(7)(B)(ii). See, e.g.,
Arlington Br. 31; CTTC Br. 21-22, 24, 35, 37. AT&T
and USTelecom agree with the Commission and with
Verizon that these statutory arguments lack force.

2011); Report and Order and Further Notice of Proposed Rule-
making, Implementation of Section 621(a)(1) of the Cable Com-
munications Policy Act of 1984 as amended by the Cable Televi-

sion Consumer Protection and Competition Act of 1992, 22 FCC
Rcd 5101, ¶ 53 (2007) (finding “that the Commission has the
authority to adopt rules to implement Title VI” of the Commu-
nications Act), petitions for review denied, Alliance for Cmty.
Media v. FCC
, 529 F.3d 763 (6th Cir. 2008).

20
See infra Part II. But, whether strong or weak, they
are jurisdictional arguments. They concern whether
the Commission has the ability to issue a rule or
order that (after judicial review under the Admin-
istrative Procedure Act is complete) will affect the
rights of carriers and localities in future proceedings
in the district courts.
By contrast, the other arguments that petitioners
have raised about the same statutory provisions
(of which this Court did not grant review) concern
matters that are clearly not jurisdictional. For
example, in opposing the Commission’s construction
of § 332(c)(7)(B)(ii), petitioners have contended that
Congress intended the standard for a “reasonable
period of time” to vary in different localities across
the country. See, e.g., Pet. App. 59a-60a. These
arguments could be made to a district court in the
first instance just as well as to the Commission.
They concern the substantive content of the statute,
rather than the identity of the administrative or
judicial actor who should interpret and enforce
those directives. Once it is determined that the
Commission has jurisdiction to interpret and enforce
§ 332(c)(7)(B), its view about what is a “reasonable
period of time” is a proper subject for Chevron defer-
ence.

C. Any Line-Drawing Difficulty Does Not Jus-

tify Chevron

Deference for Agency Deter-
minations of Jurisdiction

1. To be sure, the clarity of the line between
jurisdictional and nonjurisdictional issues in this
case does not mean that there may not be other cases
in which that line may be harder to find. Such hard
cases should be rare, and in any event there is no
reason to think that they will leave courts unable to

21
decide in a principled way whether or not Chevron
deference is appropriate. As this Court commented
in Mead, courts will be able to make “reasoned
choices between . . . examples” set by precedent, as
“courts have always done.” 533 U.S. at 237 n.18. In
any event, as Verizon and other parties have shown
in detail, and we reprise only briefly here, the rea-
sons for denying Chevron deference to agency deter-
minations of jurisdiction are sufficiently weighty to
overcome any remaining concerns about workability.
First, the “axiom[] that an administrative agency’s
power to promulgate legislative regulations is limited
to the authority delegated by Congress,” Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), is
well worth preserving and would be undermined by a
notion of deference that would grant agencies powers
that (in a court’s own best judgment) Congress in-
tended to withhold. Such deference would leave little
of the principle “that an agency may not bootstrap
itself into an area in which it has no jurisdiction,”
which this Court unanimously called “fundamental”
in Adams Fruit Co. v. Barrett, 494 U.S. 638, 650
(1990) (internal quotation marks omitted), six years
after Chevron was decided.
Second, deference to an agency’s assertion of
expanded jurisdiction lacks any basis in the theory
underlying Chevron itself. That theory is that
courts lack the institutional competence to decide “a
challenge to an agency construction of a statutory
provision [that], fairly conceptualized, really centers
on the wisdom of the agency’s policy, rather than
whether it is a reasonable choice within a gap left
open by Congress.” Chevron, 467 U.S. at 866; see
Elena Kagan, Presidential Administration, 114 Harv.
L. Rev. 2245, 2379 (2001) (suggesting that Chevron

22
“rests (in part or in whole) on notions of comparative
institutional competence and legitimacy”). An argu-
ment that an agency lacks jurisdiction over particu-
lar subject matter does not suffer from this flaw:
it amounts instead to a claim that, however wise
the policy the agency is attempting to implement,
Congress did not intend the agency to fill this gap.
Third, if agencies can freely establish jurisdiction
over new subject matter based on merely reasonable
constructions of ambiguous jurisdictional language,
they will inevitably over time seize more and more
territory for themselves. As amici American Farm
Bureau et al. have shown with numerous examples,
this is a real and not a theoretical phenomenon. See
AFB Br. 10-26.
2. In any event, this Court can and should
provide guidance that will help the lower courts to
resolve hard cases based on principles that it has
already recognized. Where a question is arguably
jurisdictional (but also arguably not), the courts
should look to other characteristics of the case before
them to determine whether applying deference would
be consistent with Congress’s (actual or presumed)
intention. The most important such characteristic
should be whether the challenged agency action is
“interstitial [in] nature,” Barnhart v. Walton, 535
U.S. 212, 222 (2002), or whether it is instead a
matter of “economic and political significance” that
Congress would not likely delegate to an agency in
a “cryptic” fashion, FDA v. Brown & Williamson
Tobacco Corp.
, 529 U.S. 120, 160 (2000); see Gonzales,
546 U.S. at 267-68 (“The importance of the issue of

23
physician-assisted suicide . . . makes the oblique form
of the claimed delegation all the more suspect.”).16
Other factors that might counsel for or against
deference in close cases may include whether the
agency possesses “related expertise,” Barnhart, 535
U.S. at 222; whether on the other hand the dispute
“concern[s] common law or constitutional law” issues,
as to which agencies lack special competence, Breyer,
38 Admin. L. Rev. at 370; and whether under the
circumstances the court is satisfied that the agency
“can be trusted to give a properly balanced answer,”
rather than “seek[ing] to expand [its] power,” id. at
371. By relying on these considerations, courts will
still be able to make appropriate choices between
deferential and independent review even in cases
(which will be few) where the line between jurisdic-
tional and nonjurisdictional issues is hard to find.

II. THE COMMISSION HAS CLEAR JURIS-

DICTION TO INTERPRET AND ENFORCE

§ 332(c)(7)(B)(i) AND (ii)
Regardless of the degree of deference due the
Commission on jurisdictional questions, the Court
should affirm the judgment of the court of appeals
because the Commission had clear jurisdiction to
issue the order under review. The Commission is
authorized to “prescribe such rules and regulations

16 See also Stephen Breyer, Judicial Review of Questions of
Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) (“Breyer”)
(“Congress is more likely to have focused upon, and answered,
major questions, while leaving interstitial matters to answer
themselves in the course of the statute’s daily administration.”);
Eskridge & Baer, 96 Geo. L.J. at 1130 (arguing that courts are
“capable of distinguishing between wholesale and retail applica-
tions of a statute,” where wholesale applications involve “new
categor[ies] of applications” and retail ones involve “matter[s] of
detail”).

24
as may be necessary in the public interest to carry
out the provisions of” the Communications Act.
47 U.S.C. § 201(b). Section 332(c)(7)(B) is such a
“provision[],” id., because Congress added it to the
Communications Act as one of the amendments made
by the 1996 Act. Section 332(c)(7)(B), moreover,
contains federal mandates that take certain aspects
of zoning decisions out of the hands of local authori-
ties. This Court confirmed in Iowa Utilities Board
that, when Congress thus “expan[ds] . . . the sub-
stantive scope of the [Communications] Act,” it also
“expan[ds] . . . Commission jurisdiction” to interpret
and enforce the Act. 525 U.S. at 380. Accordingly,
the Commission had jurisdiction to make a rule (or,
in the present case, issue an order) setting forth a
binding interpretation of § 332(c)(7)(B)(i) and (ii).
The merits of that interpretation are subject to judi-
cial review under Chevron’s deferential standard.
This Court can always affirm a judgment below on
an alternative ground. See, e.g., United States v.
Tinklenberg
, 131 S. Ct. 2007, 2017 (2011). It should
do so here for four reasons. First, as set forth below,
the question whether the FCC had jurisdiction here
is a straightforward matter of statutory construction
that this Court can resolve on the face of the Com-
munications Act and in light of the controlling prece-
dent supplied by Iowa Utilities Board. Second, the
alternative ground was called to the attention of the
Court and the parties in the brief in opposition filed
by CTIA and Verizon at the certiorari stage of this
proceeding. See CTIA/Verizon Br. in Opp. 13, 16-24.
Third, the alternative ground has been addressed in
the briefs of the parties. See Arlington Br. 34-44;
CTTC Br. 47-53; Verizon Br. 30-33. Fourth, the
alternative ground would permit the Court – regard-

25
less of its views on the Fifth Circuit’s reasoning – to
uphold the FCC’s order without further proceedings
and so to promote the national interest in “the
deployment of advanced wireless communications
services . . . in all geographic areas in a timely fash-
ion,” Pet. App. 102a-103a, and in “the promotion of
advanced services and competition that Congress
[has] deemed critical,” id. at 105a.

A. Section 201(b) Gives the Commission Juris-

diction To Enforce § 332(c)(7) as Part of the

Communications Act

Section 201(b) provides that “[t]he Commission
may prescribe such rules and regulations as may be
necessary in the public interest to carry out the pro-
visions of this Act.” Act of May 31, 1938, ch. 296, 52
Stat. 588 (codified at 47 U.S.C. § 201(b)).17 The “Act”
here is the Communications Act of 1934. Accord-
ingly, when Congress enacts a substantive statutory
mandate as a part of the Communications Act,
§ 201(b) gives the Commission jurisdiction – the
authority to speak with legal force – in order to
interpret and enforce that mandate. As this Court
put it in Iowa Utilities Board, “the grant in § 201(b)
means what it says: The FCC has rulemaking
authority to carry out the ‘provisions of this Act,’
which include [provisions] added by the Telecommu-
nications Act of 1996.” 525 U.S. at 378.18

17 The version printed in the U.S. Code (which has not
been enacted into positive law) refers to the provisions of “this
chapter.” 47 U.S.C. § 201(b). The relevant chapter includes the
entire Communications Act, as amended.
18 The order under review also relies on several other provi-
sions of the Communication Act that grant authority to the
FCC. See Pet. App. 87a-88a (citing §§ 1, 4(i), and 303(r) of the

26
The provisions at stake in Iowa Utilities Board
were §§ 251 and 252 of the Act, which concerned
the introduction of competition into previously non-
competitive local telephone markets. Local telephone
service was an area that previously had been reserved
to the states under § 2(b) of the Act, 47 U.S.C.
§ 152(b). See generally Louisiana PSC, 476 U.S. at
368-76. But the Court nevertheless found dispositive
evidence of Congress’s intent to convey jurisdiction to
the Commission in the “clear fact” that Congress had
made the 1996 Act “not as a freestanding enactment,
but as an amendment to, and hence part of, [the
Communications] Act,” and so subject to the general
grant of authority in § 201(b). Id. at 378 n.5.
That holding controls here. Section 332(c)(7)(B) is
as much a part of the 1996 Act, and thus as much a
part of the Communications Act, as were the local-
competition provisions analyzed in Iowa Utilities
Board. See 47 U.S.C. § 332 note; Pub. L. No. 104-
104, § 704(a), 110 Stat. 56, 151-52. That section’s
substantive requirement that local review of a wire-
less facility siting application be limited to a “reason-
able period of time,” 47 U.S.C. § 332(c)(7)(B)(ii), and
its proscription of any state or local government
action that “prohibit[s] or ha[s] the effect of prohibit-
ing the provision of personal wireless services,” id.
§ 332(c)(7)(B)(i)(II), expand the substantive scope of
the Communications Act.19 Rules interpreting and

Act, 47 U.S.C. §§ 151, 154(i), 303(r)). This brief, following Iowa
Utilities Board
, focuses on § 201(b).
19 By contrast, Iowa Utilities Board noted that its holding
would not apply where “Congress has remained silent” as to a
particular subject matter, 525 U.S. at 382 n.8 – and so left it
unregulated by federal law. Thus, when the FCC has attempt-
ed to assert jurisdiction but has “failed to tie” that asserted

27
enforcing those specific provisions (and construing
their obviously ambiguous provisions, such as the
length of a “reasonable period of time”) are therefore
within the Commission’s jurisdiction under § 201(b).
The judgment of the court of appeals can accordingly
be affirmed using the traditional tools of statutory
construction, and on the authority of Iowa Utilities
Board, without any need for Chevron.

B. None of Petitioners’ Arguments Creates

Ambiguity About the Application of § 201(b)
1. Neither § 332(c)(7)(A) nor § 332(c)(7)(B)(v)

Withdraws Jurisdiction from the Com-

mission
Petitioners rely on two provisions of § 332(c)(7)
to support their argument that the Commission
lacks jurisdiction to interpret and enforce the sub-
stantive restrictions placed on local authorities by
§ 332(c)(7)(B)(i) and (ii). Neither of these arguments
casts doubt on the Commission’s jurisdiction.
a. The City of Arlington relies (at 31, 41)
on § 332(c)(7)(A). That subsection provides that,
“[e]xcept as provided in this paragraph, nothing in
this [Act] shall limit or affect the authority of a State
or local government or instrumentality thereof over
decisions regarding the placement, construction, and
modification of personal wireless service facilities.”
47 U.S.C. § 332(c)(7)(A). Arlington argues that, “like
the provision at issue in Louisiana PSC, Section
332(c)(7) is an ‘express jurisdictional limitation[] on
FCC power’ that ‘fences off’ State and local authori-
ties ‘from FCC reach or regulation,’ except as specifi-

authority to “any ‘statutorily mandated responsibility’ ” of the
agency, courts have properly set its actions aside. Comcast, 600
F.3d at 661 (rejecting FCC’s attempt to “assert[ ] . . . ancillary
authority over Comcast’s Internet service” for this reason).

28
cally provided in the statute.” Arlington Br. 32 (quot-
ing 476 U.S. at 370) (alteration in original). This
argument is wrong for four reasons.
First, § 332(c)(7)(A) on its face contemplates that
the other provisions of § 332(c)(7) (i.e., other things in
“this paragraph”) can and will limit or affect local
zoning authority. It is thus substantially narrower
than § 2(b), the provision discussed in the portion of
Louisiana PSC that Arlington quotes. Section 2(b)
instructs that “nothing in this [Act] shall be con-
strued to apply or to give the Commission jurisdic-
tion with respect to . . . intrastate communication
service,” 47 U.S.C. § 152(b), with certain enumerated
exceptions that were not relevant to Louisiana
PSC or Iowa Utilities Board. Here, § 332(c)(7)(A)
contains exceptions that are directly relevant to this
case. The substantive provisions of § 332(c)(7)(B) are
“expansion[s] of the substantive scope,” Iowa Utils.
Bd., 525 U.S. at 380, of the Communications Act.
And Iowa Utilities Board teaches that such substan-
tive expansions carry with them corresponding
“expansion[s] of Commission jurisdiction.” Id.
Second, the comparison between § 2(b) and
§ 332(c)(7)(A) is instructive for another reason: § 2(b)
does contain a clear limitation on the Commission’s
jurisdiction of the kind that Arlington claims is found
in § 332(c)(7)(A). Thus, § 2(b) shows that, when Con-
gress meant to restrict the Commission’s jurisdiction,
it was fully capable of explicitly referring to “jurisdic-
tion” when it did so. See Russello v. United States,
464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but
omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”)

29
(alteration in original; internal quotation marks
omitted).
Third, even if § 2(b) and § 332(c)(7)(A) were

textually similar (which they are not), Arlington’s
argument would still be foreclosed by Iowa Utilities
Board. In that case, the Court rejected an argument
virtually identical to the one that Arlington advances
here: that § 2(b) prevented the Commission from
exercising jurisdiction to interpret and enforce provi-
sions of the 1996 Act concerning matters that before
the 1996 Act had been entirely reserved to the states.
See 525 U.S. at 378-79. The Court concluded that,
after Congress had “extend[ed] the Communications
Act into local competition,” § 2(b) “continue[d] to
function” – and to restrain the Commission’s jurisdic-
tion – only as to “aspect[s] of intrastate communica-
tion not governed by the 1996 Act.” Id. at 382 n.8.
Applying the same reasoning here, § 332(c)(7)(A)
likewise restrains the substantive scope of the
Act, and the Commission’s jurisdiction, only as to
aspects of local zoning authority not governed by
§ 332(c)(7)(B).20
b. For its part, CTTC relies (at 47-53) on
§ 332(c)(7)(B)(v). That subsection creates a cause
of action in federal or state court for any person
“adversely affected by any final action or failure to
act by a State or local government or any instrumen-

20 Arlington also relies (at 32-34, 43-44) on the legislative
history of § 332(c)(7), but that history is irrelevant because the
statute is unambiguous on its face. See Milner v. Department of
Navy, 131 S. Ct. 1259, 1266 (2011) (observing that, although
some members of the Court “believe that clear evidence of
congressional intent may illuminate ambiguous text,” the Court
“will not take the opposite tack of allowing ambiguous legisla-
tive history to muddy clear statutory language”).

30
tality thereof that is inconsistent with” § 332(c)(7)(B).
47 U.S.C. § 332(c)(7)(B)(v). It also permits a person
“adversely affected by an act or failure to act by a
State or local government or any instrumentality
thereof that is inconsistent with clause (iv) [to] peti-
tion the Commission for relief.” Id. CTTC argues
that this language “specifically state[s] what power
and jurisdiction was enumerated to the FCC,” and by
implication excludes the jurisdiction that the FCC
exercised to interpret and enforce § 332(c)(7)(B).
This argument is wrong for two reasons.
First, § 332(c)(7)(B)(v) contains affirmative grants
of jurisdiction to courts and to the FCC. Like
§ 332(c)(7)(A), it contains no language restricting the
FCC’s jurisdiction, which Congress could easily have
inserted had it meant to achieve that effect. See
supra p. 28. Moreover, even if § 332(c)(7)(B)(v) could
be interpreted to remove jurisdiction from the FCC
in order to convey it to the courts, it does not (and
could not) convey to the courts the jurisdiction to
issue general guidance in the form of a declaratory
ruling, like the one under review here. Instead,
§ 332(c)(7)(B)(v) deals only with procedures for the
judicial resolution of disputes about particular
“act[s],” “final action[s],” or “failure[s] to act” – the
types of disputes that make up concrete Article III
cases and controversies. The order under review was
not addressed to any such particular dispute, and no
Article III court would have had jurisdiction (exclu-
sive or otherwise) to issue a similar ruling.
Second, CTTC’s argument, like Arlington’s, is
foreclosed by Iowa Utilities Board. In that case, this
Court held that, although “the 1996 Act entrusts
state commissions with the job of approving inter-
connection agreements and granting exemptions to

31
rural [local exchange carriers],” these assignments
did “not logically preclude the [FCC’s] issuance of
rules to guide the state-commission judgments.” 525
U.S. at 385 (citation omitted). In this case, Con-
gress’s decision to give the courts the job of hearing
complaints against local authorities likewise does not
logically preclude the FCC from providing guidance
to the courts and to parties whose disputes have not
yet ripened for judicial decision.
2.

Principles of Federalism Do Not

Restrict the Commission’s Jurisdiction
over Substantive Provisions of the

Communications Act

Petitioners also contend that principles of feder-
alism support their position that the Commission
lacked jurisdiction. See Arlington Br. 35-40; see also
IMLA Br. 35-43. Arlington, for example, argues that
“the FCC’s jurisdictional claim would displace State
and local authority over local land use processes” and
that, “[g]iven th[is] intrusion on traditional local
authority, FCC jurisdiction cannot be presumed from
ambiguous statutory language.” Arlington Br. 38.
This argument fails at the threshold because it rests
on the premise that the statutory grant of jurisdiction
to the Commission is ambiguous. For the reasons
given in Parts II.A and II.B.1 above, it is not. Even if
there were a presumption in favor of the localities,
the clear text of the statute would be enough to over-
come it.
In any event, Iowa Utilities Board expressly reject-
ed the argument that, once Congress has brought
formerly local matters within the substantive scope
of the Communications Act, there is any federalism-
based presumption against Commission jurisdiction.
One of the dissents in that case had argued that the

32
“presumption against the pre-emption of state police
power regulations” should lead the Court to conclude
that the Commission lacked the jurisdiction that it
had sought to exercise. 525 U.S. at 378 n.6 (internal
quotation marks omitted). The Court dismissed this
concern, responding:
[T]he question in these cases is not whether the
Federal Government has taken the regulation of
local telecommunications competition away from
the States. With regard to the matters addressed
by the 1996 Act, it unquestionably has. The
question is whether the state commissions’
participation in the administration of the new
federal regime is to be guided by federal-agency
regulations. If there is any “presumption” appli-
cable to this question, it should arise from the
fact that a federal program administered by 50
independent state agencies is surpassing strange.
Id.21 The same observations apply with equal force
here. In order to promote the faster growth of a
competitive national wireless network, Congress has
undisputedly imposed federal restrictions on local
governments and has limited the traditional author-
ity they had previously exercised over decisions about
land use. The means that Congress chose to do so
was to subject those local governments to the 1996
Act – and thus, under § 201(b) and Iowa Utiltiies
Board, to the Commission’s general jurisdiction.
That is enough to show that “Congress would expect

21 See also Iowa Utils. Bd., 525 U.S. at 378 n.6 (“This is, at
bottom, a debate not about whether the States will be allowed
to do their own thing, but about whether it will be the FCC or
the federal courts that draw the lines to which they must hew.
To be sure, the FCC’s lines can be even more restrictive than
those drawn by the courts – but it is hard to spark a passionate
‘States’ rights’ debate over that detail.”).

33
the [Commission] to be able to speak with the force of
law when it addresses ambiguity in the statute or
fills a space in the enacted law,” Mead, 533 U.S. at
229, with regard to § 332(c)(7)(B).
That the Commission has jurisdiction to interpret
and enforce § 332(c)(7)(B) does not mean that con-
cerns of local autonomy become irrelevant. Instead,
it means that those concerns are now among the
“manifestly competing interests” among which the
Commission must make a “reasonable accommoda-
tion,” subject to deferential judicial review. Chevron,
467 U.S. at 865. That balancing of interests goes to
the merits of the Commission’s decision, rather than
to its jurisdiction to make a decision. The Commis-
sion did in fact strike such a balance, and the court of
appeals held that the balance the Commission struck
was reasonable. See Pet. App. 63a-67a. This Court
has not granted certiorari to review that (manifestly
correct) holding.

CONCLUSION

The judgment of the court of appeals should be
affirmed.

34
Respectfully submitted,
D. WAYNE WATTS
MICHAEL K. KELLOGG
PEGGY GARBER
GREGORY G. RAPAWY
GARY L. PHILLIPS
Counsel of Record
AT&T SERVICES INC.
KELLOGG, HUBER, HANSEN,
1120 20th Street, N.W.
TODD, EVANS & FIGEL,
Suite 1000
P.L.L.C.
Washington, D.C. 20036
1615 M Street, N.W.
(202) 457-3053
Suite 400

Washington, D.C. 20036
JONATHAN B. BANKS
(202) 326-7900
UNITED STATES TELECOM
(grapawy@khhte.com)
ASSOCIATION

607 14th Street, N.W.

Suite 400

Washington, D.C. 20005

(202) 326-7300
December 19, 2012




Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.