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Brief for Intervenor-Respondent, No. 11-1545 (Supreme Court)

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Released: December 20, 2012
Nos. 11-1545, 11-1547
IN THE
Supreme Court of the United States
CITY OF ARLINGTON, TEXAS, et al.,
Petitioners,
v.
FEDERAL COMMUNICATIONS
COMMISSION, et al.,
Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR INTERVENOR-RESPONDENT

CELLCO PARTNERSHIP

D/B/A VERIZON WIRELESS

WALTER DELLINGER
HELGI C. WALKER
JONATHAN D. HACKER
Counsel of Record
ANTON METLITSKY
THOMAS R. MCCARTHY
O’MELVENY & MYERS LLP
BRETT A. SHUMATE
1625 Eye Street, N.W.
WILEY REIN LLP
Washington, D.C. 20006
1776 K Street, N.W.
Washington, D.C. 20006
MICHAEL E. GLOVER
(202) 719-7000
WILLIAM H. JOHNSON
hwalker@wileyrein.com
VERIZON
1320 North Courthouse Road JOHN T. SCOTT, III
9th Floor
ANDRE J. LACHANCE
Arlington, Virginia 22201
VERIZON
1300 Eye Street, N.W.
Suite 400 West
Washington, D.C. 20005
Attorneys for Cellco Partnership d/b/a Verizon Wireless

i

QUESTION PRESENTED

Whether a court should apply Chevron to review—and
thus potentially defer to—an agency’s determination of
either the existence or scope of its own statutory authority,
or instead decide such questions de novo as a matter of
traditional statutory construction.

ii

CORPORATE DISCLOSURE STATEMENT

Cellco Partnership d/b/a Verizon Wireless (“Cellco”)
has four partners. Two of the partners, representing 55%
of the interest in Cellco, are ultimately owned by Verizon
Communications Inc. (“Verizon”). These partners are:
Bell Atlantic Mobile Systems, Inc. and GTE Wireless
Incorporated (collectively, the “Verizon Partners”).
Neither of the Verizon Partners is publicly held. Two of
the partners, representing 45% of the interest in Cellco,
are ultimately owned by Vodafone Group Plc (“Vodafone”).
These partners are: PCS Nucleus, L.P. and JV PartnerCo,
LLC (collectively, the “Vodafone Partners”). Neither of the
Vodafone Partners is publicly held. Verizon is a publicly
held Delaware corporation. Vodafone is a publicly held
British corporation. Neither Verizon nor Vodafone has a
parent company, and no publicly held company has a 10%
or greater ownership in either entity.

iii

TABLE OF CONTENTS

Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
CORPORATE DISCLOSURE STATEMENT . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . .v
BRIEF FOR INTERVENOR-RESPONDENT
CELLCO PARTNERSHIP D/B/A VERIZON
WIRELESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .8
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
I. COURTS SHOULD NOT DEFER TO
AN AGENCY’S DETERMINATION
AS TO THE EXISTENCE OR SCOPE

OF ITS OWN AUTHORITY. . . . . . . . . . . . . . . .11
A. Because The Chevron Framework
Assumes A Valid Delegation Of
Authority, It Cannot Logically Be
Applied To An Agency’s Determination
That It Possesses Delegated Authority

In The Area At Issue.. . . . . . . . . . . . . . . . . .12

iv
Table of Contents
Page
B. Constitutional Separation-Of-Powers
Principles Also Preclude Deference
To An Agency’s Determination Of Its

Own Statutory Authority . . . . . . . . . . . . . . .17
C. P r a g m at i c C on s ide r at ion s O f
Institutional Expertise, Political
Accountability, And Control Over
A g e n c y S e l f-A g g r a n d i z e m e nt
Also Preclude Deference To An
Agency’s Determination Of Its Own

Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
D. Courts Can Identify Questions About
The Existence Or Scope Of Delegated
Authority, And To The Extent It Is
Diffi cult To Do So In A Given Case
They Should Err On The Side Of

De Novo Review . . . . . . . . . . . . . . . . . . . . . .24
E. There Is No Issue In This Case
That Warrants A Special Rule For
Statutes Purportedly Implicating
Matters Of Traditional State And

Local Concern . . . . . . . . . . . . . . . . . . . . . . . .27
II. THE FCC’S AUTHORITY TO INTERPRET

SUBSTA NTI V E PROV ISIONS OF
THE COMMUNICATIONS ACT SUCH
AS SECTION 332(c)(7)(B) IS WELL

ESTABLISHED . . . . . . . . . . . . . . . . . . . . . . . . . .30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

v

TABLE OF CITED AUTHORITIES

Page

CASES

Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990) . . . . . . . . . . . . . . . . . . . . . . . .1, 9, 13
Addison v. Holly Hill Fruit Products, Inc.,
322 U.S. 607 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
AKM LLC v. Secretary of Labor,
675 F.3d 752 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . . .25
Alliance for Community Media v. FCC,
529 F.3d 763 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . .5
AT&T Corp. v. Iowa Utilities Board,
525 U.S. 366 (1999) . . . . . . . . . . . . . . . . . . . . . . . passim
Barnhart v. Walton,
535 U.S. 212 (2002) . . . . . . . . . . . . . . . . . . . . . . . . .13, 14
Bowen v. Georgetown University Hospital,
488 U.S. 204 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . passim

vi
Cited Authorities
Page
Christensen v. Harris County,
529 U.S. 576 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
City of Arlington, Texas v. FCC,
668 F.3d 229 (5th Cir. 2012) . . . . . . . . . . . . . .7, 8, 26, 32
City of Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Clinton v. City of New York,
524 U.S. 417 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Cuomo v. Clearing House Ass’n,
557 U.S. 519 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
FCC v. Midwest Video Corp.,
440 U.S. 689 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . 12, 13, 25, 27
Gonzales v. Oregon,
546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . . . .13, 16
Household Credit Services, Inc. v. Pfennig,
541 U.S. 232 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

vii
Cited Authorities
Page
Industrial Union Department, AFL-CIO v.
American Petroleum Institute,
448 U.S. 607 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
INS v. Chadha,
462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . .10, 24
Interstate Commerce Comm’n v.
Goodrich Transit Co.,
224 U.S. 194 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . .8, 19
Louisana Public Service Commission v. FCC,
476 U.S. 355 (1986) . . . . . . . . . . . . . . . . . . . . . . . . .13, 22
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803). . . . . . . . . . . . . . . . . . . . .18
Mississippi Power & Light Co. v.
Mississippi ex rel. Moore,
487 U.S. 354 (1988) . . . . . . . . . . . . . . . . . . .10, 21, 22, 25
Northern Illinois Steel Supply Co. v.
Secretary of Labor,
294 F.3d 844 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . .29
National Cable & Telecommunications
Association v. Brand X Internet Services,
545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . . . . .15, 20

viii
Cited Authorities
Page
Omnipoint Holdings, Inc. v. City of Cranston,
586 F.3d 38 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . .3
Regents of University System v. Carroll,
338 U.S. 586 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Social Security Board v. Nierotko,
327 U.S. 358 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Talk America, Inc. v.
Michigan Bell Telephone Co.,
131 S. Ct. 2254 (2011) . . . . . . . . . . . . . . . . . . . . . . .19, 23
United States v. Mead Corp.,
533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . .13, 14, 15, 26
United States v. Shimer,
367 U.S. 374 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Whitman v. American Trucking Ass’ns,
531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . .18, 19
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
U.S. Const. art. II, § 3. . . . . . . . . . . . . . . . . . . . . . . . . . . .17

ix
Cited Authorities
Page

STATUTES

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
5 U.S.C. § 706(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
21 U.S.C. § 387a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
47 U.S.C. § 153(51) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
47 U.S.C. § 201(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
47 U.S.C. § 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
47 U.S.C. § 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
47 U.S.C. § 332(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
47 U.S.C. § 332(c)(7) . . . . . . . . . . . . . . . . . . . . . . . . .3, 6, 26
47 U.S.C. § 332(c)(7)(A) . . . . . . . . . . . . . . . . . . . . . . passim
47 U.S.C. § 332(c)(7)(B) . . . . . . . . . . . . . . . . . . . . . . passim
47 U.S.C. § 332(c)(7)(B)(i) . . . . . . . . . . . . . . . . . . . . . . . . . .4
47 U.S.C. § 332(c)(7)(B)(ii) . . . . . . . . . . . . . . . . . .4, 5, 7, 30
47 U.S.C. § 332(c)(7)(B)(v). . . . . . . . . . . . . . . . . . .4, 6, 7, 31

x
Cited Authorities
Page
Administrative Procedure Act . . . . . . . . . . . . . . . . . . . .26
Communications Act . . . . . . . . . . . . . . . . . . . . . . . . passim
Controlled Substance Act. . . . . . . . . . . . . . . . . . . . . . . . .16
National Bank Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

ADMINISTRATIVE DECISIONS

Petition For Declaratory Ruling To Clarify
Provisions Of Section 332(c)(7)(B) To Ensure
Timely Siting Review And To Preempt Under
Section 253 State And Local Ordinances
That Classify All Wireless Siting Proposals
As Requiring A Variance,
24 F.C.C.R. 13994 (2009) . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

Breyer, Judicial Review of Questions of Law
and
Policy, 38 Admin. L. Rev. 363 (1986) . . .13, 14, 22
Gellhorn & Verkuil, Controlling Chevron-Based
Delegations,
20 Cardozo L. Rev. 989 (1999). .21, 24, 26
Kagan, Presidential Administration, 114 Harv.
L. Rev. 2245 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

xi
Cited Authorities
Page
Manning, Constitutional Structure and Judicial
Deference to Agency Interpretations of Agency
Rules, 96 Colum. L. Rev. 612 (1996) . . . . . . . . . . . . . .18
Merrill, The Mead Doctrine: Rules and Standards,
Meta-Rules and Meta-Standards, 54 Admin.
L. Rev. 807 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Merrill & Hickman, Chevron’s Domain, 89 Geo.
L.J. 833 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . .13, 14, 22
Sales & Adler, The Rest is Silence: Chevron
Jurisdiction, Agency Deference, and Statutory
Silences, 2009 U. Ill. L. Rev. 1497 (2009) . . . .14, 21, 22


1

BRIEF FOR INTERVENOR-RESPONDENT

CELLCO PARTNERSHIP D/B/A VERIZON

WIRELESS

INTRODUCTION

This case presents a particularly important question
of administrative law—whether a court should apply the
familiar two-step framework of Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), when reviewing an agency’s interpretation of its
own jurisdiction, i.e., its substantive authority to regulate
in a particular area or with respect to certain entities. The
answer to that question is “no.”
This answer logically fl ows from Chevron and its
progeny, as well as from the important constitutional
principles upon which that precedent is based. As all of
those sources of law make clear, agencies have no authority
save that affi rmatively delegated to them by Congress.
Thus, although agencies enjoy some judicial deference when
they fi ll in the details of a statutory scheme that Congress
has charged them with administering, a “precondition to
deference under Chevron is a congressional delegation of
administrative authority.” Adams Fruit Co. v. Barrett,
494 U.S. 638, 650 (1990). Accordingly, an agency’s claim
to deference for a given decision requires a threshold
determination whether Congress delegated authority over
that decision to the agency. That threshold determination,
in turn, is one that a reviewing court must make de novo,
using traditional tools of statutory construction: because
delegation is a precondition to deference, there can be
no deference in deciding whether that precondition has
been satisfi ed.

2
In addition, resolving questions concerning the
existence or scope of agency authority do not involve
the interstitial policymaking or specialized technical
expertise that underlie the deference accorded under
Chevron. They are instead quintessentially legal
matters that courts routinely resolve. Nor do principles
of political accountability counsel in favor of deference
to an agency’s determination of its own power. Just the
opposite: to hold Congress accountable for its judgments
about whether and how much authority to delegate to
agencies, it is critical that Congress make that judgment
in the fi rst instance rather than leave it to agency offi cials
to defi ne their own domain. This is all the more true in
the case of “independent” agencies, such as the Federal
Communications Commission (“FCC”), that do not answer
to the President and are further insulated from the
electorate than Executive Branch agencies.
To apply the Chevron framework to agency
determinations of statutory authority would effectively
empower agencies—rather than Congress—to establish
the scope of their own regulatory powers, subject only to a
lenient “reasonableness” check by the Judiciary. Given the
natural tendency of agencies to seek continually to expand
their authority, allowing them broad compass in this area
would put the fox in charge of the regulatory henhouse.
Petitioners are wrong, however, to the extent they
argue that resolution of the Chevron question requires
reversal of the judgment below. The specifi c agency action
at issue here is well within the FCC’s authority to interpret
the substantive provisions of the Communications Act, as
established by this Court in AT&T Corp. v. Iowa Utilities
Board, 525 U.S. 366 (1999). Accordingly, regardless of how

3
the deference issue is resolved, the judgment of the court
of appeals should be affi rmed.

STATEMENT OF THE CASE

1. Americans’ use of wireless communications
services has grown enormously over the past two decades,
and it continues to grow at a rapid pace. Wireless carriers’
ability to deliver the benefi ts of seamless nationwide
coverage, however, depends on their ability to build
wireless facilities. Though wireless service is widely
acknowledged to be popular and benefi cial, the facilities
on which it depends can sometimes be unpopular with
nearby property owners. Wireless tower siting requests
thus can generate “pressure” on local governments “to
tighten and strictly enforce zoning restrictions on wireless
facilities, creating numerous pockets of resistance for
wireless carriers.” Omnipoint Holdings, Inc. v. City of
Cranston, 586 F.3d 38, 52 n.9 (1st Cir. 2009).
2. Recognizing this “‘not in my backyard’ .. problem,”
id., and the threat it poses to a truly national wireless
network, Congress acted in 1996 “to encourage the rapid
deployment of new telecommunications technologies”
by “reduc[ing] … the impediments imposed by local
governments upon the installation of [wireless] facilities,”
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115
(2005) (internal quotation marks omitted). Congress’s
chosen means for doing so was to expressly—and in no
uncertain terms—preempt state and local authority in
certain respects by “impos[ing] specifi c limitations on
the traditional authority of state and local governments
to regulate the location, construction, and modifi cation of
such facilities.” Id. Those limitations are embodied in 47
U.S.C. § 332(c)(7).

4
Section 332(c)(7)(B) sets forth several “[l]imitations” on
state and local government authority over the “regulation
of the placement, construction, and modification of
personal wireless service facilities.” Id. § 332(c)(7)(B)(i).
In particular, the statute provides that state and local
governments “shall act on any request for authorization
to place, construct, or modify personal wireless service
facilities within a reasonable period of time after
the request is duly filed with such government or
instrumentality, taking into account the nature and scope
of such request.” Id. § 332(c)(7)(B)(ii) (emphasis added).
Congress further provided that, “[e]xcept as provided
in this paragraph” including the limitations set forth in
Section 332(c)(7)(B), “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 modifi cation of personal
wireless service facilities.” Id. § 332(c)(7)(A). Congress
created a judicial cause of action for “[a]ny person
adversely affected by any fi nal action or failure to act
by a State or local government or any instrumentality
thereof that is inconsistent with [Section 332(c)(7)].” Id.
§ 332(c)(7)(B)(v).
3. In 2008, CTIA—The Wireless Association®
(“CTIA”), of which Verizon Wireless is a member,
petitioned the FCC to address the substantial delays that
wireless carriers encountered when seeking approval to
build wireless facilities from state and local governments.
CTIA explained that a significant and unacceptable
number of wireless tower siting requests were being
delayed past any reasonable period of time, contrary to
the mandate of Section 332(c)(7)(B)(ii). CTIA presented
evidence that of the 3,300 wireless siting applications

5
pending before local jurisdictions, approximately 760 had
been pending for more than one year, and more than 180
applications had been pending for more than three years.
CTIA also submitted examples of situations in which
particular localities had delayed proceedings for multiple
years, held dozens of hearings, and ultimately forced a
wireless carrier to go to court before construction could
begin. CTIA asked the FCC to declare specifi c periods
beyond which any delay would be a failure to act within
“a reasonable period of time,” and therefore would violate
Section 332(c)(7)(B)(ii).
Verizon Wireless, which has been directly involved
in drawn-out controversies over tower siting, submitted
substantial evidence supporting the need for action to
address the delay of tower siting approvals. At the time,
Verizon Wireless had more than 350 new site applications
pending, of which more than half had been pending for
more than six months and nearly 100 for more than a year.
On November 18, 2009, the FCC issued the Ruling,
granting some of the relief requested in CTIA’s petition.
See Petition For Declaratory Ruling To Clarify
Provisions Of Section 332(c)(7)(B) To Ensure Timely
Siting Review And To Preempt Under Section 253 State
And Local Ordinances That Classify All Wireless Siting
Proposals As Requiring A Variance, 24 F.C.C.R. 13994
(2009) (“Ruling”). As a threshold matter, the agency
concluded that it had authority to interpret substantive
provisions of the Act, such as Section 332(c)(7)(B), relying
on this Court’s decision in AT&T Corp. v. Iowa Utilities
Board, 525 U.S. 366 (1999), and the Sixth Circuit’s decision
in Alliance for Community Media v. FCC, 529 F.3d 763
(6th Cir. 2008). It also concluded that its rulings were

6
consistent with Section 332(c)(7)(A) because it was not
“imposing new limitations on State and local governments”
but “merely interpret[ing] the limits Congress already
imposed on State and local governments” through the
express preemption provisions of Section 332(c)(7).
Ruling, 24 F.C.C.R. at 14002 (¶ 25).
On the merits, the Commission determined that the
record included “extensive statistical evidence” to support
a fi nding of “unreasonable delays” and “obstruct[ion].” Id.
at 14006 (¶ 34). It further found that local governments
should generally be reasonably able to review applications
for collocations (i.e., the placement of additional radio
antennas on existing structures) within 90 days and for
new wireless facilities within 150 days. Id. at 14012 (¶ 45).
Although CTIA, Verizon Wireless, and other industry
participants presented evidence suggesting that it would
be reasonable to process applications in half that time,
the Commission decided that it should allow more time
for “explor[ing] collaborative solutions,” for localities
“to prepare a written explanation of their decisions,”
and for “reasonable, generally applicable procedural
requirements in some communities.” Id. at 14011 (¶ 44).
Based on its findings, the Commission declared
that a local government presumptively fails to act on a
collocation application within a reasonable period of time
if it does not act within 90 days for a collocation or 150
days for a new facility. Id. at 14012 (¶ 45). At that time, a
“failure to act” has occurred within the meaning of Section
332(c)(7)(B)(v), and the provider may seek judicial review—
though the local government remains free to show in court
that, under the circumstances of a particular application,
the time it took was reasonable. Id. at 14004-05 (¶ 32). The

7
Commission declined to adopt any presumption about the
remedy for unreasonable delay, fi nding it more consistent
with congressional intent for the courts to determine such
questions on a case-by-case basis. Id. at 14009 (¶ 39).
4. The U.S. Court of Appeals for the Fifth Circuit
upheld the Ruling on January 23, 2012. See City of
Arlington, Texas v. FCC, 668 F.3d 229 (5th Cir. 2012). The
court of appeals held that the Commission had statutory
authority to issue the Ruling. See id. at 247-54. It began
by considering whether the Chevron framework applied.
It acknowledged that the circuits disagree over whether
to “apply Chevron deference to disputes over the scope of
an agency’s jurisdiction,” but concluded that Fifth Circuit
precedent required it to apply Chevron to such disputes.
Id. at 248.
Applying Chevron, the Fifth Circuit concluded that
the statute did not “unambiguously indicate Congress’s
intent to preclude the FCC from implementing Section
332(c)(7)(B)(ii) and (v).” Id. at 250. As to Section
332(c)(7)(A), the court of appeals found that the provision
“certainly prohibits the FCC from imposing restrictions
or limitations [on state or local zoning authority] that
cannot be tied to the language of § 332(c)(7)(B),” but
does not itself speak to the question “[w]hether the FCC
retains the power of implementing those limitations,”
id. It further held that Section 332(c)(7)(B)(v), although
establishing judicial jurisdiction over “specifi c dispute[s]
between a state or local government and persons affected
by the government’s failure to act,” does “not address the
FCC’s power to administer § 332(c)(7)(B)(ii) in contexts
other than those” specifi c disputes. Id. at 251.

8
The Fifth Circuit then found the FCC’s substantive
interpretation of Section 332(c)(7)(B) to be reasonable. See
id. at 252-54. Because the statutory terms “a reasonable
period of time” and “failure to act” are ambiguous, the
court held that it owed “substantial deference to the FCC’s
interpretation of those terms.” Id. at 255. The court thus
upheld the regulation as a permissible construction of
the statute.
5. On October 5, 2012, the Court granted the petitions
for certiorari limited to the question whether reviewing
courts should apply Chevron to review an agency’s
determination of its own jurisdiction.

SUMMARY OF ARGUMENT

I. Under this Court’s precedent, and consistent with
bedrock principles of separation of powers and political
accountability, Congress must always make the initial
decision that certain activity in our national economy
should be subject to federal regulation and then resolve
the fundamental policy choices about how and by whom
the activity should be regulated. See, e.g., J.W. Hampton,
Jr., & Co. v. United States, 276 U.S. 394, 408 (1928).
When Congress has made those basic policy judgments
and delegated authority to an administrative agency to
implement the statutory scheme, the agency receives,
under Chevron, a measure of judicial deference when
it fills in statutory gaps in determining how best to
accomplish its congressionally-assigned task. The core
rationale for this rule is that it fulfi lls congressional intent
by allowing the agency to address interstitial issues with
its relatively greater technical expertise, while preserving
political accountability for fundamental policy choices in
the elected branches of the government.

9
The rule of Chevron also rests upon a crucial
premise—namely, that Congress has, in fact, delegated
authority over the matter in issue to the agency. If not,
there is no basis for deference, because an agency can only
act within the sphere of power delegated by Congress.
Accordingly, an agency could only be eligible for judicial
deference when acting within the scope of authority that
Congress has actually delegated to it. A reviewing court
must make the determination whether an agency is acting
pursuant to congressionally-delegated authority de novo
because such authority is a “precondition to deference
under Chevron.Adams Fruit, 494 U.S. at 650. When
the court determines that the agency’s action is based on
such authority, it may proceed to the familiar two-step
inquiry under Chevron.
Moreover, deferring to an agency’s judgment
about the existence or scope of its own authority would
contravene fundamental separation-of-powers principles
underlying the Chevron framework. Courts defer to an
agency’s exercise of policymaking authority, but only if
that authority has been properly delegated. Allowing
agencies to decide in the fi rst instance the limits of their
policymaking power would improperly transfer legislative
authority from Congress to the Executive, and override
the Judiciary’s exclusive authority to construe legislative
delegations, as well as its duty to police the constitutional
boundaries between the branches.
The pragmatic considerations that undergird
Chevron also counsel strongly against deference to an
agency’s determination of its own statutory authority.
First, although agencies may be experts on technical
issues within their delegated domain, they “can claim
no special expertise in interpreting a statute confi ning

10
its jurisdiction.” Miss. Power & Light Co. v. Miss. ex rel.
Moore, 487 U.S. 354, 387 (1988) (Brennan, J., dissenting).
Second, deferring to an agency’s determination of its
own regulatory bounds would allow Congress to avoid
political accountability for making the hard choices as
to whether, how, and by whom particular sectors of our
national economy should be regulated. While this is true
with respect to all federal agencies, it is all the more
important in the case of “independent” ones such as the
FCC, which are outside the direct control of the President
and further removed from political accountability than
Executive Branch agencies. Third, agencies have strong
institutional incentives to continually expand their powers,
and deferring to agency determinations regarding the
existence and scope of their own authority would allow
them to expand their regulatory domain without any clear
indication that Congress ever intended such a result. It
is ultimately the Judiciary that much check such self-
aggrandizement, for “[t]he hydraulic pressure inherent
within each of the separate Branches to exceed the outer
limits of its power, even to accomplish desirable objectives,
must be resisted.” INS v. Chadha, 462 U.S. 919, 951 (1983).
II. To the extent Petitioners argue that resolution of
the Chevron question requires reversal of the judgment
in this case, they are wrong. The agency order at issue
here merely interpreted, in a reasonable and well-
supported manner, a specific, substantive provision
of the Communications Act. In particular, the FCC
determined what constitutes a “reasonable period of
time” and a “failure to act” under Section 332(c)(7)(B),
which speaks directly to the timing of state and local
action on wireless tower siting requests. Congress plainly
exercised its legislative authority in this area, and this
Court has determined that the FCC possesses delegated

11
authority to interpret the substantive provisions of the
Communications Act such as Section 332(c)(7)(B). Iowa
Utils. Bd., 525 U.S. at 378, 380. Accordingly, the judgment
can and should be affi rmed, even without deference to the
FCC’s judgment regarding its own authority to issue the
Ruling.

ARGUMENT

I. COURTS SHOULD NOT DEFER TO AN AGENCY’S

DETERMINATION AS TO THE EXISTENCE OR

SCOPE OF ITS OWN AUTHORITY.

“An agency may not fi nally decide the limits of its
statutory power. That is a judicial function.” Social
Security Bd. v. Nierotko, 327 U.S. 358, 369 (1946); see also
Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 616
(1944) (“Determination of the extent of authority given to a
delegated agency by Congress is not left for the decision of
him in whom authority is vested.”). That longstanding rule
applies fully when the controlling statute is ambiguous as
to the existence or scope of the agency’s power—courts
cannot defer to the agency’s resolution of that ambiguity,
because determining the limits of an agency’s statutory
power must be a purely judicial function.
As a general matter, when Congress has delegated
to the agency the authority to perform a given task, but
the statute is ambiguous or contains gaps in terms of
the details as to how the agency is to accomplish that
task, the Chevron doctrine requires courts to presume
that Congress implicitly delegated to the agency the
authority to resolve the ambiguity and address those
interstitial details. An essential prerequisite for deference
under Chevron, however, is a congressional delegation

12
of authority. An agency can only exercise authority that
Congress has given it, and so a court can defer only
to decisions made within the scope of that authority.
Because deference itself requires a delegation of authority,
deference cannot be applied to an agency decision about
whether there has been a delegation of authority in the
fi rst place.
Such decisions are not subject to deference for
additional reasons embedded within Chevron itself—
including fundamental distinctions between the
constitutional roles of the Legislative, Executive, and
Judicial Branches, as well as pragmatic considerations
such as relative institutional expertise and control over
agency self-aggrandizement. As explained below, these
principles all point to the same conclusion: no deference.

A. Because The Chevron

Framework Assumes

A Valid Delegation Of Authority, It Cannot

Logically Be Applied To An Agency’s

Determination That It Possesses Delegated

Authority In The Area At Issue.

1. a. The Chevron doctrine rests on the fundamental
assumption that Congress has delegated to the agency
policymaking authority over the particular matter at
issue. See FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 132, 158-60 (2000). Sometimes that delegation is
explicit—Congress may leave a “gap” in the statute and
instruct the agency to promulgate rules to fi ll that gap.
Chevron, 467 U.S. at 843-44. The delegation may also be
“implicit[],” in that Congress has left the statute “silent
or ambiguous” with respect to a particular aspect of the
job that it has assigned to the agency, id. at 843, while
delegating to the agency the authority to administer

13
the statute through interstitial rulemaking or other
administrative action, United States v. Mead Corp.,
533 U.S. 218, 229 (2001). When Congress has delegated
authority to an agency to perform a particular task,
courts presume “that a statute’s ambiguity constitutes
an implicit delegation from Congress to the agency to fi ll
in the statutory gaps.” Brown & Williamson, 529 U.S.
at 123; see also Mead, 533 U.S. at 229. This so because
Congress is likely to “focus[] upon, and answer[]” the
“major questions” raised in a statute, leaving “interstitial
matters” to agency resolution. Breyer, Judicial Review
of Questions of Law and Policy, 38 Admin. L. Rev. 363,
370 (1986); see also Barnhart v. Walton, 535 U.S. 212,
222 (2002).
Chevron thus rests on a fundamental premise
antecedent to its more familiar two-step inquiry. Before
even engaging in that inquiry, the threshold question—
which has been described as “Chevron Step Zero,”
Merrill & Hickman, Chevron’s Domain, 89 Geo. L.J.
833, 910 (2001)—is whether Congress has delegated to
the agency authority over the matter at issue. As this
Court has explained, “[a] precondition to deference under
Chevron is a congressional delegation of administrative
authority.” Adams Fruit, 494 U.S. at 650; see also
Gonzales v. Oregon, 546 U.S. 243, 258 (2006) (explaining
that Chevron deference is only appropriate when a rule
is “promulgated pursuant to authority Congress has
delegated to the offi cial”). Indeed such delegation is a
necessary prerequisite to the exercise of any power by
the agency: for an agency “literally has no power to act
... unless and until Congress confers power upon it.” La.
Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986); see
also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988) (“It is axiomatic that an administrative agency’s

14
power to promulgate legislative regulations is limited
to the authority delegated by Congress.”); Regents of
Univ. Sys. v. Carroll, 338 U.S. 586, 597-98 (1950) (“As an
administrative body, the [FCC] must fi nd its powers within
the compass of the authority given it by Congress”). Thus,
absent a proper delegation, an agency’s decision is ultra
vires and entirely invalid, not one that can or should be
deferred to.
In short, the Chevron framework can logically apply
to an agency’s decision only to the extent that decision
is actually within the power delegated to the agency by
Congress. It follows that the Chevron framework does
not apply where Congress did not delegate authority over
the matter. See Mead, 533 U.S. at 231 n.11 (“If Chevron
rests on a presumption about congressional intent, then
Chevron should apply only where Congress would want
Chevron to apply.” (quoting Merrill & Hickman, Chevron’s
Domain, at 872)). Thus, as the Court put it in Mead,
“where it is in doubt that Congress actually intended to
delegate particular interpretive authority to an agency,”
the Chevron framework is wholly “‘inapplicable.’” 533 U.S.
at 230 (citing Christensen v. Harris Cnty., 529 U.S. 576,
596-97 (2000) (Breyer, J., dissenting)); see also Merrill,
The Mead Doctrine: Rules and Standards, Meta-Rules
and Meta-Standards, 54 Admin. L. Rev. 807, 813 (2002);
Sales & Adler, The Rest is Silence: Chevron Jurisdiction,
Agency Deference, and Statutory Silences, 2009 U. Ill. L.
Rev. 1497, 1533-34 (2009).1
1. Indeed, the Court has never “read Chevron as laying down
a blanket rule, applicable to all agency interpretations of law,
such as ‘always defer to the agency when the statute is silent.’”
Breyer, Judicial Review of Questions of Law and Policy, at 373;
see generally Barnhart, 535 U.S. at 222 (explaining “that whether
a court should give [Chevron] deference depends in signifi cant
part upon ... the nature of the question at issue”).

15
b. This Court has repeatedly resolved this “Step
Zero” question before applying Chevron’s two-step inquiry.
Mead made the point most directly, holding that Chevron
does not govern all agency interpretations of ambiguous
statutory provisions, but only those statutory ambiguities
as to which Congress vested the agency with primary
interpretive authority, i.e., only where there is a “Step
Zero” delegation. Chevron applies, the Court explained,
only where it is “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 fi lls a space in the enacted law.” Mead,
533 U.S. at 229. Then, and only then, is a reviewing court
“obliged to accept the agency’s position if Congress has
not previously spoken to the point at issue and the agency’s
interpretation is reasonable.” Id.
The Court followed the same “Step Zero” approach
in Household Credit Services, Inc. v. Pfennig, 541 U.S.
232 (2004), and National Cable & Telecommunications
Association v. Brand X Internet Services, 545 U.S.
967 (2005), applying the Chevron framework only after
assuring itself that Congress clearly conferred authority
upon the agency to speak with the force of law regarding
the statutory ambiguity at issue. In Pfennig, the Court
began its analysis by stating that “Respondent does
not challenge the Board’s authority to issue binding
regulations,” and only then moved on to applying
Chevron’s familiar two-step test. 541 U.S. at 238-39. And
in Brand X, the Court cited Mead in explaining that the
Chevron framework applied precisely because the scope
of the Commission’s jurisdiction was not at issue. See
Brand X, 545 U.S. at 981 (“[N]o one questions that the
order is within the Commission’s jurisdiction. Hence …

16
we apply the Chevron framework to the Commission’s
interpretation of the Communications Act.”) (internal
citations omitted).
The Court’s decision in Gonzales adhered to that same
approach, but ultimately held that the Attorney General
lacked statutory authority to regulate physician-assisted
suicide. At issue in that case was the Attorney General’s
construction of a phrase in the Controlled Substance Act
(“CSA”). Although the phrase was concededly ambiguous,
and the CSA vested the Attorney General with general
“rulemaking power to fulfi ll his duties under the CSA,”
the Court concluded on de novo review that the Attorney
General was “not authorized to make a rule declaring
illegitimate a medical standard for care and treatment
of patients that is specifi cally authorized under state
law.” Gonzales, 546 U.S. at 258. The inquiry, in other
words, ended at “Step Zero”: Congress did not delegate
to the Attorney General the authority to adopt the rule at
issue and thus, even though the statute was ambiguous,
deference was inapplicable.
2. The foregoing discussion should suffi ce to establish
that the Chevron framework cannot be applied in
answering the threshold question whether the agency has
authority over a given issue. As explained, the framework
applies only when it is fi rst established—at “Step Zero”—
that Congress delegated authority over the question to the
agency. As a matter of logic, a court cannot defer to the
agency in answering that question: deference applies only
if the agency has authority over the issue, so deference
cannot be applied in deciding whether the agency has
authority over the issue. To hold otherwise would be to say
that Chevron deference applies to the question whether
Chevron deference applies, which is nonsensical.

17
For this reason, the “Step Zero” question of agency
authority over the issue is one that logically must be
answered by a reviewing court in the fi rst instance. Once
the court determines, through the normal judicial tools of
statutory construction, that Congress has delegated to the
agency the power to act in the area at issue, the Chevron
framework applies, and the court must defer to the
agency’s reasonable resolution of statutory ambiguities
pursuant to that delegation of authority.

B. Constitutional Separation-Of-Powers Principles

Also Preclude Deference To An Agency’s

Determination Of Its Own Statutory Authority.

Chevron’s threshold requirement of a delegation
of authority to the agency arises from fundamental
separation-of-powers principles. When those principles
are applied to the instant context, they preclude courts
from deferring to an agency’s determination of its own
statutory authority.
As explained above, an agency can only act pursuant
to congressionally-delegated authority, and thus Chevron
deference necessarily can apply only to decisions
made within that authority—not to decisions about
that authority. Presuming from statutory silence or
ambiguity that Congress delegated to an agency the
authority to determine the breadth of its own power
would be inconsistent with the Constitution’s division of
responsibilities among the branches. Only Congress can
exercise legislative power, see U.S. Const. art. I, § 1, and
an agency possesses only the power that Congress gives
it, see supra pp. 12-13. The Executive Branch must “take
Care that the Laws” enacted by Congress “be faithfully
executed.” U.S. Const. art. II, § 3. And the Judiciary has

18
the exclusive duty to say what the law is. See Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The
traditional Chevron framework is consistent with those
tenets, because it assumes that an agency, in resolving a
statutory ambiguity concerning the execution of a task
that Congress has assigned it, is merely implementing
legislative policy that Congress established. By contrast,
the same tenets should preclude an agency from resolving
an ambiguity as to its own jurisdiction—subject only to
lenient “reasonableness” review—because the agency then
would be deciding for itself whether and to what extent
legislative power should be delegated and how it should
be exercised, thus shifting basic lawmaking power to
the agency. That approach would violate both Congress’s
exclusive authority to exercise legislative power, including
by delegation, as well as the Judiciary’s exclusive authority
to decide whether a statute effectuates such a delegation.
See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473
(2001) (“Whether [a] statute delegates legislative power
is a question for the courts[.]”).2
2. Respecting and enforcing the distinct constitutional
functions of the different branches is not merely a formalistic or
theoretical imperative. Rather, “[i]t is a familiar notion that the
separation of powers doctrine generally serves to protect liberty
… by dispersing governmental power.” Manning, Constitutional
Structure and Judicial Deference to Agency Interpretations of
Agency Rules, 96 Colum. L. Rev. 612, 645 (1996); see, e.g., Clinton
v. City of New York, 524 U.S. 417, 450, 452 (1998) (Kennedy, J.,
concurring) (“Separation of powers helps to ensure the ability
of each branch to be vigorous in asserting its proper authority”
because “concentration of power in the hands of a single branch
is a threat to liberty.”).

19
“When the legislative and executive powers are united
in the same person, or in the same body of magistrates,
there can be no liberty.” Talk America, Inc. v. Mich. Bell
Tel. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring)
(quoting Montesquieu, Spirit of the Laws bk. XI, ch. 6,
p. 173 (O. Priest ed., T. Nugent transl. 1949)). Yet that is
precisely what deference to an agency’s determination of
its own authority would allow—agencies would answer for
themselves the statutorily unanswered question about the
existence or extent of their own power, and they would
then exercise that self-endowed authority.
It is especially unwarranted to defer to an agency’s
determination of its authority because the foregoing
principles suggest that Congress could not constitutionally
delegate such decisions to an agency, even if it tried to do
so expressly. This Court has long held that “‘Congress may
not delegate its purely legislative power.’” J.W. Hampton,
276 U.S. at 408 (quoting Interstate Commerce Comm’n
v. Goodrich Transit Co., 224 U.S. 194, 214 (1912)); see
also Whitman, 531 U.S. at 472 (“Article I, § 1 … vests
‘all legislative Powers herein granted . . . in a Congress
of the United States.’ This text permits no delegation
of those powers.”). Congress can only delegate to an
agency the power to execute the fundamental choices
that Congress has itself made, and thus must set forth an
“intelligible principle” to channel the agency’s discretion
for the delegation to be permissible. Id. Congress must
not only make the basic policy calls at issue in delegating
its authority to an agency, but Congress must be the one
to decide whether to make such a delegation at all, i.e.,
whether to grant an agency the substantive regulatory
power to act in a particular area or with respect to
particular entities. “It is the hard choices, and not the

20
fi lling in of the blanks, which must be made by the elected
representatives of the people.” Indust. Union Dep’t,
AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 687 (1980)
(Rehnquist, J., concurring in the judgment). Regardless,
it would be especially problematic to conclude that
Congress had delegated such critical decisions implicitly
through statutory silence or ambiguity. At the very least,
rejecting the view that such silence or ambiguity can be
read as an implicit delegation to an agency of the power
to determine its own regulatory domain would avoid a
serious constitutional question.

C. Pragmatic Considerations Of Institutional

Expertise, Political Accountability, And

Control Over Agency Self-Aggrandizement

Also Preclude Deference To An Agency’s

Determination Of Its Own Authority.

The pragmatic considerations underlying Chevron
including institutional expertise, political accountability,
and the administrative state’s institutional tendency
toward self-aggrandizement—also counsel strongly
against deference to agency determinations of their own
authority. This is so for the reasons explained below.
This Court’s Chevron cases have emphasized that
courts should defer to agencies’ statutory gap-fi lling
decisions (pursuant to delegated authority) because such
decisions “involve[] diffi cult policy choices that agencies
are better equipped to make than courts.” Brand X,
545 U.S. at 980 (citing Chevron, 467 U.S. at 865-66). As
Chevron itself observes, the “responsibilities for assessing
the wisdom of such policy choices and resolving the
struggle between competing views of the public interest

21
are not judicial ones,” but instead are “vest[ed] ... in the
political branches.” 467 U.S. at 866 (citation omitted).
Chevron thus reasoned that when an agency acts in
a gap-fi lling capacity, its relatively greater expertise
and political accountability leave it in a better position
than courts to “resolv[e] the competing interests which
Congress itself either inadvertently did not resolve, or
intentionally left to be resolved by the agency charged
with the administration of the statute in light of everyday
realities.” Id. at 865-66.
That principle obtains, however, only to the extent
that Congress has, in fact, delegated policymaking
responsibilities to the agency. While agencies may be
expert in implementing the policymaking power Congress
grants them, “agencies can claim no special expertise
in interpreting a statute confining its jurisdiction.”
Miss. Power & Light Co., 487 U.S. at 387 (Brennan, J.,
dissenting); see also Sales & Adler, The Rest is Silence,
at 1535; Gellhorn & Verkuil, Controlling Chevron-Based
Delegations, 20 Cardozo L. Rev. 989, 1013-14 (1999).
Construing a statute to identify the limits of agency
authority requires no scientifi c or technical ability; rather,
it requires facility with the familiar judicial tools of
statutory construction.
Nor does the fact that agencies are thought to be
more politically accountable than courts warrant judicial
deference to an agency’s determination of its own
authority. Chevron reasoned that, when an agency has
been granted authority to regulate, its relative political
accountability provides a basis for deference in the case
of statutory ambiguity because the interpretive question
requires “a reasonable accommodation of conflicting

22
policies that were committed to the agency’s care by the
statute.” 467 U.S. at 845 (citation omitted). When Congress
has entrusted the agency with reconciling such confl icting
policy choices, the agency (at least in the case of Executive
Branch agencies) can theoretically be held accountable
for the manner in which it does so. But it is Congress, not
the Executive, that must be responsible for making the
decision to delegate legislative power and delineating the
scope of that delegation in the fi rst place—as explained,
“an agency literally has no power to act ... unless and until
Congress confers power upon it.” La. Pub. Serv. Comm’n,
476 U.S. at 374. Allowing administrative agencies to
resolve statutory ambiguities concerning their own power
would allow the responsible body—Congress—to avoid
political accountability for its decisions about who should
make diffi cult policymaking judgments. And it is far from
clear that agencies themselves could be held politically
accountable, in any realistic way, for decisions concerning
their statutory power.
Another grave practical problem in this context
is that agencies have a vested interest in expanding
their regulatory reach beyond the domain delegated
by Congress. Agencies, like other bureaucratic bodies,
have systematic, “institutional interests in expanding
[their] own power.” Miss. Power & Light, 487 U.S. at
387 (Brennan, J., dissenting); see also Breyer, Judicial
Review of Questions of Law and Policy, at 371 (“Courts
sometimes fear that certain agencies suffer from ‘tunnel
vision’ and as a result might seek to expand their power
beyond the authority that Congress gave them.”); Sales &
Adler, The Rest is Silence, at 1551-54; Merrill & Hickman,
Chevron’s Domain, at 867. Allowing an agency to defi ne
its own authority would inevitably lead to the expansion
of that authority—“which [would] give [the agency] the

23
power, in future [proceedings], to do what it pleases.”
Talk America, 131 S. Ct. at 2266 (Scalia, J., concurring).
Independent agencies—such as the FCC—present
especially serious problems when it comes to the possibility
of deference on questions of statutory authority. By design,
such agencies are even less politically accountable than
Executive Branch agencies. In addition to the fact that
Congress must remain accountable for the fundamental
policy choices about federal regulation, discussed above,
another traditional rationale for deference to agency
decisions made pursuant to delegated authority is that
Executive Branch agencies are politically accountable to
the President who, in turn, is ultimately accountable to the
people for the actions taken by those in his administration.
See Chevron, 467 U.S. at 866 (“[F]ederal judges—who have
no constituency—have a duty to respect legitimate policy
choices made by those who do.”); see also id. at 865 (“While
agencies are not directly accountable to the people, the
Chief Executive is, and it is entirely appropriate for this
political branch of the Government to make such policy
choices.”). That justifi cation for Chevron deference has
no force with respect to independent agencies because
they are not directly within the President’s control. See
Kagan, Presidential Administration, 114 Harv. L. Rev.
2245, 2376-77 (2001) (arguing that Chevron’s rationale
suggests that courts should apply a less deferential
standard to independent agencies). In the case of
independent agencies, therefore, concerns about the
lack of political accountability are at their zenith. This
concern, combined with the general institutional interest
of agencies to continually expand their authority, means
that it is especially important that courts exercise their
own judgment in policing the statutory boundaries
of independent agencies. For any federal agency, but

24
particularly with respect to independent agencies, it is
ultimately the Judiciary’s responsibility to ensure political
accountability and check self-aggrandizement: “The
hydraulic pressure inherent within each of the separate
Branches to exceed the outer limits of its power, even
to accomplish desirable objectives, must be resisted.”
Chadha, 462 U.S. at 951.
Indeed, a rule of deference to agency decisions
regarding their own statutory authority inevitably
would result in a major expansion of the powers of
the administrative state. As a practical matter, such a
rule would establish a buffer zone of “reasonableness”
around existing agency authority, thereby automatically
enlarging the sphere within which agencies could
operate. See Gellhorn & Verkuil, Controlling Chevron-
Based Delegations, at 1011-12. The boundaries of the
administrative state would thus push outward from the
domain delegated by Congress as independently construed
by courts, to a larger, “jurisdiction plus” basis primarily
defi ned by agencies. To prevent the very aggregation
of power that the Framers predicted, and designed the
Constitution’s structural protections to avoid, this Court
should hold that agencies cannot effectively determine
their own authority.

D. Courts Can Identify Questions About The

Existence Or Scope Of Delegated Authority,

And To The Extent It Is Diffi cult To Do So In

A Given Case They Should Err On The Side Of

De Novo

Review.
One concern that has been expressed about the
applicability of the Chevron framework to questions
of agency authority is that it is diffi cult to distinguish

25
between cases concerning the existence or scope of an
agency’s statutory authority, on the one hand, and those
concerning the manner in which the agency exercises that
authority, on the other. See Miss. Power & Light, 487 U.S.
at 381 (Scalia, J., concurring in the judgment). But courts
routinely distinguish between grants of, or limitations
on, statutory authority and unreasonable exercises of
authority already conferred. See Br. for Respondents
International Municipal Lawyers Association (“IMLA”)
et al. 33-35; Br. for Amici Curiae National Governors
Association et al. 21-31; Br. for Amici Curiae America
Farm Bureau Federation et al. 26-37.
Certain kinds of questions obviously go directly to an
agency’s authority to act. For example, provisions that
expressly limit an agency’s authority, see, e.g., FCC v.
Midwest Video Corp., 440 U.S. 689, 706 (1979) (involving
express statutory limitation on FCC authority to regulate
broadcasters as common carriers); 47 U.S.C. §§ 153(51),
332(c)(2) (express limitations on FCC authority to regulate
certain entities as common carriers), indisputably seek to
defi ne the agency’s authority, see Miss. Power & Light, 487
U.S. at 387 (Brennan, J., dissenting) (“[A] statute confi ning
the agency’s jurisdiction … by its nature … manifests an
unwillingness to give the agency the freedom to defi ne the
scope of its own power.”). The same is true with respect
to statutes of limitations on governmental action, which
“uniquely limit[] when an agency may act—even within
otherwise lawful bounds.” AKM LLC v. Sec’y of Labor, 675
F.3d 752, 767-68 (D.C. Cir. 2012) (Brown, J., concurring).
Likewise, when agencies seek to expand their regulatory
reach into entirely new areas involving “a signifi cant
portion of the American economy,” Brown & Williamson,
529 U.S. at 159, without any clear congressional mandate
to do so, such action inherently presents questions

26
regarding their statutory authority over those areas,
see Gellhorn & Verkuil, Controlling Chevron-Based
Delegations, at 1011-12. In this case, the FCC recognized
that it was obliged to establish its “authority” to interpret
the relevant provisions of Section 332(c)(7), see Ruling, 24
F.C.C.R. at 14000-03 (¶¶ 20-26), and the court of appeals
had no diffi culty recognizing this as a question that went
to the agency’s delegated authority to do so, see City of
Arlington, 668 F.3d at 247-54.
In fact, Congress itself has recognized the distinction
between questions concerning the existence or scope of
agency authority and questions concerning the reasonable
exercise of delegated authority. The Administrative
Procedure Act (“APA”) requires courts to “set aside
agency action … in excess of statutory jurisdiction.” 5
U.S.C. § 706(2)(C) (emphasis added). The APA separately
requires courts to set aside agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Id. § 706(2)(A). The former
provision is about agency action that is ultra vires, i.e.,
undertaken without statutory authority to do so, whereas
the latter provision concerns agency action that is based
on a grant of delegated authority but implements that
authority unreasonably or otherwise improperly. That the
APA itself recognizes this distinction should eliminate any
concern that the distinction does not exist, or that courts
are not able to determine it on a case-by-case basis.
That is not to say that hard cases will not arise. But
hard cases arise under any rule, and in these cases, as in
others, courts “will make reasoned choices between the
two examples, the way courts have always done.” Mead,
533 U.S. at 237 n.18. The existence of close cases should

27
not lead judges to simply apply the Chevron framework
across the board. If anything, the principles described
above should resolve any signifi cant doubt in a particular
case in favor of concluding that a provision is subject to
de novo review, so as to assure that agencies are not
empowered to defi ne the authority that they exercise. This
approach would also encourage Congress to speak clearly
in assigning authority to an administrative agency, further
reinforcing important constitutional and administrative
law principles. And Congress could always clarify an
agency’s jurisdiction in the event that it does want the
agency to exercise authority in a particular area or over
particular entities. See, e.g., 21 U.S.C. § 387a (granting
FDA authority over tobacco products after Brown &
Williamson).

E. There Is No Issue In This Case That Warrants

A Special Rule For Statutes Purportedly

Implicating Matters Of Traditional State And

Local Concern.

Contrary to the argument advanced by a group of
intervenor-respondents led by the International Municipal
Lawyers Association (the “IMLA Respondents”), see Br.
for IMLA Respondents et al. 21-35, this case does not
present any serious issue of state and local concern and,
in any event, there is no reason to adopt a special rule
regarding the applicability of Chevron for statutes that
arguably implicate such concerns.
First, this is not a case about federalism. It is about
the meaning of the statutory terms “reasonable period
of time” and “failure to act,” both of which reside in the
express preemption provisions of 47 U.S.C. § 332(c)(7)(B).

28
Here, Congress expressly and deliberately “limit[ed],”
id., state and local governmental power with respect to
the processing of requests for wireless tower siting. The
only question here is whether the Commission or the
Judiciary is responsible for interpreting those terms in
the fi rst instance. This question “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.”
Iowa Utils. Bd., 525 U.S. at 378 n.6. Because Congress
has “unquestionably” manifested its intent to take these
issues “away from the States,” id., this debate does not
implicate any signifi cant federalism concern.
Second, the IMLA Respondents are incorrect.
Whether or not to defer to an agency’s determination as
to its own authority should not turn upon the particular
type of statute at issue in a particular case. Rather,
it depends upon—and can be fully resolved by—the
general principles of congressional intent and horizontal
separation of powers concepts discussed above. Chevron,
as explained above, is premised on the proposition that
agencies, in determining how to perform particular tasks
assigned to them by Congress, are better suited than
courts to fi nd a “reasonable accommodation of confl icting
policies that were committed to the agency’s care by the
statute.” 467 U.S. at 845 (quotation omitted). Questions
that implicate federal-state relations are not excluded
from that rationale.
To the contrary, one of the cases upon which Chevron
relied was Capital Cities Cable, Inc. v. Crisp, 467 U.S.
691 (1984), which involved the question whether an
FCC regulatory scheme was “intended to preempt any

29
state regulation of the signals carried by cable system
operators,” id. at 698. Yet in Capital Cities, this Court
appropriately deferred to the FCC’s determination to
preempt the state scheme because it “‘represent[ed] a
reasonable accommodation of confl icting policies’ that are
within the agency’s domain.” Id. at 700 (quoting United
States v. Shimer, 367 U.S. 374, 383 (1961)). In addition, the
Court has applied the Chevron framework in reviewing
agency interpretations of federal statutes preempting
state law. See, e.g., Cuomo v. Clearing House Ass’n, 557
U.S. 519, 525 (2009) (applying Chevron to an interpretation
by the Offi ce of the Comptroller of the Currency to a
provision of the National Bank Act preempting certain
state substantive laws affecting banks). The same
approach is appropriate here.
Third, this argument does not appear to have been
pressed below, and certainly was not passed upon by the
Fifth Circuit. See FCC v. Fox Television Stations, Inc., 556
U.S. 502, 529 (2009) (“This Court … is one of fi nal review,
not of fi rst view.”) (internal quotation marks omitted).
Indeed, any decision limited to this ground would prevent
the Court from answering the question on which it granted
review—whether Chevron applies in cases involving
agency determinations of their own jurisdiction, not just
that subset of cases involving preemption provisions. The
Court should provide guidance to the lower courts in the
many cases that do not involve fairly unusual provisions
such as Section 332(c)(7)(A)—including, most notably,
those that comprise the circuit split here. See, e.g., N. Ill.
Steel Supply Co. v. Sec’y of Labor, 294 F.3d 844, 846-47
(7th Cir. 2002).

30

II. THE FCC’S AUTHORITY TO INTERPRET

SU B STA N T I V E PR OV I SION S OF T H E

COMMUNICATIONS ACT SUCH AS SECTION

332(c)(7)(B) IS WELL ESTABLISHED.
To the extent that Petitioners argue that resolution of
the Chevron question in their favor requires reversal of the
judgment below, they are wrong.3 This Court previously
decided, in a case paralleling this one, that Congress
has delegated to the FCC the authority to interpret, in a
legally binding fashion, the substantive provisions of the
Communications Act. That decision controls this case.
The statutory provision at issue here, Section
332(c)(7)(B), is a substantive provision of the Communications
Act that expressly preempts state and local barriers to
competitive wireless entry. Among other things, Section
332(c)(7)(B) includes a requirement that local review of
a wireless facility siting application be completed in a
“reasonable period of time.” 47 U.S.C. § 332(c)(7)(B)(ii).
In addition, Section 332(c)(7)(B) authorizes any person
“adversely affected by” a state or local government’s
“failure to act” to, “within 30 days after such … failure
3. Although Petitioners’ argument regarding the FCC’s
power to issue the Ruling appears to be outside the scope
of the question on which the Court granted certiorari, they
nevertheless urge the Court to address that question and hold,
on de novo review, that the FCC lacked authority to do so. See
Br. for Petitioners City of Arlington et al. 31-44; Br. for Petitioner
Cable, Telecommunications and Technology Committee of the
New Orleans City Council 21-25, 32-38. Because Petitioners have
elected to argue the merits of the FCC’s statutory authority,
Intervenor-Respondent Verizon Wireless addresses the issue in
support of Respondent FCC and its underlying decision.

31
to act, commence an action in any court of competent
jurisdiction.” Id. § 332(c)(7)(B)(v).
The question at the heart of this litigation was whether
the FCC possesses the authority to interpret the terms
“reasonable period of time” and “failure to act” in 47
U.S.C. § 332(c)(7)(B). That question is fully answered
by this Court’s decision in Iowa Utilities Board, which
addressed a directly analogous question of FCC authority.
There, as here, Congress acted in an area of traditional
state control—specifi cally, local telephone markets. It did
so by amending the Communications Act to impose certain
duties on local telephone companies to make available
wholesale facilities and services to competing carriers, and
by prescribing the pricing standards that would apply to
those facilities and services. Iowa Utils. Bd., 525 U.S. at
371-73 (discussing 47 U.S.C. § 251 et seq.). In the event of
disputes, the pricing standards would be applied through
arbitration proceedings conducted by state regulatory
commissions, subject to challenge in federal district court.
Id. at 372-73.
Notwithstanding the roles of state governments and
federal district courts under the statutory scheme, a
feature of Section 332 as well, this Court concluded that
the FCC had authority to interpret the pricing standard
set out in the statute and to require state regulatory
commissions to adhere to its interpretation. See id.
at 377-78. In so holding, the Court relied principally
upon Section 201(b) of the Communications Act, which
authorizes the Commission to “prescribe such rules and
regulations as may be necessary in the public interest to
carry out the provisions of this Act.” 47 U.S.C. § 201(b).
The Court found that this provision “means what it says”

32
and delegates to the FCC the authority to interpret and
implement the “substantive” provisions of the Act. Iowa
Utils. Bd., 525 U.S. at 378, 380.
The same is true here. Section 332(c)(7)(B) is
unquestionably a substantive provision of the Act; it
imposes certain limitations on state and local governments
when it comes to wireless tower siting. Just as the FCC
had authority to interpret the pricing provisions at issue in
Iowa Utilities Board, it likewise has authority to interpret
the standard for timeliness in the provision at issue here.
Petitioners contend that Congress withdrew
such interpretive authority from the Commission in
Section 332(c)(7)(A). But nothing in Section 332(c)(7)(A)
“displace[s]” the Commission’s “explicit” authority to
interpret and implement Section 332(c)(7)(B). Iowa Utils.
Bd., 525 U.S. at 385. Section 332(c)(7)(A) states 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 modifi cation
of personal wireless service facilities.” 47 U.S.C.
§ 332(c)(7)(A). The key phrase in this savings clause is:
“[e]xcept as provided in this paragraph.” That language
only reinforces that the substantive provisions of Section
332(c)(7)(B) do in fact “limit or affect the authority of a
State or local government.” See City of Arlington, 668
F.3d at 250 (“§ 332(c)(7)(A), when it states ‘[e]xcept as
provided in this paragraph,’ removes § 332(c)(7)(B)’s
limitations from its reach and recognizes those limitations
as legitimate intrusions into state and local governments’
traditional authority over zoning decisions.”). Section
332(c)(7)(A) thus does not limit the effect of the preemption

33
provisions in subparagraph (B) or the Commission’s
ability to interpret them. Accordingly, there is no basis
for overturning the judgment of the court of appeals, for
the FCC ultimately committed no legal error here.

CONCLUSION

For the foregoing reasons, this Court should hold
that the Chevron framework does not apply to agency
determinations of their own authority. Nonetheless, the
judgment of the court of appeals should be affirmed
because, contrary to Petitioners’ assertions, the FCC
clearly possessed delegated authority to interpret Section
332(c)(7)(B).

Respectfully
submitted,
WALTER DELLINGER
HELGI C. WALKER
JONATHAN D. HACKER
Counsel of Record
ANTON METLITSKY
THOMAS R. MCCARTHY
O’MELVENY & MYERS LLP
BRETT A. SHUMATE
1625 Eye Street, N.W.
WILEY REIN LLP
Washington, D.C. 20006
1776 K Street, N.W.
Washington, D.C. 20006
MICHAEL E. GLOVER
(202) 719-7000
WILLIAM H. JOHNSON
hwalker@wileyrein.com
VERIZON
1320 North Courthouse Road JOHN T. SCOTT, III
9th Floor
ANDRE J. LACHANCE
Arlington, Virginia 22201
VERIZON
1300 Eye Street, N.W.
Suite 400 West
Washington, D.C. 20005
Attorneys for Cellco Partnership d/b/a Verizon Wireless

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