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Brief for Int'l Mun. Lawyers Ass'n, No. 11-1545 (Sup. Ct.)

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Released: November 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;
________________
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Respondents.
________________________

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

________________

BRIEF FOR RESPONDENTS INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION; NATIONAL

ASSOCIATION OF TELECOMMUNICATIONS

OFFICERS AND ADVISORS; NATIONAL LEAGUE

OF CITIES; UNITED STATES CONFERENCE OF

MAYORS; NATIONAL ASSOCIATION OF

COUNTIES; CITY OF CARLSBAD, CALIFORNIA;

AND CITY OF DUBUQUE, IOWA IN SUPPORT OF

PETITIONERS

__________________________

PAUL D. CLEMENT
Counsel of Record
MICHAEL H. MCGINLEY
BANCROFT PLLC
1919 M Street, N.W., Suite 470
Washington, DC 20036
(202) 234-0090
pclement@bancroftpllc.com
Counsel for Respondents in Support of Petitioners


QUESTION PRESENTED

The Telecommunications Act of 1996 preserves
state and local zoning authority over “the placement,
construction, and modification of personal wireless
service facilities,” except for a short list of narrow
limitations set forth in the text of the Act. 47 U.S.C.
§ 332(c)(7)(A). With one exception not implicated in
this case, Congress granted the federal courts, rather
than the Federal Communications Commission,
authority to resolve violations of the Act’s narrow
limitations on state and local authority. Yet, the
Commission ruled that it has jurisdiction to
promulgate requirements for state and local zoning
decisions under the Act. The court below deferred to
the Commission’s assertion of jurisdiction under
Chevron, U.S.A., Inc. v. National Resource Defense
Council, Inc., 467 U.S. 837 (1984), and upheld the
agency’s ruling. This Court granted certiorari
limited to the following question:
Whether a court should apply Chevron to review
an agency’s determination of its own jurisdiction.



ii

PARTIES TO THE PROCEEDING

Petitioners the City of Arlington, Texas, and City
of San Antonio, Texas were the petitioners in the
court of appeals below. Petitioners Cable and
Telecommunications Committee of the New Orleans
City Council; City of Los Angeles, California; County
of Los Angeles, California; County of San Diego,
California; and Texas Coalition of Cities for Utility
Issues were intervenors in support of petitioners in
the court below.
Respondents International Municipal Lawyers
Association; National Association of
Telecommunications Officers and Advisors; National
League of Cities; United States Conference of
Mayors; National Association of Counties; City of
Carlsbad, California; and City of Dubuque, Iowa
were intervenors in support of petitioners in the
court below.
Respondents United States of America and
Federal Communications Commission, were the
respondents in the court below. Respondents CTIA—
The Wireless Association and Cellco Partnership
were intervenors in support of respondents in the
court below.



iii

RULE 29.6 STATEMENT

Respondents International Municipal Lawyers
Association; National Association of
Telecommunications Officers and Advisors; National
League of Cities; United States Conference of
Mayors; National Association of Counties are
nongovernmental corporations, with no parent
corporations and no stock. Respondents City of
Carlsbad, California, and City of City of Dubuque,
Iowa, are governmental entities.

iv

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i 
PARTIES TO THE PROCEEDING ........................... ii 
RULE 29.6 STATEMENT ......................................... iii 
TABLE OF AUTHORITIES ...................................... vi 
OPINIONS BELOW ................................................... 1 
JURISDICTION ......................................................... 1 
STATUTORY PROVISIONS INVOLVED ................. 1 
INTRODUCTION ....................................................... 3 
STATEMENT OF THE CASE ................................... 5 
A.  The Telecommunications Act of 1996
and the Protection of State and
Local Zoning Authority ................................ 5 
B.  The FCC’s Jurisdictional Ruling ................. 9 
C.  The Decision Below .................................... 13 
SUMMARY OF ARGUMENT .................................. 15 
ARGUMENT ............................................................. 21 
I.  An Agency’s Assertion of Jurisdiction Is
Not Entitled to Chevron Deference. .................. 21 
A.  The Chevron Doctrine Does Not
Permit Judicial Deference to an
Agency’s Assertion of Jurisdiction ............. 22 
B.  Separation of Powers Principles
Foreclose Judicial Deference to an
Agency’s Assertion of Jurisdiction ............. 27 

v
C.  Courts Are Capable of
Differentiating Between Assertions
of Jurisdiction and Applications of
Administrative Authority .......................... 33 
II.  Chevron Deference Is Especially
Inappropriate When An Agency Asserts
Jurisdiction Over Matters of Traditional
State And Local Concern ................................... 35 
CONCLUSION ......................................................... 44 



vi

TABLE OF AUTHORITIES

Cases

 
Adams Fruit Co., Inc. v. Barrett,
494 U.S. 638 (1990) ............................................... 22
Addison v. Holly Hill Fruit Prods., Inc.,
322 U.S. 607 (1944) ............................................... 31
American Bar Ass’n v. FTC,
430 F.3d 457 (D.C. Cir. 2005) ............................... 38
Atascadero State Hosp. v. Scanlon,
473 U.S. 234 (1985) ......................................... 37, 42
Blatchford v. Native Vill. of Noatak,
501 U.S. 775 (1991) ............................................... 42
Bond v. United States,
131 S. Ct. 2355 (2011) ..................................... 35, 36
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) ............................................... 29
Chevron, U.S.A., Inc. v. National
Resource Defense Council, Inc.,
467 U.S. 837 (1984) ....................................... passim
Cipollone v. Liggett Group, Inc.,
505 U.S. 504 (1992) ............................................... 42
Dellmuth v. Muth,
491 U.S. 223 (1989) ............................................... 39
FTC v. Ticor Title Ins. Co.,
504 U.S. 621 (1991) ............................................... 40
Gonzalez v. Oregon,
546 U.S. 243 (2006) ............................................... 22

vii
Gregory v. Ashcroft,
501 U.S. 452 (1991) ....................................... passim
INS v. Chadha,
462 U.S. 919 (1983) ............................................... 31
Int’l Union, United Mine Workers of Am.
v. Bagwell, 512 U.S. 821 (1994) ............................ 31
Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221 (1986) ............................................... 23
Jones v. United States,
529 U.S. 848 (2000) ................................... 35, 37, 39
Louisiana Pub. Serv. Comm’n v. FCC,
476 U.S. 355 (1986) ......................................... 28, 29
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................ 32
Massachusetts v. EPA,
549 U.S. 497 (2007) ............................................... 28
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ............................................... 42
Mississippi Power & Light Co. v.
Mississippi ex rel. Moore,
487 U.S. 354 (1988) ......................................... 26, 33
Mistretta v. United States,
488 U.S. 361 (1989) ......................................... 30, 31
New Process Steel LP v. NLRB,
130 S. Ct. 2635 (2010) ........................................... 29
Nixon v. Missouri Mun. League,
541 U.S. 125 (2004) ............................................... 37
Printz v. United States,
521 U.S. 898 (1997) ............................................... 36

viii
Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005) ............................................. 7, 8
Rapanos v. United States,
547 U.S. 715 (2006) ............................................... 41
Raygor v. Regents of Univ. of Minnesota,
534 U.S. 533 (2002) ......................................... 37, 42
Rodriguez v. United States,
480 U.S. 522 (1987) ............................................... 26
Soc. Sec. Bd. v. Nierotko,
327 U.S. 358 (1946) ............................................... 31
Solid Waste Agency of N. Cook Cnty. v.
Army Corps of Eng’rs,
531 U.S. 159 (2001) ......................................... 19, 41
Stern v. Marshall,
131 S. Ct. 2594 (2011) ........................................... 30
Talk America, Inc. v. Michigan Bell Tel. Co.,
131 S. Ct. 2254 (2011) ..................................... 31, 32
Town of Amherst v. Omnipoint Commc’ns
Enters., Inc., 173 F.3d 9 (1st Cir. 1999) ................. 9
United States v. Mead Corp.,
533 U.S. 218 (2001) ....................................... passim
Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457 (2001) ............................................... 31
Will v. Michigan Dep’t of State Police,
491 U.S. 58 (1989) ................................................. 37
Wyeth v. Levine,
555 U.S. 555 (2009) ............................................... 40
Young v. U.S. ex rel. Vuitton et Fils S.A.,
481 U.S. 787 (1987) ............................................... 31

ix

Constitutional Provisions

 
U.S. Const. art. I, § 1 ................................................ 29
U.S. Const. Art. I, § 7, cl. 2 ....................................... 40
U.S. Const. art. II, § 1 .............................................. 29
U.S. Const. art. II § 3, cl. 5 ....................................... 29
U.S. Const. art III, § 1 .............................................. 29

Statutes

 
47 U.S.C. § 332(c)(7) ......................................... passim
5 U.S.C. § 706 (2006) ................................................ 26

Other Authorities

 
Bradford R. Clark, Separation of Powers as a
Safeguard of Federalism,
79 Tex. L. Rev. 1321 (2001) .................................. 39
Cass R. Sunstein, Nondelegation Canons,
67 U. Chi. L. Rev. 315 (2000)................................ 28
Elena Kagan, Presidential Administration,
114 Harv. L. Rev. 2245 (2001) .............................. 25
John F. Manning, Textualism and the Equity
of the Statute, 101 Colum. L. Rev. 1 (2001) ......... 26
Nathan A. Sales & Jonathan H. Adler,
The Rest is Silence: Chevron Deference,
Agency Jurisdiction, and Statutory
Silences, 2009 U. Ill. L. Rev. 1497 (2009) ...... 24, 29
Nathan S. Chapman & Michael W.
McConnell, Due Process as Separation of
Powers
, 121 Yale L.J. 1672 (2012)........................ 32

x
Thomas W. Merrill & Kristen E. Hickman,
Chevron’s Domain, 89 Geo. L.J. 833 (2001) ... 23, 28
THE FEDERALIST NO. 47 (James Madison)
(C. Rossiter ed. 1961) ............................................ 30
THE FEDERALIST NO. 51 (James Madison)
(C. Rossiter ed. 1961) ...................................... 28, 36
H.R. Conf. Rep. No. 104-458,
1996 U.S.C.C.A.N. (1995) ....................................... 9
H.R. Rep. No. 104-204,
1996 U.S.C.C.A.N. (1995) ...................................... 8





OPINIONS BELOW

The opinion of the court of appeals (Pet.App.1a–
68a) is reported at 668 F.3d 229. The order of the
court of appeals denying rehearing (Pet.App.196a–
97a) is not reported in the Federal Reporter. The
Federal Communications Commission’s Declaratory
Ruling (Pet.App.69a–171a) is reported at 24 FCC
Rcd. 13994 (Nov. 18, 2009), reconsideration denied,
25 FCC Rcd. 11157 (Aug. 3, 2010) (Pet.App.172a–
95a).

JURISDICTION

The court of appeals entered its judgment on
January 23, 2012, and entered an order denying
petitions for rehearing en banc on March 29, 2012. A
petition for certiorari was timely filed and granted on
October 5, 2012. This Court has jurisdiction under
28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 332(c)(7) of the Communications Act of
1934, 47 U.S.C. § 332(c)(7), provides:
Preservation of local zoning authority.
(A) General authority. Except as provided in this
paragraph, nothing in this chapter 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.
(B) Limitations.
(i)
The regulation of the placement,
construction, and modification of personal wireless

2
service facilities by any State or local government or
instrumentality thereof—
(I) shall not unreasonably discriminate
among providers of functionally equivalent services;
and
(II) shall not prohibit or have the effect
of prohibiting the provision of personal wireless
services.
(ii)
A State or local government or
instrumentality thereof 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.
(iii)
Any decision by a State or local
government or instrumentality thereof to deny a
request to place, construct, or modify personal
wireless service facilities shall be in writing and
supported by substantial evidence contained in a
written record.
(iv)
No State or local government or
instrumentality thereof may regulate the placement,
construction, and modification of personal wireless
service facilities on the basis of the environmental
effects of radio frequency emissions to the extent that
such facilities comply with the Commission’s
regulations concerning such emissions.
(v) Any person adversely affected by any
final action or failure to act by a State or local
government or any instrumentality thereof that is

3
inconsistent with this subparagraph may, within 30
days after such action or failure to act, commence an
action in any court of competent jurisdiction. The
court shall hear and decide such action on an
expedited basis. Any 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) may petition the Commission for relief.
(C) Definitions.

For purposes of this
paragraph—
(i)
the term “personal wireless services”
means commercial mobile services, unlicensed
wireless services, and common carrier wireless
exchange access services;
(ii)
the term “personal wireless service
facilities” means facilities for the provision of
personal wireless services; and
(iii) the term “unlicensed wireless service”
means the offering of telecommunications services
using duly authorized devices which do not require
individual licenses, but does not mean the provision
of direct-to-home satellite services (as defined in
section 303(v) [47 U.S.C. § 303(v)].

INTRODUCTION

This Court granted certiorari to consider a
question that squarely implicates the horizontal
separation of powers at the federal level. But this
case also involves the other fundamental structural
protection in our Constitution: the vertical
separation of powers between the federal government
and state and local governments. Both of the
Constitution’s basic structural protections underscore

4
that the FCC is not entitled to deference in asserting
its own jurisdiction at the expense of state and local
governments.
That conclusion follows directly from two lines of
this Court’s precedents. First, as a matter of the
horizontal separation of powers, agencies are not
entitled to deference in interpreting the bounds of
their statutory authority, which is the only thing that
entitles them to deference in the first place. This
principle flows directly from this Court’s seminal
decision in Chevron, U.S.A., Inc. v. National Resource
Defense Council, Inc.
, 467 U.S. 837 (1984), and the
long line of cases applying Chevron’s framework. An
agency is entitled to Chevron deference only when
“Congress delegated authority to the agency
generally to make rules carrying the force of law, and
… the agency interpretation claiming deference was
promulgated in the exercise of that authority.”
United States v. Mead Corp., 533 U.S. 218, 226–27
(2001). The determination of an agency’s jurisdiction
is thus necessarily antecedent to Chevron deference.
It is only the conclusion that the agency possesses
delegated statutory authority that entitles the
agency to Chevron deference. Thus, an agency is not
entitled to any deference in reaching the conclusion
that it possesses jurisdiction. The question whether
Congress has, in fact, delegated an agency
jurisdiction to act with the force of law has always
been reserved to the courts. It should remain so.
Second, the inappropriateness of deference when
a federal agency expands its jurisdiction at the
expense of state and local governments flows directly
from Gregory v. Ashcroft, 501 U.S. 452, 458 (1991),

5
and related cases demanding a clear indication of
congressional intent to displace state and local
authority. “Just as the separation and independence
of the coordinate branches of the Federal
Government serve to prevent the accumulation of
excessive power in any one branch, a healthy balance
of power between the States and the Federal
Government will reduce the risk of tyranny and
abuse from either front.” Gregory, 501 U.S. at 458.
For that reason, when Congress seeks to alter
traditional state or local authority, “it must make its
intention to do so ‘unmistakably clear in the
language of the statute.’” Id. at 460 (quoting
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242
(1985)). Because agencies are entitled to Chevron
deference only in the event of statutory ambiguity,
and Gregory demands clarity before state and local
authority is displaced, there is simply no room for
deference on questions that implicate state and local
power. Agency interpretations of their grants of
jurisdiction to displace state and local authority are
entitled to their persuasive force, but nothing more.

STATEMENT OF THE CASE

A. The Telecommunications Act of 1996

and the Protection of State and Local

Zoning Authority

Section 332(c)(7) of the Telecommunications Act
of 1996 broadly preserves local zoning authority over
siting applications concerning wireless service
facilities, subject to a narrow set of statutory
requirements. See 47 U.S.C. § 332(c)(7) (entitled
“Preservation of local zoning authority”). Subsection
(A) of the Act states: “Except as provided in this

6
paragraph, nothing in this chapter 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.” § 332(c)(7)(A).
Subsection (B) provides a narrow set of
exceptions to subsection (A)’s general rule. Under
these “[l]imitations,” state and local governments
must “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 …, taking into account the
nature and scope of such request.” § 332(c)(7)(B)(ii).
In addition, state and local zoning authorities may
not “unreasonably discriminate among providers of
functionally equivalent services” or “prohibit or have
the effect of prohibiting the provision of personal
wireless services.” § 332(c)(7)(B)(i). And the Act
mandates that the denial of any such request must
be “in writing and supported by substantial evidence
contained in a written record.” § 332(c)(7)(B)(iii).
The Act is not silent as to which government
body is to “hear and decide” disputes under these
provisions. It specifically provides that “[a]ny person
adversely affected by any final action or failure to act
by a State or local government … that is inconsistent
with [47 U.S.C. § 332(c)(7)(B)] may, within 30 days
after such action or failure to act, commence an
action in any court of competent jurisdiction.”

§ 332(c)(7)(B)(v). The Act provides no similar grant
of authority to the FCC.
The FCC does, however, possess statutory
jurisdiction over a single, narrow issue: the

7
environmental effects of radio frequency emissions.
The Act denies state and local authorities the power
to “regulate the placement, construction, and
modification of personal wireless service facilities on
the basis of the environmental effects of radio
frequency emissions to the extent that such facilities
comply with the Commission’s regulations concerning
such emissions.” § 332(c)(7)(B)(iv). Any person
aggrieved under this provision “may petition the
Commission for relief.” § 332(c)(7)(B)(v).
The court below acknowledged that the Act
“seeks to reconcile two competing interests.”

Pet.App.4a. The first is “Congress’s desire to
preserve the traditional role of state and local
governments in regulating land use and zoning.” Id.
The second is “Congress’s interest in encouraging the
rapid development of new telecommunications
technologies.” Id. And the Act’s “comprehensive”
structure achieves this balance by setting the default
rule in subsection (A), that state and local
governments generally retain local zoning authority,
subject only to the narrow “[l]imitations” on local
authority in subsection (B) and subject to expedited
judicial review of any disputes. Rancho Palos Verdes
v. Abrams, 544 U.S. 113, 131 (2005) (Stevens, J.,
concurring); id. at 129 (Breyer, J., concurring).
The Act’s legislative evolution also reflects this
careful balance of local and national interests. The
first iteration of section 332(c)(7) adopted by the
House of Representatives would have granted the
FCC broad jurisdiction to “prescribe and make
effective a policy regarding State and local regulation
of the placement, construction, modification, or

8
operation of facilities for the provision of commercial
mobile services.” H.R. Rep. No. 104-204 at 25, 1996
U.S.C.C.A.N. 10 (1995). Among other things, the
House version would have given the FCC power to
“ensure that … a State or local government … shall
act on any request for authorization to locate,
construct, modify, or operate facilities for the
provision of commercial mobile services within a
reasonable period of time after the request is fully
filed with such government or instrumentality.” Id.
But Congress did not adopt this broad grant of
regulatory power. The conference committee
“rejected the national approach” proposed in the
House bill and “substituted a system based on
cooperative federalism.” Rancho Palos, 544 U.S. at
128 (Breyer, J., concurring).1 Thus, rather than
granting the FCC jurisdiction to “prescribe and make
effective a policy regarding State and local regulation
of … facilities for the provision of commercial mobile
services,” H.R. Rep. No. 104-204, at 25, the final Act
expressly preserves state and local authority over
zoning matters, see 47 U.S.C. § 332(c)(7)(A). The
conference report explained that, aside from the
single, narrow issue of radio frequency emissions,
which was delegated to the FCC, “the courts shall
have exclusive jurisdiction over all other disputes

1 See also H.R. Conf. Rep. No. 104-458, at 207–08, 1996
U.S.C.C.A.N. 10 (1995) (“The conference agreement creates a
new Section 704 which prevents Commission preemption of
local and State land use decisions and preserves the authority of
State and local governments over zoning and land use matters
except in the limited circumstances set forth in the conference
agreement.”).

9
arising under” section 332(c)(7). Further, the report
instructed that “[a]ny pending Commission
rulemaking concerning the preemption of local
zoning authority over the placement, construction or
modification of [commercial mobile radio service]
facilities should be terminated.” H.R. Conf. Rep. No.
104-458 at 208, 1996 U.S.C.C.A.N. 10 (1995).

B. The FCC’s Jurisdictional Ruling

For over a decade, the FCC asserted no
regulatory jurisdiction under section 332(c)(7), other
than to regulate radio frequency emissions. Disputes
about timing and related matters were decided by the
courts, “taking into account the nature and scope of
[each] request.” 47 U.S.C. § 332(c)(7)(B)(ii). As
Judge Boudin aptly summarized the landscape:
“Congress conceived that this course would produce
(albeit at some cost and delay for the carriers)
individual solutions best adapted to the needs and
desires of particular communities. If this refreshing
experiment in federalism does not work, Congress
can always alter the law.” Town of Amherst v.
Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 17
(1st Cir. 1999).
Eventually, though, telecommunications carriers
sought relief, and not from Congress. Instead, in
2008, Respondents CTIA–The Wireless Association
filed a petition with the FCC requesting, among
other things, “that the Commission issue a
Declaratory Ruling” setting “timeframes in which
zoning authorities must act on siting requests for
wireless towers and antenna sites.” Pet.App.71a.
CTIA specifically asked the FCC to mandate a 45-day
time limit for applications “proposing to collocate on

10
an existing facility”2 and a 75-day limit for “non-
collocation wireless siting application[s].” Id. at 77a.
CTIA further proposed that, when a local zoning
authority does not act within these deadlines, the
siting request should be “deemed granted” or,
alternatively, the application should be
presumptively entitled to “a court-ordered injunction
granting the application unless the zoning authority
can justify the delay.” Id. CTIA also asked the FCC
to rule that the Act prohibits local authorities from
denying a siting application “based on one or more
carriers already serving the geographic area.” Id. at
78a. A number of wireless providers supported
CTIA’s petition, while state and local governments
opposed it.
Before reaching the merits of the industry’s
requests, the FCC separately addressed the scope of
its own jurisdiction. CTIA and the wireless providers
argued that the Commission possessed jurisdiction to
issue the requested rules. State and local
governments, including some of respondents here,
argued “that the statutory text and the legislative
history [of section 332(c)(7)] evince congressional
intent to deny the Commission such authority.” Id.
at 85a. The Act “withheld preemptive authority from
the Commission,” they argued, by “expressly
preserving State and local government authority over
personal wireless service facility siting decisions” and
by providing that “the courts have exclusive
jurisdiction over all disputes arising under Section

2 “Collocations involve modifications to already existing wireless
facilities.” Pet.App.8a, n.9.

11
332(c)(7) (except for those relating to RF emissions).”
Id. at 85a–86a. The state and local authorities also
highlighted the conference report’s instruction that
the FCC terminate all pending rulemaking on the
topic as further evidence supporting the conclusion
that the FCC lacks regulatory jurisdiction under
section 332(c)(7).
The FCC determined that it has jurisdiction to
issue the requested rules under the Act. It began
with the observation that “Congress delegated to the
Commission the responsibility for administering the
Communications Act.” Id. at 87a. Then, it cited
broad delegations of FCC authority in sections 1, 4(i),
201(b), and 303(r) of the Communications Act.
“These [general] grants of authority,” the
Commission reasoned, “necessarily include Title III
of the Communications Act in general, and Section
332(c)(7) in particular.” Id. at 88a. The Commission
interpreted the Act and its legislative history as
prohibiting “a rulemaking proceeding to impose
additional limitations on the personal wireless
service facility siting process beyond those stated in
Section 332(c)(7).” Id. at 90a. And it concluded its
rules do not constitute “the imposition of new
limitations,” but “merely interpret[] the limits
Congress already imposed on State and local
governments.” Id. at 90a. The Commission also held
that “the fact that Congress provided for judicial
review to remedy a violation of Section 332(c)(7) does
not divest the Commission of its authority to
interpret the provision or to adopt and enforce rules
implementing Section 332(c)(7).” Id. at 92a.

12
Upon reaching the merits, the FCC granted the
petition in part. The Commission granted the
industry’s request for time limits on local zoning
authorities’ processing of siting applications, but it
considered the proposed time limits “insufficiently
flexible for general applicability.” Id. at 114a.
Instead, the FCC set a 90-day time limit for
collocation applications and a 150-day time limit for
non-collocation applications. Id. at 115a. Under the
FCC’s ruling, these time limits, and thus the
statutory 30-day deadline for seeking judicial relief
following the denial or failure to act on an
application, may be tolled “by mutual consent of the
personal wireless service provider and the State or
local government.” Id. at 120a. The time limits do
not begin running until an application is complete,
and if an application is incomplete, zoning
authorities must notify the applicant within 30
business days after submission. Id. at 124a. The
FCC also concluded “that a State or local government
that denies an application for personal wireless
service facilities siting solely because ‘one or more
carriers serve a given geographic market’ has
engaged in unlawful regulation” under section
332(c)(7)(B)(i)(II) of the Act. Id. at 127a.
The FCC did not adopt CTIA’s suggestion that
an application should be “deemed granted” when a
zoning authority fails to act within the FCC time
limits. Rather, the Commission provided that “State
or local authorit[ies] will have the opportunity, in any
given case that comes before a court, to rebut the
presumption that the established timeframes are
reasonable.” Id. at 112a. Yet, the Commission was
clear that its time limits trump any contrary state or

13
local deadlines, thus allowing suits even where state
or local law would grant a zoning authority more
than 90 or 150 days to reach a decision. Id. at 121a.
The FCC denied a petition for reconsideration,
and the City of Arlington timely filed a petition for
review in the United States Court of Appeals for the
Fifth Circuit. Id. at 10a. Respondents in support of
petitioners successfully moved to intervene in the
court of appeals. See id. at 11a; Order Granting
Motion to Intervene (Jan. 7, 2011) [CA Doc. No.
00511345715].

C. The Decision Below

The Fifth Circuit upheld the FCC’s jurisdictional
determination. Critically, the court reached that
conclusion by applying circuit precedent holding that
agencies are entitled to Chevron deference even when
deciding questions of their “own statutory
jurisdiction.” Pet.App.37a.
Without separately addressing whether
“Congress delegated authority to the agency
generally to make rules carrying the force of law”
regarding local zoning applications, Mead, 533 U.S.
at 226–27, the court proceeded directly to the
question of whether section 332(c)(7) is ambiguous as
to the FCC’s jurisdiction, see Chevron, 476 U.S. at
843. Pet.App.40a. The court noted the FCC’s
general rulemaking authority under the
Communications Act, id. at 39a–40a, then concluded
that section 332(c)(7) is silent on whether the FCC
may exercise its general authority to “implement” the
specific limitations set forth in section 332(c)(7)(B),
id. at 41a, 45a. In the court’s view, “Congress did not

14
clearly remove the FCC’s ability to implement the
limitations set forth in section 332(c)(7)(B)” and thus
the Act leaves the scope of the Commission’s
authority ambiguous—despite the Act’s grant of
exclusive jurisdiction to the courts. Id. at 42a–43a
(holding that section 332(c)(7)(b)(v) “does not address
the FCC’s power to administer § 332(c)(7)(B)(ii) in
contexts other than those involving a specific dispute
between a state or local government and persons
affected by the government’s failure to act”).
Having found the Act ambiguous as to the FCC’s
jurisdiction over local zoning decisions, the court
addressed whether the Commission’s assertion of
jurisdiction was reasonable under step two of the
Chevron analysis. First, the court held that the Act’s
legislative history does not conclusively foreclose the
FCC’s jurisdictional assertion. That “legislative
history,” in the court’s view, “is silent as to the FCC’s
ability to use its general rulemaking power to provide
guidance with respect to the limitations § 332(c)(7)(B)
expressly imposes on state and local governments.”
Id. at 47a.
Second, the court rejected the suggestion that
the FCC’s determination conflicts with the “clear
statement” rule set forth in Gregory v. Ashcroft, 501
U.S. 452 (1991) and related cases. The court
acknowledged that, “if Congress intends to preempt a
power traditionally exercised by a state or local
government, it must make its intention to do so
unmistakably clear in the language of the statute.”
Pet.App.48a (internal quotations and citations
omitted); see also Gregory, 501 U.S. at 460. But the
court reasoned that section 332(c)(7)(B) clearly

15
preempts state zoning laws and the FCC’s ruling
“only further refines the extent of the preemption
that Congress has already specifically provided.”
Pet.App.49a.
Third, the court held that the FCC had not
departed from its prior conclusion that it lacks
jurisdiction over local zoning matters. The court read
the Commission’s prior decisions as disclaiming
jurisdiction to resolve specific disputes, a power the
statute expressly vests in the courts, not as
disclaiming general rulemaking authority under the
Act. See id. at 51a. The court therefore held that the
FCC’s interpretation of its own jurisdiction was
reasonable and entitled to Chevron deference.
The court of appeals denied a request for
rehearing en banc, id. at 196a, and this Court
granted review limited to the deference question.

SUMMARY OF ARGUMENT

The two fundamental protections of our
constitutional structure preclude Chevron deference
in this case. The separation of powers at the federal
level requires that Congress set the limits of agency
jurisdiction and that the courts conclusively interpret
and enforce those limits without an agency’s thumb
on the scale. The basic metes and bounds of the
agency’s jurisdiction must be ascertained as a
straightforward matter of statutory construction. It
is not reasonable to conclude that Congress would
intend to grant an agency deference to interpret the
scope of its own deference. Only once an agency’s
jurisdiction is established does deference serve,
rather than threaten, the separation of powers. And

16
deference is especially inappropriate when an
agency’s jurisdictional assertion raises federalism
concerns by intruding on state or local authority.
Proper respect for our constitutional structure
demands that Congress act unambiguously before
courts will infer a grant of federal authority to
displace state and local law. As deference comes into
play only in the context of ambiguous laws, this
Court’s clear statement rules leave no room for
deference when an agency expands its jurisdiction at
the expense of state and local governments.

I.

Agencies may act only pursuant to statutory
delegations of authority. They possess no inherent
authority; nor can they grant unto themselves any
executive power. Their jurisdiction to exercise the
executive power derives solely from—and extends
only so far as—Congress’ exercise of the legislative
power. And it has always been the unique province
of the judiciary to police those bounds. The judicial
duty to protect against ultra vires government action
is as old as the Republic. Just as the judiciary is
needed to prevent Congress from exceeding its
constitutional limits, the courts provide an essential
check against agency attempts to breach the bounds
of congressionally delegated power. Thus, a proper
understanding of separation of powers principles
precludes courts from affording Chevron deference to
an agency’s claim of regulatory jurisdiction. Any
contrary understanding would encourage agencies to
arrogate to themselves virtually unchecked coercive
power.
These principles comport with the theory of the
Chevron doctrine. Chevron requires that courts defer

17
to an agency’s reasonable interpretation of ambiguity
in a statute the agency is entrusted to administer.
But it is the fact of congressional delegation of
authority that entitles an agency to deference. In
other words, Chevron deference is premised on the
necessary precondition that Congress has granted
the agency authority to administer the statute being
construed. It is that premise that makes the
assumption of congressional intent to delegate
interstitial rulemaking authority reasonable. This
Court conclusively affirmed that principle in Mead,
when it held that an agency interpretation “qualifies
for Chevron deference” only “when it appears that
Congress delegated authority to the agency generally
to make rules carrying the force of law” on the
statutory subject. 533 U.S. at 226–27. The question
of jurisdiction is therefore necessarily anterior to any
application of deference.
It would make nonsense of Chevron’s logic to
grant an agency deference on the very question of
whether it is entitled to deference. Without the
premise that Congress has, in fact, granted the
agency jurisdiction over a particular subject, Chevron
provides no basis for deference. One cannot simply
assume the proverbial can opener or adopt the
principle that Congress intends that “close counts”
when it comes to granting agencies jurisdiction.
Thus, any theory of granting deference to agencies’
determinations of their own jurisdiction must be
derived from first principles, not from rote citation to
Chevron, which itself derived its deference principle
from the very issue in dispute here, namely whether
Congress granted the agency authority in the first
place. And a resort to first principles certainly does

18
not support a rule of deference or a presumption in
favor of finding delegation in ambiguous statutes.
Rather, first principles suggest that if the courts are
to engage in anything other than a straight-up
exercise in statutory construction, they should
indulge a liberty-preserving presumption that the
delegation of power from relatively accountable
legislators to relatively unaccountable executive
branch administrators is to be disfavored.
Nor do Chevron’s twin practical rationales—that
the interpretation of substantive provisions in a
regulatory statute typically entails the
accommodation of competing policy perspectives and
that expert agencies are better suited to implement
technical and complex regulatory regimes—carry any
weight in the context of jurisdictional
determinations. Courts are better suited than
agencies to probe the bounds of congressional intent
when it comes to the agency’s own jurisdiction.
Courts have the virtue of being disinterested,
whereas agencies have a self-serving tendency to
view their own jurisdiction favorably, much the way
a hammer sees all hardware as nails. Moreover,
purely legal questions of jurisdiction lie at the core of
judicial expertise and rarely implicate policy
judgments or technical expertise.
Indeed, the case against deference when it comes
to an agency’s conception of its own jurisdiction is so
strong, the only real objection could be one of
administrability. But this is hardly an impossible
line to draw. Jurisdictional questions concern the
who, what, where, and when of regulatory power:
which subject matters may an agency regulate and

19
under what conditions. Substantive interpretations
entitled to Chevron deference concern the how of
regulatory power: in what fashion may an agency
implement an administrative scheme. Indeed, the
FCC had no trouble drawing the line in this case. It
separately addressed the threshold question of
whether it could regulate local zoning decisions,
before turning to the merits of its regulations. The
agency clearly indicated when it was defining the
limits of its own jurisdiction and when it was
applying its (claimed) authority to implement the
Act. Chevron just as clearly concerned a substantive
application of the Clean Air Act, not an examination
of the Environmental Protection Agency’s
unquestioned authority to regulate state permitting
processes for new “stationary sources” of air
pollution.

II.

Chevron deference is particularly
unwarranted when an agency claims power over
matters of traditional state and local concern. Just
as the horizontal separation of powers protects
against the accumulation of all federal authority in
the hands of a single branch, federalism ensures a
vertical division of power among separate sovereigns.
Both principles safeguard individual liberty and due
process. For that reason, this Court requires an
unmistakably clear statement from Congress before
interpreting federal law to displace state and local
power. See, e.g., Gregory, 501 U.S. at 458. And that
rule applies to an agency’s assertion of preemptive
power to displace state or local regulatory authority.
See, e.g., Solid Waste Agency of N. Cook Cnty. v.
Army Corps of Eng’rs
, 531 U.S. 159, 172–73 (2001).

20
The clear statement rule of Gregory and related
cases forecloses Chevron deference on matters of
agency jurisdiction vis-à-vis state and local
governments. The two doctrines are fundamentally
at odds. The clear statement rule requires
congressional
clarity to authorize federal
encroachment, while Chevron turns on ambiguity.
There is thus no room for deference to an agency’s
claim to derive preemptive regulatory power from an
ambiguous statute. The courts must resolve the
question whether Congress has acted with sufficient
clarity to disrupt the federal-state balance. If not,
the agency is not authorized to fill the gap or
augment its own authority at the expense of state
and local governments.
None of this is to say that an agency’s view of its
statutory power is irrelevant. When Chevron
deference does not apply, the courts afford an
agency’s interpretation respect according to its power
to persuade. That is as it should be. An agency’s
familiarity and experience with a statutory scheme
warrant due consideration. But an unpersuasive
agency view as to its own jurisdiction should not
carry the day. When it comes to the fundamental
jurisdictional question that justifies a doctrine of
administrative deference in the first place, it is only
the courts that may discern the legislative intent to
confer executive authority or disrupt the federal-
state balance—as our Constitution requires.

21

ARGUMENT

I. An Agency’s Assertion of Jurisdiction Is

Not Entitled to Chevron

Deference.
The Chevron doctrine provides no basis for
deferring to an agency’s assertion of jurisdiction. An
agency’s actual, not asserted, statutory jurisdiction is
the doctrinal basis for Chevron deference in the first
place. Deference makes sense precisely and only
because Congress granted authority to the agency.
Thus, assessment of the metes and bounds of that
jurisdiction necessarily precedes any deference, and
agencies cannot logically receive deference on the
question of whether they have a statutory basis to
receive deference. If there is to be any presumption
about whether grants of regulatory authority are to
be construed broadly or narrowly or with or without
deference, it must come from first principles rather
than from Chevron itself. And if courts are going to
apply any presumption, it should be the liberty-
preserving presumption that delegations of authority
from relatively accountable legislators to relatively
unaccountable executive agencies are to be
disfavored. The contrary presumption that
ambiguous grants of authority should be construed to
delegate authority, at least when the agency wants
that authority, has little to recommend it. Agencies
possess no comparative policy or technical advantage
over courts when assessing regulatory jurisdiction.
To the contrary, the disinterested courts are far
better suited to determine the reach of congressional
delegation.

22

A. The Chevron

Doctrine Does Not Permit

Judicial Deference to an Agency’s
Assertion of Jurisdiction.

1. The question of an agency’s statutory
jurisdiction is antecedent to Chevron deference.
Indeed, the presumed fact of agency jurisdiction is
the raison d’etre of deference. For over a decade, this
Court has held that an agency is not entitled to
Chevron deference unless “Congress delegated
authority to the agency generally to make rules
carrying the force of law.” Mead, 533 U.S. at 226–27;
see also Gonzalez v. Oregon, 546 U.S. 243, 258–68
(2006) (refusing to grant Chevron deference where
the Attorney General lacked statutory authority to
prohibit doctors from prescribing controlled
substances for assisted suicide). The rule could
hardly be otherwise. The rationale for Chevron
deference depends on the fact of congressional
delegation of jurisdiction to the agency to regulate
the relevant subject matter. Thus, applying Chevron
deference to the question whether an agency has the
jurisdiction that justifies Chevron deference is the
jurisprudential equivalent of assuming the can
opener.
This Court has long recognized as much. Well
before Mead, this Court squarely held that “[a]
precondition to deference under Chevron is a
congressional delegation of administrative
authority.” Adams Fruit Co., Inc. v. Barrett, 494 U.S.
638, 649 (1990). Indeed, this Court was clear in
Chevron that deference applies only “[w]hen a court
reviews an agency’s construction of [a] statute which
it administers
.” Chevron, 467 U.S. at 842 (emphasis

23
added); see also id. at 844. Thus, ever since Chevron
courts have “defer[red] to the ‘executive department’s
construction of a statutory scheme it is entrusted to
administer,’” but not to the construction of statutory
schemes not entrusted to an agency’s administration.
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.
221, 233 (1986) (quoting Chevron, 467 U.S. at 844)
(emphasis added); see also Thomas W. Merrill &
Kristen E. Hickman, Chevron’s Domain, 89 Geo. L.J.
833, 872 (2001) (“[I]f Chevron rests on a presumption
about congressional intent, then Chevron should
apply only where Congress would want Chevron to
apply.”) (cited approvingly in Mead, 533 U.S. at n.11).
The courts have always been the branch to
resolve the threshold question of which agency
administers which questions. Take Mead as an
example. This Court did not defer to the Customs
Service on whether “Congress meant to delegate
authority to [the agency] to issue classification
rulings with the force of law.” 533 U.S. at 231–32.
Rather, it tackled the question as it would any other
matter of statutory construction. That judicial
inquiry probed for statutory indications of whether
Congress would expect the agency to be able to
speak with the force of law” on tariff classifications.
Id. at 229 (emphasis added); see also id. (explaining
that “a very good indicator of delegation meriting
Chevron treatment i[s] express congressional
authorizations to engage in the process of rulemaking
or adjudication” (emphasis added)). The judicial
answer was no, and so this Court held that Chevron
did not apply.

24
Thus, as a basic matter of doctrinal coherence,
Chevron does not apply to an agency’s assertion of
regulatory jurisdiction in the first place. Before
employing Chevron deference, the courts must
answer the statutory question whether Congress
intended an agency to receive Chevron deference as a
matter of straight-up statutory construction. Under
Mead, the inquiry turns on whether Congress
granted an agency authority to act with the force of
law over the subject matter at issue. And that
question essentially reduces to whether the agency
has regulatory jurisdiction in the first place. See
Nathan A. Sales & Jonathan H. Adler, The Rest is
Silence:
Chevron Deference, Agency Jurisdiction, and
Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1528
(2009) (“In determining the nature of the delegation
to an agency, courts are essentially determining the
scope of an agency’s power—i.e., the scope of agency
jurisdiction.”).
2. Neither do Chevron’s subsidiary rationales
support deference on jurisdictional matters.

Deference under Chevron rests on the view that
“[t]he power of an administrative agency to
administer a congressionally created program
necessarily requires the formulation of policy and the
making of rules to fill any gap left, implicitly or
explicitly, by Congress.” 467 U.S. at 843 (internal
quotation marks and alterations omitted).
This Court has identified two subsidiary reasons
that Congress would want to delegate discretion to
an agency to fill interstitial gaps in statutes within
the agency’s jurisdiction. First, these interpretive
choices typically implicate important regulatory

25
policies. See Chevron, 467 U.S. at 844, 865. And
“accommodation of conflicting policies” is a task that
is better left to politically accountable agencies than
the courts. See id. at 845; see also Elena Kagan,
Presidential Administration, 114 Harv. L. Rev. 2245,
2372–74 (2001). Second, implementation of a
regulatory scheme often requires expertise beyond
“ordinary knowledge.” Chevron, 467 U.S. at 844
(quoting United States v. Shimer, 367 U.S. 374, 382
(1961)). Agencies, by definition, possess the insight
and experience to resolve interpretive questions in “a
detailed and reasoned fashion,” while generalist
courts are ill-equipped to administer “technical and
complex” regulatory regimes. Id. at 865.3
Chevron’s two practical justifications have no
application to questions of regulatory jurisdiction. As
Mead illustrates, courts discern an agency’s
jurisdiction based on legislative text and the
traditional tools of statutory construction. 533 U.S.
at 227–31. The need to mark the limits of
congressional delegation trumps the need to reconcile
policies or bring expertise to bear on technical,

3 The differences among the multitude of local planning and
zoning laws argue forcefully that the FCC acted outside its area
of expertise when defining the time frame for local decision-
making. Variances, special exceptions, and conditional uses can
varyingly be granted by zoning administrators, zoning boards,
and local legislative bodies, sometimes seriatim. In addition,
most jurisdictions require transparency through public notice
and public hearing all subject to state-court review and differing
requirements under state law and procedure. For these
reasons, Congress removed from FCC jurisdiction the multitude
of issues associated with a multitude of distinctly state and local
planning and zoning laws.

26
substantive regulations. If the ideal reconciliation of
competing policy considerations requires an agency
to act ultra vires, the balance of competing policy
goals is beside the point. The critical question of
legislative authorization is one for the courts, both as
a matter of constitutional competence and
institutional capability. See Chevron, 467 U.S. at n.9
(“The judiciary is the final authority on issues of
statutory construction….”). This is especially so
when, as here, Congress’ clear intent is to limit an
agency’s power (and preserve other regulators’
authority), a purpose that conflicts with the agency’s
natural tendency toward expansion. See Mississippi
Power & Light Co. v. Mississippi ex rel. Moore
, 487
U.S. 354, 388 (1988) (Brennan, J., dissenting). And
even more especially so when the text, structure, and
history of the Act make it clear that Congress struck
a fine jurisdictional balance between various
regulatory players. Cf. Rodriguez v. United States,
480 U.S. 522, 526 (1987) (per curiam) (“Deciding
what competing values will or will not be sacrificed to
the achievement of a particular objective is the very
essence of legislative choice.”); John F. Manning,
Textualism and the Equity of the Statute, 101 Colum.
L. Rev. 1, 18 (2001) (“[D]eparting from a precise
statutory text may do no more than disturb a
carefully wrought legislative compromise.”).4

4 While the Fifth Circuit’s deference rule finds no support in
Chevron, a no-deference rule does find support in the
Administrative Procedure Act (APA). The APA textually
commits to the courts the power to resolve “all relevant
questions of law.” 5 U.S.C. § 706 (2006). Thus, beyond the
guiding lights of the Chevron doctrine, there is hard statutory
evidence that Congress affirmatively intended for courts to

27

B. Separation of Powers Principles

Foreclose Judicial Deference to an
Agency’s Assertion of Jurisdiction.

None of the foregoing demonstrates that a
judicial rule of deference to agencies in construing
the bounds of their jurisdictional grants could not be
justified. But it must be justified by reference to first
principles, because Chevron—which derives a rule of
deference from the assumption of congressional
delegation of jurisdiction—simply cannot accomplish
the task. And if the Court resorts to first principles,
a rule of deference on ambiguous jurisdictional
questions has almost nothing to recommend it. If the
Court adopts a rule for construing the scope of
congressional delegations of rulemaking jurisdiction,
it has four basic options: it can adopt a rule
disfavoring such delegations, a rule of strict
neutrality, a rule favoring such delegations
generally, or a rule favoring delegations when the
agency affirmatively indicates an interest in
exercising regulatory jurisdiction. The rule applied
by the Fifth Circuit granting deference to an agency’s
view of its own jurisdiction is best understood as the
fourth option. But in reality, there is little practical
difference between the third and fourth options:
human nature, political choice theory, and centuries-
old figures of speech all suggest that few agencies
will construe borderline cases as falling outside their

decide legal, jurisdictional questions even while deferring to
agencies’ accommodation of competing and complex policy
matters.


28
jurisdictions. See THE FEDERALIST NO. 51 (James
Madison) (C. Rossiter ed. 1961); but see
Massachusetts v. EPA
, 549 U.S. 497 (2007).
There is no justification for adopting a rule that
effectively allows agencies to broadly construe
ambiguous statutes in favor of agency jurisdiction.
As noted, Chevron does not support the result. Nor
do first principles. If the Court is to adopt any
presumption, it ought to be the opposite, liberty-
preserving presumption that delegations from
relatively accountable legislators to relatively
unaccountable administrative agencies should be
disfavored. Cf. Cass R. Sunstein, Nondelegation
Canons
, 67 U. Chi. L. Rev. 315, 338 (2000). At a bare
minimum, the Court should simply construe the
jurisdictional grants as a matter of straight-up,
presumption-free statutory construction. But under
no circumstances should the Court adopt a rule
favoring the broad construction of ambiguous
delegations where agencies eagerly accept them.
Such a theory certainly has nothing to recommend it
as a matter of discerning likely congressional intent.
See Merrill & Hickman, Chevron’s Domain, 89 Geo.
L.J. at 910 (“[I]t has never been maintained that
Congress would want to give Chevron deference to an
agency’s determination that it is entitled to Chevron
deference.”).
Further, separation of powers principles strongly
counsel against broad constructions of regulatory
jurisdiction. Administrative agencies possess no
inherent powers; any authority they have is derived
from statute. See, e.g., Louisiana Pub. Serv. Comm’n
v. FCC
, 476 U.S. 355, 374 (1986) (“[A]n agency

29
literally has no power to act … unless and until
Congress confers power upon it.”); Sales & Adler, The
Rest is Silence
, 2009 U. Ill. L. Rev. at 1534 (“That is
why they are called ‘administrative agencies’—they
are created to administer programs established by
Congress, and in so doing they act as Congress’s
agents.”). It is therefore “axiomatic 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). “An agency may not
confer power upon itself.” Louisiana Pub. Serv.
Comm’n, 476 U.S. at 374.
This is because Congress possesses all the
legislative power granted by the Constitution. U.S.
Const. art. I, § 1 (“All legislative Powers herein
granted shall be vested in a Congress of the United
States.”). The executive branch’s “take care” power is
limited to implementing the laws enacted by the
legislature. U.S. Const. art. II, § 1 (“The executive
Power shall be vested in a President of the United
States of America.”); id. § 3, cl. 5 (“[The President]
shall take Care that the Laws be faithfully
executed.”). And the judiciary is tasked with
conclusively interpreting and enforcing the limits of
Congress’ commands—including against the
executive branch. U.S. Const. art III, § 1; see, e.g.,
New Process Steel LP v. NLRB, 130 S. Ct. 2635
(2010).
Importantly, the Constitution’s structural
separation of powers does not consist of merely
dividing power among the three branches. The
genius of the Framers was not just a system of

30
separation of powers, but a system of checks and
balances as well. As this Court has repeatedly
remarked, the three branches are not “hermetically
sealed” from one another, Stern v. Marshall, 131 S.
Ct. 2594, 2609 (2011), but one branch is often
granted “partial agency” to check the self-
aggrandizing instincts of the other branches, THE
FEDERALIST NO. 47 (James Madison) (C. Rossiter ed.
1961). See also Mistretta v. United States, 488 U.S.
361, 380–82 (1989). Thus, while the veto is an
executive power and not a legislative power—since
all the legislative power resides in Article I—it
nonetheless places a check on Congress’ legislative
authority. Impeachment is neither an executive nor
judicial function, but it places a legislative check on
both. And, most important here, judicial review
provides the primary check on both legislative and
executive authority. Generally speaking, the
Constitution disfavors the exercise of completely
unreviewed or unchecked authority by any branch,
and the relatively few counterexamples are either
inherently liberty-protecting (e.g., the pardon power)
or extremely unlikely to interfere directly with
individual rights (e.g., the legislative authority to
promulgate internal rules).
All of this is elementary, and all of it strongly
counsels against granting agencies deference in
interpreting the metes and bounds of their own
authority. Doing so would collapse the Constitution’s
separation of powers, and its checks and balances, by
placing in the hands of one bureaucratic body the
power to set, exercise, and enforce the limits of its
own authority without significant review from
another branch. See Soc. Sec. Bd. v. Nierotko, 327

31
U.S. 358, 369 (1946); Addison v. Holly Hill Fruit
Prods., Inc., 322 U.S. 607, 616 (1944)
(“[D]etermination 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.”). And it
would do so in a context that very much threatens
individual liberty because administrative agencies
enjoy substantial discretion within the boundaries of
their delegated authority. See, e.g., Whitman v. Am.
Trucking Ass’ns, Inc.
, 531 U.S. 457, 474–75 (2001);
Mistretta, 488 U.S. at 378–79; id. at 417 (Scalia, J.,
dissenting). This is a dynamic that courts generally
seek to avoid, even when it is the judiciary that
would exercise such concentrated power. See Young
v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 808–
09 (1987); Int’l Union, United Mine Workers of Am. v.
Bagwell
, 512 U.S. 821, 840 (1994) (Scalia, J.,
concurring) (“That one and the same person should
be able to make the rule, to adjudicate its violation,
and to assess its penalty is out of accord with our
usual notions of fairness and separation of powers.”).
This structural breakdown would, in turn, within
the bounds of ambiguity, “encourage[] the agency to”
adopt a broad view of its jurisdictional limits, “which
[would] give it the power, in future [rulemaking and]
adjudications, to do what it pleases.” Talk America,
Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254, 2266
(2011) (Scalia, J., concurring); see also INS v.
Chadha, 462 U.S. 919, 951 (1983) (“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.”). Preventing this accumulation of
administrative authority is no mere matter of

32
constitutional formalism. “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, 131 S. Ct. at 2266 (Scalia, J.,
concurring) (quoting Montesquieu, Spirit of the Laws
bk. XI, ch. 6, pp. 151–52 (O. Piest ed., T. Nugent
transl. 1949)).5 Just as Congress cannot expand its
enumerated powers under the Constitution, agencies
cannot expand the regulatory jurisdiction granted in
their organic statutes. And the courts have the final
say in both instances. Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803).
In sum, the argument for granting agencies
deference in interpreting the scope of their own
authority cannot flow from Chevron because the
Chevron Court derived its argument for deference
from the undisputed assumption that the agency was
exercising its delegated authority. The argument for
deference must come instead from a consideration of
first principles. And all of those first principles point
away from making an agency the primary judge of its
own jurisdiction.

5 At the same time, this rule also preserves the Constitution’s
due process protections by “ensur[ing] that power exercised by
the executive is genuinely pursuant to law, meaning legislation
properly enacted by Congress.” Nathan S. Chapman & Michael
W. McConnell, Due Process as Separation of Powers, 121 Yale
L.J. 1672, 1787–88 (2012).

33

C. Courts Are Capable of Differentiating

Between Assertions of Jurisdiction and
Applications of Administrative

Authority.

The theoretical case for granting agencies
deference in construing their own authority is so
weak, the only justification would be the practical
difficulty of differentiating jurisdictional and non-
jurisdictional questions. See Mississippi Power &
Light
, 487 U.S. at 381 (Scalia, J., concurring in the
judgment). But the line between the two is neither
illusory nor incapable of judicial administration. At
the most basic level, agency jurisdiction is a question
of who, what, where, or when an agency has authority
to regulate. It is concerned with whether an agency
has been delegated power over certain persons,
activities, or subject matters—or in some cases
whether the necessary conditions exist for an agency
to exercise regulatory power. Application of
administrative authority concerns how an agency
exercises its authority over those subjects within its
regulatory realm. Comparing this case to Chevron
illuminates the distinction.
Quite obviously, Chevron posed a question about
the application of regulatory power. No one
questioned that the Environmental Protection
Agency (EPA) had jurisdiction to issue regulations
governing the permitting process for “stationary
sources” of air pollution in States that had not met
earlier air quality standards. Rather, the question
confronting the Court was whether the EPA had
adopted a definition of “stationary sources” that
substantively fit with the Clean Air Act. The Court

34
had no problem drawing that line, and no one
suggested that the question at hand was anything
beyond the implementation of an ambiguous
statutory term.
The crucial question here, though, is whether the
FCC has regulatory power over local zoning decisions
concerning wireless siting requests. The inquiry is
not one of whether a rule comports with the meaning
of a statutory term, or whether some factual scenario
violates the terms of the Act. It is a more
fundamental question of whether the agency can
promulgate its rules at all, or apply the Act in the
first instance—whether Congress has delegated
authority for the FCC to act with the force of law on
the matters addressed in section 332(c)(7).
Indeed, one need to look no further than the
FCC’s declaratory ruling to understand the
distinction. Recognizing that it had to assure itself of
the jurisdiction to regulate local zoning decisions
before addressing the substance of any rule
governing those transactions, the FCC devoted an
entire section of its ruling to the jurisdictional
question. See Pet.App.84a–92a (“Authority to
Interpret Section 332(c)(7)”). There was no
suggestion that the jurisdictional question collapsed
into a policy question, or an assessment of
substantive implementation. In fact, in a completely
separate section of the ruling, after the agency
decided it had authority to implement the Act, the
FCC set forth its view of the optimal rules “on the
merits.” It mandated local zoning time limits,
defined when a zoning decision “prohibits or has the
effect of prohibiting the provision of personal wireless

35
service,” and explained the statutory and evidentiary
bases for those decisions. See id. at 92a–135a. Thus,
the agency itself had no problem distinguishing
between the question of what actions it can regulate
and how it would regulate those actions.
The logic of Chevron dictates that courts defer to
an agency’s substantive interpretations of the statute
it has jurisdiction to administer. But the courts must
decide whether an agency has jurisdiction in the first
place. That line can and should be drawn here.

II. Chevron

Deference Is Especially

Inappropriate When An Agency Asserts

Jurisdiction Over Matters of Traditional
State And Local Concern.

The horizontal separation of powers at the
federal level is only one of the great structural
protections in our Constitution. “As every schoolchild
learns, our Constitution establishes a system of dual
sovereignty between the States and the Federal
Government.” Gregory, 501 U.S. at 457. Respect for
that dual sovereignty and the “integrity, dignity, and
residual sovereignty of the States” takes many forms.
Bond v. United States, 131 S. Ct. 2355, 2364 (2011).
Chief among them are rules that demand a clear
statement before a federal statute will be construed
to interfere with traditional state functions, see
Gregory, 501 U.S. at 460–61, or upset the balance
between the national authority and state and local
governments, see Jones v. United States, 529 U.S.
848, 858 (2000). Thus, wholly independent of the
separation of powers concerns set forth above, the
protections inherent in our Constitution’s federalist
structure foreclose Chevron deference in this case.

36
This Court has long required that Congress act with
unmistakable clarity when affecting state and local
power. See Gregory, 501 U.S. at 460–61. An
administrative agency may therefore assert
jurisdiction to regulate local decisionmaking only
when Congress has clearly granted the agency
jurisdiction to do so. In the face of ambiguity, which
is a necessary precondition for Chevron deference, an
agency simply lacks authority to expand its
jurisdiction into traditional state and local terrain.
There is thus no room for Chevron deference where,
as here, an agency claims jurisdiction over local
governmental procedures.
1. Just like the separation of powers, “[t]he
constitutionally mandated balance of power between
the States and the Federal Government was adopted
by the Framers to ensure the protection of our
fundamental liberties.” Gregory, 501 U.S. at 458
(internal quotation marks omitted); see also Bond,
131 S. Ct. at 2364 (“Federalism secures the freedom
of the individual.”); Printz v. United States, 521 U.S.
898, 921 (1997) (“This separation of the two spheres
is one of the Constitution’s structural protections of
liberty.”); THE FEDERALIST NO. 51 at 323 (“In the
compound republic of America, the power
surrendered by the people is first divided between
two distinct governments, and then the portion
allotted to each subdivided among distinct and
separate departments. Hence a double security
arises to the rights of the people.”).
Because the Supremacy Clause grants the
federal government “a decided advantage” in the
federal-state balance when Congress affirmatively

37
acts, Gregory, 501 U.S. at 460, courts will not lightly
infer that Congress actually intends to displace state
and local authority. Instead, “unless Congress
conveys its purpose clearly, it will not be deemed to
have significantly changed the federal-state balance.”
Jones, 529 U.S. at 858 (quoting United States v. Bass,
404 U.S. 336, 349 (1971)); see also, e.g., Atascadero,
473 U.S. at 242; Raygor v. Regents of Univ. of
Minnesota, 534 U.S. 533, 543–44 (2002); Gregory, 501
U.S. at 460; Will v. Michigan Dep’t of State Police,
491 U.S. 58, 65 (1989). By presuming that “Congress
does not readily interfere” with state and local
matters, this clear statement rule ensures that “the
States retain substantial sovereign powers under our
constitutional scheme.” Gregory, 501 U.S. at 461.
Thus, “federal legislation threatening to trench on
the States’ arrangements for conducting their own
governments should be treated with great
skepticism, and read in a way that preserves a
State’s chosen disposition of its own power, in the
absence of the plain statement Gregory requires.”
Nixon v. Missouri Mun. League, 541 U.S. 125, 140
(2004).
Granting Chevron deference when an agency
asserts jurisdiction over state or local affairs based
on an ambiguous statute is simply incompatible with
that clear statement rule. The first step of the
Chevron framework, “always, is the question whether
Congress has directly spoken to the precise question
at issue.” Chevron, 467 U.S. at 842. “If the intent of
Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”
Id. at 842–43. Deference thus empowers the agency

38
only in cases of ambiguity. The clear statement rule,
however, requires an “unambiguously expressed
intent of Congress” before a statute may be
interpreted to supplant state or local authority.
Thus, Chevron deference is possible only when
federal preemption of traditional state and local
functions is not.
Simple doctrinal logic therefore dictates that an
agency can never receive deference when construing
its jurisdiction to displace or regulate state or local
functions. A contrary rule would unnecessarily place
Chevron and the clear statement rule on a collision
course. If Congress has unmistakably granted an
agency power to affect state or local actions, as
required by the clear statement rule, then Chevron
deference is unwarranted (and unnecessary). But if a
statute is silent or ambiguous regarding an agency’s
authority to regulate state or local functions, as
required for Chevron deference, then the requisite
clear statement is missing.6 The two bedrock
doctrines thus foreclose any possibility that an
agency’s intrusion on local power, like the FCC’s
here, could be entitled to Chevron deference.7

6 In most cases, the clear statement rule will also prove
inconsistent with Chevron step two. If an agency asserts
jurisdiction over state or local matters, without unmistakable
statutory authority for its preemptive actions, its interpretation
is per se unreasonable. See, e.g., American Bar Ass’n v. FTC,
430 F.3d 457, 471–72 (D.C. Cir. 2005).
7 This Court has adopted essentially the same view regarding
legislative history and the clear statement rule: “If Congress’
intention is ‘unmistakably clear in the language of the statute,’
recourse to legislative history will be unnecessary; if Congress’

39
This is for good reason. Any act of Congress that
“significantly change[s] the federal-state balance,”
Jones, 529 U.S. at 858 (quoting Bass, 404 U.S. at
349), is itself quite a remarkable event—one that
requires unambiguous action by both houses of the
legislature and approval by the President. Indeed,
the constitutionally prescribed legislative procedures
themselves function as an important safeguard
against such incursions on state sovereignty. See
Bradford R. Clark, Separation of Powers as a
Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1339–
42 (2001). Regulation by an administrative agency,
by contrast, involves considerably fewer procedural
hurdles: Notice and comment is hardly bicameralism
and presentment. Thus, to demand unmistakable
congressional intent when Congress acts alone, but
permit the combination of an ambiguous statute and
a self-aggrandizing agency acting clearly to displace
state and local authority is fundamentally
incompatible with the structure of our Constitution.
It would allow unelected bureaucracies to achieve
what Congress cannot—and to do so with the courts’
cooperation, rather than oversight.
On this point, it is important to acknowledge
that the clear statement rule conceptually ties the
Constitution’s twin structural protections together.
Congress must clearly manifest its intent to displace

intention is not unmistakably clear, recourse to legislative
history will be futile, because by definition the rule of
Atascadero will not be met.” Dellmuth v. Muth, 491 U.S. 223,
230 (1989). In Dellmuth, as here, the ultimate loadstar can only
be clear statutory text. Legislative history and Chevron
deference will not do when disrupting local power.

40
state or local power in a bill that complies with the
various checks and balances on legislative authority.
See U.S. Const. Art. I, § 7, cl. 2; Chadha, 462 U.S. at
945–46; see also Wyeth v. Levine, 555 U.S. 555, 585–
86 (2009) (Thomas, J., concurring in the judgment)
(identifying bicameralism-and-presentment as one of
“two key structural limitations in the Constitution
that ensure that the Federal Government does not
amass too much power at the expense of the States”).
Then, the President must approve Congress’ clear
statement by signing it into law. U.S. Const. art. I,
§ 7, cl. 2. And the federal courts will insist on a clear
congressional command before presuming that
Congress intended to encroach on local authority.
The clear statement rule thus ensures that all three
branches confirm a clear and politically accountable
intent to displace state and local law. Cf. FTC v.
Ticor Title Ins. Co., 504 U.S. 621, 636 (1991)
(“Federalism serves to assign political responsibility,
not to obscure it.”). An ambiguous statute fails to put
the other branches, and the public, on notice of the
potential threat to federalism. In other words, an
ambiguous statute that is later interpreted by an
agency to displace state and local authority evades a
separation of powers check designed to preserve the
federalist structure of our Constitution. Deferring to
such an agency interpretation thus simultaneously
undermines both strands of the Constitution’s
structural protections.
In keeping with the fundamental incompatibility
between Chevron deference and the foregoing
federalism principles, this Court has applied the
clear statement rule to reject agency assertions of
jurisdiction over borderline cases that involve

41
infringement on matters of traditional state and local
concern. In Solid Waste Agency of Northern Cook
County v. Army Corps of Engineers
, this Court
refused to apply Chevron deference to the Army
Corps of Engineers’ interpretation of the Clean Water
Act defining “navigable waters” to include intrastate
waters that serve as habitats for migratory birds.
531 U.S. at 172. As the Court explained,
constitutional avoidance concerns are “heightened
where the administrative interpretation alters the
federal state framework by permitting federal
encroachment upon a traditional state power.” Id. at
173 (citing Bass, 404 U.S. at 349). Accordingly,
“[w]here an administrative interpretation of a statute
invokes the outer limits of Congress’ power,” the
Court “expect[s] a clear indication that Congress
intended that result.” Id. (citing Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. &
Constr. Trades Council
, 485 U.S. 568, 575 (1988)); see
also Rapanos v. United States, 547 U.S. 715, 738
(2006) (plurality opinion) (“Even if the term ‘the
waters of the United States’ were ambiguous as
applied to channels that sometimes host ephemeral
flows of water (which it is not), we would expect a
clearer statement from Congress to authorize an
agency theory of jurisdiction that presses the
envelope of constitutional validity.”).
2. The decision below ignores these
constitutional concerns. The Fifth Circuit offered two
primary justifications for deferring to the FCC’s
jurisdictional ruling: Congress did not clearly deny
the FCC jurisdiction to regulate local zoning
procedures and other sections of the Federal
Communications Act grant the FCC general

42
authority to implement the Act. See Pet.App.39a–
45a. But this gets things backwards. The clear
statement rule requires affirmative statutory
evidence that Congress unambiguously granted the
FCC jurisdiction to regulate local zoning decisions.
Neither statutory silence nor general jurisdiction is
enough. See Raygor, 534 U.S. at 541 (“[W]e cannot
read [the statute] to authorize district courts to
exercise jurisdiction over claims against
nonconsenting States, even though nothing in the
statute expressly excludes such claims.”); Blatchford
v. Native Vill. of Noatak
, 501 U.S. 775, 786 (1991)
(holding that the clear statement rule requires
language more specific than a general grant of
jurisdiction); Atascadero, 473 U.S. at 246 (same).
When the Fifth Circuit addressed the clear
statement rule, it focused on the wrong question. In
the court’s view, the FCC’s rules “only further
refine[] the extent of the preemption that Congress
has already explicitly provided.” Pet.App.49a. To be
sure, section 332(c)(7)(B)(ii) expresses clear
congressional intent to ensure that state and local
zoning authorities act on siting applications “within a
reasonable period of time.” But the critical question
here is whether the statute clearly grants the FCC
jurisdiction to do what it did—preempt local zoning
procedures by setting specific time limits. See, e.g.,
Medtronic, Inc. v. Lohr, 518 U.S. 470, 484–85 (1996)
(explaining that courts must “identify the domain
expressly pre-empted” by the statutory language
(internal quotation marks omitted)); Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 516 (1992) (“[T]he
purpose of Congress is the ultimate touchstone of
pre-emption analysis.” (internal quotation marks

43
omitted)). If not, then Chevron deference is
irrelevant. If so, then Chevron deference is
unnecessary.
The decision below does not square with this
Court’s separation of powers or federalism
jurisprudence, or the Chevron doctrine itself. It
should be reversed.
* * *
None of this is to suggest that an agency’s views
are irrelevant or entitled to no weight in the judicial
analysis. When Chevron deference does not apply,
Skidmore deference does. See Mead, 533 U.S. at
234–35. Thus, when an agency determines the scope
of its own jurisdiction, a reviewing court should
afford that determination “a respect proportional to
its ‘power to persuade.’” Id. at 235 (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
That is to say, the agency’s “ruling may surely claim
the merit of its writer’s thoroughness, logic, and
expertness, its fit with prior interpretations, and any
other sources of weight.” Id. But it may not bind the
courts to accept any reasonable interpretation of the
statutory text. This is as it should be. Both the
separation of powers and federalism are too
important for the courts to defer to an unpersuasive
agency effort to expand its own jurisdiction. The
proper separation of powers requires that Congress
set an agency’s jurisdictional limits and that the
courts interpret and enforce those limits—especially
when an agency seeks to preempt the sovereign
powers of state and local governments.

44

CONCLUSION

The judgment of the court of appeals should be
reversed.
Respectfully submitted,
PAUL D. CLEMENT
Counsel of Record
MICHAEL H. MCGINLEY
BANCROFT PLLC
1919 M Street, NW, Ste. 470
Washington, D.C. 20036
(202) 234-0090
pclement@bancroftpllc.com

November 19, 2012
Counsel for Respondents in
Support of Petitioners

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