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Cable Telecomm. and Tech. Comm., No. 11-1547 (Sup. Ct.)

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Released: November 20, 2012
NO. 11-1547
In the Supreme Court of the United States
CABLE, TELECOMMUNICATIONS, AND
TECHNOLOGY COMMITTEE OF THE
NEW ORLEANS CITY COUNCIL,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit

PETITIONER’S BRIEF ON THE MERITS

WILLIAM D. AARON, JR.
BASILE J. UDDO
Counsel of Record
JERRY A. BEATMANN, JR.
DEWAYNE L. WILLIAMS
UDDO, BEATMANN & CODE, LLC
AARON, PLC
2445 N. Causeway Blvd.
201 St. Charles Ave.
Suite 724
Suite 3800
Metairie, LA 70002
New Orleans, LA 70170
(504) 832-7204
(504) 569-1800
waaron@aaronfirm.com
Counsel for Petitioner
November 19, 2012
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED


This case involves a challenge to the FCC’s
jurisdiction to implement § 332(c)(7) of the
Communications Act of 1934, titled “Preservation of
Local Zoning Authority.” On October 5, 2012, this
Court entered an Order granting the petitions for writs
of certiorari limited to the following question:
Whether, contrary to the decisions of at least
two other circuits, and in light of this Court’s
guidance, a court should apply Chevron to
review an agency’s determination of its own
jurisdiction?

ii

PARTIES TO THE PROCEEDING

Petitioner/Intervenor:

1.
Cable and Telecommunications Committee (Now
Cable, Telecommunications, and Technology
Committee) of the New Orleans City Council

Defendants-Respondents

:
1.
Federal Communications Commission
2.
United States of America
3.
CTIA - The Wireless Association

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 5
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 8
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . 12
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(A)
Before Chevron deference can be applied,
courts must first determine, de novo,
definitively that Congress intended to
delegate final interpretive authority over
a statute to the agency . . . . . . . . . . . . . . 17
(1)
Given the clear precedent on the
issue, the Fifth Circuit erred in
failing to apply Chevron Step 0 . . 19
(2)
The actual language of Section
332(c)(7) reveals Fifth Circuit error
when applying Chevron Step 0 . . 21

iv
(B)
Chevron deference should not be applied
in any situation where an agency seeks to
determine the scope of its own jurisdiction
except where Congress has explicitly
granted jurisdiction . . . . . . . . . . . . . . . . . 25
(1)
Agencies can claim no special
expertise in interpreting a statute
confining its jurisdiction . . . . . . . 28
(2)
Chevron deference poses the risk of
agency aggrandizement . . . . . . . . 30
(3)
In this particular case, the
legislative history dictates that
Chevron deference not be granted. 32
(C)
The application of Chevron deference
where an agency seeks to determine the
scope of its own jurisdiction is a violation
of the Separation-of-Powers Doctrine
except where there has been an explicit
delegation by Congress . . . . . . . . . . . . . . 38
(1)
Chevron Step 0 represents a shift
back to the traditional notion of the
Separation-of-Powers Doctrine . . 40
(2)
The Fifth Circuit erred in its
mechanical application of Chevron
deference and presumptively
delegating to the FCC the power to
interpret a statute limiting its
jurisdiction and upsetting

v
Congress’ careful jurisdictional
balance . . . . . . . . . . . . . . . . . . . . . 42
(D)
The application of Chevron deference
where an agency seeks to determine the
scope of its own jurisdiction is a violation
of the Administrative Procedure Act
except where there has been an explicit
delegation by Congress . . . . . . . . . . . . . . 45
(1)
The Fifth Circuit’s mechanical
application of Chevron deference is
a violation of the Administrative
Procedure Act . . . . . . . . . . . . . . . . 46
(2)
The FCC’s usurpation of Court
a u t h o r i t y v i o l a t e d t h e
Administrative Procedure Act . . . 47
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

vi

TABLE OF AUTHORITIES

CASES

Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990) . . . . . . . . . . . . . . . . . . . . . . 20
Am. Bus. Ass’n v. Slater,
231 F.3d 1 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 26
Bethesda Hosp. Ass’n v. Bowen,
485 U.S. 399 (1988) . . . . . . . . . . . . . . . . . . . . . . 49
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) . . . . . . . . . . . . . . . . . . . . . . 41
Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691 (1984) . . . . . . . . . . . . . . . . . . . . . . 31
Chevron, USA, Inc. v. Natural Res. Def. Counsel,
Inc., et al.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . passim
Christensen v. Harris Cnty.,
529 U.S. 576 (2000) . . . . . . . . . . . . . . . . . . . 20, 41
City of Arlington Texas v. FCC,
668 F.3d 229 (5th Cir. 2012) . . . . . . . . . . . . passim
City of New York v. FCC,
486 U.S. 57 (1988) . . . . . . . . . . . . . . . . . . . . . . . 31
Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986) . . . . . . . . . . . . . . . . . . . . . . 27

vii
Dunn v. Commodity Futures Trading Comm’n,
519 U.S. 465 (1997) . . . . . . . . . . . . . . . . . . . . . . 20
Gonzales v. Oregon,
576 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . 20
Gregory v. Aschcroft,
501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . 36
K Mart Corp. v. Cartier, Inc.,
486 U.S. 281 (1988) . . . . . . . . . . . . . . . . . . . . . . 49
Legal Servs. Corp. v. Valazquez,
531 U.S. 533 (2001) . . . . . . . . . . . . . . . . . . . . . . 40
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) . . . . . . . . . . . . . . . . . . . 18, 20
Louisiana Pub. Serv. Comm’n v. FCC,
476 U.S. 355 (1986) . . . . . . . . . . . . . . . . . . . 43, 44
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 39
Mayo Found. for Med. Educ. & Research v. U.S.,
131 S.Ct. 704 (2011) . . . . . . . . . . . . . . . . . . . . . . 17
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) . . . . . . . . . . . . . . . . . . . . . . 49
Miss. Power & Light Co. v. Miss. ex rel. Moore,
487 U.S. 354 (1988) . . . . . . . . . . . . . 28, 30, 31, 36
Morton v. Ruiz,
415 U.S. 199 (1974) . . . . . . . . . . . . . . . . . . . . . . 48

viii
National R.R. Passenger Corp. v. Boston & Maine
Corp.,
503 U.S. 407 (1992) . . . . . . . . . . . . . . . . . . . . . . 49
NCIA v. Brand X Internet Servs.,
545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . . 43
Nixon v. Fitzgerald,
457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . 40
NLRB v. City Disposal Sys., Inc.,
465 U.S. 822 (1984) . . . . . . . . . . . . . . . . . . . . . . 27
Offshore Logistics, Inc. v. Tallentire,
477 U.S. 207 (1986) . . . . . . . . . . . . . . . . . . . . . . 49
Phillips v. Marine Concrete Structures, Inc.,
895 F.2d 1033 (5th Cir. 1990) . . . . . . . . . . . . . . . 49
Pruidze v. Holder,
632 F.3d 234 (6th Cir. 2011) . . . . . . . . . . . . . . . 49
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . . . 41
Smiley v. Citibank, S.D.,
517 U.S. 735 (1996) . . . . . . . . . . . . . . . . . . . . . . 20
United Servs. Auto Ass’n v. Perry,
102 F.3d 144 (5th Cir. 1996) . . . . . . . . . . . . . . . . 49
United States v. Home Concrete & Supply, LLC,
132 S.Ct. 1836 (2012) . . . . . . . . . . . . . . . . . . . . . 17

ix
United States v. Mead Corp.,
533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . passim
VoiceStream Minneapolis, Inc. v. St. Croix Cnty.,
342 F.3d 818 (7th Cir. 2003) . . . . . . . . . . . . passim
White v. INS,
75 F.3d 213 (5th Cir. 1996) . . . . . . . . . . . . . . . . . 49

CONSTITUTION

U.S. Const. art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . 40

STATUTES

5 U.S.C.A. § 706 . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 45
5 U.S.C.A. § 706(2)(C) . . . . . . . . . . . . . . . . . . . . . . . 46
28 U.S.C.A. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
28 U.S.C.A. § 2344 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
47 U.S.C.A. § 151 et seq. . . . . . . . . . . . . . . . . . passim
47 U.S.C.A. § 332(c)(7) . . . . . . . . . . . . . . . . . . passim
47 U.S.C.A. § 402(a) . . . . . . . . . . . . . . . . . . . . . . . . 11
47 U.S.C.A. § 601(c)(1) . . . . . . . . . . . . . . . . . . . . . . 38

x

ADMINISTRATIVE OPINIONS

In the Matter of 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, 25 F.C.C.R. 1215
(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3
In the Matter of 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
In the Matter of 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, 25 F.C.C.R. 11157
(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

OTHER AUTHORITIES

Armstrong, Timothy K., Chevron Deference and
Agency Self-Interest, 13 CORNELL J.L. & PUB
POL’Y, 203 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 31
CTIA’s Petition for Rulemaking, In re Amendment
of the Commission’s Rules To Preempt State and
Local Regulation of Tower Siting for Commercial

xi
Mobile Service Providers, RM 8577 (December
22, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
H.R. Conf. Rep. No. 104-458 (1996) . . . . . . . . passim
H.R. Rep. No. 104-204 (1995) . . . . . . . . . . . . . . . 9, 33
http://wireless.fcc.gov/siting/local-state-gov.html . 37
Merrill, Thomas W. & Kristin E. Hickman,
Chevron’s Domain, 89 GEO. L. J. 833 (2001) . . . 27
Miles, Thomas J.& Cass R. Sustein, Do Judges
Make Regulatory Policy? An Empirical
Investigation of Chevron, 73 U. CHI. L. REV. 823
(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Monaghan, Marbury and the Administrative State,
83 COLUM. L. REV. 1 (1983) . . . . . . . . . . . . . . . . 40
Noah, Lars, Interpreting Agency Enabling Acts:
Misplaced Metaphors in Adminisrative Law, 41
WM & MARY L. REV. 1463 (2000) . . . . . . . . . . . 46
Pub. L. No. 104-104, 110 Stat. 56 (1996) . . . . . . 2, 32
Sales, Nathan A. & Jonathan H. Adler, The Rest is
Silence: Chevron Deference, Agency Jurisdiction,
& Statutory Silences, 2009 U. ILL. L. REV. 1497
(2009) . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 46, 52
Singer, Norman J., 2A Sutherland Statutory
Construction § 45.02 (5th ed. 1992) . . . . . . . . . 49

xii
Singer, Norman J., 3 Statutes and Statutory
Construction § 65.2 (2001) . . . . . . . . . . . . . . . . 25
Sustein, Cass R., Constitutionalism after the new
deal, 101 HARV. L. REV. 421 (1987) . . . . . . . . . . 39
The Federalist No. 78 (A. Hamilton)(C. Van Doren
ed. 1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

1

OPINIONS BELOW

The United States Court of Appeals for the Fifth
Circuit’s denial of the Petition for Rehearing En Banc
of Intervenor Cable and Telecommunications
Committee of the New Orleans City Council and denial
of the Petition for Rehearing En Banc of Intervenors
City of Dubuque, Iowa; City of los Angeles, California;
Los Angeles County, California; Texas Coalition of
Cities for Utility Issues; and Petitioner City of
Arlington Texas dated March 29, 2012, appears as
Petition Appendix 1 of the City of Arlington’s Petition
for Writ of Certiorari and is not reported.
The opinion of the United States Court of Appeals
for the Fifth Circuit in The City of Arlington Texas v.
Federal Communications Commission, et al., dated
January 23, 2012, appears as Petition Appendix 4 of
the City of Arlington’s Petition for Writ of Certiorari
and is reported at 668 F.3d 229.
The FCC’s Order dated August 3, 2010, denying the
Petition for Reconsideration of the Declaratory Ruling
In the Matter of 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
appears as Petition Appendix 33 of the City of
Arlington’s Petition for Writ of Certiorari and is
reported at 25 F.C.C.R. 11157.
The FCC’s Order dated January 29, 2010, denying
the Emergency Motion for Stay of the Declaratory
Ruling In the Matter of Petition for Declaratory Ruling

2
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
appears as Petition Appendix 43 of the City of
Arlington’s Petition for Writ of Certiorari and is
reported at 25 F.C.C.R. 1215.
The FCC Declaratory Ruling In the Matter of
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 dated November 18, 2009,
appears Petition Appendix 51 of the City of Arlington’s
Petition for Writ of Certiorari and is reported at 24
F.C.C.R. 13994.

JURISDICTION

The Federal Communications Commission (the
“FCC”) issued an Order on November 18, 2009,1
granting part of the petition of CTIA - The Wireless
Association (“CTIA”) and establishing new rules
interpreting portions of Section 332(c)(7) of the
Telecommunications Act of 1996 (the “Order”).2
1 In the Matter of 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).
2 Pub. L. 104-104, 110 Stat. 56 (February 8, 1996). The
Telecommunications Act of 1996 was enacted to amend certain

3
An Emergency Motion for Stay was filed on
December 17, 2009, by the National Association of
Telecommunications Officers and Advisors, the United
States Conference of Mayors, the National League of
Cities, the National Association of Counties, and the
American Planning Association, and denied on January
29, 2010.3
A Petition for Reconsideration of the FCC
Declaratory Ruling was filed on December 17, 2009 by
the National Association of Telecommunications
Officers and Advisors, the United States Conference of
Mayors, the National League of Cities, the National
Association of Counties, and the American Planning
Association, and denied on August 3, 2010 (the
“Reconsideration Order”).4
A Panel of the U.S. Court of Appeals for the Fifth
Circuit issued an Opinion on January 23, 2012,
dismissing the Petition for Review of the
sections of the Communications Act of 1934, 48 Stat. 1064. The
Communications Act is codified as amended at 47 U.S.C.A. § 151
et seq.
3 In the Matter of 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, 25
F.C.C.R. 1215 (2010).
4 In the Matter of 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, 25
F.C.C.R. 11157 (2010).

4
Reconsideration Order of the City of San Antonio, and
denying the Petition for Review of the Reconsideration
Order of the City of Arlington (the “Panel Opinion”).5
The U.S. Court of Appeals for the Fifth Circuit
denied a Petition for Rehearing En Banc on March 8,
2 0 1 2 , f i l e d b y I n t e r v e n o r C a b l e a n d
Telecommunications Committee of the New Orleans
City Council, and denied a Petition for Rehearing En
Banc on March 8, 2012, filed by Intervenors City of
Dubuque, Iowa, City of Los Angeles, California, Los
Angeles County, California, Texas Coalition of Cities
for Utility Issues, and Petitioner City of Arlington,
Texas.
Petitioners requested a writ of certiorari from this
Court. This Court issued an Order granting
Petitioners writ of certiorari on October 5, 2012.
Jurisdiction to review the Fifth Circuit’s judgment
denying the Petition for Review of the Reconsideration
Order by a writ of certiorari is conferred on this Court
by 28 U.S.C.A. § 1254.
5 City of Arlington Texas v. FCC, 668 F.3d 229 (5th Cir. 2012).

5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

47 U.S.C.A. § 332(c)(7) provides:
(7) 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 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

6
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 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.

7
(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) of this
title).
5 U.S.C.A. § 706 provides:
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret
constitutional and statutory provisions, and
determine the meaning or applicability of the
terms of an agency action. The reviewing court
shall--
(1) compel agency action unlawfully withheld or
unreasonably delayed; and

8
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with
law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of statutory
right;
(D) without observance of procedure required
by law;
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this title
or otherwise reviewed on the record of an agency
hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by the
reviewing court.
In making the foregoing determinations, the
court shall review the whole record or those
parts of it cited by a party, and due account shall
be taken of the rule of prejudicial error.

STATEMENT OF THE CASE

Section 332(c)(7) was adopted as part of the
Telecommunications Act of 1996 (“Telecommunications
Act”), 47 U.S.C.A. § 151 et seq. It provided certain
statutory protections to an applicant who applies for
siting of a personal wireless service facility such as a
cell phone tower. These protections are in addition to
the standard protections afforded by equal protection,
due process, and state law.

9
When Congress adopted Section 332(c)(7), it did so
amidst trying to balance local police powers in
regulating the build out of commercial mobile radio
services (“CMRS”) infrastructure, and the development
of a competitive and efficient marketplace for
telecommunications providers.6 The Conference Report
(“Report”) regarding Section 332(c)(7) clearly sets forth
Congress’ intention as to this Section; that “other than
Section 332(c)(7)(B)(iv) of the Communications Act of
1934 as amended by this Act and section 704 of the
Telecommunications Act of 1996 the courts shall have
exclusive jurisdiction over all other disputes arising
under this section.”7 The FCC did retain authority in
one area - radio frequency rules - and the authority to
hear complaints regarding local regulation of radio
frequency emissions.
The Report further directed the courts to measure
State and local authorities’ reasonableness and
timeliness with the “generally applicable time frames
for zoning decision” in a particular community,8 and
stated that “any pending Commission rulemaking
concerning the preemption of local zoning authority
6 CTIA’s Petition for Rulemaking, In re Amendment of the
Commission’s Rules To Preempt State and Local Regulation of
Tower Siting for Commercial Mobile Service Providers, RM 8577,
at 17 (December 22, 1994).
7 H.R. Rep. No. 104-204, at 25 (1995).
8 Id.

10
over the placement, construction or modification of
CMRS facilities should be terminated.”9
Despite this clarity, on July 11, 2008, the CTIA filed
a petition requesting that the FCC clarify portions of
Section 332(c)(7).10 The FCC improperly assumed
jurisdiction and proceeded to establish new rules,
including a new requirement under Section
332(c)(7)(B)(ii) defining “a reasonable time” to mean 90
and 150 days for State and local authorities to act on
personal wireless service facility siting applications;11
declaring that it is a “failure to act” under Section
332(c)(B)(v) by the State or local authority if it does not
act within these time frames;12 and declaring that upon
expiration of the established time frames, a wireless
provider has 30 days in which it may sue a State or
local authority for failure to act on its application.13
The FCC further found that the State or local
government may toll the time frame by notifying an
applicant within 30 days of receipt, that the application
is incomplete.14
9 Id.
10 CTIA Petition.
11 Pet. App. 51 at ¶¶ 4, 32, 37, 45.
12 Id. at ¶¶ 4, 32, 37, 39.
13 Id. at ¶ 49. The FCC also found that the “reasonable period of
time” can be extended by the mutual consent of the State or local
government and the personal wireless service provider, and that
in such a situation, the 30 day period would be tolled. Id.
14 Id. at ¶ 53.

11
Five organizations15 filed a Petition for
Reconsideration of the FCC Declaratory Ruling on
December 17, 2009, which was denied on August 3,
2010 (the “Reconsideration Order”).16 The City of
Arlington, Texas then filed a Petition for Review of the
Reconsideration Order with the Fifth Circuit on
January 14, 2010, and on October 1, 2010, the City of
San Antonio filed a Petition for Review of the
Reconsideration Order.17 The cases were considered
under the same docket number, and the Cable and
Telecommunications Committee of the City of New
Orleans, intervened.
A Panel of the Fifth Circuit issued its Opinion on
the petitions on January 23, 2012, dismissing the City
of San Antonio’s petition for failure to timely file, and
denying the City of Arlington’s petition.18 The Panel
held, in pertinent part, that: (1) the FCC’s Declaratory
Ruling was the product of adjudication and not
rulemaking, and the lack of strict compliance with the
notice and comment requirements was harmless;19
15 The five organizations are: National Association of
Telecommunications Officers and Advisors (“NATOA”), the United
States Conference of Mayors, the National League of Cities, the
National Association of Counties, and the American Planning
Association.
16 Pet. App. 33 at ¶ 7.
17 The jurisdiction of the Fifth Circuit was based on 47 U.S.C.A.
§ 402(a) and 28 U.S.C.A. § 2344.
18 City of Arlington Texas v. FCC, 668 F.3d 229 (5th Cir. 2012).
19 Id. at 16, 20.

12
(2) the due process rights of State and local
governments were not violated by the failure of the
FCC to individually serve copies of the CTIA’s Petition
on each State or local government;20 (3) the FCC did
possess the statutory authority, as analyzed under the
Chevron standard, to interpret the language of
322(c)(7) and impose the 90 and 150 day time frames
for the application process;21 (4) the 90 and 150 day
time frames are permissible interpretations of the
statute and hold up under the Chevron standard;22 and
(5) the FCC’s establishment of the 90 and 150 day time
frames were not arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with the law.

SUMMARY OF THE ARGUMENT

This Court has requested that the parties brief the
issue of whether the courts should apply Chevron
deference in reviewing an agency’s determination of its
own jurisdiction. This brief responds to that inquiry in
the abstract – that is it takes the position that on the
whole courts should not apply Chevron deference in
reviewing an agency’s determination of its own
jurisdiction unless Congress specifically intended same
(Chevron Step 0) – and in the specific – that is that in
the case at bar Chevron deference should not have been
afforded to the FCC (Chevron Steps 1 & 2).
20 Id. at 25.
21 Id. at 39.
22 Id. at 41.

13
Pursuant to Chevron Step 0, unless Congress has
indicated otherwise, the answer to this Court’s inquiry
is a resounding “no.” Chevron Step 0 requires some
affirmative indication on the part of Congress of its
intention to delegate interpretive jurisdiction to the
agency. Only after this affirmative indication of
congressional delegation of administrative authority is
Chevron implicated at all. If a court finds affirmative
evidence, from the agency’s generally conferred
authority and other statutory circumstances, that
Congress intended to delegate final interpretive power
to the agency, it then will move to Chevron Steps 1 and
2. Even then, however, Chevron deference is not
automatic. Step 1 is a determination of whether
Congress eliminated the agency’s discretion over the
precise subject matter addressed by clearly resolving
the specific question at issue. If not, only then will
Step 2 apply and deference will be given to the agency’s
determination of its own jurisdiction, unless it is
determined that the agency’s rationale is arbitrary
and/or unreasonable.
In the case at bar, the Fifth Circuit should not have
mechanically applied Chevron deference to review the
FCC’s interpretation of its own statutory jurisdiction.
Rather, it should have performed a Chevron Step 0
analysis, de novo, on the issue of whether Congress
specifically delegated final interpretive authority over
Section 332(c)(7) of the Telecommunications Act of
1996. Had such an analysis been done, the Fifth
Circuit would have been required to apply the
traditional methods of statutory construction, and
apply the presumption that Congress did not intend to
expand the FCC’s jurisdiction into an area of
traditional State and local regulation.

14
In the abstract, Chevron Step 0 dispenses with all
of the reasons advanced for mechanical application of
Chevron deference. Specifically, agencies can claim no
special expertise in interpreting a statute confining its
jurisdiction, as courts are required to address
jurisdictional questions implicating the scope of federal
power routinely. Furthermore, courts have a
competitive advantage at resolving jurisdictional
questions in a consistent and predictable fashion.
Thus, while an agency may be expert in resolving
technical questions within the subject matter of its
mission, it actually has less expertise than courts in
figuring out when jurisdiction exists.
In addition, mechanical application of Chevron
deference without some affirmative indication on the
part of Congress of its intention to delegate interpretive
jurisdiction to the agency, poses a substantial risk of
agency aggrandizement. As agencies have no inherent
regulatory powers, their power must be explicitly
delegated by Congress. As such, a presumption against
agency authority entails a presumption against the
delegation of authority to determine the scope of its
own jurisdiction. Chevron deference, however, without
affirmative Congressional delegation, not only
eliminates the presumption against authority for
agencies, it actually goes further and reverses same
and instead creates a presumption in favor of authority
for agencies. This reverse presumption has the
potential to lead to agencies participating in power-
grabs to assert jurisdiction where Congress did not
intend. In the specific case at bar, the FCC has an
interest in facilitating its own policy interests by
expanding its jurisdiction and has done so at the
expense of State and local authority.

15
The particular legislative history in this matter
dictates that Chevron deference is improper. In
enacting the Telecommunications Act of 1996, Congress
recognized that there are legitimate State and local
concerns involved in regulating the siting of wireless
communication facilities. It opted to preserve the
authority of State and local governments over zoning
and land use matters except in very limited
circumstances under Section 332(c)(7). Despite this
clear legislative history, the FCC used Chevron to
power-grab the authority Congress wished to leave to
the State and local governments. This is a classic
example of agency aggrandizement and why Chevron
deference should not be extended to an agency’s
determination of its own jurisdiction. It clearly does
not pass the Chevron Step 0 test, as the legislative
history shows that Congress did not intend to give the
FCC, rather than the courts, final interpretive
authority over the statute.
Application of Chevron deference also is an arguable
violation of the separation-of-powers doctrine. Chevron
establishes that in certain circumstances
administrators should decide the scope of their own
authority even where Congress has not specifically
delegated that authority. However, interpretations of
statutes, and in particular issues involving jurisdiction,
is an inherent judicial function under our Constitution.
Yet, Chevron shifts this power/authority from the
courts and places it with the agencies/executive. This
is particularly troubling in cases where, like this one,
an agency’s self-interest is at issue.
Finally, the application of Chevron deference is a
violation of the Administrative Procedure Act. The

16
APA establishes that courts are to decide all relevant
questions of law, including jurisdiction. It further
provides that courts are to invalidate and set aside
those agency actions determined to be in excess of
statutory jurisdiction, authority, or limitations, or short
of statutory right. Application of Chevron deference
improperly shifts the authority for answering certain
legal questions from the courts to the administrative
agencies.

ARGUMENT

The Fifth Circuit Panel held that § 332(c)(7) is
ambiguous with respect to the FCC’s authority to
establish time frames. It reasoned that, although the
statute bars the FCC from using its general rule
making power under the Telecommunications Act to
create additional limits on state and local governments
beyond those provided in section (B), since the statute
didn’t explicitly deny the FCC general authority to
implement section (B)’s limitations, it is silent on the
issue and therefore ambiguous. In other words, the
Panel held that, despite the other explicit limiting
language in the statute, since the statute did not
explicitly foreclose the FCC from setting limits on time
frames under section (B), it was ambiguous. It
therefore concluded that Chevron deference should be
applied, apparently following the Fifth Circuit
approach of mechanically deferring to agency
jurisdictional determinations unless Congress has
clearly removed the authority to make those
determinations.

17
(A)

Before Chevron

deference can be applied,
courts must first determine, de novo,
definitively that Congress intended to
delegate final interpretive authority over a
statute to the agency.
The error committed by the Fifth Circuit Panel is
that it mechanically applied Chevron deference without
first, de novo, performing a Chevron Step 0 analysis.
Given Section 332(c)(7)’s language, context, and clear
legislative history, as well as Chevron’s progeny, it
appears clear that a court should not apply Chevron
deference mechanically. Rather, courts must first
scrutinize whether “the agency’s generally conferred
authority and other statutory circumstances” make
apparent “that Congress would expect the agency to be
able to speak with the force of law when it addresses
ambiguity in the statute.” United States v. Mead Corp.,
533 U.S. 218, 229 (2001); Mayo Found. for Med. Educ.
& Research v. United States, 131 S.Ct. 704, 714
(2011).23 This approach, which is called Chevron Step
0, is grounded in the uncontroversial idea that
deference to agency interpretation of statutes it
administers is appropriate only where Congress has
specifically delegated that authority.
Consequently, the threshold question, Chevron Step
0, is one of interpretive jurisdiction. It asks whether
23 See also United States v. Home Concrete & Supply, LLC, 132
S.Ct. 1836, 182 L.Ed. 2d 746, 759 (2012) (Scalia, J., concurring)
(noting that “a pre-Chevron determination that language is
ambiguous does not alone suffice; the pre-Chevron Court must in
addition have found that Congress wanted the particular
ambiguity in question to be resolved by the agency.”)

18
Congress empowered the courts, or the agency, final
interpretive authority over the statute in question.
Ambiguity on that issue, which is what the Fifth
Circuit Panel found in this case, does not automatically
enure to the benefit of the agency. Quite the opposite,
Chevron Step 0 requires some affirmative indication on
the part of Congress of its intention to delegate
interpretive jurisdiction to the agency.24 Only after this
affirmative indication of congressional delegation of
administrative authority is Chevron implicated at all.
If a court finds affirmative evidence, from the agency’s
generally conferred authority and other statutory
circumstances, that Congress intended to delegate final
interpretive power to the agency, it then will move to
Chevron Step 1 and Step 2. Even then, however,
Chevron deference is not automatic. Step 1 is a
determination of whether Congress eliminated the
agency’s discretion over the precise subject matter
addressed by clearly resolving the specific question at
issue.25 If not, Step 2 applies deference to the agency’s
determination of its own jurisdiction unless it is
determined that the agency’s rationale is arbitrary
and/or unreasonable.26
24 See United States v. Mead Corp., 533 U.S. 218 (2001); see also
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007)
(‘[T]he ultimate question is whether Congress would have
intended, and expected, courts to treat an agency’s rule,
regulation, application of a statute, or other agency action as
within, or outside, its delegation to the agency of gap filling
authority.”)
25 See Chevron, USA, Inc. v. Natural Res. Def. Counsel, Inc., et al.,
467 U.S. 837 (1984).
26 Id.

19
Chevron Step 0 is a definitive answer to the
question posed by this Court in granting certiorari –
[w]hether a court should apply Chevron to review an
agency’s determination of its own jurisdiction? The
answer is a resounding “no” in most circumstances.
The sole exception is when there is some affirmative
indication on the part of Congress of its intention to
delegate interpretive jurisdiction to the agency at issue.
This determination is done de novo, and ambiguity falls
to the benefit of the courts rather than the agency.
Even where there is some affirmative indication,
however, it must be remembered that agency deference
is not automatic. Chevron Steps 1 and 2 still need to be
applied and resolved in favor of the agency in order for
agency deference to apply.
(1)

Given the clear precedent on the issue,

the Fifth Circuit erred in failing to
apply Chevron Step 0.
The Fifth Circuit Panel committed reversible legal
error by failing to apply Chevron Step 0 at all, despite
numerous precedent for its application. Rather, the
Panel held that its perceived ambiguity in the statute
automatically enured to the benefit of Chevron
deference.27 However, courts have consistently held
that statutory ambiguity alone is not enough to
27 City of Arlington Texas v. FCC, 668 F.3d 229 (5th Cir. 2012) (“If
the provisions are ambiguous, . . . we must defer to the FCC’s
interpretation . . . so long as the FCC’s interpretation represents
a reasonable construction of their terms.”).

20
establish Chevron deference.28 Rather, Chevron Step 0
establishes that before a Chevron analysis can be
performed, which may or may not result in affording
Chevron deference, there must be some affirmative
indication on the part of Congress of its intention to
delegate interpretive jurisdiction to the agency.
In Adams Fruit Co. v. Barrett, the Court stated that
“[a] precondition to deference under Chevron is a
congressional delegation of administrative authority.”
494 U.S. 638, 649 (1990); see also Dunn v. Commodity
Futures Trading Comm’n, 519 U.S. 465, 479 n.14
(1997) (explaining that Chevron deference “arises out
of background presumptions of congressional intent”
(citing Smiley v. Citibank (S.D.), 517 U.S. 735, 740-41
(1996)). Additionally, in Christensen v. Harris County,
a majority of the Court held that Congress can only be
said to have impliedly delegated the power to interpret
ambiguous statutory language when it has granted an
agency power to take actions that bind the public with
the “force of law.” 529 U.S. 576, 87-88 (2000). The
Court reasoned that the scope of an agency’s authority
to interpret ambiguous statutory text only extends as
far as the agency’s own authority to take actions with
the force of law.29 Justice Breyer, in his dissent,
concluded that “where one has doubt that Congress
actually intended to delegate interpretive authority to
28 See United States v. Mead Corp., 533 U.S. 218 (2001); see also
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007);
Gonzales v. Oregon, 546 U.S. 243, 258 (2006) (“Chevron deference
. . . is not accorded merely because the statute is ambiguous and an
administrative official is involved.”)
29 Christenson, 529 U.S. at 587.

21
the agency (an ‘ambiguity’ that Chevron does not
presumptively leave to agency resolution),’ Chevron
deference does not apply. Id. at 597 (Breyer, J.,
dissenting).
The Court in United States v. Mead Corporation, in
concluding that the United States Customs Service’s
tariff classification rulings were not entitled to Chevron
deference, made clear that congressional intent is the
touchstone for the analysis. The Court stated that
Chevron applies “when it appears that Congress
delegated authority to the agency generally to make
rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in
the exercise of that authority.” 544 U.S. at 226-27.
These precedents clearly establish that ambiguity in a
statute does not automatically enure to the benefit of
Chevron deference. Thus, the Panel’s application of
automatic deference, because of its perceived ambiguity
in Section 332 (c)(7), is clearly legal error. On this fact
alone, the Panel’s decision should be reversed.
Additionally, a review of the actual statutory language
in question further reveals error committed by the
Panel.
(2)

The actual language of Section 332(c)(7)

reveals Fifth Circuit error when
applying Chevron Step 0.
There clearly is no affirmative indication in the
statute in question on the part of Congress of its
intention to delegate interpretive jurisdiction to the
FCC. In fact, a review of the pertinent language of the
statute in question actually provides affirmative

22
language of congressional intention to delegate
authority to the courts.
47 U.S.C.A. § 332 (C)(7) provides:
(7) 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
. . .(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.
. . .(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

23
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 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.
The Panel ruled that this language is ambiguous
and thus mechanically applied Chevron deference to
the FCC’s usurpation of jurisdiction. Petitioner
disagrees with the assertion of ambiguity. However,
this Court did not grant certiorari on that issue.
Rather, it limited certiorari to the issue of when, if
ever, it is prudent to apply Chevron to review an
agency’s determination of its own jurisdiction. In that
context, and with the Chevron Step 0 standard in mind,
Petitioner examines the actual language of the statute.

The Telecommunications Act provides that a local
zoning authority must act on any request for
authorization to place, construct, or modify personal
wireless service facilities “within a reasonable period of

24
time.”30 Recognizing the complexities, as well as the
multiple variances that can take place at the local level
relative to siting applications, Congress did not
specifically set a time frame or definition for “within a
reasonable period of time.” Congress realized that
establishing a uniform, strict deadline for local
governments to act upon a tower siting request would
not be practical, because the nature and scope of each
request are uniquely different.
What Congress did do, however, was establish a
remedy for anyone who was adversely affected by any
final action or failure to act by a State or local
government. That remedy is access to the courts where
that person could be afforded a remedy by presenting
a prima facie case of unreasonableness on the part of
the State of local government. Congress, therefore,
specifically provided affirmative language of
congressional intention to delegate authority to
determine reasonableness to the courts.
Contrast this language with the language regarding
radio frequency emissions wherein Congress stated
that “[a]ny 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.” 47
U.S.C.A. § 332(c)(7)(B)(v). In that instance, Congress
provided affirmative language in favor of the FCC.
Thus, the FCC arguably could have Chevron deference
in connection with issues involving radio frequency
emissions. However, the fact that the language in
30 47 U.S.C.A. § 332(c)(7)(B)(ii).

25
question favors court intervention in all other cases
certainly does not bode well for Chevron deference
under Chevron Step 0 in any other case but radio
frequency emissions.
This Court granted certiorari on a very limited issue
– [w]hether a court should apply Chevron to review an
agency’s determination of its own jurisdiction? As
stated previously, Chevron Step 0 has the benefit of
providing a definitive answer to the question posed by
this Court. It also, however, has the added benefit of
dispensing with the less than stellar rationale, for
mechanically applying Chevron as the default where
there is some perceived ambiguity in the statute and/or
congressional intent. As seen below, this rationale
leaves much to be desired and does not provide a
legitimate basis for the mechanical adoption of Chevron
where an agency seeks to determine the scope of its
own jurisdiction except where Congress has explicitly
granted same.
(B)

Chevron

deference should not be applied in
any situation where an agency seeks to
determine the scope of its own jurisdiction
except where Congress has explicitly
granted jurisdiction.
In Anglo-American law, those limited by law are
generally not empowered to decide on the meaning of
the limitation.31 Agencies have no inherent authority.
31 Norman J. Singer, 3 Statutes and Statutory Construction § 65.2
(2001) (“[T]he general rule applied to statutes granting powers to

26
They have no more jurisdiction than Congress has
clearly provided. Thus, where a statute is silent on the
existence of agency jurisdiction, as the Fifth Circuit
Panel has claimed here, Chevron deference should not
be implicated and courts should presume that no
jurisdiction exists.32 This is the Chevron Step 0
principle. Statutory ambiguity is no longer, by itself,
sufficient evidence of a congressional intent to delegate
interpretive responsibility to an agency.33 Congress is
always free to explicitly delegate interpretive
authority. Where Congress has not been express,
however, courts should only find that Congress has
impliedly delegated interpretive power where it has
delegated to an agency the authority to adopt
regulations or take other actions that bind the public
with the force of law. Failure to do so, and rather
falling back on Chevron deference, could lead to
dangerous precedent being created resulting in the
diminishing of State and local authority on State and
local issues, as well as a diminishing of judicial
authority in connection with the interpretation of the
law.
As Justice Brennan noted, “[a]gencies do not
‘administer’ statutes confining the scope of their
jurisdiction, and such statutes are not ‘entrusted’ to
[agencies] is that only those powers are granted which are
conferred either expressly or by necessary implication.”).
32 See Am. Bus. Ass’n v. Slater, 231 F.3d 1, 8 (2000).
33 See United States v. Mead Corp., 533 U.S. 218 (2001).

27
agencies.34 Courts should not presume that Congress
implicitly intended an agency to fill “gaps” in a statute
confining the agency’s jurisdiction, since by its nature
such a statute manifests an unwillingness to give the
agency the freedom to define the scope of its own
power.35 Furthermore, where Chevron speaks of filling
gaps left by Congress, it is misleading because it
implies that the agency is operating on the same
horizontal plane as Congress when it is actually acting
as Congress’ agent exercising delegated powers.36
Proponents of Chevron deference, however, cite to
agency special expertise as a basis for the deference.
This basis has no merit generally, but also is not
supported by the facts in this case.
34 Id.
35 Id.; see also Commodity Futures Trading Comm’n v. Schor, 478
U.S. 833, 841-847, 106 S.Ct. 3245, 3252-3255, 92 L.Ed.2d 675
(1986) (citing statutory language and legislative history
demonstrating that the agency was delegated broad authority to
determine which counterclaims to adjudicate); NLRB v. City
Disposal Sys., Inc., 465 U.S. 822, 829, 104 S.Ct. 1505, 1510, 79
L.Ed.2d 839 (1984) (deferring to agency interpretation of statute
defining the scope of employees’ right to engage in concerted
activities under the National Labor Relations Act). It is thus not
surprising that this Court has never deferred to an agency’s
interpretation of a statute designed to confine the scope of its
jurisdiction.
36 See Thomas W. Merrill & Kristin E. Hickman, Chevron’s
Domain, 89 GEO. L. J. 833, 230-31 (2001).

28
(1)

Agencies can claim no special expertise

in interpreting a statute confining its
jurisdiction.
One rationale for Chevron deference is the notion
that agencies have more familiarity with and expertise
in the statute in question and its subject matter. The
implication is that federal courts are legal generalists,
but agency officials are so-called specialists. See
Chevron, 467 U.S. at 865 ( “Judges are not experts in
the field, and are not part of either political branch of
Government.”). Proponents of Chevron deference
assert that while courts may be asked to interpret a
particular provision infrequently, agency officials can
be expected to deal with their implementing legislation
every day.37 Additionally, agencies are sometimes
responsible for drafting and pressing the legislative
proposals they are later charged to implement, which
suggest that the agencies know what the statutes were
intended to authorize and accomplish.
This rationale, however, has a fatal flaw. It is based
solely on supposition and conjecture. As Justice
Brennan pointed out in his dissent in Mississippi
Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S.
354 (1988), “agencies can claim no special expertise in
interpreting a statute confining its jurisdiction.”38
Whatever expertise agencies may have at answering
37 See Nathan A. Sales & Jonathan H. Adler, The Rest is Silence:
Chevron Deference, Agency Jurisdiction, & Statutory Silences, 2009
U. ILL. L. REV. 1497 (2009).
38 Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487
U.S. 354, 387 (1988) (Brennan, J., dissenting).

29
technical or policy questions, no one would assert that
agencies have an institutional advantage over courts in
resolving jurisdictional disputes. Jurisdiction is not
the sort of question about which an agency could be
expected to have expertise as a general matter. It is
not a policy question, but rather one of statutory intent.
Courts, and not agencies, are required to address
jurisdictional questions implicating the scope of federal
power all the time. An agency may be expert in
resolving technical questions within the subject matter
of its mission, but it has no special expertise in figuring
out when jurisdiction exists.
Furthermore, courts have a competitive advantage
at resolving jurisdictional questions in a consistent and
predictable fashion. Judicial perspectives do not swing
with each change in presidential administration.39
“However imperfect judicial decisions may be, they are
more likely to reflect the faithful application of
precedent, applicable legal norms, and canons of
construction than equivalent decisions made by
agencies headed by executive officials.”40
There simply is no solid rational basis for any
assertion that agencies would have more expertise than
courts to determine jurisdiction. In determining the
nature of the delegation to an agency, courts are
39 See Thomas J. Miles & Cass R. Sustein, Do Judges Make
Regulatory Policy? An Empirical Investigation of Chevron, 73 U.
CHI. L. REV. 823, 824-25 (2006).
40 See Nathan A. Sales & Jonathan H. Adler, The Rest is Silence:
Chevron Deference, Agency Jurisdiction, & Statutory Silences, 2009
U. ILL. L. REV. 1497, 1536 (2009).

30
determining the scope of the agency’s jurisdiction or
power.41 Handing over the power to decide how much
power an agency has inevitably leads to the biggest
danger in applying Chevron deference and asserting
agency special expertise – aggrandizement.
(2)

Chevron

deference poses the risk of
agency aggrandizement.
As Justice Brennan pointed out in Mississippi
Power, Chevron deference poses an unacceptable risk
of agency aggrandizement.42 Specifically, Congress’
evident policy “in favor of limiting the agency’s
jurisdiction” might be frustrated by “the agency’s
institutional interests in expanding its own power.”43
This unreasonable and unnecessary risk is far too great
given the potential outcome of neutering State and
local authority in this matter.
Agencies have no inherent regulatory powers. Their
power stems solely from that which is delegated by
Congress. Since there is a requirement of affirmative
legislative action to create agency power, there should
not be a presumption of agency authority without clear
evidence of such congressional intent (Chevron Step 0).
As such, a presumption against agency authority
entails a presumption against the delegation of
authority for an agency to determine the scope of its
41 See United States v. Mead Corp., 533 U.S. 218 (2001).
42 See Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354,
387 (1988) (Brennan, J., dissenting).
43 Id.

31
own jurisdiction. Absent such a negative presumption,
agencies are certainly tempted to expand their power
in the broadest sense possible and, in essence, violate
the separation of powers by encroaching on the
judiciary’s interpretive function.
Justice Brennan stated that “statutes confining an
agency’s jurisdiction do not reflect conflicts between
policies that have been committed to the agency’s care,
. . . but rather reflect policies in favor of limiting the
agency’s jurisdiction that, by definition, have not been
entrusted to the agency and that may indeed conflict
not only with the statutory policies the agency has been
charged with advancing, but also with the agency’s
institutional interest in expanding its own power.”
Mississippi Power & Light Co. v. Mississippi ex rel.
Moore, 487 U.S. 354, 387 (1988).44 Self-interest on the
part of the issuing agency provides a reason to doubt
the genuineness of the explanation it offers to justify
the interpretation it has adopted. In other words, the
fact that the interpretation implicates the agency’s self-
interest, in and of itself, invites skepticism as to
whether the rationale is above board or whether the
agency’s assertion of jurisdiction/authority is merely a
power-grab.45 This obvious problem resulted in the
evisceration of Chevron deference in instances where
the issue is the limiting of an agency’s jurisdiction and
Congress has not explicitly granted the agency that
authority (Chevron Step 0). Rather, an expansive de
44 See also City of New York v. FCC, 486 U.S. 57, 65 (1988); Capital
Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700 (1984).
45 See Timothy K. Armstrong, Chevron Deference and Agency Self-
Interest, 13 CORNELL J.L. & PUB. POL’Y 203, 206 (2004).

32
novo look at the legislative history is required to
determine if deference is warranted. In the case at bar,
the FCC clearly has an self-interest in facilitating its
own policy interests by expanding its jurisdiction. Yet
both Petitioners and the FCC agree that Congress
intended to limit FCC authority in some respect as
seen by the legislative history clearly. Given same,
Chevron Step 0 is implicated and deference should not
be afforded.
(3)

In this particular case, the legislative

history dictates that Chevron deference
not be granted.
Congress enacted the Telecommunications Act of
1996 (“Telecommunications Act”), 47 U.S.C.A. § 151 et
seq., “to promote competition and reduce regulation in
order to secure lower prices and higher quality services
for American telecommunications consumers, and
encourage the rapid deployment of new
telecommunications technologies.”46 Among the
technologies addressed by Congress in the
Telecommunications Act was wireless communications
services. In regard to this technology, Congress found
that “siting and zoning decisions by non-federal units
of government” had “created an inconsistent and, at
times, conflicting patchwork of requirements” that was
inhibiting the deployment of wireless communications
46 Pub.L. No. 104-104, 110 Stat. 56, 56 (1996); see VoiceStream
Minneapolis, Inc. v. St. Croix Cnty., 342 F.3d 818, 828-829 (7th Cir.
2003).

33
services.47 At the same time, however, Congress
recognized that “there are legitimate State and local
concerns involved in regulating the siting of such
facilities . . . , such as aesthetic values and the costs
associated with the use and maintenance of public
rights-of-way.”48
To address the problems created by local zoning
decisions, the House version of the Telecommunications
Act would have given authority to the FCC to regulate
directly the siting of wireless communications towers.
The Conference Committee, however, decided against
complete federal preemption, opting to “preserve the
authority of State and local governments over zoning
and land use matters except in limited
circumstances.”49 Thus, § 332(c)(7) struck a delicate
balance between the need for a uniform federal policy
and the interests of state and local governments in
continuing to regulate the siting of wireless
communications facilities.50 Under that section, state
and local governments retain the authority to regulate
the siting of wireless telecommunications facilities, but
47 H.R. Rep. 104-204, at 94 (1995); see St. Croix County, 342 F.3d
at 828-829.
48 Id.
49 See H.R. Conf. Rep. No. 104-458, at 207-08 (1996); see St. Croix
County, 342 F.3d at 828-829.
50 47 U.S.C.A. § 332(c)(7).

34
their decisions are subject to certain procedural and
substantive limitations.51
In particular, 47 U.S.C.A. § 332(c)(7), regarding the
regulatory treatment of wireless services, provides, in
part that:
[N]othing 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.52
The only limitations to the local zoning authority
are as follows:
(1)
Its rules and decisions shall not
unreasonably discriminate among providers
of functionally equivalent services;
(2)
Its rules and decisions shall not prohibit or
have the effect of prohibiting the provision of
personal wireless services;
(3)
Within a reasonable period of time, it shall
act on any request for authorization to place,
construct, or modify personal wireless service
facilities;
51 See 47 U.S.C.A. § 332(c)(7); see St. Croix County, 342 F.3d at
828-829.
52 47 U.S.C.A. § 332(c)(7)(A).

35
(4)
Any decision to deny a request to place,
construct, or modify personal wireless
service facilities shall be in writing and
supported by substantial evidence; and
(5)
A decision by a governmental body denying a
request may not be based upon the
environmental effects of radio frequency
emissions if the emissions meet FCC
guidelines.53
Furthermore, any person who is adversely affected
by any final action or failure to act by a State or local
government may commence an action in court for relief.
Thus, allegations that a state or local government has
acted inconsistently with Section 332(c)(7) are to be
resolved exclusively by the courts (with the exception
of cases involving regulation based on the health effects
of RF emissions, which can be resolved by the courts or
the Commission).54
This is a clear case where Chevron Step 0 is
implicated and deference should not be afforded. The
Fifth Circuit Panel held that § 332(c)(7) is ambiguous
with respect to whether the FCC or the courts are
empowered to determine the agency’s jurisdiction.
Thus, it applied Chevron deference. This, however,
runs afoul of Mead and Chevron Step 0. Statutory
ambiguity is no longer, by itself, sufficient evidence of
a congressional intent to delegate interpretive
53 47 U.S.C.A. § 332(c)(7)(B).
54 47 U.S.C.A. § 332(c)(7)(B)(v).

36
responsibility to an agency.55 Where Congress has not
been express, courts should only find that Congress has
impliedly delegated interpretive power where it has
delegated to an agency the authority to adopt
regulations or take other actions that bind the public
with the force of law in connection with the statute at
issue.
In the case at bar, the FCC does not administer 47
U.S.C.A. § 332(c)(7). Instead, Congress specifically
wanted local government to retain the right to
determine how and where towers should be placed.56
This is of particular import because Justice Brennan
pointed out that “[o]ur agency deference cases have
always been limited to statutes the agency was
“entrusted to administer.”57 Furthermore, unless
preemption was the clear and manifest intent of
Congress, local zoning laws may not be preempted.58
Within the Telecommunications Act, Congress clearly
did not intend for local zoning laws to be preempted by
federal law, except with respect to radio-frequency
emissions. In fact, when considering this legislation,
Congress decided against federal preemption, instead
opting to “preserve the authority of State and local
55 See United States v. Mead Corp., 533 U.S. 218 (2001).
56 47 U.S.C.A. § 151 et seq.
57 See Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354,
386 (1988) (Brennan, J., dissenting).
58 See Gregory v. Aschcroft, 501 U.S. 452, 460-461 (1991).

37
governments over zoning and land use matters except
in limited circumstances.”59
More importantly, Congress did not want the FCC
to develop a uniform policy for the siting of wireless
tower sites, but rather, Congress wanted the courts to
have exclusive jurisdiction over all disputes regarding
the placement, construction, and modification of
personal wireless service facilities. Specifically, the
legislative history provides that:
It is the intent of the conferees that other than
under Section 332(c)(7)(B)(iv) [regarding the
effects of radio frequency emissions]. . . the
courts shall have exclusive jurisdiction over all
other disputes arising under this section. Any
pending Commission rulemaking concerning the
preemption of local zoning authority over the
placement, construction or modification of
[commercial mobile services] facilities shall be
terminated.60
In fact, even the FCC itself has recognized that the
courts have exclusive jurisdiction over zoning disputes,
(except in radio-frequency emissions cases), and that
“the Commission’s role in Section 332(c)(7) issues is
primarily one of information and facilitation.”61 Thus,
59 See H.R. Conf. Rep. No. 104-458, at 207-08 (1996); see St. Croix
County, 342 F.3d at 828-829.
60 See H.R. Conf. Rep. No. 104-458, at 208 (1996).
61 This information comes directly from the FCC’s website. See
http://wireless.fcc.gov/siting/local-state-gov.html

38
there is no question that this action is contrary to
Congressional intent and legislative history and
therefore prohibited by the Telecommunications
Act—i.e., the Telecommunications Act shall not modify,
impair or supersede local law “unless expressly stated
in such Act.”62 Additionally, the case presents the exact
situation Chevron Step 0 was created to prevent.
Congress clearly did not explicitly grant to the FCC the
authority to determine the scope of its own jurisdiction.
Thus, courts are to look to whether Congress has
delegated to an agency the authority to adopt
regulations or take other actions that bind the public
with the force of law in connection with the statute at
issue. The legislative history clearly establishes that
Congress did not intend for the FCC to determine the
scope of its own jurisdiction in this matter, and thus
Chevron Step 0 mandates that deference not be applied
in this particular circumstance.
(C)

The application of Chevron

deference
where an agency seeks to determine the
scope of its own jurisdiction is a violation
of the Separation-of-Powers Doctrine
except where there has been an
explicit delegation by Congress.
Chevron deference essentially establishes that in
certain circumstances administrators should decide the
scope of their own authority. That principal, however,
contradicts the separation-of-powers principles dating
62 47 U.S.C.A. § 601(c)(1).

39
back to Marbury v. Madison63 and The Federalist No.
78.64 “The case for judicial review depends in part on
the proposition that foxes should not guard henhouses -
an injunction to which Chevron appears deaf.” Cass R.
Sustein, Constitutionalism after the new deal, 101
HARV. L. REV. 421 (1987). This consequence was yet
another factor in the evolvement of Chevron Step 0. By
mechanically applying Chevron deference in this
matter without performing a Chevron Step 0 analysis,
the Panel essentially violated the separation-of-powers
doctrine.
63 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
64 See The Federalist No. 78 at 525-26 (A. Hamilton) ( C. Van Doren
ed. 1945) (But it is not with a view to infractions of the
Constitution only, that the independence of the judges may be an
essential safeguard against the effects of occasional ill humors in
the society. These sometimes extend no farther than to the injury
of the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is of
vast importance in mitigating the severity and confining the
operation of such laws. It not only serves to moderate the
immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who,
perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts.).

40
(1)

Chevron

Step 0 represents a shift back
to the traditional notion of the

Separation-of-Powers Doctrine.

Article I of our constitution vests in Congress all
legislative powers granted thereunder.65 Article II
gives the Executive the power to enforce the law.66
Article III establishes that courts are the final arbiters
of the meaning of the law.67 If one would argue that
congressional or state interpretations of constitutional
provisions should be accepted whenever there is
ambiguity in the constitutional text, that person would
be met with a plethora of objections on the grounds of
a violation of the separation-of-powers doctrine. Yet,
the relationship of the Constitution to Congress
parallels the relationship of governing statutes to
agencies, and there is no outrage regarding
mechanically deferring to agencies regarding
jurisdiction.68 In both contexts, an autonomous jurist
is required to determine the nature of the limitation
and uphold the separation-of-powers doctrine. A strong
judiciary in the interpretation of statutes is therefore
essential when an agency’s self-interest is at issue. An
agency can acquire lawmaking authority only to the
65 See U.S. Const. art. I, § 1.
66 See Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982).
67 See Legal Servs. Corp. v. Valazquez, 531 U.S. 533, 545 (2001).
68 See Monaghan, Marbury and the Administrative State, 83
COLUM L. REV. 1, 32-34 (1983) (arguing that the role of judicial
review is substantially similar in administrative law and
constitutional law).

41
extent that Congress confers such power on it, and thus
the scope of an agency’s legal authority is for a court to
determine.69
The Court has intuitively recognized this principle
in later cases where it retreated from the mechanical
application of Chevron deference and created Chevron
Step 0. In Christensen v. Harris County, the Court
refused to give deference to a Department of Labor
opinion letter.70 It cited to the Skidmore v. Swift & Co.
case wherein the Court announced that courts may
defer to agency interpretations, but were not required
to do so.71 In Justice Breyer’s dissent, joined by Justice
Ginsburg, he argued that Chevron applies only when
Congress has made an express delegation to the
agency.
Going even farther, in United States v. Mead Corp.,
the Court gave purely discretionary deference, rather
than Chevron deference, to a tariff classification by the
United States Custom Service.72 The Mead Court
limited Chevron to cases where “it appears that
Congress delegated authority to the agency generally
to make rules carrying the force of law, and that the
69 See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)
(“It is axiomatic that an administrative agency’s power to
promulgate legislative regulations is limited to the authority
delegated by Congress.”).
70 See Christensen v. Harris Cnty., 529 U.S. 576 (2000).
71 See Skidmore v. Swift & Co., 323 U.S. 134 (1944).
72 See United States v. Mead Corp., 533 U.S. 218 (2001).

42
agency interpretation claiming deference was
promulgated in the exercise of that authority.” United
States v. Mead Corp., 533 U.S. 218, 226-27 (2001). As
Justice Scalia recognized, the Mead ruling reversed the
burden of proof saying that “[w]hat was previously a
general presumption of authority in agencies to resolve
ambiguity in the statutes they have been authorized to
enforce has been changed to a presumption of no such
authority, which must be overcome by affirmative
legislative intent to the contrary.” Id. at 239 (Scalia, J.,
dissenting). Thus, Chevron Step 0 was created.
Although these cases do not specifically cite to the
separation-of-powers doctrine as the catalyst of their
shift from the mechanical application of Chevron
deference to review an agency’s determination of its
own jurisdiction, the underlying reality of the cases
was a power shift back from the executive under
Chevron to the judiciary under Mead.
Chevron deference should now only apply when
Congress has explicitly left a gap to be filled by the
agency whose decision is under review (Chevron Step
0). The case at bar is an example of the violation of the
separation-of-powers doctrine and certainly does not
meet the Chevron Step 0 test under Mead.
(2)

The Fifth Circuit erred in its

mechanical application of Chevron
deference and presumptively delegating
to the FCC the power to interpret a
statute limiting its jurisdiction and
u p s e t t i n g C o n g r e s s ’ c a r e f u l
jurisdictional balance.

43
Under the Fifth Circuit’s analysis of whether
§ 332(c)(7)(A) bars the FCC from using its general
authority in the Act to regulate the State and local
siting process under § 332(c)(7), Chevron deference was
adopted in whole and Mead (Chevron Step 0) was
completely ignored. The Panel’s automatic application
of Chevron to the FCC’s interpretation of its statutory
limit on its authority runs afoul of Chevron Step 0,
which requires an extensive examination of Congress’
intent. As Justice Breyer stated in NCIA v. Brand X
Internet Services, a determination of whether an
agency’s generally conferred authority and other
statutory circumstances make apparent that Congress
would expect the agency to be able to speak with the
force of law when it addresses ambiguity in the statute
is of particular import “where an unusually basic legal
question is at issue.” NCIA v. Brand X Internet Servs.,
545 U.S. 967, 1004 (2005) (Breyer, J., concurring). No
where is this more important than in instances where
a statute narrows federal authority and preserves the
authority of State and local governments, and
§ 332(c)(7) seeks to do just that – even the FCC
acknowledges this fact.
Given same, the case of Louisiana Public Service
Commission v. FCC is certainly persuasive. It involved
a similar preservation clause stating that “nothing in
this chapter shall be construed to apply or to give the
Commission jurisdiction with respect to” certain
matters. 476 U.S. 355, 370 (1986). In denying
deference, the Court stated that the statute constituted
a denial of power to the FCC.73 It stressed the point by
73 Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)

44
stating that “[t]o permit an agency to expand its power
in the face of a congressional limitation on its
jurisdiction would be to grant to the agency power to
override Congress. This we are unwilling and unable
to do.” Id. at 374-75.
Similarly, all parties, even the FCC, acknowledge
that at the very least § 332(c)(7) precludes the FCC
from imposing additional limitations on State and local
government authority over the wireless facility zoning
process. Just as in Louisiana PSC, Congress decided
against federal preemption, instead opting to “preserve
the authority of State and local governments over
zoning and land use matters except in limited
circumstances.”74 Congress intended the determination
of what is reasonable under a given situation to remain
with the courts, not with the FCC. The legislative
history supports the fact that the reasonableness of
review time of siting applications is to be determined
by the courts. Specifically, the legislative history
provides:
It is the intent of the conferees that other than
under Section 332(c)(7)(B)(iv) [regarding the
effects of radio frequency emissions] . . . the
courts shall have exclusive jurisdiction over all
other disputes arising under this section. Any
pending Commission rulemaking concerning the
preemption of local zoning authority over the
placement, construction or modification of
74 See H.R. Conf. Rep. No. 104-458, at 207-08 (1996); see St. Croix
County, 342 F.3d at 828-829.

45
[commercial mobile services] facilities shall be
terminated.75
Now that the FCC has imposed the 90 and 150 day
time frames, this exclusive jurisdiction of the courts
has been removed. If an application is not reviewed
within these time frames, the State or local
government will be considered to have “failed to act”
under the statute. Thus, the Fifth Circuit Panel has
allowed the FCC to encroach on not only matters
Congress intended to be left to State and local
governments, but also on the separation-of-powers
doctrine. Had it conducted a Chevron Step 0 analysis
and applied the traditional tools of statutory
construction, it would not have run afoul of the
separation-of-powers doctrine and would have found
that Congress did not intend for the FCC to make
policy affecting State and local authority.
(D)

The application of Chevron

deference
where an agency seeks to determine the
scope of its own jurisdiction is a violation
of the Administrative Procedure Act except
where there has been an explicit
delegation by Congress.
Congress has made clear its intention to leave
jurisdictional questions in the hands of the courts. The
Administrative Procedure Act (APA) is the basic
charter governing judicial review. Under Section 706
of the APA, reviewing courts are to decide “all relevant
questions of law.” 5 U.S.C.A. § 706 (2006).
75 See H.R. Conf. Rep. No. 104-458, at 208 (1996).

46
“Determining the existence or scope of agency
authority, unlike answering a complex technical or
scientific question or making a policy judgment about
how best to implement a regulatory regime, requires
answering a question of law about whether Congress
delegated authority to a given regulatory agency.”
Nathan A. Sales & Jonathan H. Adler, The Rest is
Silence: Chevron Deference, Agency Jurisdiction, &
Statutory Silences, 2009 U. ILL. L. REV. 1497, 1537
(2009).
(1)

The Fifth Circuit’s mechanical

application of Chevron deference is a
violation of the Administrative

Procedure Act.

The APA recognizes jurisdiction as a distinct legal
inquiry.76 An agency only has authority to implement
and enforce a law or regulation when the underlying
jurisdiction exists. Thus, as all agency power comes
from Congress, agencies only have authority to engage
in interpretation and exercise interpretive discretion
when Congress has already delegated such authority.
The APA acknowledges this fact as it provides that
courts are to invalidate and set aside those agency
actions determined to be “in excess of statutory
jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C.A. § 706(2)(C).
76 See Lars Noah, Interpreting Agency Enabling Acts: Misplaced
Metaphors in Administrative Law, 41 WM & MARY L. REV. 1463,
1524 (2000).

47
The Panel’s mechanical application of Chevron
deference, however, violates this principle. It
necessarily shifts the responsibility/authority for
answering certain legal questions – in particular
jurisdictional issues – from the courts to the
administrative agency. This move is clearly contrary
to the language of the APA.
(2)

The FCC’s usurpation of Court

authority violated the Administrative

Procedure Act.

The Fifth Circuit Panel reasoned that its
interpretation of §§ 332(c)(7)(A) and (B)(v) determined
its application of Chevron deference. Section
332(c)(7)(A) provides that State and local authority
shall not be limited or affected except as provided
within that paragraph. Section 332(c)(7)(B)(v) provided
a judicial remedy for persons adversely affected by
State or local action. The Panel concluded that
§ 332(c)(7) is ambiguous with respect to the FCC’s
authority to establish a 90 and 150 day deadline for
municipalities to act on an application regarding the
placement and construction of wireless communications
facilities. Specifically, the Panel reasoned that
“[a]lthough the statute clearly bars the FCC from using
its general rulemaking powers under the
Communications Act to create additional limitations on
state and local governments beyond those the statute
provides in § 332(c)(7)(B), the statute is silent on the
question of whether the FCC can use its general
authority under the Communications Act to implement

48
§ 332(c)(7)(B)’s limitations.”77 This conclusion led to
the Panel apparently summarily dispensing with
Chevron Step 0 and moving directly to applying
Chevron deference. However, this incomprehensive
analysis not only ignores Mead and Chevron Step 0, it
also legitimized the FCC’s violation of the APA.
The Panel utilized Chevron deference wherein the
Court recognized that “[t]he power of an administrative
agency to administer a congressionally created . . .
program necessarily requires the formation of a policy
and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.”78 Thus, the Panel
acknowledges that the question is one of law, but it
ignores the APA directive that reviewing courts are to
decide all relevant questions of law. Even the Chevron
Court recognized that in determining whether a gap
has actually been left by Congress, a court must employ
the traditional tools of statutory construction.79 The
Panel, however, dispensed with this directive and
rather simply and mechanically applied Chevron
deference.
In following the APA, the Panel should have begun
with the premise that a statute is only ambiguous if it
is reasonably susceptible of more than one accepted
77 See Pet. App. 4 at page 34.
78 Chevron, USA, Inc. v. Natural Res. Def. Counsel, Inc., et al., 467
U.S. 837, 843 (1984) (citing Morton v. Ruiz, 415 U.S. 199, 231
(1974)).
79 See Chevron at 843 (footnote 9).

49
meaning.80 In interpreting a statute, a court must
begin with its plain language.81 In doing so, courts look
not only to “the particular statutory language at issue,”
but also to “the language and design of the statute as
a whole.”82 Additionally, a statute’s legislative history
can be crucial in this analysis.83 It is only when these
traditional methods of statutory construction fail to
reveal a provision’s meaning that a court may conclude
that the statute is ambiguous.84
There is no question that § 332(c)(7)(B)(v)
establishes sole jurisdiction in the courts over all
disputes arising under § 332(c)(7)(B)(ii). Even the
Panel acknowledged this fact in its opinion.85 Yet, it
side-steped the actual language of the statute and tries
to create an ambiguity not in what the statute says, but
80 See United Servs. Auto Ass’n v. Perry, 102 F.3d 144 (5th Cir.
1996); see also MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512
U.S. 218 (1994); National R.R. Passenger Corp. v. Boston & Maine
Corp., 503 U.S. 407, 418-19 (1992); Norman J. Singer, 2A
Sutherland Statutory Construction § 45.02 (5th ed. 1992).
81 See White v. INS, 75 F.3d 213, 215 (5th Cir. 1996); Phillips v.
Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir.
1990).
82 K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citing
Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 403-05 (1988);
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-21 (1986).
83 Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011).
84 See Chevron, 467 U.S. at 843 & n. 9.
85 See Pet. App. 4 at pg. 32.

50
in what it does not say. The entirety of the Panel’s
analysis is essentially summed up as follows:
The cities contend that, by establishing
jurisdiction in the courts over specific disputes
arising under § 332 (c)(7)(B)(ii), Congress
indicated its intent to remove that provision
from the scope of the FCC’s general authority to
administer the Communications Act. The cities
read too much into § 332 (c)(7)(B)(v)’s terms,
however. Although § 332 (c)(7)(B)(v) does clearly
establish jurisdiction in the courts over disputes
arising under § 332 (c)(7)(B)(ii), the provision
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. Accordingly, one
could read § 332 (c)(7) as a whole as establishing
a framework in which a wireless service provider
must seek a remedy for a state or local
government’s unreasonable delay in ruling on a
wireless siting application in a court of
competent jurisdiction while simultaneously
allowing the FCC to issue an interpretation of
§ 332 (c)(7)(B)(ii) that would guide courts’
determinations of disputes under that
provision.86
This analysis would no-doubt be rational, but for
the last sentence of § 332(c)(7)(B)(v). In that last
sentence, Congress specifically stated what power and
86 See Pet. App. 4 at pg. 32.

51
jurisdiction was enumerated to the FCC, and it did not
include the ability to, in any way, administer
§ 332(c)(7) except as articulated, including providing
guidance to the courts relative to disputes under the
provision. In other words, the Panel’s analysis is faulty
and unreasonable because it focuses solely on what the
statute does not say and interprets that as a gap,
rather than focusing on what the statute does say.
This analysis should not have taken place at all under
Chevron Step 0, as Congress did not specifically grant
jurisdiction to the FCC.87 The Panel should have
focused on the plain language of the statute. The plain
language of the statute granted very limited power and
jurisdiction to the FCC. If a statute delegates
87 It should be noted that the FCC has never been granted or even
attempted to try to exert such power. The FCC has made a power-
grab and created a finite determination of reasonableness where
Congress certainly did not intend. The FCC’s imposition of a 90
and 150 day time frame for the review of siting applications is an
additional limitation on the specifically reserved State and local
powers pursuant to zoning, as Congress clearly intended for such
requests to be acted on within “a reasonable period of time . . .
taking into account the nature and scope of such request.” 47
U.S.C.A. § 332(c)(7)(B)(ii). Whereas State and local authorities
previously had to act upon a request within a reasonable period of
time depending on the circumstances, they now must act within a
definite time frame or be found to have failed to act at all. This is
clearly an additional limitation and an improper usurpation of the
State and local authority. Furthermore, the statute contemplated
the courts deciding on a case by case basis whether a State of local
municipality was being reasonable in connection with applications.
This ensures a detailed an fair result on a case by case basis. The
FCC’s usurpation of court authority on this issue not only
eliminates the case by case analysis, but also forces upon State and
local municipalities finite terms that were not intended by
Congress.

52
regulatory authority to an agency to address some
matters but not others, then it would be inappropriate
to presume that Congress has delegated further
authority to an agency to assert further authority on its
own initiative.88
Disregarding Chevron Step 0, the Panel interprets
the lack of some specific general admonition against
FCC jurisdiction as an ambiguity and concludes that
the ambiguity necessarily results in Chevron deference.
Specifically, it stated that “[h]ad Congress intended to
insulate § 32(c)(7)(B)’s limitations from the FCC’s
jurisdiction, one would expect it to have done so
explicitly because Congress surely recognized that it
was legislating against the background of the
Communications Act’s general grant of rulemaking
authority to the FCC.”89 However, the requirement of
a general admonition is unreasonable and unnecessary.
There was no need to tell the FCC specifically what it
could not do, because Congress specifically told the
FCC all it could do. Thus, by only granting to the FCC
specific power and jurisdiction, the only reasonable
interpretation is that Congress specifically did not
grant to the FCC any other power and jurisdiction,
including the power to create a time line by which
municipalities must abide. As such, Chevron Step 0
dictates that deference not be granted and the courts
make a de novo review.
88 See Nathan A. Sales & Jonathan H. Adler, The Rest is Silence:
Chevron Deference, Agency Jurisdiction, & Statutory Silences, 2009
U. ILL. L. REV. 1497, 1531 (2009)
89 See Pet. App. 4 at pg. 31.

53
The Panel’s decision, therefore, conflicts with
Chevron Step 0, the APA, and Chevron itself, as it does
not analyze the plain language of the statute. Rather,
it ignores language in the statute and creates an
ambiguity, which is unreasonable if applied with the
language it chose to ignore.

CONCLUSION

This Court granted certiorari on the issue of
whether a court should apply Chevron to review an
agency’s determination of its own jurisdiction.
Pursuant to Chevron Step 0, unless Congress has
indicated otherwise the answer is a resounding “no.”
Chevron Step 0 requires some affirmative indication on
the part of Congress of its intention to delegate
interpretive jurisdiction to the agency. Only with this
affirmative indication of congressional delegation of
administrative authority is Chevron implicated at all.
If a court finds affirmative evidence, from the agency’s
generally conferred authority and other statutory
circumstances, that Congress intended to delegate final
interpretive power to the agency, it then will move to
Chevron Step 1 and Step 2. Even then, however,
Chevron deference is not automatic. Step 1 is a
determination of whether Congress eliminated the
agency’s discretion over the precise subject matter
addressed by clearly resolving the specific question at
issue. If not, only then will Step 2 apply and deference
will be given to the agency’s determination of its own
jurisdiction unless it is determined that the agency’s
rationale is arbitrary and/or unreasonable.
In the case at bar, the Fifth Circuit should not have
mechanically applied Chevron deference to review the

54
FCC’s interpretation of its own statutory jurisdiction.
Rather, it should have performed a Chevron Step 0
analysis, de novo, on the issue of whether Congress
specifically delegated final interpretive authority over
§ 332(c)(7) of the Telecommunications Act of 1996. Had
such an analysis been done, the Fifth Circuit would
have been required to apply the traditional methods of
statutory construction and apply the presumption that
Congress did not intend to expand the FCC’s
jurisdiction into an area of traditional State and local
regulation.
Petitioner prays that this Court should apply
Chevron Step 0 to facts and circumstances of this case,
reverse the Fifth Circuit Judgment, and find that the
FCC did not have authority to implement the 90 and
150 day time frames. Alternatively, Petitioner prays
that this Court remand the matter back to the Fifth
Circuit with instructions that it properly apply the
Chevron Step 0 analysis and the aforementioned
presumptions to the facts and circumstances of this
case.

55
Respectfully submitted,
WILLIAM D. AARON, JR.
Counsel of Record
DeWAYNE L. WILLIAMS
Aaron, PLC
201 St. Charles Avenue, Suite 3800
New Orleans, Louisiana 70170
(504) 569-1800
waaron@aaronfirm.com
BASILE J. UDDO
JERRY A. BEATMANN, JR.
Uddo, Beatmann & Code, LLC
3445 N. Causeway Blvd., Suite 724
Metairie, Louisiana 70002
(504) 832-7204
Counsel for the Petitioner,
the Cable, Telecommunications,
and Technology Committee of the
New Orleans City Council
November 19, 2012

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