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City of Arlington Brief, No. 11-1545 (Sup. Ct.)

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Released: November 20, 2012
No. 11-1545
IN THE
CITY OF ARLINGTON, TEXAS; CITY OF LOS ANGELES,
CALIFORNIA; COUNTY OF LOS ANGELES, CALIFORNIA;
CITY OF SAN ANTONIO, TEXAS; COUNTY OF SAN
DIEGO, CALIFORNIA; AND TEXAS COALITION OF
CITIES FOR UTILITY ISSUES,
Petitioners,
v.
UNITED STATES OF AMERICA;
FEDERAL COMMUNICATIONS COMMISSION,
Respondents.
On a Writ of Certiorari to the United States Court
of Appeals for the Fifth Circuit
BRIEF FOR PETITIONERS
THOMAS C. GOLDSTEIN
JOSEPH VAN EATON
KEVIN K. RUSSELL
Counsel of Record
KEVIN R. AMER
JAMES R. HOBSON
TEJINDER SINGH
MATTHEW K. SCHETTENHELM
GOLDSTEIN & RUSSELL, P.C.
BEST BEST & KRIEGER, LLP
5225 Wisconsin Avenue, NW
2000 Pennsylvania Avenue, NW
Suite 404
Suite 4300
Washington, DC 20015
Washington, DC 20006
(202) 785-0600
THOMAS D. BUNTON
Joseph.VanEaton@bbklaw.com
SENIOR DEPUTY
COUNTY COUNSEL
Counsel for Petitioners City of
COUNTY OF SAN DIEGO
Arlington, Texas; City of Los
1600 Pacific Highway
Angeles, California; County of
Room 355
Los Angeles, California; City of
San Diego, CA 92101
San Antonio, Texas; and Texas
Coalition of Cities for Utility
Counsel for Petitioner
Issues
County of San Diego,
California

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.” Section 332(c)(7) imposes
certain limitations on State and local zoning
authority over the placement of wireless service
facilities, but authorizes the FCC to address only one
of these limitations; it states that no other provision
“in this Act” may “limit” or “affect” State and local
authority over wireless facilities placement. The FCC
concluded
that
other
provisions
“in
this
Act”
authorize it to adopt national zoning standards to
implement § 332(c)(7).
The
Fifth
Circuit
deferred
to
the
FCC’s
jurisdictional determination applying Chevron U.S.A.
Inc. v. NRDC, Inc., 467 U.S. 837 (1984), but
acknowledged that “[t]he Supreme Court has not yet
conclusively
resolved
the
question
of
whether
Chevron applies in the context of an agency’s
determination of its own statutory jurisdiction, and
the circuit courts of appeals have adopted different
approaches to this issue.” The Court granted
certiorari to decide 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
Petitioners below are the City of Arlington, Tex-
as, and the City of San Antonio, Texas. Intervenors
supporting the Petitioners are the Cable and Tele-
communications Committee of the New Orleans City
Council; the City of Carlsbad, California; the City of
Dallas, Texas; the City of Dubuque, Iowa; the Coun-
ty of Fairfax, Virginia; the City of Glendale, Califor-
nia; the City of Los Angeles, California; the County
of Los Angeles, California; the City of Portland, Ore-
gon; the City of San Antonio, Texas; the County of
San Diego, California; the EMR Policy Institute; the
International Municipal Lawyers Association; the
National Association of Counties; the National Asso-
ciation of Telecommunications Officers and Advisors;
the National League of Cities; the Texas Coalition of
Cities for Utility Issues; and the United States Con-
ference of Mayors.
Respondents are the United States of America
and the FCC. Intervenors supporting the Respon-
dents are CTIA-The Wireless Association and Cellco
Partnership.
None of the petitioners is a non-governmental
corporation.

iii
TABLE OF CONTENTS
OPINION AND ORDER BELOW ..............................1
JURISDICTION ..........................................................1
RELEVANT STATUTORY PROVISIONS .................1
STATEMENT OF THE CASE ....................................3
SUMMARY OF THE ARGUMENT ..........................10
ARGUMENT .............................................................13
I.
A Court’s Determination Whether An Agency
Has
Issued
A
Binding
Statutory
Interpretation Begins With Its De Novo –
Not Deferential – Determination Of The
Agency’s Jurisdiction. .........................................14
A. An Agency’s Statutory Construction Can
Be
Binding
Only
If
Congress
Has
Conferred Interpretive Power On The
Agency. .........................................................14
B. A Court Determines Whether Congress
Delegated
An
Agency
Interpretive
Authority De Novo. ......................................18
II.
The Court of Appeals Erred By Not
Resolving De Novo The Threshold Question
Whether
Congress
Granted
The
FCC
Interpretive
Jurisdiction
Over
Section
332(c)(7). ...........................................................27
A. The Fifth Circuit Should Not Have
Deferred To The FCC’s Determination
Of Its Own Jurisdiction Over Section
332(c)(7). .......................................................27

iv
B. This Case Underscores Why Courts Do
Not Defer To An Agency On This
Threshold Jurisdictional Question. .............31
III. The
Court
Of
Appeals
Should
Have
Presumed That Congress Did Not Delegate
Interpretive
Jurisdiction
Over
Section
332(c)(7) To The FCC. .........................................34
A. Congress Was Required To Speak With
Particular Clarity If It Wished To Grant
The FCC Authority To Adopt Rules
Implementing Section 332(c)(7). .................35
B. There Is No Reason To Conclude That
Congress
Delegated
Interpretive
Authority To The FCC Here. .......................40
CONCLUSION ..........................................................44

v
TABLE OF AUTHORITIES

CASES

Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990)....................................passim
Alaska Dept. of Envt’l Conservation v. EPA,
540 U.S. 461 (2004) .......................................... 20
Altria Group Inc. v. Good,
555 U.S. 70 (2008) ...................................... 36, 37
Astrue v. Capato ex rel B.N.C.,
132 S. Ct. 2021 (2012) ...................................... 19
AT&T Corp. v. Iowa Utilities Bd.,
525 U.S. 366 (1999) .............................. 23, 40, 41
Barnhart v. Walton,
535 U.S. 212 (2002) .......................................... 20
Bates v. Dow Agrosciences LLC,
544 U.S. 431 (2005) .................................... 37, 42
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) .................................... 15, 21
Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691 (1984)........................................... 24
Carpio v. Holder,
592 F.3d 1091 (10th Cir. 2010) ........................ 26
CBS, Inc. v. FCC,
453 U.S. 367 (1981)........................................... 25
Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984)....................................passim

vi
Christensen v. Harris County,
529 U.S. 576 (2000) .................................... 21, 42
City of New York v. FCC,
486 U.S. 57 (1988) ............................................ 24
City of Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005) ...................................... 4, 32
Comm’r of Internal Revenue v. Clark,
489 U.S. 726 (1989)........................................... 41
Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986) .......................................... 24
Crandon v. United States,
494 U.S. 152 (1990)........................................... 23
Federal Express Corp. v. Holowecki,
552 U.S. 389 (2008).......................................... 19
Federal Maritime Comm’n v. Seatrain Lines,
Inc.,
411 U.S. 726 (1973)........................................... 18
FTC v. Bunte Bros., Inc.,
312 U.S. 349 (1941)........................................... 25
General Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581 (2004) .......................................... 25
Godinez-Arroyo v. Mukasey,
540 F.3d 848 (8th Cir. 2008) ...................... 26, 35
Gonzales v. Oregon,
546 U.S. 243 (2006) ...................................passim
Hagans v. Comm’r of Soc. Sec.,
694 F.3d 287 (3d Cir. 2012) ............................. 26
Household Credit Servs., Inc. v. Pfennig,
541 U.S. 232 (2004) .......................................... 20

vii
Ill. Citizens Committee for Broad. v. FCC,
467 F.2d 1397 (7th Cir. 1972)........................... 35
I.N.S. v. Cardoza-Fonseca,
480 U.S. 421 (1987)........................................... 17
J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928)........................................... 29
Kornman & Assocs., Inc. v. United States,
527 F.3d 443 (5th Cir. 2008)............................. 26
Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001) ........................................... 14
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) .................................... 17, 19
Louisiana Public Serv. Comm’n v. FCC,
476 U.S. 355 (1986) ...................................passim
Loving v. United States,
517 U.S. 748 (1996)........................................... 29
Luminant Generation Co., LLC v. EPA,
675 F.3d 917 (5th Cir. 2012)............................. 26
Marbury v. Madison,
1 Cranch 137 (1803).......................................... 15
Martin v. Occupational Safety & Health Review
Comm’n,
499 U.S. 144 (1991) .......................................... 21
Michigan v. EPA,
268 F.3d 1075 (D.C. Cir. 2001) ......................... 28
Mississippi Power & Light Co. v. Mississippi ex
rel. Moore,
487 U.S. 354 (1988)........................................... 24

viii
National Cable & Telecomm. Ass’n v. Brand X
Internet Servs.,
545 U.S. 967 (2005) .............................. 20, 30, 42
National Cable & Telecomm. Ass’n, Inc. v. Gulf
Power Co.,
534 U.S. 327 (2002)........................................... 42
NationsBank of N.C., N.A. v. Variable Annuity
Life Ins. Co.,
513 U.S. 251 (1995)........................................... 25
National Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012)....................................... 29
Negusie v. Holder,
555 U.S. 511 (2009) .......................................... 19
New York State Conference of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645 (1995)........................................... 37
Nixon v. Fitzgerald,
457 U.S. 731 (1982)........................................... 14
Nixon v. Mo. Mun. League,
541 U.S. 125 (2004)........................................... 34
NLRB v. City Disposal Sys. Inc.,
465 U.S. 822 (1984)........................................... 24
NLRB v. Food & Commercial Workers,
484 U.S. 204 (1987)........................................... 21
Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633 (1990) .......................................... 42

ix
RadLAX Gateway Hotel, LLC v. Amalgamated
Bank,
132 S. Ct. 2065 (2012) ...................................... 41
Rapanos v. United States,
547 U.S. 715 (2006)........................................... 37
Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969) .......................................... 25
Regents of Univ. Sys. of Georgia v. Carroll,
338 U.S. 586 (1950)........................................... 15
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) .......................................... 36
Robert Wood Johnson Univ. Hosp. v.
Thompson,
297 F.3d 273 (3d Cir. 2005) ............................. 26
Skidmore v. Swift & Co.,
323 U.S. 134 (1944)........................................... 18
Smiley v. Citibank, N.A.,
517 U.S. 735 (1996)..................................... 21, 25
Smith v. City of Jackson,
544 U.S. 228 (2005) .......................................... 25
Solid Waste Agency of N. Cook County v. U.S.
Army Corps of Eng’rs,
531 U.S. 159 (2001) .............................. 20, 34, 37
Town of Amherst v. Omnipoint Commc’ns
Enters. Inc.,
173 F.3d 9 (1st Cir. 1999) ........................... 31, 43
United States v. Bass,
404 U.S. 336 (1971) .......................................... 37

x
United States v. Mead Corp.,
533 U.S. 218 (2001)............................... 17, 20, 22
United States v. Shimer,
367 U.S. 374 (1961)........................................... 16
Whitman v. American Trucking Ass’ns,
531 U.S. 457 (2001)........................................... 29
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 1................................................ 14
U.S. Const. art. II............................................... 14, 15
U.S. Const. art. III ................................................... 14
STATUTES
5 U.S.C. § 558(b) ...................................................... 15
5 U.S.C. § 706(2)(C) .................................................. 16
47 U.S.C. § 151 ......................................................... 41
47 U.S.C. § 154(i) ..................................................... 41
47 U.S.C. § 201(b)..................................................... 41
47 U.S.C. § 224 ......................................................... 35
47 U.S.C. § 303(r) ..................................................... 41
47 U.S.C. § 332(c)(7)..........................................passim
Telecommunications Act of 1996,
Pub. L. 104-104, 110 Stat. 56
(Feb. 8, 1996) ...................................................... 4
OTHER AUTHORITIES
H.R. Rep. No. 104-458 (1996) .................5, 32, 33, 44
H.R. Rep. No. 104-204,
1996 U.S.C.C.A.N. 10 (1995) ..........................32

xi
In re Artichoke Broad. Co.,
10 FCC Rcd. 12631 (1995) ................................37
In re Cal. Water & Power Co.,
64 F.C.C.2d 753 (FCC 1977) .............................35
Nathan A. Sales & Jonathan H. Adler, The
Rest is Silence: Chevron Jurisdiction,
Agency Deference, and Statutory Silences,
2009 U. Ill. L. Rev. 1497 (2009)............24, 29, 43
Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain,
89 Geo. L.J. 833 (2001) ...............................16, 42
Timothy K. Armstrong, Chevron Deference and
Agency Self-Interest, 13 Cornell J.L. &
Pub. Pol’y 203 (2004) ........................................28

BRIEF FOR PETITIONERS
CITY OF ARLINGTON ET AL.
OPINION AND ORDER BELOW
The FCC’s Declaratory Ruling (Pet. App. 69a-
117a) is reported at 24 FCC Rcd. 13994 (Nov. 18,
2009), reconsideration denied, 25 FCC Rcd. 11157
(Aug. 3, 2010) (Pet. App. 172a-15a). The Fifth Cir-
cuit’s opinion denying the petitions for review (id.
1a-68a) is published at 668 F.3d 229 (5th Cir. 2012).
JURISDICTION
The Fifth Circuit denied timely petitions for re-
hearing en banc on March 29, 2012. Pet. App. 195a-
96a. This Court granted timely petitions for certio-
rari on October 5, 2012. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
Section 332(c)(7) of the Communications Act of
1934, codified at 47 U.S.C. § 332(c)(7), provides in
relevant part:
Preservation of local zoning authority.
(A) General authority. Except as provided in this
paragraph, nothing in this Act shall limit or affect
the authority of a State or local government or in-
strumentality thereof over decisions regarding the
placement, construction, and modification of per-
sonal wireless service facilities.
(B) Limitations.
(i) The regulation of the placement, con-
struction, and modification of personal wireless

2
service facilities by any State or local govern-
ment 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 wire-
less services.
(ii) A State or local government or instru-
mentality thereof shall act on any request for
authorization to place, construct, or modify per-
sonal wireless service facilities within a reason-
able period of time after the request is duly filed
with such government or instrumentality, taking
into account the nature and scope of such re-
quest.
(iii) Any decision by a State or local govern-
ment or instrumentality thereof to deny a re-
quest 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 instru-
mentality thereof may regulate the placement,
construction, and modification of personal wire-
less service facilities on the basis of the envi-
ronmental effects of radio frequency emissions to
the extent that such facilities comply with the
Commission’s regulations concerning such emis-
sions.
(v) Any person adversely affected by any fi-
nal action or failure to act by a State or local

3
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.
Other relevant statutory provisions appear in
the Appendix to the petition for certiorari.
STATEMENT OF THE CASE
This case involves a challenge to the FCC’s as-
serted authority to render binding interpretations of
Section 332(c)(7) of the Communications Act beyond
the one provision (47 U.S.C. § 332(c)(7)(B)(iv) (ad-
dressing radio frequency (“RF”) emissions)) over
which Congress grants it authority. After the agen-
cy determined that it had such authority based on
general provisions of the Communications Act, in-
cluding Section 201(b), the agency issued a Declara-
tory Ruling construing the statute to impose, among
other things, uniform national deadlines for State
and local government action on applications to site
wireless service facilities.
Petitioners challenged, inter alia, the FCC’s au-
thority to issue those rules. In considering the chal-
lenge, the Fifth Circuit began with the threshold
question whether Congress had given the agency in-
terpretive authority over the statute. However, ra-
ther than resolving this question de novo, the court

4
of appeals deferred to the FCC’s view of the scope of
its own statutory jurisdiction.
I.
Statutory And Regulatory Framework
1. As part of the Telecommunications Act of
1996, Congress amended the Communications Act to
add Section 332(c)(7). Pub. L. 104-104, 110 Stat. 56
(Feb. 8, 1996) (codified at 47 U.S.C. § 332(c)(7)).
That provision establishes “minimum federal stan-
dards” to govern the placement, construction, and
modification of wireless communications facilities,
while retaining the traditional authority of State and
local governments over siting decisions and local
land use processes. City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 128 (2005) (Breyer, J., con-
curring).
Section 332(c)(7) consists of two subparagraphs.
Subparagraph (A) is a “General authority” provision
stating that “[e]xcept as provided in this paragraph,
nothing in [the Communications Act] shall limit or
affect the authority of a State or local government or
instrumentality thereof over decisions regarding the
placement, construction, and modification of per-
sonal wireless service facilities.”
47 U.S.C. §
332(c)(7)(A). Subparagraph (B), in turn, sets forth
five enumerated limitations on State and local zon-
ing authority. Id. § 332(c)(7)(B)(i)-(v). The statute
gives the FCC authority to address only one of those
limitations – the bar on State and local siting deci-
sions based on the environmental effects of RF emis-
sions.
Id.
§
332(c)(7)(B)(iv);
see
also
id.
§ 332(c)(7)(B)(v) (authorizing any person adversely
affected by State or local action “that is inconsistent
with clause (iv) [to] petition the Commission for re-

5
lief”).
Otherwise, the statute directs courts to re-
solve issues arising under Section 332(c)(7) on an
expedited basis. Id. § 332(c)(7)(B)(v).
The Conference Report accompanying the legis-
lation confirmed that except for the provisions con-
cerning the effects of RF emissions, Congress in-
tended for the courts to have “exclusive jurisdiction
over all other disputes arising under this section.”
H.R. Rep. No. 104-458 (1996) (Conf. Rep.) at 207-08,
Pet. App. 209a. The Report accordingly directed that
“[a]ny pending [FCC] rulemaking concerning the
preemption of local zoning authority over the place-
ment, construction or modification of [commercial
mobile service facilities should be terminated.” Id.
Among the limitations in Section 332(c)(7)(B) is
a requirement that a State or locality “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 . . . , taking into account the nature and scope of
such request.” Id. § 332(c)(7)(B)(ii). The Conference
Report explained that “the time period for rendering
a decision” under that provision “will be the usual
period under such circumstances.” Pet. App. 210a.
It further noted that the requirement was not in-
tended “to give preferential treatment to the per-
sonal wireless service industry in the processing of
requests, or to subject their requests to any but the
generally applicable time frames for zoning deci-
sion.” Id.
In the twelve years subsequent to the statute’s
enactment, the FCC did not claim the general au-
thority to adopt rules implementing the statute, in-

6
stead leaving it to the courts to resolve disputes
based on local circumstances.
2. In 2008, the wireless industry – led by re-
spondent CTIA-The Wireless Association – filed a
petition for a declaratory ruling asking the FCC to,
inter alia, adopt short, uniform deadlines for State
and local action under Section 332(c)(7). States and
local governments, including petitioners, responded
that the FCC lacked jurisdiction to issue any binding
rule implementing Section 332(c)(7), other than one
related to RF emissions.
a. In 2009, the FCC rejected that objection and
issued a Declaratory Ruling granting the industry
its requested relief in significant part. As relevant
here, the FCC adopted national standards defining
what constitutes a State or local government’s “fail-
ure to act” if it does not release a decision on a wire-
less facility application within “a reasonable period
of time after the request is duly filed . . . taking into
account the nature and scope of such request.” Pet.
App. 116a-20a, ¶¶ 46-48. The FCC ruled that absent
an applicant’s agreement, if the failure of a State or
local government to release its decision 90 days after
the applicant files a complete collocation application
or within 150 days after the filing of all other com-
plete applications, automatically constitutes a “fail-
ure to act,” and presumptively constitutes an unrea-
sonable “period of time” on the merits.
Pet. App.
72a, 106a-08a, 111a-12a (¶¶ 4, 37, 42). Unless the
applicant agrees otherwise, the rule forces the State
or local government into court on a fixed timetable
(regardless of how reasonable its delay may be), and
then requires the State or local government to over-

7
come the presumption on the merits by explaining
its delay. Pet. App. 111a-12a (¶ 42).
The FCC acknowledged that its 90- and 150-day
deadlines would conflict with time periods in place in
various States, but concluded that its policy choices
would accommodate reasonable State and local proc-
esses “in most instances.”
Pet. App. 114a (¶ 44).
However, in States where a longer period for review
was in effect, an applicant could now sue the State or
local government under the FCC’s new, shorter time-
lines. Pet. App. 120a (¶ 50) (providing that the ap-
plicant “may bring suit under §332(c)(7)(B)(v) after
90 days or 150 days, subject to the 30-day limitation
period on filing, and may consider pursuing any
remedies granted under the State or local regulation
when that applicable time limit has expired”).
b. In addressing its power to issue the Declara-
tory Ruling, the FCC stated that it had “the author-
ity to interpret Section 332(c)(7)” pursuant to four
other provisions of the Act – Sections 1, 4(i), 201(b),
and 303(r). Pet. App. 87a (¶ 23). Those provisions
generally permit the FCC to “prescribe such rules
and regulations as may be necessary in the public
interest to carry out the provisions of this Act.” 47
U.S.C. § 201(b); Pet. App. 87a (¶ 23); see id. 90a (¶
24) (“Section 332(c)(7) falls within the Act; accord-
ingly, the Commission has the authority to interpret
it.”). On the basis of that asserted interpretive au-
thority, the FCC construed Section 332(c)(7)(A) – the
preservation clause stating that “nothing” else “in
this Act” may “limit” or “affect” State and local au-
thority – as only prohibiting the agency from creat-
ing additional “limitations” beyond those that the

8
statute enumerates. Pet. App. 90a, 134a (¶¶ 25, 64).
Thus, the FCC concluded that it was free to adopt
the specific time periods and issue other binding in-
terpretations of Section 332(c)(7)(B) because, in its
view, the rules “merely interpret[] the limits Con-
gress already imposed on State and local govern-
ments.” Pet. App. 90a (¶ 25).
The FCC also applied its claimed interpretive
authority to Section 332(c)(7)(B)(v), which provides
for
judicial
review
of
violations
of
Section
332(c)(7)(B), while providing a right to petition the
FCC for one category of violations – those relating to
RF emissions. The FCC ruled that this provision did
not indicate that Congress intended for courts to
have final authority to interpret Section 332(c)(7)(B).
Instead, the agency construed the statute “not [to]
divest the Commission of its authority . . . to adopt
and enforce rules implementing” the statute. Pet.
App. 92a (¶ 26).
II. Procedural History
The Fifth Circuit denied petitioners’ petition for
review. Pet. App. 68a. The court of appeals began
its analysis by assessing whether the FCC had been
granted the authority to adopt a binding interpreta-
tion of Sections 332(c)(7)(A) and (B)(v).
The court
recognized that the framework of Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), “does not apply once it is deter-
mined that an agency lacks authority to interpret a
statute.”
Pet. App. 36a.
However, the court ac-
knowledged a circuit conflict on “whether Chevron
applies in the context of an agency’s determination of
its own statutory jurisdiction.” Pet. App. 36a-37a.

9
Looking to circuit precedent, the court concluded
that it must apply Chevron to the FCC’s assertion of
interpretive authority over Sections 332(c)(7)(A) and
(B)(v), rather than address that question de novo.
Applying that approach, the court found that the
provisions did not “unambiguously indicate Con-
gress’s intent to preclude the FCC from implement-
ing § 332(c)(7)(B)(ii) and (v)” through the issuance of
binding rules. Pet. App. 41a-45a, 51a. That finding
of ambiguity, the court believed, required it to defer
to the agency’s view of the scope of its own interpre-
tive authority so long as that construction was
“based on a permissible construction of the statute.”
Id. 45a, 51a. In so ruling, the court did not apply
traditional canons of statutory construction to de-
termine whether Congress empowered the FCC to
displace State and local regulatory authority over
zoning matters.
The court then proceeded to defer to the FCC
again, this time with respect to the substantive va-
lidity of the 90- and 150-day time limitations. Pet.
App. 51a-63a.
Applying Chevron, the court con-
cluded that the statutory terms “a reasonable period
of time” and “failure to act” are ambiguous, and that
it therefore owed “substantial deference to the FCC’s
interpretation of those terms.” Id. 53a. The court
upheld the regulation under Chevron Step 2 as a
permissible construction of the statute. Again the
court gave no consideration to whether the FCC was
entitled to a lesser degree of deference in light of the
regulation’s expansion of federal power in relation to
that of the States.
This Court subsequently granted certiorari.

10
SUMMARY OF THE ARGUMENT
There are three stages to a court’s determination
whether an agency has validly implemented a stat-
ute by adopting rules that have the force of law. The
court begins with the threshold question (sometimes
referred to as Chevron Step 0) whether Congress
delegated the agency authority – i.e., jurisdiction – to
issue binding interpretations of the statute. If the
court determines that the agency has this authority,
it is in traditional “Chevron” territory.
The court
then determines (in Chevron Step 1) whether there
is any substantive “gap” for the agency to fill, or
whether Congress instead resolved the specific stat-
utory question. If Congress did not, then the court
determines (in Chevron Step 2) whether the agency’s
interpretation is sufficiently reasonable to be sus-
tained.
The Fifth Circuit in this case correctly recog-
nized the Chevron inquiry’s three-stage structure.
At the outset, the court addressed whether Congress
intended the FCC to adopt binding interpretations of
Section 332(c)(7)(B) – most notably, whether Con-
gress intended to empower the FCC to issue rules
specifying when a local government will have
“fail[ed] to act” within a “reasonable period of time.”
Only after deciding this question did the court of ap-
peals ask whether there was a gap for the agency to
fill (Chevron Step 1) and whether the FCC’s rules
were substantively reasonable (Step 2).
Despite properly structuring its Chevron in-
quiry, when the Fifth Circuit sought to resolve the
threshold question of whether Congress had granted
the FCC the power to issue binding rules implement-

11
ing Section 332(c)(7), it erred. To decide this ques-
tion, the court of appeals deferred to the FCC’s
views. The court found the jurisdictional question
ambiguous. It then did not resolve the ambiguity
itself with its best reading under a de novo standard.
The court instead found that it must accept any FCC
reading of its own statutory jurisdiction that is not
“impermissible.”
This was error.
A court does not defer to an
agency’s determination of its own jurisdiction to
adopt binding interpretations of a statute (Chevron
Step 0). The Fifth Circuit’s contrary decision is irrec-
oncilable with decades of this Court’s administrative
law precedents.
These decisions – none of which
suggests deference to the agency at Step 0 – are
firmly rooted in the distinct roles of courts and agen-
cies in our constitutional structure.
The federal
courts are the arbiters of the allocation of power be-
tween the branches of government, and they gener-
ally have the final word on the meaning of congres-
sional enactments.
A court must make its own
judgment whether Congress intended to compel the
court to accept the agency’s statutory interpretation
over its own.
To be sure, Congress does in some circumstances
assign to agencies the responsibility to resolve ambi-
guities in federal statutes and to make interstitial
judgments about the scope of federal law, especially
on statutory questions that require specialized or
technical expertise.
And when Congress demon-
strates this intent, the agency’s views on a statute’s
meaning may be entitled to substantial deference.
But the antecedent determination – whether Con-

12
gress gave the agency that authority – is not a ques-
tion that generally calls for agency expertise. And
the mere fact that Congress did not unambiguously
state that the agency lacks jurisdiction is not suffi-
cient to shift ultimate authority from the courts to
the agency.
The Fifth Circuit held to the contrary: that a
statutory ambiguity on the threshold question
whether Congress intended an agency to have inter-
pretive jurisdiction obligates the court to accept the
agency’s reading over its own. In holding that ambi-
guity in the statute triggered deference, the court of
appeals simply assumed the conclusion to the very
question that the threshold jurisdictional analysis
seeks to answer — in this case, whether Congress
intended the FCC to implement Section 332(c)(7).
This Court accordingly can resolve this case by
recognizing that the Fifth Circuit erred in according
the FCC deference on the threshold question of the
agency’s
interpretive
authority
over
Section
332(c)(7). The court of appeals believed that the def-
erence accorded to the FCC was essential to the
court’s ultimate decision upholding the agency’s rule.
The court emphasized its deference to the FCC’s
view that it had this final interpretive authority.
And in turn the FCC’s authority to issue its rules
depends on the agency’s claimed authority to deter-
mine the meaning of Sections 332(c)(7). The judg-
ment accordingly should be vacated and the case re-
turned to the court of appeals to make a de novo de-
termination of the FCC’s jurisdiction.
If this Court goes further, and applies a de novo
standard to determine whether Congress delegated

13
the FCC authority to issue binding interpretations of
Section 332(c)(7), the Court should hold that Con-
gress did not do so. Under a de novo standard, any
ambiguity regarding the agency’s jurisdiction is re-
solved by applying standard rules of statutory inter-
pretation. Where, for example, an agency’s claim of
authority to implement a statute would give it un-
precedented new powers, subvert basic legal princi-
ples, trench on authority reserved to others, or im-
plicate constitutional concerns, courts resolve any
ambiguity by presuming that Congress did not grant
the agency authority. That is the case here. Be-
cause Congress adopted Section 332(c)(7) to preserve
State and local authority and deliberately elected to
assign oversight to the courts (not the FCC), any
ambiguity about the FCC’s powers under this stat-
ute should be resolved against the agency.
ARGUMENT
Petitioners challenge the validity of rules prom-
ulgated by the FCC that purport to adopt binding
interpretations of Section 332(c)(7). In considering
this challenge, the Fifth Circuit correctly began its
analysis by determining whether Congress intended
to grant the FCC the power to authoritatively inter-
pret the provision. But to make this threshold de-
termination, the court of appeals erred by deferring
to the agency’s own views of its jurisdiction.
The
court should have instead made this jurisdictional
assessment de novo.

14
I.
A
Court’s
Determination
Whether
An
Agency Has Issued A Binding Statutory In-
terpretation Begins With Its De Novo – Not
Deferential – Determination Of The Agen-
cy’s Jurisdiction.
Within our federal system of limited and enu-
merated powers, political actors do not define the
scope of their own authority. Those decisions are for
the courts, a branch of government insulated from
the political pressures that might otherwise influ-
ence these jurisdictional determinations.
To this
fundamental principle, the deference accorded agen-
cies under the Chevron doctrine makes no exception.
That deference does not attach to threshold jurisdic-
tional questions, but follows after a court has inde-
pendently confirmed an agency’s jurisdiction.
A. An Agency’s Statutory Construction
Can Be Binding Only If Congress Has
Conferred Interpretive Power On The
Agency.
1. The administrative state operates at the in-
tersection of the three branches of government under
the Constitution. Article I “vest[s]” in Congress “[a]ll
legislative Powers herein granted.” U.S. Const. art.
I, § 1. Article II gives the Executive the power to
“enforce[]” the law.
Nixon v. Fitzgerald, 457 U.S.
731, 750 (1982). And under Article III, courts are
generally the final arbiters of the meaning of the
law. See Legal Servs. Corp. v. Velazquez, 531 U.S.
533, 545 (2001) (“Interpretation of the law and the
Constitution is the primary mission of the judiciary
when it acts within the sphere of its authority to re-

15
solve a case or controversy.”); Marbury v. Madison, 1
Cranch 137, 177 (1803) (“It is emphatically the prov-
ince and duty of the judicial department to say what
the law is.”).
These foundational principles are the starting
point for any inquiry into the scope of an agency’s
authority. Consistent with Article II, an agency pre-
sumptively has the power only to enforce the law.
An agency can acquire “lawmaking” authority only
to the extent that Congress confers that power on it.
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.”).
Likewise, an agency’s resolution of a legal question
is binding and trumps that of a court only if Con-
gress intends the agency to have the final authority
to interpret (and indeed make) “law.” See Louisiana
Public Serv. Comm’n v. FCC, 476 U.S. 355, 374
(1986) (“[A]n agency literally has no power to act . . .
unless and until Congress confers power upon it.”);
Regents of Univ. Sys. of Georgia v. Carroll, 338 U.S.
586, 597-98 (1950) (“As an administrative body, the
[FCC] must find its powers within the compass of
the authority given it by Congress”); 5 U.S.C. §
558(b) (a substantive rule or order may not be issued
“except within jurisdiction delegated to the agency
and as authorized by law”).
Because an agency “may not confer power upon
itself,” Louisiana PSC, 476 U.S. at 374, the scope of
an agency’s legal authority is for a court to deter-
mine. Courts, not agencies, must “decide all relevant
questions of law,” “interpret constitutional and stat-

16
utory provisions,” and set aside an agency conclusion
that is “in excess of statutory jurisdiction, authority,
or limitations.” 5 U.S.C. § 706(2)(C).
2. The Chevron doctrine fits comfortably within
these constitutional principles. Chevron itself made
clear that an agency may issue binding legal inter-
pretations only with respect to statutes for which
Congress has delegated the agency authority. 467
U.S. at 865 (indicating that an agency “to which
Congress has delegated policymaking responsibili-
ties” may make policy “within the limits of that dele-
gation”). The Court repeatedly stated that the agen-
cy interpretation before it was entitled to deference
because Congress had committed the statutory ques-
tion to the agency’s care.
Id. at 842 (referring to
statute “which [the agency] administers”); id. at 844
(noting that “weight should be accorded to an execu-
tive department’s construction of a statutory scheme
it is entrusted to administer”); id. at 845 (deference
applies to “conflicting policies that were committed
to the agency’s care by the statute” (quoting United
States v. Shimer, 367 U.S. 374, 382, 383 (1961))); id.
at 863 (describing the EPA as “the agency primarily
responsible for administering this important legisla-
tion”).
The assessment of agency deference accordingly
always begins with the determination whether Con-
gress intended to assign the agency authoritative in-
terpretive power over the statute.
This threshold
determination is sometimes referred to as Chevron
Step 0. See Thomas W. Merrill & Kristin E. Hick-
man, Chevron’s Domain, 89 Geo. L.J. 833, 836
(2001). It addresses what might be called the agen-

17
cy’s “interpretive jurisdiction”: whether Congress
empowered the agency, rather than the courts, to re-
solve ambiguities in the statute.
This Court’s subsequent decisions have con-
firmed that “[a] precondition to deference under
Chevron is a congressional delegation of administra-
tive authority.” Adams Fruit Co. v. Barrett, 494 U.S.
638, 649 (1990) (emphasis added).
Only “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,” is Chevron deference warranted. United
States v. Mead Corp., 533 U.S. 218, 226-27 (2001);
see 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.”
(emphasis omitted)).
When it is apparent that Congress “has dele-
gated the responsibility for administering [a] statu-
tory program,” courts must “respect” reasonable
agency interpretations that are within the scope of
the delegation. I.N.S. v. Cardoza-Fonseca, 480 U.S.
421, 448 (1987); Mead, 533 U.S. at 229; Chevron, 467
U.S. at 843-44. However, “[a]lthough agency deter-
minations within the scope of delegated authority
are entitled to deference, it is fundamental ‘that an
agency may not bootstrap itself into an area in which
it has no jurisdiction.’” Adams Fruit, 494 U.S. at 650

18
(quoting Federal Maritime Comm’n v. Seatrain
Lines, Inc., 411 U.S. 726, 745 (1973)).
If a court finds sufficient evidence “from the
agency’s generally conferred authority and other
statutory circumstances” that Congress did intend to
confer on the agency the authority to issue binding
interpretations of a statute, Mead, 533 U.S. at 229,
then the court will address the agency’s resolution of
substantive statutory interpretation issues under
Chevron’s two-step formula.
The two-step inquiry
relates to the validity of what might be called the
agency’s “substantive jurisdiction” – the agency’s
power to fill statutory gaps in particular ways. If the
court finds under Chevron Step 1 that Congress has
not eliminated the agency’s discretion over the spe-
cific subject matter by unambiguously addressing
“the precise question at issue,” Chevron, 467 U.S. at
842, then, under Chevron Step 2, the court will defer
to the agency’s construction so long as it is reason-
able, id. at 843-44. But if Congress has not dele-
gated the agency interpretive authority over the
statute, then the agency’s substantive interpretation
“is ‘entitled to respect’ only to the extent it has the
‘power to persuade.’” Gonzales v. Oregon, 546 U.S.
243, 256 (2006) (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944)).
B. A Court Determines Whether Congress
Delegated
An
Agency
Interpretive
Authority De Novo.
At the threshold, Step 0 stage of the Chevron in-
quiry, a court determines Congress’s intent de novo;
it does not defer to an agency’s views. This Court
has considered the validity of agency regulations,

19
rules, and pronouncements in dozens of cases.
Whenever an issue has arisen regarding the agency’s
authority to issue a binding statutory interpretation,
the Court has uniformly considered the scope of the
agency’s authority de novo – assessing factors such
as whether Congress empowered the agency to make
rules with the force of law, whether the agency’s ex-
pressed views are authoritative, and whether the
agency’s position is well-reasoned, to name a few.
But contrary to the Fifth Circuit’s decision in this
case, this Court has never deferred to the agency’s
view that Congress intended to delegate it author-
ity. See, e.g., Astrue v. Capato ex rel B.N.C., 132 S.
Ct. 2021, 2033-34 (2012) (determining based on the
language of the Social Security Act and the rulemak-
ing procedure utilized by the Social Security Ad-
ministration that Congress had empowered the Ad-
ministration to make rules with the force of law);
Negusie v. Holder, 555 U.S. 511, 515-16 (2009) (hold-
ing that the Board of Immigration Appeals generally
has the power to make rules with the force of law,
but when its interpretation was premised on a legal
error, that interpretation was not entitled to defer-
ence until the Board had an opportunity to revisit it
on remand); Federal Express Corp. v. Holowecki, 552
U.S. 389, 399 (2008) (holding that “the [EEOC’s] pol-
icy statements, embodied in its compliance manual
and internal directives, interpret not only the regu-
lations but also the statute itself,” and therefore
merited only Skidmore deference); Long Island Care
at Home, Ltd., 551 U.S. at 165 (conducting de novo
textual analysis of the Fair Labor Standards Act and
determining that the statute “explicitly leaves gaps”
and “provides the Department with the power to fill

20
these gaps through rules and regulations” so that
ensuing regulations merit Chevron deference); Gon-
zales, 546 U.S. at 258-68 (conducting full de novo
review of the Controlled Substances Act and conclud-
ing that notwithstanding ambiguity in the statute,
“the CSA does not give the Attorney General author-
ity to issue the Interpretive Rule as a statement with
the force of law”); National Cable & Telecomm. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 980-81
(2005) (recognizing on de novo review that Congress
had delegated power to the FCC to enforce the
Communications Act through binding legal rules);
Household Credit Servs., Inc. v. Pfennig, 541 U.S.
232, 238 (2004) (recognizing on de novo review that
Congress has expressly delegated rulemaking au-
thority to the Federal Reserve Board to enforce the
Truth in Lending Act); Alaska Dept. of Envt’l Con-
servation v. EPA, 540 U.S. 461, 487-88 (2004) (con-
ducting de novo review to determine that the EPA’s
interpretation,
“presented
in
internal
guidance
memoranda,” lacked the force of law and therefore
did not merit Chevron deference); Barnhart v. Wal-
ton, 535 U.S. 212, 217, 221-22 (2002) (conducting de
novo review to defer to Social Security Administra-
tion rule enacted pursuant to “statutory rulemaking
authority”); Mead, 533 U.S. at 233-34 (conducting de
novo review to determine from the “face of the stat-
ute,” the “agency practice,” and “the amendments to
the statute made effective after this case arose” that
Customs’ letter rulings did not have the force of law);
Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs, 531 U.S. 159, 172-74 (2001) (con-
ducting de novo review to hold that when “an admin-
istrative interpretation of a statute invokes the outer

21
limits of Congress' power, we expect a clear indica-
tion that Congress intended that result,” and thus
denying deference when an administrative regula-
tion threatened the balance of federalism); Christen-
sen v. Harris County, 529 U.S. 576, 587 (2000) (hold-
ing on de novo review that interpretive rules that
lack the force of law “do not warrant Chevron-style
deference”); Smiley v. Citibank, N.A., 517 U.S. 735,
739 (1996) (holding on de novo review that Congress
intended for the Comptroller of the Currency to en-
force and interpret the National Bank Act); Martin
v. Occupational Safety & Health Review Comm’n,
499 U.S. 144, 152 (1991) (conducting de novo review
to “infer from the structure and history of the stat-
ute” whether Congress had delegated interpretive
authority to the Secretary of Labor); Bowen, 488 U.S.
at 212-13 (denying Chevron deference to an agency
litigating position that was not rooted in the agency’s
delegated authority).
In Adams Fruit, the Court refused to defer to
the Department of Labor’s position that the private
right of action under the Migrant and Seasonal Agri-
cultural Worker Protection Act (AWPA) was limited
by state workers’ compensation laws. Noting that
“Chevron review of agency interpretations of statutes
applies only to regulations ‘promulgated pursuant to
congressional authority,’” the Court held that Con-
gress had not “empower[ed] the Secretary to regulate
the scope of the judicial power vested by the statute.”
494 U.S. at 649-50 (quoting NLRB v. Food & Com-
mercial Workers, 484 U.S. 204, 208 (1987)).
The
Court accorded no deference to the agency’s views in
making that determination. Rather, it was based on
the Court’s de novo conclusion that “[n]o such dele-

22
gation regarding AWPA’s enforcement provisions is
evident in the statute.” Id. at 650. The Court’s own
review of the statute indicated that “Congress estab-
lished an enforcement scheme independent of the
Executive.”
Id.
Based on this determination, the
Court concluded that “it would be inappropriate to
consult executive interpretations of [the statute] to
resolve
ambiguities
surrounding
the
scope
of
AWPA’s judicially enforceable remedy.” Id.
The Court likewise addressed the delegation is-
sue de novo in Mead. The inquiry in that case was
whether there was any “indication,” either on “the
face of the statute” or elsewhere, that “Congress
meant to delegate authority to Customs to issue
classification rulings with the force of law.” 533 U.S.
at 231-32. The Court’s analysis of that question did
not include any deference to the agency’s views. In-
stead, the Court independently reviewed the statu-
tory text – looking to, for example, a “provision for
independent review” of the agency rulings at issue –
and concluded that “[i]t is hard to imagine a con-
gressional understanding more at odds with the
Chevron regime.” Id. at 232-33.
The Court followed the same approach in Gonza-
les v. Oregon, 546 U.S. 243 (2006). There, the Attor-
ney General argued that an interpretive rule prohib-
iting the prescription of regulated drugs for use in
physician-assisted suicide was entitled to Chevron
deference in light of his rulemaking authority under
the Controlled Substances Act (CSA).
The Court,
however, held that “[t]o begin with,” it must be de-
termined whether the rule was “promulgated pursu-
ant to authority Congress has delegated to the offi-

23
cial.” Id. at 258. In conducting this analysis, the
Court accorded no deference at all to the Attorney
General’s view of the scope of his interpretive au-
thority, but instead conducted a de novo review of
the statute’s text, structure, and history. See, e.g.,
id. at 262 (noting that the interpretive rule “cannot,
and does not, explain why the Attorney General has
the authority to decide what constitutes an underly-
ing violation of the CSA in the first place”); id. at 263
(“The statutory terms ‘public interest’ and ‘public
health’ do not call on the Attorney General . . . to
make an independent assessment of the meaning of
federal law.”). That is, a statute’s mere ambiguity
does not automatically translate into jurisdictional
authority to address the ambiguities.
Other decisions of this Court likewise recognize
that the determination of the scope of an agency’s
delegated authority is to be conducted by the court
de novo and without deference to the agency’s views.
See, e.g., AT&T Corp. v. Iowa Utilities Bd., 525 U.S.
366, 378-84, 387 (1999) (addressing “what might be
called underlying FCC jurisdiction” without relying
on Chevron deference, then applying Chevron to the
agency’s determinations on the merits); Crandon v.
United States, 494 U.S. 152, 177 (1990) (Scalia, J.,
concurring in judgment) (“[W]e have never thought
that the interpretation of those charged with prose-
cuting criminal statutes is entitled to deference.”).
These cases reflect the logical principle that “if dele-
gation really is antecedent to deference, as Mead in-
sists, it cannot be that courts should defer to an
agency’s views on whether a delegation has taken
place.” Nathan A. Sales & Jonathan H. Adler, The
Rest is Silence: Chevron Jurisdiction, Agency Defer-

24
ence, and Statutory Silences, 2009 U. Ill. L. Rev.
1497, 1564 (2009).
Even in the view of jurists who maintain that an
agency’s assertion of “jurisdiction” is entitled to def-
erence, the question of whether Congress delegated
an agency interpretive authority remains for the
courts alone. For example, Justice Scalia has stated
his understanding that it is “settled law” under the
Court’s precedents “that the rule of deference applies
even to an agency’s interpretation of its own statu-
tory authority or jurisdiction.” Mississippi Power &
Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354,
381 (1988) (Scalia, J., concurring in judgment). But
the cited precedents all involved a very different
form of jurisdiction: the scope of the agency’s dele-
gated power, as opposed to the antecedent question
whether Congress had delegated interpretive au-
thority to the agency. In each, Congress’s delegation
of interpretive jurisdiction over the relevant statute
had already been established.1 In several other opin-
1 See City of New York v. FCC, 486 U.S. 57, 67 (1988)
(deference to regulations warranted where statute “grants the
Commission the power to ‘establish technical standards’”
(citation omitted)); Commodity Futures Trading Comm’n v.
Schor, 478 U.S. 833, 843, 845 (1986) (deference warranted
where statute gave “broad grant of power” to agency to decide
“whether a particular regulation” was reasonably necessary);
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984)
(deference warranted where “power delegated to the FCC
plainly comprises authority to regulate” cable television
signals); NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 829
(1984) (deference to agency “on an issue that implicates its
expertise in labor relations” warranted where Court had

25
ions, Justice Scalia has adhered to the settled prin-
ciple that the inquiry into an agency’s delegated au-
thority to interpret a statute is to be conducted de
novo.2
Similarly, as the petition for certiorari ex-
plained, several courts of appeals hold that an
previously determined “that the task of defining the scope” of
the statute was for agency); CBS, Inc. v. FCC, 453 U.S. 367,
386 (1981) (deference warranted where “Congress . . . charged
the Commission with [statute’s] enforcement”); Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 381-82 (1969)
(upholding regulations where Congress “ratified” agency
construction “with positive legislation”).
In the other cited
case, FTC v. Bunte Bros., Inc., 312 U.S. 349, 351 (1941), the
Court declined to defer to an agency construction that was
inconsistent with the statute’s “obvious meaning.”
2 See, e.g., Smiley, 517 U.S. at 739 (1996) (Comptroller of
Currency receives deference for reasonable interpretations of
National Bank Act because Comptroller “‘is charged with the
enforcement of banking laws’” (quoting NationsBank of N.C.,
N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256
(1995))); Gonzales, 546 U.S. at 297 (Scalia, J., dissenting)
(arguing, based on de novo analysis, that the Attorney
General’s interpretation of Controlled Substances Act was
entitled to deference); Smith v. City of Jackson, 544 U.S. 228,
243 (2005) (Scalia, J., concurring) (arguing that deference was
owed to EEOC’s interpretation of Age Discrimination in Em-
ployment Act because statute “confers upon the EEOC
authority to issue ‘such rules and regulations as it may
consider necessary or appropriate for carrying out’ the ADEA”)
(citation omitted)); General Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581, 601 (2004) (Scalia, J., dissenting) (arguing that
EEOC’s interpretation of ADEA was entitled to deference
because EEOC is “the agency tasked by Congress with
enforcing the ADEA”).

26
agency’s assertion of “jurisdiction” is entitled to def-
erence. Pet. 13-16. But when presented with the is-
sue in this case – whether Congress delegated inter-
pretive authority – each of those courts decides the
question de novo.3
3 See, e.g., Hagans v. Comm’r of Soc. Sec., 694 F.3d 287,
303 (3d Cir. 2012) (holding that the Commissioner of Social
Security was only entitled to Skidmore deference because the
relevant interpretation had not been issued pursuant to her
delegated authority); Robert Wood Johnson Univ. Hosp. v.
Thompson, 297 F.3d 273, 281 (3d Cir. 2005) (holding that the
Secretary of Health and Human Services was owed Chevron
deference because “in the case before us there is adequate
indication of congressional intent in the statute to demonstrate
substantial delegation of authority to the Secretary”); Kornman
& Assocs., Inc. v. United States, 527 F.3d 443, 453-54 (5th Cir.
2008) (rejecting government’s request for Chevron deference to
an IRS revenue ruling because the ruling was not issued
pursuant to delegated authority and because the IRS, outside
the litigation, had not treated it as having the force of law);
Luminant Generation Co., LLC v. EPA, 675 F.3d 917, 928 (5th
Cir. 2012) (holding that statements made in a guidance
document, as well as appellate counsel’s statements, were
entitled only to Skidmore deference); Godinez-Arroyo v.
Mukasey, 540 F.3d 848 (8th Cir. 2008) (considering de novo,
without deciding, whether unpublished orders of the Board of
Immigration Appeals (BIA) have the “force of law” and
therefore merit Chevron deference); Carpio v. Holder, 592 F.3d
1091, 1096-98 (10th Cir. 2010) (holding that unpublished BIA
orders do not have the force of law and so do not merit Chevron
deference); Colorado v. Sunoco, Inc., 337 F.3d 1233, 1243 (10th
Cir. 2003) (rejecting a request for Chevron deference and
applying Skidmore to the EPA’s informal characterizations of
events for purposes of assessing a CERCLA statute of
limitations).

27
II. The Court of Appeals Erred By Not Resolv-
ing
De
Novo
The
Threshold
Question
Whether Congress Granted The FCC Inter-
pretive Jurisdiction Over Section 332(c)(7).
The Fifth Circuit’s decision cannot be squared
with the precedents above. Indeed, the case under-
scores why a court must make the threshold, juris-
dictional inquiry de novo.
A. The Fifth Circuit Should Not Have
Deferred To The FCC’s Determination
Of Its Own Jurisdiction Over Section
332(c)(7).
The Fifth Circuit found that its own circuit prec-
edent required it to resolve whether the FCC has in-
terpretive jurisdiction over Section 332(c)(7) by de-
ferring to the FCC’s view. Pet. App. 37a. The court
accordingly never sought to evaluate the FCC’s stat-
utory jurisdiction itself, by adopting the statute’s
best reading de novo. The court instead asked only
whether the FCC’s reading was “impermissible.”
Pet. App. 51a. This was wrong for several reasons.
First, this Court’s decisions discussed above re-
move any doubt that the threshold determination
whether Congress empowered an agency to imple-
ment a statute (Step 0) is for a court, not an agency.
Deference to the agency does not apply to, but fol-
lows, the Court’s confirmation of a delegation under
this “precondition.” Adams Fruit Co., 494 U.S. at
649.
Second, applying Chevron to this preliminary ju-
risdictional question defies Congress’s standard
choice to leave jurisdictional questions to a neutral

28
body, the courts. The FCC has only those powers
that Congress grants it. The agency also has an in-
centive to limit or expand these powers to further its
own interests. Independent judicial review serves as
an important check.
But applying Chevron to an
agency’s determination of its own jurisdiction – as
opposed to technical or specialized matters over
which Congress has granted the agency authority –
undermines Congress’s ordinary allocation of author-
ity between the branches. Here, Congress sought to
preserve State and local zoning authority, not to
structure the zoning process around a federal agen-
cy’s “policy.” Pet. App. 212a-13a. Yet now the FCC
has implemented the statute, at least in part, to fur-
ther national “goals that the Commission sought to
advance” in other proceedings and under other stat-
utes. Id. 105a. By requiring a court to accept any
“permissible” reading over the court’s best reading,
the doctrine elevates an agency’s self-interested
reading over a neutral one. See generally Timothy
K. Armstrong, Chevron Deference and Agency Self-
Interest, 13 Cornell J.L. & Pub. Pol’y 203, 244 (2004).
Third, deferring to an agency on the question of
the scope of an agency’s jurisdiction assumes that an
agency has inherent authority to make jurisdictional
determinations unless Congress uses unambiguous
language to deny it. This view cannot be squared
with the fundamental rule that an agency only has
the powers that Congress has conferred upon it. Lou-
isiana PSC, 476 U.S. at 374; Michigan v. EPA, 268
F.3d 1075, 1081 (D.C. Cir. 2001).
Fourth, the assumption of the court of appeals
that Congress intended to confer interpretive au-

29
thority on the FCC runs afoul of settled nondelega-
tion principles.
“The fundamental precept of the
delegation doctrine is that the lawmaking function
belongs to Congress, and may not be conveyed to an-
other branch or entity.” Loving v. United States, 517
U.S. 748, 758 (1996) (citation omitted). This Court
accordingly has explained that “when Congress con-
fers decisionmaking authority upon agencies Con-
gress must ‘lay down by legislative act an intelligible
principle to which the person or body authorized to
[act] is directed to conform.’” Whitman v. American
Trucking Ass’ns, 531 U.S. 457, 472 (2001) (alteration
in original) (quoting J.W. Hampton, Jr., & Co. v.
United States, 276 U.S. 394, 409 (1928). Congress
thus cannot be presumed to have intended to dele-
gate legislative power to an agency, and federal
statutes should be construed to avoid that constitu-
tional issue if such a construction is “fairly possible.”
National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566, 2594 (2012).
A rule treating statutory ambiguity as evidence
that Congress has given interpretive authority to an
agency stands these constitutional principles on
their head.
The power to define the scope of an
agency’s power to interpret federal law, and thereby
to “create regulatory jurisdiction where none ex-
isted[,] is quintessentially ‘legislative’ power.” Sales
& Adler, supra, at 1565 n.246. In light of the grave
constitutional concerns that such a delegation would
create, a statutory ambiguity cannot provide a basis
for presuming, as the Fifth Circuit did, that Con-
gress intended that result.
To the contrary, this
Court’s constitutional avoidance precedents teach
that courts should instead adopt the opposite pre-

30
sumption.
Fifth, applying Chevron deference to this pre-
liminary jurisdictional question does not fit the ra-
tionale of Chevron itself. In Chevron, the Court criti-
cized the D.C. Circuit for rejecting the EPA’s inter-
pretation of a specialized, technical question: the def-
inition of “stationary source.” Chevron, 467 U.S. at
846.
For this question, the court recognized that
“[j]udges are not experts in the field”; the EPA is. Id.
In contrast, the question whether Congress ex-
pressly or implicitly conferred authority is one on
which courts, not agencies, are expert. See, e.g., Na-
tional Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concur-
ring) (“Congress may have intended not to leave the
matter of a particular interpretation up to the agen-
cy . . . where an unusually basic legal question is at
issue.”).
Finally, the Fifth Circuit’s approach effectively
assumes the answer to the very question that is an-
tecedent to Chevron deference.
In determining
whether Congress intended for the FCC or the courts
to resolve ambiguities in Sections 332(c)(7)(A) and
(B)(v), the court of appeals held that those provi-
sions’ own ambiguity required it to resolve the ques-
tion in favor of the FCC.
See Pet. App. 45a, 51a
(holding that “the FCC is entitled to deference” be-
cause “[t]he language of § 332(c)(7) is silent” regard-
ing its interpretive authority). By assuming away
the answer to that threshold question, the court
failed to execute its Article III duty to ensure that
Congress intended to confer interpretive power on

31
the agency. Instead, it allowed the agency to “confer
power upon itself.” Louisiana PSC, 476 U.S. at 374.
B. This Case Underscores Why Courts Do
Not Defer To An Agency On This
Threshold Jurisdictional Question.
This case underscores why courts do not – and
must not – defer to an agency’s views of its own in-
terpretive jurisdiction. Here, the contextual evidence
that Congress did not empower the FCC to structure
Section 332(c)(7) around its own rules is overwhelm-
ing. Deferring to the FCC’s view of its own jurisdic-
tion forces a court to ignore this.
Congress made it abundantly clear that Section
332(c)(7) is not a garden-variety Communications
Act provision for FCC implementation, but instead a
unique effort to rely on State and local land use pro-
cesses and the case-by-case oversight of the courts.
The provision is titled “Preservation of local zoning
authority,” and it has been described as an “experi-
ment in federalism.” Town of Amherst v. Omnipoint
Commc’ns Enters. Inc., 173 F.3d 9, 17 (1st Cir. 1999).
It provides that, “[e]xcept as provided in this para-
graph,” no other provision of the Communications
Act shall “limit or affect” State or local authority re-
garding the location of personal wire service facili-
ties. 47 U.S.C. § 332(c)(7)(A). It gives the FCC the
power to address one of the statutory limitations on
State and local authority – the bar on siting deci-
sions based on the environmental effects of radio
frequency (RF) emissions, id. § 332(c)(7)(B)(iv) – but
otherwise leaves disputes to judicial resolution, id.
§ 332(c)(7)(B)(v).
By its terms, then, the statute
permits the FCC to act where Section 332(c)(7) gives

32
it a role (to address RF matters), while shielding
State and local authority from any “limit” or
“[e]ffect” caused by any other provision of the Act.
Thus, like the provision at issue in Louisiana PSC,
Section 332(c)(7) is an “express jurisdictional limita-
tion[] on FCC power” that “fences off” State and local
authorities “from FCC reach or regulation,” except
as specifically provided in the statute. 476 U.S. at
370.
The legislative history confirms Congress’s pur-
pose.
The House of Representatives initially had
passed language empowering the FCC to “prescribe
and make effective a policy regarding State and local
regulation of the placement, construction, modifica-
tion, or 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). The bill directed
the FCC to adopt “policies” requiring a local govern-
ment to act “within a reasonable period of time after
the request is fully filed with such government or in-
strumentality.” Id. Congress, however, “ultimately
rejected the national approach” and instead adopted
the current Section 337(c)(7) – “a system based on
cooperative federalism.”
Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 128 (2005) (Breyer, J., con-
curring). Congress revised the statute’s language to
retain many of the House bill’s limitations, but
changed how they would be implemented: it struck
all references to FCC “policy,” and instead inserted a
private right of action. 47 U.S.C. § 332(c)(7)(B)(v).
The Conference Report accordingly directed the FCC
to “terminate[]” its rulemakings, Pet. App. 209a, and
confirmed that the statute establishes “limitations

33
on the role and powers of the Commission . . . re-
late[d] to local land use regulations.” H.R. Rep. No.
104-458 (1996) (Conf. Rep.) at 207-08, Pet. App.
211a.
Moreover, Congress gave no hint that when it
required State and local action within a “reasonable
period of time . . . taking into account the nature and
scope of such request,” 47 U.S.C. § 332(c)(7)(B)(ii),
that it intended to create national, presumptively
binding deadlines for a particular industry. To the
contrary, the legislative history reveals that Con-
gress deliberately chose not to create fixed federal
standards, but instead to prevent State and local
governments from applying their local standards dif-
ferently in this setting:
If a request for placement of a personal wire-
less service facility involves a zoning vari-
ance or a public hearing or comment process,
the time period for rendering a decision will
be the usual period under such circum-
stances. It is not the intent of this provision
to give preferential treatment to the per-
sonal wireless service industry in the proc-
essing of requests, or to subject their re-
quests to any but the generally applicable
time frames for zoning decision.
Pet. App. 210a.
A de novo standard would permit a court to
adopt the best reading: that Congress did not em-
power the FCC to structure Section 332(c)(7) around
national, administrative policy. A deferential stan-
dard on this jurisdictional question resulted in the
Fifth Circuit allowing the FCC to use statutory am-

34
biguity to create a regulatory scheme that Congress
specifically rejected.
*
*
*
Therefore, to decide this case, it is sufficient for
this Court to hold that the Fifth Circuit erred by not
determining de novo whether Congress intended to
delegate to the FCC the power to issue its suppos-
edly binding interpretation of Section 332(c)(7). This
Court accordingly can vacate the judgment below
and remand for the court of appeals to conduct the
appropriate de novo inquiry.
III. The Court Of Appeals Should Have Pre-
sumed That Congress Did Not Delegate In-
terpretive
Jurisdiction
Over
Section
332(c)(7) To The FCC.
If this Court instead elects to go further, it
should either apply a de novo standard itself and
hold that Congress did not intend for the FCC to
adopt binding rules interpreting Sections 332(c)(7) or
instruct the court of appeals that it may not adopt
the FCC’s jurisdictional determination without first
finding a clear indication from Congress that it in-
tended the agency to assume authority in this area.
Cf. Nixon v. Mo. Mun. League, 541 U.S. 125, 141
(2004) (reviewing de novo and with presumptions
against preemption the meaning of “any entity” un-
der 47 U.S.C. § 253, despite FCC adjudication inter-
preting statute);
Solid Waste Agency of N. Cook
County (“SWANCC”) v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 172-74 (2001).

35
A. Congress Was Required To Speak With
Particular Clarity If It Wished To
Grant The FCC Authority To Adopt
Rules Implementing Section 332(c)(7).
1. As shown, supra, the best de novo reading of
Section 332(c)(7) is that the FCC lacks the authority
to implement it.
Any doubt in that regard is re-
solved by application of well-recognized statutory
presumptions that require clear statements of dele-
gation in certain circumstances.
While this Court
has recognized that the Communications Act gener-
ally gives the FCC broad authority to interpret pro-
visions within the Act, Gonzales, 546 U.S. at 258-59,
that rule is not absolute, as the courts and the agen-
cy itself have generally recognized. The FCC is giv-
en broad authority over communications by wire and
radio, and over entities that communicate by wire,
47 U.S.C. § 152, but not over public or private prop-
erty, or over State or local governments generally.
The agency, therefore, concluded that it did not have
authority to regulate attachments to facilities essen-
tial to communications absent a more specific grant
of authority from Congress.
California Water &
Power Co., 64 F.C.C.2d 753, 759 (FCC 1977) (citing
Ill. Citizens Committee for Broad. v. FCC, 467 F.2d
1397 (7th Cir. 1972)).
Congress itself has histori-
cally limited FCC authority to regulate State and lo-
cal property (47 U.S.C. § 224) and historically lim-
ited FCC interference with intrastate regulation,
Louisiana PSC, 476 U.S. at 374-75.
2. Here, the Fifth Circuit recognized that Section
332(c)(7) begins with jurisdiction-limiting language,
albeit language that the court found ambiguous. But

36
that very ambiguity should have led the court to pre-
sume that Congress did not intend to give the FCC
authority to regulate zoning. Louisiana PSC is illus-
trative.
It involved a preservation clause stating
that “except as provided” in certain sections, “noth-
ing in this chapter shall be construed to apply or to
give the Commission jurisdiction with respect to”
certain matters related to intrastate service. See 476
U.S. at 370. The FCC argued that the clause should
be construed to preserve State authority only as to
intrastate matters that were separable from inter-
state communication. The Court disagreed, noting
that, although State regulations may be displaced to
the extent that they obstruct the objectives of Con-
gress, the statute at issue “constitutes . . . a congres-
sional denial of power to the FCC.” Id. at 374. The
Court recognized that a delegation of authority to an
agency cannot be implied in such circumstances: “To
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 both unwilling and unable to do.” Id. at
374-75.
3. The rule in Louisiana PSC rests upon broader
federalism principles that apply whenever a statu-
tory interpretation question implicates the historic
federal-state balance.
This Court has long recog-
nized an “‘assumption that the historic police powers
of the states [are] not to be superseded by the Fed-
eral Act unless that was the clear and manifest pur-
pose of Congress.’” Altria Group Inc. v. Good, 555
U.S. 70, 77 (2008) (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)) (alteration in origi-
nal). That assumption “applies with particular force

37
when Congress has legislated in a field traditionally
occupied by the States.” Id.
This Court has accordingly held, in a variety of
contexts, that courts may not adopt a statutory in-
terpretation abrogating traditional State authority
absent a clear statement from Congress that it in-
tended that result.
See, e.g., Bates v. Dow Agro-
sciences LLC, 544 U.S. 431, 449 (2005) (“In areas of
traditional state regulation, we assume that a fed-
eral statute has not supplanted state law unless
Congress has made such an intention ‘clear and
manifest.’” (internal quotation marks omitted) (quot-
ing New York State Conference of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655
(1995))); Rapanos v. United States, 547 U.S. 715, 738
(2006); SWANCC, 531 U.S. at 172-73; United States
v. Bass, 404 U.S. 336, 349 (1971) (“unless Congress
conveys its purpose clearly, it will not be deemed to
have significantly changed the federal-state bal-
ance”).
Finding that the FCC has interpretive jurisdic-
tion over Sections 332(c)(7) – and thus the power to
implement zoning policies binding on States and lo-
calities – would trigger these very concerns.
The
subject matter of Section 332(c)(7) – local land use –
is manifestly an area of traditional State regulation.
The FCC has no experience in managing zoning. In-
deed, just before Congress enacted this statute, the
FCC explained that it “traditionally has been reluc-
tant to become embroiled in zoning matters, believ-
ing that such issues are within the province of, and
best resolved by, local land use authorities.” In re
Artichoke Broad. Co., 10 FCC Rcd. 12631, 12633

38
(1995).
Congress did mean to limit local authority to
discriminate against wireless providers, but it also
did not wish to replace local zoning standards with a
national zoning process. That the FCC’s jurisdic-
tional claim would displace State and local authority
over local land use processes is clear from the De-
claratory Ruling itself. Under that policy, if a State
or local government does not release its decision on a
siting application within the 90- or 150-day dead-
lines (without extension by mutual agreement), its
decision automatically constitutes a “failure to act”
and is presumptively an unreasonable “period of
time” on the merits. Pet. App. 115a . Unless the ap-
plicant agrees otherwise, this forces the State or lo-
cal government into court on an expedited timetable,
requiring it to expend resources to defend its action,
even if the time was necessary to comply with other
binding obligations (such as State environmental
laws) or to implement policies reflected in the State’s
or locality’s own deadlines. Moreover, because these
rules apply only to applications for personal wireless
service facilities, a State or locality wishing to avoid
litigation must give precedence and special treat-
ment to wireless applicants at the expense of other
zoning applicants and policies. That is to say, allow-
ing the FCC to implement Section 332(c)(7) both
“limits” and “affects” local authority in a fundamen-
tally different way than court review of individual
zoning decisions. Given the intrusion on traditional
local authority, FCC jurisdiction cannot be presumed
from ambiguous statutory language. The Fifth Cir-
cuit was required to apply this principle in constru-
ing Sections 332(c)(7).

39
4. The Fifth Circuit should have concluded that
Congress did not empower the FCC to authorita-
tively
interpret
“failure
to
act”
in
Section
332(c)(7)(B)(v) for an independent reason: Congress
committed the language in this private right of ac-
tion to the courts.
As explained above, Congress rejected a model
that would have established limits on State and local
authority through a general FCC “policy.”
It re-
placed it with a regime rooted in judicial review,
through cases brought under a private right of ac-
tion. The FCC now seeks to restore the primacy of
FCC policy by defining this private cause of action.
The FCC may not do so. As in Adams Fruit, “even if
. . . language establishing a private right of action is
ambiguous, we need not defer” to the FCC’s reading
of it “because Congress has expressly established the
Judiciary and not the [FCC] as the adjudicator of
private rights of action arising under the statute.”
494 U.S. at 649.
Here, the FCC openly acknowl-
edged that it sought to define the “statutory trigger
for seeking judicial relief,” and that that its goal was
to allow providers to “more vigorously” enforce the
statute in court. Pet. App. 106a. This judicial mat-
ter, however, is well beyond the FCC’s domain. Be-
cause Congress “established an enforcement scheme
independent of the [FCC] . . . . it would be inappro-
priate to consult [FCC interpretations] to resolve
ambiguities surrounding the scope of [Section
332(c)(7)’s] judicially enforceable remedy.”
Adams
Fruit, 494 U.S. at 650.
In sum, because the FCC’s claim of authority to
implement Section 332(c)(7)(B) would encroach on

40
matters that Congress left to State and local gov-
ernments, and to the courts, the court of appeals had
ample grounds to require a clear delegation of au-
thority. Not only was there no such delegation, but
Section 332(c)(7)’s text and history in fact point in
the opposite direction, with one exception: Section
332(c)(7) was included in the Communications Act.
Pet. App. 39a. That was not sufficient. See Part
III.B, infra. The FCC’s substantive interpretations
were at most entitled to consideration under
Skidmore.
B. There Is No Reason To Conclude That
Congress
Delegated
Interpretive
Authority To The FCC Here.
To be sure, Congress does delegate interpretive
authority to agencies, often under circumstances
where there is little or no reason to believe that
Congress would not intend it. But this is not such a
case.
1. Courts have little trouble determining that
Congress intended an agency to have interpretive
jurisdiction over a particular statute when Congress
says so expressly. Similarly, as the Court recognized
in Gonzales, it may be easier to find that Congress
implicitly intended an agency to interpret a provi-
sion that is included within a comprehensive statute
that grants an agency broad, general authority. 546
U.S. at 258. To be sure, the Communications Act is
such a measure. Id. Because of this, when Congress
adds a provision to the Act – without more – the ad-
dition alone may imply a delegation.
AT&T, 525
U.S. at 377. But when “statutory provisions. . . dis-
place the Commission’s general rulemaking author-

41
ity,” this implication falls away. Id. at 385.
Within Section 332(c)(7) itself, Congress did not
grant the FCC general interpretive jurisdiction: the
statute empowers the FCC to address only a single
issue, RF emissions.
47 U.S.C. § 332(c)(7)(B)(iv).
Likewise, there is no express delegation of interpre-
tive jurisdiction over Sections 332(c)(7) in any other
provision of the Communications Act. The FCC con-
tends that it has the power to implement Section
332(c)(7)(B) pursuant to 47 U.S.C. §§ 151, 154(i),
201(b), and 303(r).
These provisions, with slight
variations, generally permit the FCC to “prescribe
such rules and regulations as may be necessary in
the public interest to carry out the provisions of this
Act.” 47 U.S.C. § 201(b). That generalized grant of
authority, however, cannot override the specific
terms of Section 332(c)(7)(A), which preserves State
and local zoning authority against federal regulation
“[e]xcept as provided in this paragraph.” 47 U.S.C. §
332(c)(7)(A) (emphasis added); see AT&T, 525 U.S. at
385; see also RadLAX Gateway Hotel, LLC v. Amal-
gamated Bank, 132 S. Ct. 2065, 2071 (2012) (“‘[I]t is
a commonplace of statutory construction that the
specific governs the general.’
That is particularly
true where . . . ‘Congress has enacted a comprehen-
sive scheme and has deliberately targeted specific
problems with specific solutions.’” (alteration in
original) (citations omitted)). This exception to the
general rule – i.e., that “nothing in this Act” may
“limit” or “affect” State or local authority – must be
read narrowly. Comm’r of Internal Revenue v. Clark,
489 U.S. 726, 739 (1989). Nor do Sections 1, 4(i),
201(b), and 303(r) of the Communications Act pro-
vide anything approaching the “‘clear and manifest’”

42
statement of congressional intent required to over-
come the presumption against delegation in this
case. Bates, 544 U.S. at 449 (citation omitted).
“[W]here one has doubt that Congress actually
intended to delegate interpretive authority to the
agency (an ‘ambiguity’ that Chevron does not pre-
sumptively leave to agency resolution),” Chevron
deference does not apply. Christensen, 529 U.S. at
597 (Breyer, J., dissenting). This requirement that
Congress give some affirmative indication of its in-
tention to delegate interpretive jurisdiction to an
agency is the natural outgrowth of Chevron’s status
as a doctrine fundamentally rooted in congressional
intent. See Merrill & Hickman, supra, at 872 (“In
delineating the types of delegations of agency au-
thority that trigger Chevron deference, it is . . . im-
portant to determine whether a plausible case can be
made that Congress would want such a delegation to
mean that agencies enjoy primary interpretational
authority.”). The decision of the court of appeals de-
cision is squarely refuted by these precedents.
2. There may be cases where a statute’s subject
matter so plainly requires agency expertise that ju-
risdiction may be implied from imprecise delega-
tions. This, however, is certainly not a case in which
Congress can be presumed to have intended for the
agency to have final interpretive authority because
of the need for an “expert policy judgment” in a sub-
ject area that is “‘technical, complex, and dynamic.’”
Brand X, 545 U.S. at 1002-03 (quoting National Ca-
ble & Telecommunications Ass’n, Inc. v. Gulf Power
Co., 534 U.S. 327, 339 (2002)); see Pension Benefit
Guar. Corp. v. LTV Corp., 496 U.S. 633, 651-52

43
(1990) (“[P]ractical agency expertise is one of the
principal justifications behind Chevron deference.”).
As noted above, the FCC has no expertise over State
and local zoning matters. Likewise, whether Con-
gress intended to delegate to the FCC final interpre-
tive authority over Sections 332(c)(7) is a pure legal
question that does not touch on the FCC’s technical
expertise in communications matters.
Rather, ex-
pertise in deciding questions of jurisdiction and con-
gressional intent lies with courts, not agencies. See
Sales & Adler, supra, at 1535 (“However much ex-
pertise agencies may have at answering technical or
policy questions, they have no institutional advan-
tage over courts in resolving jurisdictional dis-
putes.”).
3. There may also be cases where there is such
an evident need for a national standard that it can
be implied that Congress intended an agency to im-
plement the statute. This case presents no such cir-
cumstance. Far from contemplating a single timing
standard, Section 332(c)(7) is specifically designed to
require courts to evaluate challenged delays on a
case-by-case basis, taking into account local condi-
tions and giving deference to the expertise of local
zoning officials.
That is in fact precisely how the
statute was understood to operate during the twelve
years between its enactment and the issuance of the
Declaratory Ruling. See, e.g., Omnipoint Communi-
cations, 173 F.3d at 17 (describing statute as a “re-
freshing experiment in federalism” that “does not of-
fer a single ‘cookie cutter’ solution for diverse local
situations” but instead contemplates “individual so-
lutions best adapted to the needs and interests of
particular communities”). More importantly, such a

44
view comports with the will of Congress, which di-
rected courts to apply the “reasonable period of time”
requirement by examining the “usual period” estab-
lished by State and local zoning experts, H.R. Rep.
No. 104-458, at 207-08 (1996), Pet. App. 210a, not by
looking to the FCC for guidance.
* * *
In sum, the court of appeals should not have ap-
plied Chevron to review the FCC’s interpretation of
its own statutory jurisdiction.
The court instead
should have answered de novo the preliminary juris-
dictional question of whether Congress delegated to
the FCC final interpretive authority over Sections
332(c)(7)(A) and (B)(v). In conducting that inquiry,
the court should have applied traditional canons of
statutory construction, including the presumption
that Congress does not intend to expand agency ju-
risdiction into areas of traditional State and local
regulation.
CONCLUSION
The Court should reverse the court of appeals’
judgment, or vacate that judgment and remand the
case.

45
Respectfully submitted,
THOMAS C. GOLDSTEIN
JOSEPH VAN EATON
KEVIN K. RUSSELL
Counsel of Record
KEVIN R. AMER
JAMES R. HOBSON
TEJINDER SINGH
MATTHEW K. SCHETTENHELM
GOLDSTEIN & RUSSELL, P.C.
BEST BEST & KRIEGER, LLP
5225 Wisconsin Ave. NW
2000 Pennsylvania Ave. NW
Suite 404
Suite 4300
Washington, DC 20015
Washington, DC 20006
(202) 785-0600
THOMAS D. BUNTON
Joseph.VanEaton@bbklaw.com
SENIOR DEPUTY
COUNTY COUNSEL
Counsel for Petitioners City of
COUNTY OF SAN DIEGO
Arlington, Texas; City of Los An-
1600 Pacific Highway
geles, California; County of Los
Room 355
Angeles, California; City of San
San Diego, CA 92101
Antonio, Texas; and Texas Coa-
lition of Cities for Utility Issues
Counsel for Petitioner
County of San Diego, Cali-
fornia
November 19, 2012

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