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City of Arlington, TX v. FCC & USA, No. 11-1545 (Sup. Ct.)

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Released: August 29, 2012

Nos. 11-1545 and 11-1547

In the Supreme Court of the United States
CITY OF ARLINGTON, TEXAS, ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

DONALD B. VERRILLI, JR.
SEAN A. LEV
Solicitor General
General Counsel
Counsel of Record
PETER KARANJIA
Department of Justice
Deputy General Counsel
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
RICHARD K. WELCH
Deputy Associate General
(202) 514-2217
Counsel
JAMES M. CARR
Counsel
Federal Communications
Commission
Washington, D.C. 20554

















QUESTION PRESENTED

Under 47 U.S.C. 332(c)(7)(B)(ii), a state or local gov-
ernment must act “within a reasonable period of time”
on a request for authorization to construct or modify
“personal wireless services facilities.” The question
presented is as follows:
Whether the Federal Communications Commission
has authority to interpret the phrase “a reasonable
period of time,” as that term is used in Section
332(c)(7)(B)(ii), in order to guide federal courts when
they resolve lawsuits brought under 47 U.S.C. 332(c)(7).

(I)


TABLE OF CONTENTS

Page
Opinions below ....................................................................................1
Jurisdiction ..........................................................................................2
Statement ............................................................................................2
Argument .............................................................................................9
Conclusion ........................................................................................ 20

TABLE OF AUTHORITIES

Cases:
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366
(1999) .................................................................... 11, 12, 13, 14
Alliance for Cmty. Media v. FCC, 529 F.3d 763
(6th Cir. 2008), cert. denied, 129 S. Ct. 2821 (2009) .............8
Altria Group, Inc. v. Good, 555 U.S. 70 (2008) ...................... 16
Bolton v. MSPB, 154 F.3d 1313 (Fed. Cir. 1998),
cert. denied, 526 U.S. 1088 (1999) ....................................... 11
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ...... 7, 9, 12
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113
(2005) .........................................................................................3
Durable Mfg. Co. v. United States Dep’t of Labor,
578 F.3d 497 (7th Cir. 2009) ................................................. 11
Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355
(1986) ................................................................................ 13, 14
National Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005) ................................... 12
Statutes:
Communications Act of 1934, 47 U.S.C. 151 et seq. ..................5
47 U.S.C. 151 (§ 1) ............................................................. 5, 10
47 U.S.C. 152(b) ............................................................... 13, 14
47 U.S.C. 154(i) (§ 4(i)) ...................................................... 5, 10
47 U.S.C. 201(b) ..................................................... 5, 10, 11, 12
47 U.S.C. 252 .......................................................................... 11
(III)

IV
Statutes—Continued: Page
47 U.S.C. 253 ............................................................................... 15
47 U.S.C. 253(a) .......................................................................... 15
47 U.S.C. 303(r) ...................................................................... 5, 10
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 ................................................................................2
47 U.S.C. 332(c)(7) ...................................................... passim
47 U.S.C. 332(c)(7)(A) ................................................ passim
47 U.S.C. 332(c)(7)(B) ................................................ passim
47 U.S.C. 332(c)(7)(B)(i) .......................................................3
47 U.S.C. 332(c)(7)(B)(ii) ................................... 3, 5, 8, 9, 11
47 U.S.C. 332(c)(7)(B)(v) ........................................... passim
42 U.S.C. 1983 ............................................................................ 19
Miscellaneous:
Amendment of the Commission’s Rules to Establish
Part 27, the Wireless Communications Service,
12 F.C.C.R. 10,785 (1997) ........................................................2
Public Notice, Wireless Telecommunications Bureau
Seeks Comment on Petition for Declaratory Ruling
by CTIA
, 23 F.C.C.R. 12,198 (2008) ......................................3
H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. (1996) ......... 15












In the Supreme Court of the United States

No. 11-1545
CITY OF ARLINGTON, TEXAS, ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.

No. 11-1547
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION


OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-68a)1
is reported at 668 F.3d 229. The order of the Federal
Communications Commission (Pet. App. 69a-171a) is re-
ported at 24 F.C.C.R. 13,994. The order of the Federal

1 Unless otherwise specified, all references to “Pet.” and “Pet. App.”
are to the petition and appendix in No. 11-1545.
(1)

2
Communications Commission on reconsideration (Pet.
App. 172a-195a) is reported at 25 F.C.C.R. 11,157.

JURISDICTION

The judgment of the court of appeals was entered on
January 23, 2012. Petitions for rehearing were denied
on March 29, 2012 (Pet. App. 196a-197a). The petitions
for a writ of certiorari were filed on June 22, 2012, and
June 27, 2012. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

STATEMENT

1. An effective national wireless telecommunications
network requires the construction of cellular phone tow-
ers and antenna sites, but local residents sometimes re-
sist the erection of such facilities in their communities.
As a result, “zoning approval for new wireless facilities
is both a major cost component and a major delay factor
in deploying wireless systems.” Amendment of the
Commission’s Rules to Establish Part 27, the Wireless
Communications Service, 12 F.C.C.R. 10,785, 10,833 ¶
90 (1997).
Congress has attempted to balance those competing
federal and local concerns. As part of the Telecommuni-
cations Act of 1996 (1996 Act), Pub. L. No. 104-104, 110
Stat. 56. Congress enacted 47 U.S.C. 332(c)(7), which
reflects a deliberate compromise between two compet-
ing aims: preserving the traditional role of state and
local governments in regulating the siting of wireless
telecommunications facilities, while facilitating the rapid
deployment of wireless telephone service nationwide.
Section 332(c)(7) contains two parts. The first part,
entitled “General authority,” generally preserves the
zoning authority of state and local governments “over
decisions regarding the placement, construction, and
modification of personal wireless service facilities” (such


3
as cell towers and transmitters) “[e]xcept as provided in
this paragraph.” 47 U.S.C. 332(c)(7)(A). The second
part, entitled “Limitations,” “imposes specific limita-
tions on the traditional authority of state and local gov-
ernments to regulate the location, construction, and
modification of such facilities.” City of Rancho Palos
Verdes v. Abrams, 544 U.S. 113, 115 (2005). For exam-
ple, that part provides that regulations imposed by state
and local governments may not “unreasonably discrimi-
nate among providers of functionally equivalent ser-
vices” or “prohibit or have the effect of prohibiting the
provision of personal wireless services.” 47 U.S.C.
332(c)(7)(B)(i).
In addition, to expedite the processing of wireless fa-
cility siting applications, Section 332(c)(7)(B)(ii) provides
that a state or local government “shall act on any re-
quest 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.” 47 U.S.C.
332(c)(7)(B)(ii) (emphasis added). The statute does not
define the phrase “reasonable period of time.” If a state
or local government does not act on a wireless facility
siting request within such a period, however, any person
“adversely affected by” the government’s “failure to act
* * * may, within 30 days after such * * * failure to
act, commence an action in any court of competent ju-
risdiction,” and the “court shall hear and decide such ac-
tion on an expedited basis.” 47 U.S.C. 332(c)(7)(B)(v).
Although the 30-day period for seeking judicial review
begins to run from the date on which the “failure to act”
occurs, the statute does not specify when a “failure to
act” takes place, nor does it otherwise define that term.


4
2. In July 2008, CTIA—The Wireless Association
(CTIA), a trade association of wireless telephone service
providers, filed a petition for a declaratory ruling with
the Federal Communications Commission (FCC or
Commission). CTIA Pet. for Declaratory Ruling, WT
Docket No. 08-165 (filed July 11, 2008) (CTIA Pet.). In
its petition, CTIA asked the Commission to clarify the
meaning of “failure to act” in Section 332(c)(7)(B)(v). Id.
at 17-27. CTIA pointed out that, because the statute
“does not explain when a ‘failure to act’ accrues” under
Section 332(c)(7)(B)(v), “such a failure” was often
“impossible to pinpoint.” Id. at 20. That statutory am-
biguity created a dilemma for wireless service providers
because a party that wishes to challenge a local
government’s “failure to act” must file suit “within
30 days after such * * * failure to act.” 47 U.S.C.
332(c)(7)(B)(v). CTIA explained that, without knowing
when a failure to act occurs, wireless carriers faced the
choice of either “endur[ing] further delay” in the hope
that government action will be forthcoming—“and pos-
sibly miss[ing] the 30-day window” to file suit—or “in-
cur[ring] the substantial costs and additional time” as-
sociated with a lawsuit that may be dismissed as prema-
ture because “insufficient time has passed for the siting
authority to have ‘failed to act.’ ” CTIA Pet. 20 (brackets
omitted).
3. The FCC’s Wireless Telecommunications Bureau
issued a public notice seeking comment on CTIA’s peti-
tion. Public Notice, Wireless Telecommunications Bu-
reau Seeks Comment On Petition For Declaratory Rul-
ing By CTIA, 23 F.C.C.R. 12,198 (2008). After reviewing
the resulting record, the FCC issued a declaratory rul-
ing granting in part and denying in part the petition.
Pet. App. 69a-171a.


5
As a threshold matter, the Commission determined
that it had “the authority to interpret Section 332(c)(7).”
Pet. App. 87a. The FCC noted that several sections of
the Communications Act of 1934 (Communications Act),
47 U.S.C. 151 et seq.—specifically, Sections 1, 4(i),
201(b), and 303(r)—grant the Commission authority to
interpret and implement the Act’s provisions. Pet. App.
87a-88a (citing 47 U.S.C. 151, 154(i), 201(b), 303(r)). It
concluded that “[t]hese grants of authority necessarily
include * * * Section 332(c)(7).” Id. at 88a.
The Commission observed that “it is not clear from
the Communications Act what is a reasonable period
of time to act on an application” under Section
332(c)(7)(B)(ii) “or when a failure to act occurs” under
Section 332(c)(7)(B)(v). Pet. App. 111a. The agency de-
termined that “it is in the public interest to define the
time period after which an aggrieved party can seek ju-
dicial redress for a State or local government’s inac-
tion.” Id. at 97a. The interest in certainty was especial-
ly acute, the Commission explained, because the record
before the agency revealed “a significant number of cas-
es” of “unreasonable delays” in the wireless facility sit-
ing process. Id. at 98a. Such delays had “obstructed the
provision of wireless services,” id. at 100a, as well as
“the deployment of advanced wireless communications
services,” id. at 102a, and public safety and emergency
services like “wireless 911” service, id. at 105a.
To that end, the agency adopted presumptively rea-
sonable processing deadlines that were “based on actual
practice as shown in the record.” Pet. App. 111a. The
deadlines were designed to provide guidance to wireless
providers, zoning authorities, and courts by “ensuring
that the point at which a State or local authority ‘fails to


6
act’ is not left so ambiguous that it risks depriving a
wireless siting applicant of its right to redress.” Ibid.
The large majority of zoning authorities that partici-
pated in the proceeding before the agency stated that
they processed applications for wireless collocation (i.e.,
the modification or augmentation of existing wireless
facilities) within 90 days, and other wireless siting re-
quests (involving the construction of new facilities) with-
in 150 days. Pet. App. 117a-120a. The Commission
therefore found “90 days to be a generally reasonable
timeframe for processing collocation applications and
150 days to be a generally reasonable timeframe for
processing applications other than collocations.” Id. at
115a. The Commission made clear that, although the 90-
and 150-day timeframes established by the declaratory
ruling were “presumptively” reasonable, id. at 97a, state
and local governments would “have the opportunity, in
any given case that comes before a court, to rebut the
presumption that the established timeframes are rea-
sonable,” id. at 112a. The Commission created rebutta-
ble presumptions because it recognized that “certain
cases may legitimately require more processing time,”
id. at 107a, and that “courts should have the responsibil-
ity to fashion appropriate case-specific remedies” based
on “the specific facts of individual applications,” id. at
108a-109a.
The Commission also allowed for “further adjust-
ments to the presumptive deadlines in order to ensure
that the timeframes accommodate certain contingencies
that may arise in individual cases.” Pet. App. 112a. For
example, the timeframes “may be extended” in any case
“by mutual consent of the * * * wireless service pro-
vider and the State or local government,” and any such
extension will toll “the commencement of the 30-day pe-


7
riod for filing suit” under Section 332(c)(7)(B)(v). Id. at
120a. In addition, when an applicant fails to submit a
complete application, “the time it takes for [the] appli-
cant to respond to a [zoning authority’s] request for ad-
ditional information will not count toward” the presump-
tive processing timeframe, so long as the authority “no-
tifies the applicant within the first 30 days that its appli-
cation is incomplete.” Id. at 124a.
4. The FCC denied petitions for reconsideration.
Pet. App. 172a-195a.
5. The court of appeals denied a petition for review.
Pet. App. 1a-68a. As relevant here, the court applied the
test prescribed by Chevron U.S.A. Inc. v. NRDC, 467
U.S. 837 (1984) (Chevron), and determined that the
Commission had reasonably construed the scope of its
authority to interpret Section 332(c)(7)(B). Pet. App.
34a-51a.
The court of appeals explained that nothing in the
Communications Act “unambiguously preclude[s] the
FCC from establishing the 90- and 150-day time frames”
for processing tower siting applications. Pet. App. 41a.
In reaching that conclusion, the court rejected the sug-
gestion that Section 332(c)(7)(A) bars the Commission
from interpreting the limitations contained in Section
332(c)(7)(B). While recognizing that Section 332(c)(7)(A)
“certainly prohibits the FCC from imposing restrictions
or limitations that cannot be tied to the language of
[Section] 332(c)(7)(B),” the court observed that Section
332(c)(7)(A) is silent as to “[w]hether the FCC retains
the power” to interpret and implement the limita-
tions expressly imposed by Section 332(c)(7)(B). Id. at
41a. “Had Congress intended to insulate [Section]
332(c)(7)(B)’s limitations from the FCC’s jurisdiction,”
the court reasoned, “one would expect it to have done so


8
explicitly because Congress surely recognized that it
was legislating against the background of the Communi-
cations Act’s general grant of rulemaking authority to
the FCC.” Id. at 41a-42a. As the court construed the
statute, however, Section 332(c)(7)(A) “did not clearly
remove the FCC’s ability to implement the limitations
set forth in [Section] 332(c)(7)(B).” Id. at 42a.
Likewise, the court of appeals found nothing in Sec-
tion 332(c)(7)(B)(v), the statute’s judicial-review provi-
sion, that clearly prohibits the FCC from interpreting
the restrictions imposed by Section 332(c)(7)(B)(ii). The
court reasoned that “[a]lthough [Section] 332(c)(7)(B)(v)
does clearly establish jurisdiction in the courts over dis-
putes arising under [Section] 332(c)(7)(B)(ii),” it “does
not address the FCC’s power * * * to issue an inter-
pretation of [Section] 332(c)(7)(B)(ii) that would guide
courts’ determinations of disputes under that provision.”
Pet. App. 42a-43a. Citing the Sixth Circuit’s decision in
Alliance for Community Media v. FCC, 529 F.3d 763,
776 (2008), cert. denied, 129 S. Ct. 2821 (2009), the court
concluded that “there is nothing inherently unreasona-
ble about reading [Section] 332(c)(7) as preserving the
FCC’s ability to implement [Section] 332(c)(7)(B)(ii)
while providing for judicial review of disputes under
[Section] 332(c)(7)(B)(ii).” Pet. App. 44a.
The court of appeals then examined whether the 90-
and 150-day time frames adopted by the agency reflect-
ed a permissible interpretation of the statute. Holding
that the statutory phrases “reasonable period of time”
and “failure to act” were “ambiguous and subject to
FCC interpretation,” Pet. App. 52a-53a, the court con-
cluded that “the FCC’s 90- and 150-day time frames are
based on a permissible construction” of the statute “and
are thus entitled to Chevron deference.” Id. at 54a.


9

ARGUMENT

Petitioners assert (Pet. 13-16; 11-1547 Pet. 11-14) that
the decision below contributes to a conflict among the
circuits on whether the rule of Chevron U.S.A. Inc. v.
NRDC, 467 U.S. 837 (1984) (Chevron), applies to an
agency’s interpretation of a statute that defines the
agency’s authority. Although there is some disagree-
ment among the courts of appeals on that issue, that ab-
stract question is not presented by this case. Nor is
there merit to petitioners’ suggestion (Pet. 30-32; 11-
1547 Pet. 24-37) that the FCC ruling at issue here cre-
ates significant federal interference with the zoning au-
thority of state and local governments. Congress, not
the FCC, established federal standards and limitations
governing local zoning authority over wireless communi-
cations facilities. The court of appeals correctly held
that the FCC has authority to interpret 47 U.S.C.
332(c)(7)(B), and it correctly upheld the agency’s inter-
pretation of that provision. Its decision upholding the
FCC’s ruling does not conflict with any decision of this
Court or any other court of appeals. Further review is
not warranted.
1. The court of appeals correctly upheld the FCC’s
interpretation of Section 332(c)(7)(B). That provision
requires state and local governments to “act on any re-
quest for authorization to place, construct, or modify
personal wireless service facilities within a reasonable
period of time after the request is duly filed,” but it does
not define the phrase “reasonable period of time.” 47
U.S.C. 332(c)(7)(B)(ii). The FCC reasonably interpreted
that phrase by adopting presumptions, based on the ac-
tual experience of state and local governments, regard-
ing the periods of time that will be considered reasona-
ble. Pet. App. 111a.


10
As the agency charged with administration of the
Communications Act, the FCC has authority to interpret
the Act’s ambiguous provisions, including Section
332(c)(7). Several sections of the Communications Act
confirm the agency’s broad authority to do so. For ex-
ample, 47 U.S.C. 151 directs the Commission to “execute
and enforce the provisions of this [Act].” Section 201(b)
empowers the Commission to “prescribe such rules and
regulations as may be necessary in the public interest to
carry out the provisions of this [Act].” 47 U.S.C. 201(b);
see 47 U.S.C. 154(i) (authorizing the Commission to
“perform any and all acts, make such rules and regula-
tions, and issue such orders, not inconsistent with this
[Act], as may be necessary in the execution of its func-
tions”). And Section 303(r) authorizes the agency to
“[m]ake such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as
may be necessary to carry out the provisions of this
[Act].” 47 U.S.C. 303(r). Citing those provisions in this
case, the Commission correctly determined that it “has
the authority to interpret Section 332(c)(7).” Pet. App.
87a. The court of appeals, in turn, correctly applied
Chevron in upholding both that determination and the
Commission’s interpretation of Section 332(c)(7) itself.
2. Petitioners contend (Pet. 13-21; 11-1547 Pet. 11-15)
that this Court should grant review to resolve a conflict
among the courts of appeals as to whether courts should
apply Chevron when examining an agency’s interpreta-
tion of the scope of its own statutory authority. They
note that while the court below “appl[ies] Chevron to an
agency’s interpretation of its own statutory jurisdic-
tion,” other “courts of appeals have adopted different
approaches to the issue.” Pet. 13-14 (quoting Pet. App.
36a-37a). In particular, the Seventh and Federal Cir-


11
cuits review de novo an agency’s determination of the
scope of its authority. See Durable Mfg. Co. v. United
States Dep’t of Labor, 578 F.3d 497, 501 (7th Cir. 2009);
Bolton v. MSPB, 154 F.3d 1313, 1316 (Fed. Cir. 1998),
cert. denied, 526 U.S. 1088 (1999).
a. The decision below does not create a direct conflict
with the Seventh and Federal Circuit cases cited by peti-
tioners. Unlike in those cases, the statutory interpreta-
tion at issue here does not implicate the agency’s juris-
diction to make rules or adjudicate particular disputes.
It merely permits the FCC to offer guidance to the
courts, which remain the ultimate arbiters of disputes
over whether state or local governments have addressed
wireless siting applications “within a reasonable period
of time.” 47 U.S.C. 332(c)(7)(B)(ii). In that respect, this
case is similar to AT&T Corp. v. Iowa Utilities Board,
525 U.S. 366 (1999), in which this Court held that even
though Congress had directed state commissions to re-
solve interconnection disputes arising under Section 252
of the Communications Act, the FCC could nevertheless
exercise its general rulemaking authority under 47
U.S.C. 201(b) “to guide the state-commission judg-
ments” made under Section 252. Id. at 385.
b. In any event, the issue raised by petitioners is not
properly presented by this case because petitioners as-
sert here (as they did below) that the “plain language” of
Section 332(c)(7)(A) precludes the FCC from interpret-
ing the provisions of Section 332(c)(7)(B). Indeed, the
crux of petitioners’ argument is that the court of appeals
erred in identifying any ambiguity in Section 332(c)(7).
See, e.g., Pet. 24-25 (arguing that “the plain language” of
Section 332(c)(7)(A) “is clear,” and that “[t]he FCC’s
reading cannot be squared with [Section] 332(c)(7)(A)’s
plain language”); see also 11-1547 Pet. 16-24. If peti-


12
tioners were correct, it would therefore make no differ-
ence whether the court of appeals applied Chevron or
conducted de novo review: under either standard of re-
view, the court “must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at
843.
Thus, although dressed in the garb of a general ques-
tion of administrative law—whether Chevron applies to
an agency’s interpretation of its own statutory authori-
ty—petitioners’ real argument is simply that the FCC
and the court of appeals misinterpreted Section
332(c)(7). That issue is not the subject of any circuit
conflict, and it does not warrant this Court’s review.
Even if the issue did warrant review, it would be more
appropriate for the Court to consider it in a case—un-
like this one—involving the application to a concrete set
of facts of the time limits set out in the FCC’s ruling.
c. In any event, even if the court of appeals had en-
gaged in de novo review, there is no reason to believe
that the court would have reached a different conclusion
about the Commission’s authority. As noted, Section
201(b) authorizes 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).
This Court has held that the authority granted by Sec-
tion 201(b) extends to provisions of the 1996 Act (such as
47 U.S.C. 332(c)(7)) because those provisions were “in-
serted into the Communications Act.” AT&T, 525 U.S.
at 377. See National Cable & Telecomm. Ass’n v. Brand
X Internet Servs., 545 U.S. 967 (2005) (upholding an
FCC declaratory ruling that interpreted ambiguous
provisions of the Communications Act). Citing AT&T,
the court of appeals correctly reasoned that “Congress
surely recognized that it was legislating against the


13
background of the Communications Act’s general grant
of rulemaking authority to the FCC.” Pet. App. 41a-42a.
That “general grant of authority would ordinarily ex-
tend to amendments to the Communications Act, like
[Section] 332(c)(7)(B)’s limitations, in the absence of
specific statutory limitations on that authority.” Id. at
42a.
Petitioners maintain that Section 332(c)(7)(A) specifi-
cally limits the FCC’s authority to interpret the re-
strictions established by Section 332(c)(7)(B). Pet. 24.
As the court of appeals pointed out, however, Section
332(c)(7)(A) merely “prohibits the FCC from imposing
restrictions or limitations that cannot be tied to the lan-
guage of [Section] 332(c)(7)(B).” Pet. App. 41a. It says
nothing about the FCC’s authority to interpret the limi-
tations imposed by Section 332(c)(7)(B). “Had Congress
intended to insulate [Section] 332(c)(7)(B)’s limitations
from the FCC’s jurisdiction, one would expect it to have
done so explicitly.” Ibid. “Congress is well aware that
the ambiguities it chooses to produce in a statute will be
resolved by the implementing agency,” AT&T, 525 U.S.
at 397, and as the court of appeals observed, “Congress
certainly knew how to specifically restrict the FCC’s
general authority over the Communications Act as it
clearly restricted the FCC’s ability to use that authority
in other contexts.” Pet. App. 42a (citing 47 U.S.C.
152(b), which explicitly denies the FCC jurisdiction over
“intrastate” communications service).
Petitioners’ reliance (Pet. 25-26) on Louisiana Public
Service Commission v. FCC, 476 U.S. 355 (1986), is mis-
placed. In Louisiana Public Service Commission, the
Court held that 47 U.S.C. 152(b) barred the FCC from
preempting certain intrastate telecommunications regu-
lations. 476 U.S. at 370-376. The Court based that deci-


14
sion on “the express jurisdictional limitations on FCC
power contained in” Section 152(b). Id. at 370. With
limited exceptions, Section 152(b) provides that “nothing
in this [Act] shall be construed to apply or to give the
Commission jurisdiction with respect to” certain mat-
ters concerning intrastate communication service. 47
U.S.C. 152(b) (emphasis added). By contrast, no provi-
sion of the Act expressly limits the Commission’s au-
thority to interpret Section 332(c)(7)(B). And as this
Court has recognized, “Commission jurisdiction always
follows where the Act applies.” AT&T, 525 U.S. at 380.
That is true even when the Act applies to matters that
the FCC does not typically regulate, such as intrastate
telecommunications or local zoning authority. See, e.g.,
id. at 378 n.6 (notwithstanding the traditional practice of
allowing the States to regulate intrastate telecommuni-
cations, the 1996 Act “unquestionably” has “taken” cer-
tain aspects of “the regulation of local telecommunica-
tions competition away from the States”).
Petitioners argue that Section 332(c)(7)(A), like Sec-
tion 152(b), clearly limits the FCC’s interpretive author-
ity. Pet. 26. To the contrary, Section 332(c)(7)(A)—
unlike Section 152(b)—makes no mention of the FCC or
its jurisdiction. It simply states: “Except as provided in
[Section 332(c)(7)], nothing in this [Act] shall limit or af-
fect” state or local authority “over decisions regarding
the placement, construction, and modification of person-
al wireless service facilities.” 47 U.S.C. 332(c)(7)(A).
The court of appeals correctly read that provision to
“prohibit[] the FCC from imposing restrictions or limi-
tations that cannot be tied to the language of [Section]
332(c)(7)(B).” Pet. App. 41a. In other words, Section
332(c)(7)(A) bars the agency from construing the text of
provisions of the Act outside of Section 332(c)(7) to im-


15
pose substantive restrictions on state or local regulation
of wireless facility siting.2 Thus, contrary to petitioners’
assertion (Pet. 26), Section 332(c)(7)(A) imposes sub-
stantial limits on the FCC’s authority even if it is not
read to “fence off ” the interpretation of Section
332(c)(7)(B).
None of the other “interpretive tools” cited by peti-
tioners (Pet. 27-29) demonstrates that Congress clearly
intended to prevent the FCC from interpreting Section
332(c)(7). Although the Conference Report on Section
332(c)(7) stated that the FCC should terminate any
pending rulemaking regarding preemption of state or
local tower siting authority, see H.R. Conf. Rep. No. 458,
104th Cong., 2d Sess. 208 (1996), petitioners have point-
ed to nothing in the legislative history that “indicate[s] a
clear intent to bar FCC implementation of the limita-
tions” established by Section 332(c)(7)(B) once the stat-
ute was enacted. Pet. App. 48a.
There also is no merit to petitioners’ claim (Pet. 28)
that the FCC’s reading of the statute renders “superflu-
ous” Section 332(c)(7)(B)(v)’s “specific grant of authority
to the FCC to address [radio frequency (RF) emission]
issues.” Section 332(c)(7)(B)(v) distinguishes between
disputes involving RF emissions (which the Commission
may review) and disputes involving all other issues aris-
ing under Section 332(c)(7)(B) (which the courts have
exclusive jurisdiction to review). That distinction re-

2 For example, although Section 253 of the Communications Act
generally authorizes the FCC to preempt state or local regulations
that “prohibit or have the effect of prohibiting the ability of any enti-
ty to provide any interstate or intrastate telecommunications ser-
vice,” 47 U.S.C. 253(a), Section 332(c)(7)(A) precludes the Commis-
sion from construing Section 253 to preempt state or local regulation
of the construction of wireless communications facilities.


16
mains relevant under the FCC’s reading of the statute.
Although the Commission used its general authority to
assist the courts by interpreting and clarifying certain
provisions of the Communications Act relating to dis-
putes that are subject to court review, the agency recog-
nized that Congress gave the courts exclusive jurisdic-
tion to resolve individual disputes under Section
332(c)(7)(B) that do not concern RF emissions. See, e.g.,
Pet. App. 108a. In other words, courts have the final say
in lawsuits filed under Section 332(c)(7).
Contrary to petitioners’ assertion (Pet. 29), the Fifth
Circuit’s statutory analysis did not ignore the “presump-
tion against preemption.” Altria Group, Inc. v. Good,
555 U.S. 70, 77 (2008). Rather, the court of appeals held
that the presumption did not apply here because Section
332(c)(7)(B) clearly “indicated a preference for federal
preemption of state and local laws governing the time
frames for wireless zoning decisions.” Pet. App. 49a; see
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,
115 (2005) (Rancho Palos Verdes) (Section 332(c)(7) “im-
poses specific limitations on the traditional authority of
state and local governments to regulate the location,
construction, and modification of [wireless communica-
tions] facilities”). The court of appeals correctly recog-
nized that Congress has established federal standards to
govern the exercise of state and local zoning authority
over wireless service facilities. In view of those federal
standards, the court correctly rejected the suggestion
that the FCC’s declaratory ruling improperly infringed
on state or local authority. See AT&T, 525 U.S. at 378
n.6 (the presumption against preemption does not apply
when Congress has created a “federal regime” govern-
ing the regulation of local telecommunications competi-
tion).


17
Finally, petitioners identify no plausible reason that
Congress would have excepted Section 332(c)(7)(B) from
the Commission’s general authority to construe ambigu-
ous provisions of the Communications Act. Based on its
pre-existing expertise and on the information it acquired
through the notice-and-comment process, the FCC was
clearly better-positioned than any court to determine
what period of time is generally “reasonable” for acting
on the pertinent applications. By identifying periods of
time for acting that the expert agency views as pre-
sumptively reasonable, and by bringing greater con-
sistency and predictability to judicial interpretations of
the “reasonable period of time” standard, the declarato-
ry ruling should serve the interests of applicants, regu-
lators, and courts alike. The Commission’s issuance of
the declaratory ruling thus serves precisely the inter-
ests that the agency’s gap-filling authority under the
Communications Act is generally intended to further. If
the agency were disabled from construing Section
332(c)(7)(B), by contrast, each court adjudicating a suit
brought under Section 332(c)(7)(B)(v) would be required
either to assess the defendant’s “reasonableness” with-
out reference to the practices that generally prevail in
this context, or to attempt to replicate the inquiry that
the FCC in fact conducted. There is no evident reason
that Congress would have preferred either of those ap-
proaches to the one that the Commission adopted.
3. Petitioners assert (Pet. 30-32; 11-1547 Pet. 24-37)
that this case warrants the Court’s review because it
concerns important issues involving federal infringe-
ment of state and local zoning authority. That argument
lacks merit.
Contrary to petitioners’ suggestion (Pet. 23), the
FCC’s declaratory ruling did not adopt “a federal zoning


18
policy.” It simply established presumptively reasonable
timeframes for processing wireless facility siting appli-
cations. As the court of appeals correctly understood,
those timeframes “are not hard and fast rules but in-
stead exist to guide courts in their consideration of cases
challenging state or local government inaction.” Pet.
App. 62a. Ultimately, the courts, not the Commission,
will resolve issues of timing in lawsuits brought under
Section 332(c)(7).
Petitioners argue (11-1547 Pet. 25) that, as a result of
the declaratory ruling, state and local officials “must act
within a definite time frame or be found to have failed to
act at all.” That is incorrect. The court of appeals noted
that the declaratory ruling did not create “a scheme in
which a state or local government’s failure to meet the
FCC’s time frames constitutes a per se violation of [Sec-
tion] 332(c)(7)(B)(ii).” Pet. App. 62a. To the contrary,
“under the regime” adopted in the declaratory ruling,
state and local officials “will have the opportunity, in any
given case that comes before a court, to rebut the pre-
sumption that the established timeframes are reasona-
ble.” Id. at 112a; see id. at 62a-63a (noting “a variety of
circumstances” that might serve to rebut the presump-
tion and justify a longer period for processing a particu-
lar application). The ruling also gives state and local au-
thorities the flexibility to negotiate alternative time-
frames to accommodate their particular circumstances.
See id. at 120a. That sort of accommodation should re-
duce the alleged litigation burdens and costs that form
the crux of petitioners’ objections to the declaratory rul-
ing. See Pet. 23, 31.
Petitioners contend (Pet. 31) that the declaratory rul-
ing’s impact on state and local governments involves
some of the same “factors” that led this Court to con-


19
clude in Rancho Palos Verdes that “a [Section] 1983
remedy was inconsistent with [Section] 332(c)(7)’s statu-
tory scheme.” To the contrary, Rancho Palos Verdes
concerned a very different question: whether a party
could seek a remedy under 42 U.S.C. 1983 for an alleged
violation of 47 U.S.C. 332(c)(7)(B). The Court there held
that Congress—“by providing a judicial remedy differ-
ent from [Section] 1983 in [Section] 332(c)(7) itself—
precluded resort to [Section] 1983.” 544 U.S. at 127. In
this case, by contrast, the FCC’s declaratory ruling is
rooted in the language of Section 332(c)(7) itself.
There is no basis for petitioners’ assertion (11-1547
Pet. 35) that the declaratory ruling gives applicants an
incentive “to run out the clock in order to get tower sit-
ing approval.” The FCC has not mandated approval of
an application if a state or local government fails to act
by a certain date. Indeed, the Commission specifically
rejected CTIA’s proposal that the agency “deem an ap-
plication granted” if a zoning authority failed to act
within the FCC’s prescribed timeframe. Pet. App. 108a.
Instead, the Commission emphasized that the courts
would have the discretion “to fashion appropriate case-
specific remedies” based on “the specific facts of indi-
vidual applications.” Id. at 108a-109a. Evidence of an
applicant’s dilatory behavior would also be relevant to a
court’s determination whether the presumptively rea-
sonable period identified in the declaratory ruling was
reasonable in the particular case. Wireless siting appli-
cants would therefore have no good reason to drag out
the application process.
Nor can petitioners plausibly claim (11-1547 Pet. 35)
that the declaratory ruling “has the effect of giving
preferential treatment to telecommunications provid-
ers.” As the court of appeals correctly noted, “nothing


20
in the FCC’s time frames necessarily requires state and
local governments to provide greater preference to
wireless zoning applications than is already required by
[Section] 332(c)(7)(B)(ii) itself.” Pet. App. 61a. The
statutory directive that state and local governments act
on such applications within a reasonable period of time
reflects Congress’s decision to prioritize the processing
of wireless siting applications “because other types of
state and local zoning decisions are not subject to such a
standard.” Ibid. Furthermore, reviewing courts are di-
rected to “hear and decide” lawsuits brought un-
der the statute “on an expedited basis.” 47 U.S.C.
332(c)(7)(B)(v). Hence, it is Congress—not the FCC—
that has established priority treatment for wireless sit-
ing disputes. The declaratory ruling does nothing more
than implement that statutory preference.

CONCLUSION

The petitions for a writ of certiorari should be denied.
Respectfully submitted.


DONALD B. VERRILLI, JR.
SEAN A. LEV
Solicitor General
General Counsel

PETER KARANJIA
Deputy General Counsel
RICHARD K. WELCH
Deputy Associate General
Counsel
JAMES M. CARR
Counsel
Federal Communications
Commission
AUGUST 2012


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