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City of Arlington v. FCC, Nos. 11-1545 & 11-1547 (Supreme Court)

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Released: December 19, 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 WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

S
DONALD B. VERRILLI, JR.
EAN A. LEV
Solicitor General
General Counsel
Counsel of Record
PETER KARANJIA
MALCOLM L. STEWART
Deputy General Counsel
Deputy Solicitor General
JACOB M. LEWIS
JOSEPH R. PALMORE
Associate General Counsel
Assistant to the Solicitor
JAMES M. CARR
General
MATTHEW J. DUNNE
Department of Justice
Counsel
Washington, D.C. 20530-0001
Federal Communications
SupremeCtBriefs@usdoj.gov
Commission
(202) 514-2217
Washington, D.C. 20554
















QUESTION PRESENTED

Whether, in reviewing an agency’s interpretation of
its statutory authority, a court should apply the two-part
analysis set forth in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).

(I)


TABLE OF CONTENTS

Page
Opinions below ................................................................................ 1
Jurisdiction ...................................................................................... 2
Statutory provisions involved ....................................................... 2
Statement ......................................................................................... 2
Summary of argument ................................................................. 10
Argument:
Chevron applies to an agency’s interpretation of its
statutory authority .................................................................. 14
A. Chevron is triggered when an agency interprets a

statute that has been generally entrusted to its
administration
....................................................................
15
1. Chevron reflects congressional intent and prin-
ciples of democratic accountability ............................ 15
2. This Court has consistently applied Chevron to
questions of statutory interpretation that bear
on the scope of an agency’s administrative
authority ........................................................................ 18
3. There is no sound reason for this Court to alter
its approach to interpretive questions bearing on
the scope of agency authority ..................................... 20
B. The Chevron framework applies to the determination

whether Congress has created an exception to an

agency’s generally-applicable administrative
authority
.............................................................................
29
1. When Congress intends to exempt part of
an agency’s organic statute from the agency’s
generally-applicable administrative authority,
Congress can ordinarily be expected to state that
intent explicitly ............................................................. 30
2. Chevron does not require a provision-by-provision
search for delegation ................................................... 32


(III)

IV
Table of Contents—Continued: Page
3. Because Section 332(c)(7) includes no express
negation of the FCC’s general administrative
authority over the Communications Act, that
general administrative authority remains ................ 33
C. Chevron applies with full force to agency

interpretations of federal statutes that limit state
power
...................................................................................
37
D. The FCC’s conclusion that it has authority to

promul gate reasonable time limits on local zoning

authorities is correct under any standard of review .... 38
Conclusion ...................................................................................... 44
Appendix — Statutory provisions ............................................ 1a

TABLE OF AUTHORITIES

Cases:

AT&T v. Iowa Utils. Bd., 525 U.S. 366
(1999) .............................................................. 13, 15, 16, 39, 41
Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) .......... 35, 36
American Hosp. Ass’n
v. NLRB, 499 U.S. 606
(1991) ........................................................ 12, 13, 30, 31, 36, 40
Batterton v. Francis, 432 U.S. 416 (1977) ............................ 33
Cellco P’ship
v. FCC, Nos. 11-1135, 11-1136,
2012 WL 6013416 (D.C. Cir. Dec. 4, 2012) ........................ 19
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984) ............................................. passim
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113
(2005) ........................................................................ 2, 3, 13, 37
Coeur Alaska, Inc. v. Southeast Alaska Conservation
Council, 557 U.S. 261, 296 (2009) ....................................... 22
Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986) ................................................... 11, 19, 21
Crowell v. Benson, 285 U.S. 22 (1932) .................................. 23


V
Cases—Continued: Page
Cuomo v. Clearing House Ass’n, 557 U.S. 519 (2009) ........ 38
Dickinson
v. Zurko, 527 U.S. 150 (1999) .............................. 20
Dole
v. United Steelworkers of Am., 494 U.S. 26
(1990) .......................................................................... 18, 27, 28
FCC v. Fox Television Stations, Inc., 556 U.S. 502,
(2009) ...................................................................................... 16
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................. 12, 18, 27
Global Crossing Telecomms., Inc. v. Metrophones
Telecomms., Inc., 550 U.S. 45 (2007) ................................. 34
Gonzales v. Oregon, 546 U.S. 243 (2006) .............................. 35
Holly Farms Corp.
v. NLRB, 517 U.S. 392 (1996) ............. 25
Judulang
v. Holder, 132 S. Ct. 476 (2011) ........................... 28
Long Island Care at Home, Ltd.
v. Coke, 551 U.S. 158
(2007) ...................................................................................... 16
Massachusetts v. EPA, 549 U.S. 497 (2007) ........................ 28
Mayo Found. for Med. Educ.& Research
v. United
States, 131 S. Ct. 704 (2011) .................................... 20, 25, 33
Mississippi Power & Light Co. v. Mississippi,
487 U.S. 354 (1988) ............................................. 12, 18, 20, 22
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) .............. 34
National Cable & Telecomms. Ass’n
v. Brand X In-
ternet Servs., 545 U.S. 967 (2005) ......... 11, 15, 16, 22, 33, 34
National Cable & Telecomms. Ass’n v. Gulf Power
Co., 534 U.S. 327 (2002) ............................................ 18, 24, 34
Northern Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50 (1982) ................................................ 23
Prometheus Radio Project v. FCC, 373 F.3d 372
(3d Cir. 2004), cert. denied, 545 U.S. 1123 (2005) ............. 31
Railway Labor Executives’ Ass’n v. National Media-
tion Bd., 29 F.3d 655 (D.C. Cir. 1994), cert. denied,
514 U.S. 1032 (1995) ............................................................. 23


VI
Cases—Continued: Page
Reiter v. Cooper, 507 U.S. 258 (1993) .............................. 19, 26
Rowan Cos. v. United States, 452 U.S. 247 (1981) .............. 33
Schweiker
v. Gray Panthers, 453 U.S. 34 (1981) ................ 33
Smiley
v. Citibank (S.D.), N.A., 517 U.S. 735
(1996) .......................................................................... 13, 15, 37
United States v. Haggar Apparel Co., 526 U.S. 380
(1999) ...................................................................................... 42
United States v. Mead Corp., 533 U.S. 218 (2001) ........ 29, 33
United States
v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) ............................................................... 25
United States v. Shimer, 367 U.S. 374 (1961) ...................... 17
Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467 (2002) ........ 34
Wyoming
v. USDA, 661 F.3d 1209 (10th Cir. 2011),
cert. denied, 133 S. Ct. 144, 417 (2012) .............................. 30
Your Home Visiting Nurse Servs., Inc. v. Shalala,
525 U.S. 449 (1999) ............................................................... 25
Statutes and regulation:
Administrative Procedure Act, 5 U.S.C. 551
et seq.:
5 U.S.C. 706(2)(A) ....................................................... 28, 29
5 U.S.C. 706(2)(C) ............................................................. 29
Communications Act of 1934, 47 U.S.C. 151 et seq. ........ 3, 43
47 U.S.C. 151 .......................................... 5, 32, 33, 34, 39, 40
47 U.S.C. 154(i) ............................................ 5, 32, 34, 39, 40
47 U.S.C. 201(b) ........................................................ passim
47 U.S.C. 303(r) ........................................... 5, 32, 34, 39, 40
47 U.S.C. 332(a) (1994) ..................................................... 41
47 U.S.C. 332(c)(3)(A) (1994) ........................................... 41
47 U.S.C. 334(a) ........................................................... 36, 40



VII
Statutes and regulation—Continued:
Page
Middle Class Tax Relief and Job Creation Act of
2012, Pub. L. No. 112-96, 126 Stat. 156:
§ 6003(a), 126 Stat. 204 ..................................................... 44
§ 6409(a)(1), 126 Stat. 232 ................................................ 43
§ 6409(a)(2), 126 Stat. 232-233 ......................................... 44
National Labor Relations Act , 29 U.S.C. 151 et seq.:
29 U.S.C. 156 ...................................................................... 30
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 ........................................................................ 2, 43
§ 704(a), 110 Stat. 151 ................................................... 3, 39
47 U.S.C. 332(c) .............................................................. 39
47 U.S.C. 332(c)(7) ................................................ passim
47 U.S.C. 332(c)(7)(A) .............................. 4, 5, 7, 8, 23, 39
47 U.S.C. 332(c)(7)(B) ........................................... passim
47 U.S.C. 332(c)(7)(B)(i)(II) ............................................ 3
47 U.S.C. 332(c)(7)(B)(ii) ...................................... passim
47 U.S.C. 332(c)(7)(B)(v) ..................... 4, 5, 14, 24, 35, 41
16 U.S.C. 551 ............................................................................ 31
29 U.S.C. 1841(d) ..................................................................... 35
47 C.F.R. 73.2080 ..................................................................... 36
Miscellaneous:
Amendment of the Commission’s Rules to Establish
Part 27, the Wireless Communications Service,
12 F.C.C.R. 10,785 (1997) .................................................. 2, 3
H.R. Rep. No. 204, 104th Cong., 1st Sess., Pt. 1 (1995) ....... 2
Richard J. Pierce, Jr. et al., Administrative Law and
Process (5th ed. 2009) ........................................................... 23
1 Richard J. Pierce, Jr., Administrative Law Trea-
tise (5th ed. 2010) ............................................................ 18, 23



VIII
Miscellaneous—Continued: Page
Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev.
187 (2006) ................................................................... 20, 23, 28






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 WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS


OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-68a)
is reported at 668 F.3d 229. The order of the Federal
Communications Commission (Pet. App. 69a-171a) is
reported at 24 F.C.C.R. 13,994, and its order denying
reconsideration (Pet. App. 172a-195a) is reported at 25
F.C.C.R. 11,157.
(1)

2

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 petition
for a writ of certiorari in No. 11-1545 was filed on June
27, 2012, and the petition in No. 11-1547 was filed on
June 22, 2012. The petitions were granted on October 5,
2012, limited to Question 1 in No. 11-1545. The jurisdic-
tion of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are set forth in the
appendix to this brief. App., infra, 1a-13a.

STATEMENT

1. An effective national wireless telecommunications
network requires the construction of numerous commu-
nications towers and antennas. Local zoning boards can
impede the development of that necessary infrastruc-
ture, however, by “creat[ing] an inconsistent and, at
times, conflicting patchwork of requirements.” H.R.
Rep. No. 204, 104th Cong., 1st Sess., Pt. 1, at 94 (1995)
(House Report). As a result, “zoning approval for new
wireless facilities” has historically been “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 Communica-
tions Service, 12 F.C.C.R. 10,785, 10,833 ¶ 90 (1997).
In 1996, Congress enacted comprehensive telecom-
munications reform legislation “to promote competition
and higher quality in American telecommunications
services and to ‘encourage the rapid deployment of new
telecommunications technologies.’ ” City of Rancho
Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (quot-
ing Telecommunications Act of 1996 (1996 Act), Pub. L.


3
No. 104-104, preamble, 110 Stat. 56). Part of the 1996
Act was designed to “reduc[e] * * * the impediments
imposed by local governments upon the installation of
facilities for wireless communications, such as antenna
towers.” Ibid. In that portion of the statute, Congress
enacted a “National Wireless Telecommunications Siting
Policy,” 1996 Act § 704, 110 Stat. 151 (capitalization
altered), in order to “speed deployment and the availa-
bility of competitive wireless telecommunications ser-
vices which ultimately will provide consumers with lower
costs as well as with a greater range [of] options for
such services,” House Report 94.
The new provision, which Congress made part of the
Communications Act of 1934 (Communications Act),
47 U.S.C. 151 et seq., “imposes specific limitations on the
traditional authority of state and local governments to
regulate the location, construction, and modification of
[wireless] facilities.” City of Rancho Palos Verdes, 544
U.S. at 115; see 47 U.S.C. 332(c)(7)(B) (“Limitations”).
The statute provides that the “regulation of the place-
ment, construction, and modification of personal wire-
less service facilities by any State or local government
* * * shall not prohibit or have the effect of prohibiting
the provision of personal wireless services.” 47 U.S.C.
332(c)(7)(B)(i)(II). The statute also requires that a state
or local government “act on any request for authoriza-
tion 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 in-
strumentality, taking into account the nature and scope
of such request.” 47 U.S.C. 332(c)(7)(B)(ii). Any person
“adversely affected by” a government’s “failure to act”
on such a request “may, within 30 days after such * * *


4
failure to act, commence an action in any court of com-
petent jurisdiction.” 47 U.S.C. 332(c)(7)(B)(v).
Section 332(c)(7) also includes a savings clause. Enti-
tled “General authority,” that provision states that,
“except as provided in” Section 332(c)(7), nothing in the
Communications Act “shall limit or affect the authority
of a State or local government or instrumentality there-
of over decisions regarding the placement, construction,
and modification of personal wireless service facilities.”
47 U.S.C. 332(c)(7)(A); see 47 U.S.C. 332(c)(7) (heading)
(“Preservation of local zoning authority”).
2. Before the Federal Communications Commission
(FCC or Commission) issued the order at issue here,
wireless service providers that wished to invoke Section
332(c)(7)’s protections were in an uncertain position.
Under the statute, a party seeking 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). The statute, however, provides no clear
standard for determining what constitutes a “reasonable
period of time” for action, or when a government can be
deemed to have “fail[ed] to act” on a request. Absent
such guidance, wireless carriers faced the unenviable
choice of either waiting for the local government to act,
and potentially missing the 30-day window to file suit, or
expending resources to file a suit that might be dis-
missed as premature. See Pet. App. 92a-93a.
In an effort to resolve that dilemma and speed de-
ployment of wireless infrastructure, CTIA—The Wire-
less Association (CTIA), a trade association of wireless
service providers, filed a petition for a declaratory rul-
ing with the FCC to clarify the meaning of “failure to
act” in Section 332(c)(7)(B)(v). Pet. App. 71a. In re-
sponse to CTIA’s petition, hundreds of comments were


5
filed by wireless providers, state and local governments,
and other interested parties. See id. at 78a-79a, 144a-
152a. After reviewing the record, the FCC issued a
declaratory ruling granting in part and denying in part
CTIA’s petition. Id. at 69a-171a.
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 Congress had “dele-
gated to the Commission the responsibility for adminis-
tering the Communications Act,” and that several sec-
tions of the Communications Act grant the FCC broad
authority to implement its provisions. Id. at 87a-88a
(citing 47 U.S.C. 151, 154(i), 201(b), 303(r)). “These
grants of authority,” the FCC explained, “necessarily
include Title III of the Communications Act in general,
and Section 332(c)(7) in particular.” Id. at 88a. The
FCC further explained that exercise of its authority to
interpret Section 332(c)(7) did not contravene that pro-
vision’s savings clause, see 47 U.S.C. 332(c)(7)(A), be-
cause the Commission was not “impos[ing] new limita-
tions” on local zoning authorities, but instead was
“merely interpret[ing] the limits Congress already im-
posed” in Section 332(c)(7) itself. Pet. App. 90a; see id.
at 134a.
The FCC found that, despite Section 332(c)(7)’s re-
quirement that zoning boards act expeditiously, “per-
sonal wireless service providers have often faced
lengthy and unreasonable delays in the consideration of
their facility siting applications, and that the persistence
of such delays is impeding the deployment of advanced
and emergency services.” Pet. App. 96a-97a; see id. at
98a-102a, 105a-106a. In addition, the agency explained,
the delays hindered competition, as wireless providers
seeking to provide broadband access struggled to keep


6
up with their wireline broadband competitors. Id. at
102a-105a.
In response to that record evidence, the Commission
determined that the public interest would be served by
defining the statutory terms “reasonable period of time”
and “failure to act” to clarify when an adversely affected
provider may seek relief in court under Section
332(c)(7)(B). Pet. App. 106a. The agency concluded that
clarification would further the statutory goals by ena-
bling wireless service providers to enforce the statute’s
protections against unreasonable delays that would
otherwise “impede[] the deployment of services that
benefit the public.” Ibid.
In assessing how to define a “reasonable period of
time” for processing zoning applications, the Commis-
sion focused “on actual practice as shown in the record.”
Pet. App. 111a. The large majority of zoning authorities
that participated in the proceeding stated that they
processed applications for wireless collocation (i.e., the
addition of one or more antennas to an existing tower or
other structure) within 90 days, and applications for
other wireless siting requests (involving the construc-
tion of a new structure, or a substantial increase in
an existing structure’s size) within 150 days. Id. at 117a-
120a. The Commission therefore concluded that “a
lack of a decision within [those] timeframes presump-
tively constitutes a failure to act under Section
332(c)(7)(B)(v).” Id. at 115a.
The FCC emphasized that the presumption it de-
scribed was rebuttable, and it rejected CTIA’s proposal
that an application pending beyond the deadlines be
deemed granted. Pet. App. 106a-108a, 112a. The Com-
mission recognized that “certain cases may legitimately
require more processing time,” id. at 107a, and it stated


7
that “courts should have the responsibility to fashion
appropriate case-specific remedies” based on “the spe-
cific facts of individual applications,” id. at 108a-109a.
In addition, the FCC clarified that the time periods
could be extended by “mutual consent” of a carrier and
local government in the event those entities were “work-
ing cooperatively toward a consensual resolution.” Id.
at 120a.
4. After the FCC denied petitions for reconsideration
(Pet. App. 172a-195a), the court of appeals denied a
petition for review. See id. at 1a-68a.
a. The court of appeals rejected petitioners’ argu-
ment that the savings clause in Section 332(c)(7)(A)
“precludes the FCC from exercising authority to imple-
ment” Section 332(c)(7). Pet. App. 34a. The court em-
phasized that it “ordinarily review[s] an agency’s inter-
pretation of the statutes it is charged with administering
using the Chevron two-step standard of review.” Id. at
35a (citing Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)). Under that frame-
work, the agency’s construction “must be upheld” so
long as the statute is “ambiguous” and the agency’s
construction is “permissible.” Id. at 35a-36a (citation
omitted).
The court of appeals rejected petitioners’ contention
that “an agency’s interpretation of its own statutory
authority” should be “subject to de novo review.” Pet.
App. 36a. In accordance with Fifth Circuit precedent
“apply[ing] Chevron to an agency’s interpretation of its
own statutory jurisdiction” (id. at 37a-38a n.94), the
court applied “the Chevron framework” to “determin[e]
whether the FCC possessed the statutory authority to
establish the 90- and 150-day time frames.” Id. at 37a.


8
The court of appeals found that Section 332(c)(7) “is
ambiguous with respect to the FCC’s authority to estab-
lish [those] time frames.” Pet. App. 44a-45a. It noted
that the FCC has “general authority to make rules and
regulations to carry out the Communications Act.” Id.
at 39a (citing 47 U.S.C. 201(b)). The court also stated
that “Congress surely recognized that it was legislating
against the background of the Communications Act’s
general grant of rulemaking authority to the FCC”
when it enacted Section 332(c)(7)(B)’s limitations on
state authority. Id. at 41a-42a. Given that background,
the court reasoned, “[h]ad Congress intended to insulate
[Section] 332(c)(7)(B)’s limitations from the FCC’s ju-
risdiction, one would expect it to have done so explicit-
ly.” Id. at 41a.
The court of appeals rejected petitioners’ contention
that Section 332(c)(7)(A) “unambiguously preclude[s]
the FCC from establishing the 90- and 150-day time
frames.” Pet. App. 41a; see 47 U.S.C. 332(c)(7)(A) (“Ex-
cept as provided in this paragraph, nothing in [the
Communications Act] shall limit or affect the authority
of a State or local government or instrumentality there-
of over decisions regarding the placement, construction,
and modification of personal wireless service facilities.”).
The court recognized that Section 332(c)(7)(A) “certainly
prohibits the FCC from imposing restrictions or limita-
tions that cannot be tied to the language of [Section]
332(c)(7)(B).” Pet. App. 41a. It held, however, that the
savings clause “does not provide a clear answer” as to
“[w]hether the FCC retains the power” to use its
longstanding administrative authority to implement the
limitations established by Subparagraph (B). Ibid.
The court of appeals also rejected the argument that,
because Congress had given carriers a right of action in


9
court against local zoning authorities, it must have in-
tended to except Section 332(c)(7) from the FCC’s gen-
eral authority to administer the Act. The court ex-
plained that Section 332(c)(7) can reasonably be read as
“allowing the FCC to issue an interpretation of [Sec-
tion] 332(c)(7)B)(ii) that would guide courts’ determina-
tions of disputes under that provision.” Pet. App. 43a.
It therefore found that the statute’s “vesting in the
courts of jurisdiction over disputes arising under [Sec-
tion] 332(c)(7)(B)(ii)” did “not unambiguously preclude
the FCC from taking the action at issue in this case.”
Id. at 44a.
Having found the Communications Act ambiguous
with respect to the agency’s authority to construe Sec-
tion 332(c)(7)(B), the court of appeals upheld as reason-
able the Commission’s decision to exercise that power.
Pet. App. 45a-51a. In reaching that conclusion, the
court rejected petitioners’ contention that the FCC had
no authority to displace state law in this case because
Congress had not stated its preemptive intent in unmis-
takable terms. See id. at 48a. The court explained that
the federal statute “already preempt[s]” state law “at
least to the extent that the state time limits violate [Sec-
tion] 332(c)(7)(B)(ii)’s requirement that state and local
authorities rule on zoning requests in a reasonable
amount of time.” Ibid. Accordingly, the FCC’s “action
interpreting what amount of time is ‘reasonable’ under
[Section] 332(c)(7)(B)(ii) only further refines the extent
of the preemption that Congress has already explicitly
provided.” Id. at 49a.
b. Finally, the court of appeals concluded that “the
FCC’s 90- and 150-day time frames are based on a per-
missible construction” of the statute. Pet. App. 54a.
The court found that the agency’s action reflected a


10
reasonable response to record evidence “that wireless
service providers in many areas of the country face
significant delays with respect to their facilities zoning
applications.” Id. at 67a. The administrative record
included “a survey of [CTIA’s] members indicat[ing]
that of the 3,300 wireless siting applications currently
pending before local governments, 760 had been pending
for more than one year and 180 had been pending for
over three years.” Id. at 65a. In addition, several wire-
less service providers had filed comments complaining
of protracted delays in the processing of their zoning
applications. Id. at 65a-66a. In the court’s judgment,
“the FCC properly considered this information” and
reasonably “determined that both wireless service pro-
viders and zoning authorities would benefit from FCC
guidance on what lengths of delay would generally be
unreasonable under [Section] 332(c)(7)(B)(ii).” Id. at
67a.

SUMMARY OF ARGUMENT

For nearly three decades, courts, agencies, and Con-
gress have relied on the framework set forth in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) (Chevron), for reviewing agency
interpretations of ambiguous statutory language. Peti-
tioners contend that this framework does not apply to
agency interpretations of statutory provisions that bear
on the scope of an agency’s administrative authority.
That argument should be rejected.
A. Under Chevron’s familiar two-part test, where
Congress’s intent is clear, that intent controls. 467 U.S.
at 842-843. If the statute is ambiguous, however, a re-
viewing court must defer to the agency’s reasonable
interpretation, even if that interpretation is not neces-


11
sarily the one the court would have reached on its own.
Id. at 843-844.
Chevron is based on the recognition that, when Con-
gress leaves a gap or an ambiguity in a statutory scheme
that has been entrusted to an agency’s administration,
Congress has implicitly delegated to that agency the
power to reasonably fill the gap or resolve the ambigui-
ty. Chevron also reflects this Court’s understanding
that the resolution of open questions under a statute
often requires the application of technical expertise and
the balancing of competing policy interests. Unlike
courts, agencies are closely familiar with the policies
underlying the statutes they implement, and as institu-
tions in one of the politically accountable branches,
agencies are entitled to make the policy judgments that
may properly inform their reading of a statute.
There is no exception to Chevron for interpretive de-
cisions that involve the scope of an agency’s statutory
authority. To the contrary, this Court has repeatedly
applied the Chevron framework in reviewing agency
interpretations of that character. See, e.g., National
Cable & Telecomms. Ass’n v. Gulf Power Co., 534 U.S.
327, 333-341 (2002); Commodity Futures Trading
Comm’n v. Schor, 478 U.S. 833, 844-845 (1986). That
consistent practice reflects the underlying rationale of
Chevron. An agency’s interpretation of provisions defin-
ing the scope of its authority is based on an implied
delegation by Congress, and can involve the same com-
plex regulatory considerations and rest on the same
competing policy concerns that govern any other exer-
cise in statutory construction.
Any attempt to distinguish for Chevron purposes be-
tween “jurisdictional” and “non-jurisdictional” statutory
provisions would be inadministrable in practice. As


12
Justice Scalia has explained, there is no “discernible line
between an agency’s exceeding its authority and an
agency’s exceeding authorized application of its authori-
ty.” Mississippi Power & Light Co. v. Mississippi, 487
U.S. 354, 381 (1988) (Scalia, J., concurring in the judg-
ment). The attempts of petitioners (and of the private
respondents who support them) to articulate the line
this Court should draw bear out Justice Scalia’s obser-
vation. Those efforts are both internally inconsistent
and at odds with this Court’s precedents.
Petitioners contend that agencies will engage in self-
aggrandizement if courts apply principles of Chevron
deference to agency interpretations of “jurisdictional”
provisions. The Chevron framework, however, is fully
adequate to address that concern. If Congress express-
es a clear intent to circumscribe an agency’s authority,
an agency’s attempt to exercise broader powers can be
rejected at Chevron Step One. See, e.g., FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).
B. Petitioners contend that, in determining whether
Congress has carved out discrete exceptions to an agen-
cy’s general authority to administer a statute, courts
must decide de novo whether such exceptions exist.
That is incorrect. Chevron deference is appropriate
whenever an agency administers its organic statute
through rulemaking, adjudication, or other actions that
carry the force of law. When Congress intends to take
the unusual step of withholding an agency’s general
rulemaking authority from a particular provision of a
statute that the agency administers, it would ordinarily
do so expressly. See American Hosp. Ass’n v. NLRB,
499 U.S. 606, 613 (1991). An agency’s conclusion that an
ambiguous provision does not negate its general rule-


13
making authority is entitled to deference under Chev-
ron. See id. at 614.
Examination of the statutory scheme at issue here il-
luminates these principles. The FCC has broad and
longstanding authority to administer the Communica-
tions Act. It performs that role through such mecha-
nisms as rulemaking and adjudication, in which it speaks
with the force of law. Nothing in Section 332(c)(7), or in
any other provision of the Communications Act, sug-
gests that Congress carved out Section 332(c)(7)(B)(ii)’s
“reasonable period of time” requirement from the FCC’s
general authority to administer and construe the Act.
In any event, the FCC’s determination that no such
exception exists is reasonable and therefore entitled to
deference. See American Hosp. Ass’n, 499 U.S. at 613-
614.
C. An agency’s power to interpret the terms of a
statute it administers encompasses federal statutory
provisions that displace state law. Congress unambigu-
ously displaced state law in Section 332(c)(7), which
“imposes specific limitations on the traditional authority
of state and local governments to regulate the location,
construction, and modification of [wireless communica-
tions] facilities.” City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 115 (2005). When Congress ex-
pressly preempts state and local authority, it is free, as
in other areas, to leave to the implementing agency the
task of resolving any remaining gaps or ambiguities in
the scope of that preemption. See Smiley v. Citibank
(S.D.), N.A., 517 U.S. 735, 743-744 (1996).
D. The FCC’s determination that it had authority to
administer Section 332(c)(7) was correct under any
standard of review. The FCC has broad power to ad-
minister the Communications Act, see AT&T Corp. v.


14
Iowa Utils. Bd., 525 U.S. 366, 378-379 (1999), and noth-
ing in Section 332(c)(7) removes that provision from the
scope of the FCC’s general administrative authority.
That provision’s savings clause, on which petitioners
principally rely, does not negate the FCC’s powers to
interpret Section 332(c)(7) itself. Instead, that clause
merely provides that other portions of the Communica-
tions Act should not be construed to impose separate
limitations on local zoning authority. And while Con-
gress authorized courts to determine in particular
instances whether state or local zoning officials have
engaged in unreasonable delay, see 47 U.S.C.
332(c)(7)(B)(v), it did not preclude the FCC from an-
nouncing presumptive time frames that will guide that
judicial inquiry.

ARGUMENT

CHEVRON

APPLIES TO AN AGENCY’S INTERPRETATION
OF ITS STATUTORY AUTHORITY

In Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984) (Chevron), this
Court articulated the now-familiar framework for re-
viewing an agency’s interpretation of “the statute which
it administers.” Id. at 842. Chevron reflects the Court’s
recognition that an agency’s administration of any stat-
ute often entails the interpretation of ambiguous statu-
tory provisions, and that the choice between competing
constructions may turn on policy choices that are better
made by democratically accountable bodies than by
courts. That long-settled framework is fully applicable
when an agency construes an ambiguous statutory pro-
vision that relates to the scope of the agency’s delegated
authority.


15
A. Chevron Is Triggered When An Agency Interprets A

Statute That Has Been Generally Entrusted To Its Ad-

ministration


1.

Chevron

reflects congressional intent and principles

of democratic accountability
a. Chevron “established a ‘presumption that Con-
gress, when it left ambiguity in a statute meant for im-
plementation by an agency, understood that the ambigu-
ity would be resolved, first and foremost, by the agency,
and desired the agency (rather than the courts) to pos-
sess whatever degree of discretion the ambiguity al-
lows.’ ” National Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005) (Brand X)
(quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735,
740-741 (1996)). As a result of that presumption, “Con-
gress is well aware that the ambiguities it chooses to
produce in a statute will be resolved by the implement-
ing agency.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S.
366, 397 (1999).
The interpretation of regulatory statutes routinely
involves “reconciling conflicting policies,” Chevron, 467
U.S. at 865, a task that is more appropriately performed
by “legislators or administrators, not * * * judges,”
id. at 864. Judicial deference permits the “political
branch of the Government to make such policy choices”
by “resolving the competing interests which Congress
itself either inadvertently did not resolve, or intentional-
ly left to be resolved by the agency charged with the
administration of the statute in light of everyday reali-
ties.” Id. at 865-866. Conversely, “federal judges—who
have no constituency—have a duty to respect legitimate
policy choices made by those who do.” Id. at 866; see
Brand X, 545 U.S. at 980 (explaining that the resolution
of statutory ambiguities “involves difficult policy choices


16
that agencies are better equipped to make than
courts”).1
In addition, “[j]udges are not experts” in the “tech-
nical and complex” fields that agencies are often
charged with overseeing. Chevron, 467 U.S. at 865.
Agency expertise results not only from the employment
of specialized staff, but also from the familiarity with the
issues that necessarily results from the agency’s day-to-
day administration of a statute. Agencies, unlike courts,
are also institutionally well situated to engage in the
type of broad factual inquiry that may be necessary to a
well-informed resolution of a policy dispute. The Chev-
ron framework thus rests in part on a recognition that
the choice between competing interpretations of ambig-
uous statutory language often “turn[s] upon the kind of
thorough knowledge of the subject matter and ability to
consult at length with affected parties that an agency
* * * possesses.” Long Island Care at Home, Ltd. v.
Coke, 551 U.S. 158, 167-168 (2007).
b. The Chevron analysis proceeds in two familiar
steps. A reviewing court first considers “whether Con-
gress has directly spoken to the precise question at
issue.” 467 U.S. at 842. The court, which is the “final

1 Respondent Cellco Partnership argues (Br. 23) that principles of
Chevron deference should not apply to independent agencies like the
FCC. That contention is foreclosed by this Court’s precedents, which
have repeatedly used the Chevron framework in reviewing FCC
orders. See, e.g., Brand X, 545 U.S. at 980; Iowa Utils. Bd., 525 U.S.
at 387, 397. While independent agencies like the FCC may be subject
to less direct presidential control, they are still more politically
accountable than courts, both through congressional oversight and
through political appointment of Commissioners. See FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 523 (2009) (plurality op.)
(“[I]ndependent agencies are sheltered not from politics but from the
President.”).


17
authority on issues of statutory construction,” “em-
ploy[s] traditional tools of statutory construction” to
determine whether that standard is satisfied. Id. at 843
n.9. “If the intent of Congress is clear, * * * the court,
as well as the agency, must give effect to the unambigu-
ously expressed intent of Congress.” Id. at 842-843.
“If, however, the court determines Congress has not
directly addressed the precise question at issue,” it
proceeds to Step Two of the Chevron analysis. 467 U.S.
at 843. In the absence of any clearly expressed congres-
sional intent, “the court does not simply impose its own
construction on the statute.” Ibid. Rather, if the statute
is silent or ambiguous with respect to the disputed ques-
tion, the court must decide “whether the agency’s an-
swer is based on a permissible construction of the stat-
ute.” Ibid. At Step Two of Chevron, the court defers to
the agency’s statutory construction so long as the agen-
cy’s approach “represents a reasonable accommodation
of conflicting policies that were committed to the agen-
cy’s care by the statute.” Id. at 845 (quoting United
States v. Shimer, 367 U.S. 374, 383 (1961)).
The two-step Chevron framework ensures that re-
viewing courts will respect congressional intent. If
Congress has clearly expressed its intent, then the court
will give it effect. See Chevron, 467 U.S. at 842-843.
But where Congress has “explicitly left a gap for the
agency to fill, there is an express delegation of authority
to the agency to elucidate a specific provision of the
statute by regulation.” Id. at 843-844. The “legislative
delegation to an agency on a particular question” may
also be “implicit rather than explicit.” Id. at 844. In
either circumstance, “a court may not substitute its own
construction of a statutory provision for a reasonable


18
interpretation made by the administrator of an agency.”
Ibid.

2. This Court has consistently applied

Chevron to ques-
tions of statutory interpretation that bear on the

scope of an agency’s administrative authority
In applying the Chevron framework, this Court has
not recognized any exception for statutory provisions
that define the agency’s regulatory “jurisdiction.” To
the contrary, “it is settled law that the rule of [Chevron]
deference applies even to an agency’s interpretation of
its own statutory authority or jurisdiction.” Mississippi
Power & Light Co. v. Mississippi, 487 U.S. 354, 381
(1988) (Scalia, J., concurring in the judgment); accord
Dole v. United Steelworkers of Am., 494 U.S. 26, 54
(1990) (White, J., dissenting) (“This Court has never
accepted [the] argument * * * that Chevron should not
apply * * * because [the agency’s] regulations actually
determine the scope of its jurisdiction” under its stat-
ute.); 1 Richard J. Pierce, Jr., Administrative Law
Treatise § 3.5, at 187 (5th ed. 2010) (Pierce) (“Judging
by the Court’s pattern of decisions, it seems clear that
Chevron applies to cases in which an agency adopts a
construction of a jurisdictional provision of a statute it
administers.”).
The Court has often applied the Chevron framework
in reviewing agency interpretations of statutory provi-
sions that define the agencies’ authority to act. See, e.g.,
National Cable & Telecomms. Ass’n v. Gulf Power Co.,
534 U.S. 327, 333, 341 (2002) (citing Chevron and ex-
plaining that, if the relevant statutory provisions were
ambiguous as to whether the FCC’s authority could
extend to certain wireline and wireless pole attach-
ments, the Court would defer to the agency’s assertion
of jurisdiction); FDA v. Brown & Williamson Tobacco


19
Corp., 529 U.S. 120, 132 (2000) (applying the Chevron
framework to analyze the FDA’s “assertion of authori-
ty,” under the Food, Drug, and Cosmetic Act, “to regu-
late tobacco products”)2; Reiter v. Cooper, 507 U.S. 258,
269 (1993) (citing Chevron and characterizing as “at
least * * * reasonable * * * , and hence * * * bind-
ing,” the Interstate Commerce Commission’s position
that the Interstate Commerce Act gave the agency no
“jurisdiction” to award reparations); Commodity Fu-
tures Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986)
(according “considerable weight” under Chevron to
construction of the Commodity Exchange Act by the
Commodity Futures Trading Commission (CFTC) on a
question that concerned the agency’s “power to take
jurisdiction” over certain state law counterclaims).3 The
same is true of the Court of Appeals for the District of
Columbia Circuit, which, because of its specialized juris-
diction, has more experience applying Chevron than any
other court of appeals. See Cellco P’ship v. FCC, Nos.
11-1135, 11-1136, 2012 WL 6013416, at *4 (Dec. 4, 2012)
(noting that the D.C. Circuit has “repeatedly” rejected
the contention that “Chevron deference does not extend
to interpretive questions * * * that implicate the scope
of an agency’s jurisdiction”).

2 Cf. Br. of Resp. Brown & Williamson Tobacco Corp. 37-38, Brown
& Williamson Tobacco Corp., supra, No. 98-1152 (contending that
Chevron was inapplicable because FDA statutory interpretation
involved “regulatory expansion of jurisdiction”).
3 Indeed, in Chevron itself, EPA’s regulatory definition of the am-
biguous statutory term “stationary source” dictated when a permit
was required, and thus bore on the agency’s administrative jurisdic-
tion. 467 U.S. at 840.


20

3. There is no sound reason for this Court to alter its
approach to interpretive questions bearing on the

scope of agency authority
This Court has “expressly ‘[r]ecogniz[ed] the im-
portance of maintaining a uniform approach to judicial
review of administrative action,’ ” and it has therefore
resisted efforts “to carve out” exceptions to Chevron’s
applicability. Mayo Found. for Med. Educ. & Research
v. United States, 131 S. Ct. 704, 713 (2011) (Mayo)
(quoting Dickinson v. Zurko, 527 U.S. 150, 154 (1999)).
Consistent with that practice, the Court should reaffirm
that Chevron deference applies when an agency inter-
prets statutory provisions that define the scope of its
administrative authority.
a. The rationales for Chevron (see pp. 15-16, supra)
apply with equal force to questions concerning the scope
of an agency’s authority. As with any other question of
statutory construction, “Congress would naturally ex-
pect that the agency would be responsible, within broad
limits, for resolving ambiguities in its statutory authori-
ty or jurisdiction.” Mississippi Power, 487 U.S. at 381-
382 (Scalia, J., concurring in the judgment). And, con-
trary to petitioners’ contention (e.g., Cable, Telecomms.,
& Tech. Comm. of the New Orleans City Council Br. 28-
29 (New Orleans Br.)), resolution of statutory ambigui-
ties bearing on the scope of an agency’s authority will
often turn on policy judgments that are more appropri-
ately made by agencies than by courts. See Cass R.
Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 235
(2006) (“If an agency is asserting or denying jurisdiction
over some area, it is either because democratic forces
are leading it to do so or because its own specialized
competence justifies its jurisdictional decision.”).


21
In Schor, for example, the court of appeals declined
to defer to the CFTC’s conclusion that it could exercise
jurisdiction over state-law counterclaims under the
Commodities Exchange Act. 478 U.S. at 844-845. The
court of appeals based that holding in part on its view
that “the question was not one on which a specialized
administrative agency, in contrast to a court of general
jurisdiction, had superior expertise.” Ibid. This Court
rejected that reason for withholding deference as “in-
substantial,” recognizing that “an agency’s expertise is
superior to that of a court when a dispute centers on
whether a particular regulation is ‘reasonably necessary
to effectuate any of the provisions or to accomplish any
of the purposes’ of the Act the agency is charged with
enforcing.” Id. at 845.
Agencies are also better equipped than courts to col-
lect and evaluate the facts that may bear on the choice
between competing interpretations of an agency’s gov-
erning statute. In this case, for example, the Commis-
sion adopted its declaratory ruling after considering
hundreds of comments about the costs and benefits of
having the Commission define (or refuse to define) the
statutory terms “reasonable period of time” and “failure
to act.” Pet. App. 78a-79a. After reviewing those com-
ments, the FCC concluded that, in the absence of agency
guidance, “unreasonable delays” in the consideration of
facility siting requests were “impeding the deployment
of advanced and emergency services.” Id. at 96a-97a.
Unlike a single lower court, moreover, an agency can
announce an interpretation with nationwide effect,
thereby promoting the uniform administration of the
policies reflected in the governing federal statute.4 Such

4 In this case, for example, the FCC noted that a circuit split had
developed on an interpretive issue involving Section 332(c)(7). See



22
an interpretation serves one of the core purposes under-
lying Chevron deference. See Coeur Alaska, Inc. v.
Southeast Alaska Conservation Council, 557 U.S. 261,
296 (2009) (Scalia, J., concurring in part and concurring
in the judgment) (explaining that Chevron deference is
essential “to achieve predictable (and relatively litiga-
tion-free) administration of the vast body of complex
laws committed to the charge of executive agencies”); cf.
Brand X, 545 U.S. at 983 (Under Chevron, agencies
should have authority to revisit “unwise judicial con-
structions of ambiguous statutes.”).
b. An exception to Chevron for an agency’s interpre-
tations of its statutory authority would be unworkable.
As Justice Scalia has explained, “there is no discernible
line between an agency’s exceeding its authority and an
agency’s exceeding authorized application of its authori-
ty.” Mississippi Power, 487 U.S. at 381 (Scalia, J., con-
curring in the judgment). “To exceed authorized appli-
cation is to exceed authority. Virtually any administra-
tive action can be characterized as either the one or the
other, depending upon how generally one wishes to
describe the ‘authority.’ ” Ibid. A leading administra-
tive law treatise agrees: “courts will routinely encoun-
ter intractable characterization problems if they attempt
to distinguish between jurisdictional and nonjuridiction-
al disputes” because “[a]ny good lawyer can make a
plausible argument that a high proportion of disputes

Pet. App. 127a-128a & nn.175-176 (discussing whether a local gov-
ernment could permissibly deny a carrier’s facility application on the
ground that other carriers were already serving the area). The FCC
determined that this split was “appropriately resolved by declaratory
ruling,” id. at 128a, and concluded that local governments could not
deny applications solely on that basis, see id. at 131a (finding this pro-
competition rule most consistent with the statutory purpose of “im-
prov[ing] service quality and lower[ing] prices for consumers”).


23
about the meaning of ambiguous language in agency-
administered statutes are jurisdictional disputes.”
Pierce § 3.5, at 188; accord Railway Labor Executives’
Ass’n v. National Mediation Bd., 29 F.3d 655, 676 (D.C.
Cir. 1994) (Williams, J., dissenting) (“In the absence of a
manageable line between jurisdictional and other issues,
non-deference for ‘jurisdictional’ issues is just a tag for
the court’s conclusion.”), cert. denied, 514 U.S. 1032
(1995); Sunstein, 92 Va. L. Rev. at 235 (“[T]he line be-
tween jurisdictional and nonjurisdictional questions is
far from clear; hence any exemption threatens to intro-
duce more complexity into the world of Chevron.”).5
This case illustrates that difficulty. The FCC has
well-established general authority to implement and
construe the Communications Act. In arguing that
those agency powers do not extend to Section 332(c)(7),
petitioners rely on 47 U.S.C. 332(c)(7)(A) (which pro-
vides that portions of the Communications Act other

5 This Court has previously struggled without success to identify a
discrete set of administrative-law questions that are uniquely “juris-
dictional.” In Crowell v. Benson, 285 U.S. 22, 62-65 (1932), the Court
held that agency findings as to “jurisdictional” facts—those on which
its power to act “depend[ed]”—must be retried de novo by a review-
ing court. The Court viewed that rule as necessary to “confine[]”
agencies to their “proper sphere.” Id. at 65. Subsequent cases,
however, illustrated the complexity of any effort to identify uniquely
jurisdictional questions in administrative review, and Crowell’s at-
tempt to create a special rule for “jurisdictional” determinations by
agencies has thus been “undermined.” Northern Pipeline Constr. Co.
v. Marathon Pipe Line Co., 458 U.S. 50, 82 n.34 (1982) (plurality op.);
see id. at 110 n.12 (White, J., dissenting); see also Richard J. Pierce,
Jr. et al., Administrative Law and Process § 5.2.2, at 140 (5th ed.
2009) (jurisdictional fact doctrine “is now moribund,” and “[m]odern
courts accord to agency findings of facts of this type the same degree
of deference they accord to other findings of fact on which the validi-
ty of the agency’s action depends”).


24
than Section 332(c)(7) should not be construed to re-
strict state and local zoning authority) and 47 U.S.C.
332(c)(7)(B)(v) (which establishes a judicial remedy
when state or local officials fail to act in a timely manner
on a wireless siting application). Neither of those provi-
sions, however, refers explicitly to the FCC or to the
scope of its regulatory authority. Petitioners thus ap-
pear to view as “jurisdictional” any statutory provision
that is alleged to render unlawful the agency’s chosen
course of action. Chevron would be largely eviscerated
if it were deemed inapplicable to “jurisdictional” provi-
sions so defined.
Respondents International Municipal Lawyers Asso-
ciation, et al. (IMLA) contend (Br. 33) that the line dis-
tinguishing “jurisdictional and non-jurisdictional ques-
tions * * * is neither illusory nor incapable of judicial
administration.” In IMLA’s view, “agency jurisdiction
is a question of who, what, where, or when an agency has
authority to regulate,” in contrast to the “[a]pplication
of administrative authority,” which “concerns how an
agency exercises its authority over those subjects within
its regulatory realm.” Ibid. According to IMLA, Chev-
ron applies only to agency interpretations of statutory
provisions that fall within the “how” category.
IMLA’s proposed rule is flatly inconsistent with this
Court’s precedents. And far from illustrating the ease
of differentiating between jurisdictional and non-
jurisdictional questions, IMLA’s formulation demon-
strates the permeability of the line between the two
concepts. In Gulf Power, for example, this Court stated
that the FCC’s decision “to assert jurisdiction” over
attachments that provide both high-speed Internet ac-
cess and cable television service, as opposed to those
attachments used only for the latter, was entitled to


25
Chevron deference. 534 U.S. at 333, 342. The disputed
issue in Gulf Power involved “what” the FCC could
regulate—in that case, a particular type of pole attach-
ment. Likewise in United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121 (1985), the Court deferred
under Chevron to the “exercise [of] jurisdiction” by the
Army Corps of Engineers and the Environmental Pro-
tection Agency (EPA) over wetlands adjacent to naviga-
ble waters. Id. at 131-135. In IMLA’s proposed taxon-
omy, the question whether discharges into wetlands are
subject to Corps and EPA regulation would naturally be
viewed as a “where” or “what” question.
In other settings as well, the Court has applied Chev-
ron in a manner inconsistent with IMLA’s formulation.
See Mayo, 131 S. Ct. at 711 (applying Chevron to Treas-
ury Department’s conclusion that medical residents are
not “students” and are therefore subject to taxation
under the Federal Insurance Contributions Act—a
“who” question); Holly Farms Corp. v. NLRB, 517 U.S.
392, 394, 398-399 (1996) (applying Chevron to NLRB’s
decision that certain workers were not “ ‘agricultural
laborer[s],’ a category of workers exempt from the Na-
tional Labor Relations Act coverage”—another “who”
question); Your Home Visiting Nurse Servs., Inc. v.
Shalala, 525 U.S. 449, 453 (1999) (applying Chevron to
Department of Health and Human Services’ determina-
tion of the necessary predicate for a hearing before the
Provider Reimbursement Review Board—a “when”
question).6

6 The malleability of the proposed line between “jurisdictional” and
“non-jurisdictional” questions is highlighted by the City of Arling-
ton’s briefs in this case. At one point in its merits brief, Arlington
attempts to distinguish “the scope of the agency’s delegated power”
from what it characterizes as the “very different” question it claims



26
c. Petitioners, and the private respondents who sup-
port them, contend that deferring to an agency’s deter-
mination regarding its statutory authority is unwarrant-
ed because doing so “would inevitably lead to the expan-
sion of that authority.” Cellco P’ship Br. 22; see New
Orleans Br. 30; City of Arlington et al. Br. 28 (Arlington
Br.); IMLA Br. 26. Similarly, IMLA argues (Br. 30)
that applying Chevron to questions of agency authority
would “collapse the Constitution’s separation of powers”
and allow an agency to determine “the limits of its own
authority without significant review from another
branch.” As an initial matter, this Court has applied
Chevron deference principles to agency decisions dis-
claiming authority to act. See, e.g., Reiter, 507 U.S. at
269 (holding that Interstate Commerce Commission’s
understanding of its governing statute “as giving it no

is presented here, i.e., “whether Congress ha[s] delegated interpre-
tive authority to the agency,” a question Arlington says must be eval-
uated de novo. Br. 24-25. Elsewhere in its brief, however, Arlington
repeatedly collapses the two supposedly “very different” questions,
contending that “the determination of the scope of an agency’s dele-
gated authority is to be conducted by the court de novo.” Id. at 23
(emphasis added); see id. at 4, 9, 14, 15, 19, 23, 28, 29 (also character-
izing this case as about the “scope” of the agency’s authority). Simi-
larly, in its petition for a writ of certiorari, Arlington claimed that the
Third, Eighth, and Tenth Circuits, like the Fifth Circuit here, erro-
neously “resolve jurisdictional questions by applying Chevron.” Ar-
lington Pet. 14-15. In its merits brief, however, Arlington disclaims
the circuit split it asked the Court to resolve in its certiorari petition,
now positing that “when presented with the issue in this case—whe-
ther Congress delegated interpretive authority—each of those courts
decides the question de novo.” Br. 26 & n.3 (citing decisions from the
Third, Fifth, Eight, and Tenth Circuits). Arlington’s difficulty in
identifying which questions should be classified as jurisdictional is a
preview of the administrability problems that would follow from ac-
ceptance of its position.


27
power to decree reparations relief” was “at least a rea-
sonable interpretation of the statute, and hence a bind-
ing one” under Chevron). Petitioners are therefore
wrong in suggesting that application of Chevron to
agencies’ “jurisdictional” determinations will inevitably
lead to expansion of agency authority.
In any event, Chevron’s two-step framework itself
protects against agency usurpation of power not granted
by Congress. “If a court, employing traditional tools of
statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention
is the law and must be given effect.” Chevron, 467 U.S.
at 843 n.9; see pp. 16-17, supra. Under Chevron Step
One, this Court has sometimes set aside agency asser-
tions of authority as inconsistent with the relevant stat-
utory text.
In Brown & Williamson Tobacco Corp., for example,
the Court considered (and ultimately rejected) “the
FDA’s assertion of authority to regulate tobacco prod-
ucts.” 529 U.S. at 132. The Court explained that, “[b]e-
cause this case involves an administrative agency’s con-
struction of a statute that it administers, our analysis is
governed by Chevron.” Ibid. The Court nevertheless
rejected the agency’s construction of the relevant stat-
ute under Chevron Step One, finding it “clear that Con-
gress intended to exclude tobacco products from the
FDA’s jurisdiction.” Id. at 142. In reaching that conclu-
sion, the Court observed that the Chevron Step One
inquiry was “guided to a degree by common sense as to
the manner in which Congress is likely to delegate a
policy decision of such economic and political magnitude
to an administrative agency.” Id. at 133.
Similarly in Dole v. United Steelworkers, the Court
reviewed the disapproval by the Office of Management


28
and Budget (OMB) of a Department of Labor rule man-
dating disclosure of information to third parties. Be-
cause “the language, structure, and purpose” of the
statute in question revealed that Congress did not in-
tend to grant OMB authority to review such a rule, 494
U.S. at 35, the Court declined to defer to OMB’s contra-
ry interpretation, id. at 42-43 (citing Chevron). Con-
versely, an agency’s attempt to disclaim jurisdiction will
be rejected where a contrary congressional intent is
clear. See, e.g., Massachusetts v. EPA, 549 U.S. 497,
529 (2007) (statute “unambiguous” in giving EPA au-
thority to regulate greenhouse gases).
Even at the second step of the Chevron analysis, an
agency’s discretion to interpret its governing statute is
hardly “unreviewed or unchecked.” IMLA Br. 30. Un-
der Step Two, courts defer to an agency’s reading of
ambiguous statutory language only if the agency’s in-
terpretation is “reasonable.” Chevron, 467 U.S. at 845.
And, under the Administrative Procedure Act (APA),
agencies have an obligation to explain the basis for their
statutory interpretation, and the agency’s actions cannot
be “arbitrary” or “capricious.” 5 U.S.C. 706(2)(A); see
Judulang v. Holder, 132 S. Ct. 476, 483-484 & n. 7 (2011)
(court at Chevron Step Two “ask[s] whether an agency
interpretation is ‘arbitrary or capricious in substance’ ”)
(citation omitted).
In sum, “Chevron is no blank check to agencies.”
Sunstein, 92 Va. L. Rev. at 227-228. “It remains the
case that agency decisions must not violate clearly ex-
pressed legislative will, must represent reasonable in-
terpretations of statutes, and must not be arbitrary in


29
any way. These constraints produce significant checks
on potential agency self-interest and bias.” Id. at 233.7

B.

The

Chevron

Framework Applies To The Determination
Whether Congress Has Created An Exception To An

Agency’s Generally-Applicable Administrative Authority

For Chevron to apply, an agency’s interpretation
must be of a “statute which [the agency] administers.”
467 U.S. at 842. Moreover, the Chevron framework
applies 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.” United States v. Mead Corp., 533 U.S.
218, 226-227 (2001) (emphasis added). Contrary to peti-
tioners’ submission, these preconditions are satisfied
whenever an agency administers its organic statute
through rulemaking, adjudication, or other actions that
carry the force of law. Chevron thus applies when an
agency uses rulemaking or adjudication to construe
ambiguous language in an affirmative statutory grant of
administrative power. Chevron likewise applies to an

7 Petitioner New Orleans suggests that de novo review is appropri-
ate when an agency interprets “jurisdictional” provisions of its gov-
erning statute because the APA “recognizes jurisdiction as a distinct
legal inquiry.” Br. 46; see IMLA Br. 26 n.4. But while the APA auth-
orizes a reviewing court to “hold unlawful and set aside agency ac-
tion” that is “in excess of statutory jurisdiction, authority, or limita-
tions,” 5 U.S.C. 706(2)(C), the court has the same power to invalidate
agency action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. 706(2)(A). In resolv-
ing contentions that particular agency actions are “not in accordance
with law,” courts routinely defer under Chevron to agency interpreta-
tions of ambiguous statutory language. Nothing in the APA suggests
that courts should apply a different standard of review when resolv-
ing challenges brought under Section 706(2)(C).


30
agency’s resolution of a claim that a particular statutory
provision strips it of its generally applicable administra-
tive authority.

1. When Congress intends to exempt part of an agency’s
organic statute from the agency’s generally-
applicable

administrative authority, Congress can

ordinarily be expected to state that intent explicitly
In American Hospital Association v. NLRB, 499
U.S. 606 (1991), this Court considered the scope of the
general rulemaking authority of the National Labor
Relations Board (NLRB). See id. at 609 (explaining
that the NLRB had express statutory “authority from
time to time to make, amend, and rescind . . . such
rules and regulations as may be necessary to carry out
the provisions” of the National Labor Relations Act
(NLRA)) (quoting 29 U.S.C. 156). As in this case, a
party in American Hospital Association contended that
a separate provision of the NLRA imposed “a limitation
on the [agency’s] rulemaking powers.” 499 U.S. at 611.
That challenger argued, in particular, that an NLRB
regulation defining bargaining units was ultra vires
because Section 9(b) of the NLRA “prevent[ed] the
Board” from using its rulemaking authority to “impos[e]
any industry-wide rule delineating the appropriate bar-
gaining units.” Ibid.
This Court squarely rejected that argument. The
Court explained that, “[a]s a matter of statutory draft-
ing, if Congress had intended to curtail in a particular
area the broad rulemaking authority granted” by 29
U.S.C. 156, the Court “would have expected [Congress]
to do so in language expressly describing an exception”
from that provision, “or at least referring specifically to
the section.” American Hosp. Ass’n, 499 U.S. at 613;
see Wyoming v. USDA, 661 F.3d 1209, 1270-1271 (10th


31
Cir. 2011) (“If Congress [when enacting a later statute]
had intended to curtail the Forest Service’s broad rule-
making authority under [16 U.S.C. 551], it is assumed
that it would have at least referenced that provision in
some manner.”), cert. denied, 133 S. Ct. 144, 417 (2012);
Prometheus Radio Project v. FCC, 373 F.3d 372, 394-395
& n.18 (3d Cir. 2004), cert. denied, 545 U.S. 1123 (2005).
Based on the absence of any express statement of in-
tent to create an exemption to the NLRB’s general
rulemaking authority, the Court in American Hospital
Association found it “clear” that Congress had intended
no such limitation. See 499 U.S. at 614. The Court went
on to state, however, that even if there were “any ambi-
guity” on the question, the Court “would still defer to
the [NLRB’s] reasonable interpretation of the statutory
text.” Ibid. (citing Chevron, 467 U.S. at 842-843). Ac-
cordingly, this Court has already rejected petitioners’
argument that Chevron does not apply when a party
claims that Congress has exempted part of the statute
an agency administers from its generally-applicable
rulemaking authority.
Contrary to petitioners’ contentions, principles of
separation of powers and constitutional avoidance have
no bearing on the resolution of the present dispute. See
Arlington Br. 29; New Orleans Br. 38-39; see also IMLA
Br. 28-29. The issue in cases like this one is not wheth-
er an agency can exercise a “ ‘legislative’ power” to
“create regulatory jurisdiction where none existed.”
Arlington Br. 29 (citation omitted). If Congress wishes
to foreclose an agency from exercising regulatory au-
thority over a particular category of matters, it need
only make that intent clear, either by defining the agen-
cy’s affirmative powers in a way that unambiguously
excludes the relevant activities, or by enacting a specific


32
exception to a general grant of regulatory authority.
But if the statutory text is ambiguous—either with re-
spect to the scope of the agency’s affirmative powers, or
with respect to the existence or scope of any carve-out
from that authority—the appropriate inference under
Chevron is that Congress intended the agency to resolve
that ambiguity.
Here, for example, Congress has unambiguously
vested the FCC with general authority to implement the
Communications Act through rulemaking and adjudica-
tion. The disputed question is whether Congress has
disabled the agency from exercising those general pow-
ers to define the term “reasonable period of time” in
Section 332(c)(7)(B)(ii). Applying the Chevron frame-
work to that question is consistent with the principles
that generally govern the interpretation of ambiguous
statutory provisions, and it promotes separation-of-
powers principles by leaving permissible policy choices
to policy-making bodies.
2.

Chevron does not require a provision-by-provision

search
for
delegation
Petitioners emphasize that no “provision of the Com-
munications Act” gives the FCC an “express delegation
of interpretive jurisdiction over Section 332(c)(7).”
Arlington Br. 41; see New Orleans Br. 21 (explaining
that the “actual language of Section 332(c)(7)” does not
include an “affirmative indication * * * on the part of
Congress of its intention to delegate interpretive juris-
diction to the FCC”) (emphasis omitted). That is true
but irrelevant. By vesting the Commission with general
authority to implement the Communications Act (see 47
U.S.C. 151, 154(i), 201(b), 303(r)), Congress obviated the
need for the sort of provision-specific authorizations
whose absence petitioners view as significant.


33
In some pre-Chevron decisions, this Court indicated
that agency interpretations should be given greater
weight when Congress had included an “explicit delega-
tion of substantive authority” over a particular statutory
provision or term than when an agency interpretation
was the product of its general rulemaking authority.
Schweiker v. Gray Panthers, 453 U.S. 34, 44 (1981); see,
e.g., Rowan Cos. v. United States, 452 U.S. 247, 253
(1981); Batterton v. Francis, 432 U.S. 416, 424-425
(1977). But “the administrative landscape has changed
significantly” since those cases were decided. Mayo, 131
S. Ct. at 713. Under Chevron and Mead, the “inquiry
* * * does not turn on whether Congress’s delegation
of authority was general or specific.” Id. at 713-714.
Indeed, the Court in Mayo identified the Communica-
tions Act provisions that vest the FCC with general
regulatory authority as a paradigmatic example of pro-
visions that trigger Chevron deference. See id. at 714
(citing Brand X, 545 U.S. at 980-981, 47 U.S.C. 151,
201(b)).

3. Because Section 332(c)(7) includes no express nega-

tion of the FCC’s general administrative authority

over the Communications Act, that general adminis-

trative authority remains
The FCC unquestionably “administers” (Chevron,
467 U.S. at 842) the Communications Act. See Brand X,
545 U.S. at 980 (“Congress has delegated to the Com-
mission the authority to ‘execute and enforce’ the Com-
munications Act * * * and to ‘prescribe such rules and
regulations as may be necessary in the public interest to
carry out the provisions’ of the Act.”) (quoting 47 U.S.C.
151, 201(b)); see generally 47 U.S.C. 151 (“[T]here is
created a commission to be known as the ‘Federal Com-
munications Commission’, * * * which shall execute


34
and enforce the provisions of” the Communications Act).
The FCC’s authority to administer the Act includes the
power to make rules carrying the force of law, both
through rulemaking and adjudication. See Mead, 533
U.S. at 229 (“We have recognized a very good indicator
of delegation meriting Chevron treatment in express
congressional authorizations to engage in the process of
rulemaking or adjudication that produces regulations or
rulings for which deference is claimed.”); see generally
47 U.S.C. 151, 154(i) (“The Commission may perform
any and all acts, make such rules and regulations, and
issue such orders, not inconsistent with this chapter, as
may be necessary in the execution of its functions.”);
47 U.S.C. 201(b), 303(r) (Commission shall “[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” the Communi-
cations Act); see generally Pet. App. 87a-88a.
This Court has consistently applied the Chevron
framework to both FCC rules, see, e.g., Global Crossing
Telecomms., Inc. v. Metrophones Telecomms., Inc., 550
U.S. 45, 55 (2007); Verizon Commc’ns, Inc. v. FCC, 535
U.S. 467, 502 (2002); Gulf Power, 534 U.S. at 333, and
adjudications, see, e.g., Brand X, 545 U.S. at 980-981.8

8 Like the order at issue in Brand X, the order in this case was, as a
formal matter, the result of an adjudication. See Pet. App. 83a (“Un-
der Section 1.2 of the [FCC’s] rules, the Commission ‘may . . . issue
a declaratory ruling terminating a controversy or removing uncer-
tainty.’ ”). As the court of appeals recognized, “[i]t is well-established
that agencies can choose to announce new rules through adjudication
rather than rulemaking.” Id. at 18a-19a (citing NLRB v. Bell Aero-
space Co., 416 U.S. 267, 294 (1974)). Although the court of appeals
questioned the FCC’s choice to proceed by adjudication rather than
rulemaking in this matter, see id. at 22a-25a, the court found that any
error in that regard was harmless, see id. at 26a-31a (explaining that



35
In Gonzales v. Oregon, 546 U.S. 243 (2006), the Court
cited the Communications Act as an example of a statute
in which the administering agency’s delegated authority
to speak with the force of law “is clear because the stat-
ute gives [the] agency broad power to enforce all provi-
sions of the statute.” Id. at 258-259 (citing Brand X, 545
U.S. at 980); cf. id. at 259 (contrasting the Attorney
General’s “limited powers” and lack of “broad authority
to promulgate rules” in administering the Controlled
Substances Act).9

the FCC had published notice of CTIA’s petition in the Federal
Register and had received and considered multiple comments). In
this Court, petitioners have not renewed their objection to the FCC’s
use of adjudication.
9 Petitioners’ reliance (e.g., New Orleans Br. 20) on Adams Fruit
Co. v. Barrett, 494 U.S. 638 (1990), is also misplaced. The respond-
ents in Adams Fruit alleged that their employer had violated the
motor vehicle safety provisions of the Migrant and Seasonal Agricul-
tural Worker Protection Act (AWPA). Id. at 640. They sought actual
and statutory damages under the AWPA’s private right of action for
injuries they had allegedly suffered as a result of the violations. Id.
at 641. In ruling for the employees, the Court in Adams Fruit de-
clined to defer to a Labor Department regulation providing that, in
specified circumstances, state workers’ compensation benefits would
be the exclusive remedy for violations of the AWPA. See id. at 649.
The Court explained that, although the AWPA authorized the agency
“to promulgate standards implementing AWPA’s motor vehicle
provisions,” that authorization did “not empower the [agency] to
regulate the scope of the judicial power vested by the statute.” Id. at
650 (citing 29 U.S.C. 1841(d)).
Here, by contrast, the FCC’s declaratory ruling does not purport to
limit the relief a court may award in a private suit brought under 47
U.S.C. 332(c)(7)(B)(v). To the contrary, the Commission recognized
that courts in such cases “should have the responsibility to fashion
appropriate case-specific remedies” based on “the specific facts of
individual applications.” Pet. App. 108a-109a. Rather than “regu-
lat[ing] the scope of the judicial power vested by the statute,” Adams



36
“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 because
Congress surely recognized that it was legislating
against the background of the Communications Act’s
general grant of rulemaking authority to the FCC.”
Pet. App. 41a-42a. Indeed, in a nearby section of the
Communications Act, Congress carved out a narrow
exception to the statute’s general grant of rulemaking
authority to the Commission. See 47 U.S.C. 334(a) (“Ex-
cept as specifically provided in this section, the Commis-
sion shall not revise * * * the regulations concerning
equal employment opportunity as in effect on Septem-
ber 1, 1992 (47 C.F.R. 73.2080) as such regulations apply
to television broadcast station licensees and permit-
tees”). The absence of any similar language in Section
332(c)(7) confirms that the FCC’s general authority to
administer the Communications Act encompasses the
implementation of that provision. See American Hosp.
Ass’n, 499 U.S. at 613. And even if the statute were
ambiguous on that point, the Commission’s resolution of
that ambiguity would be entitled to deference under
Chevron. See id. at 614.

Fruit, 494 U.S. at 650, the FCC’s declaratory ruling clarifies the
substantive obligations of regulated parties by defining the “reasona-
ble period of time” within which state and local zoning officials must
act on wireless siting applications. The declaratory ruling is thus
more properly analogized to the promulgation of AWPA motor vehi-
cle standards (which the Court in Adams Fruit recognized to be ap-
propriate exercises of agency authority, see ibid.) than to the regula-
tion designating state workers’ compensation benefits as the exclu-
sive remedy for AWPA violations (to which the Court declined to
defer).


37
C.

Chevron

Applies With Full Force To Agency Interpreta-

tions Of Federal Statutes That Limit State Power
Petitioners contend that Chevron should not apply in
this case because the Commission’s reading of Section
332(c)(7)(B) entails an “intrusion on traditional local
authority.” Arlington Br. 36-38; see New Orleans Br.
36-37; see also IMLA Br. 35-43. That argument lacks
merit. Because the FCC action at issue here simply
interprets a statutory phrase that explicitly constrains
the discretion of state and local zoning authorities, prin-
ciples of federalism afford no basis for withholding
Chevron deference.
Section 332(c)(7) “imposes specific limitations on the
traditional authority of state and local governments to
regulate the location, construction, and modification
of [wireless communications] facilities.” Rancho Palos
Verdes, 544 U.S. at 115. In particular, Section
332(c)(7)(B)(ii) requires state and local authorities to act
on a particular category of siting requests “within a
reasonable period of time.” In the order at issue here,
the FCC merely interpreted those statutory limitations
on state and local authority. See Pet. App. 49a.
In Smiley, the Court squarely held that principles of
Chevron deference apply to an agency’s interpretation
of expressly preemptive statutory language. The Court
explained that a contrary argument “confuses the ques-
tion of the substantive (as opposed to pre-emptive)
meaning of a statute with the question of whether a
statute is pre-emptive.” 517 U.S. at 744. Even assum-
ing that “the latter question must always be decided de
novo by the courts,” the Court explained, that “is not
the question at issue here.” Ibid. “As Smiley showed, a
federal agency’s construction of an ambiguous statutory
term may clarify the pre-emptive scope of enacted fed-


38
eral law.” Cuomo v. Clearing House Ass’n, 557 U.S.
519, 555-556 (2009) (Thomas, J., concurring in part and
dissenting in part).
If the FCC had not acted to clarify the term “reason-
able period of time” as it appears in Section
332(c)(7)(B)(ii), federal courts would have been required
to determine in suits brought before them whether that
federal requirement had been satisfied. Thus, as the
court of appeals recognized, the question in this case is
not “whether the States [and local governments] will be
allowed to do their own thing,” but “whether it will be
the FCC or the federal courts that draw the lines to
which they must hew.” Pet. App. 49a n.117 (quoting
Iowa Utils. Bd., 525 U.S. at 378 n.6). “Congress is well
aware that the ambiguities it chooses to produce in a
statute will be resolved by the implementing agency,”
Iowa Utils. Bd., 525 U.S. at 397, particularly when the
statute in question (like the Communications Act) vests
the relevant agency with broad general administrative
authority. In Section 332(c)(7)(B)(ii), Congress required
state and local officials to act on particular zoning re-
quests “within a reasonable period of time,” but it en-
acted no statutory definition of that self-evidently im-
precise term. That course can reasonably be understood
only as a delegation of authority to the FCC to clarify
the applicable timing requirements pursuant to its gen-
eral power to implement the Communications Act.
D. The FCC’s Conclusion That It Has Authority To
Promulgate Reasonable Time Limits On Local Zoning
Authorities Is Correct Under Any Standard Of Review

Petitioners also argue that the FCC’s interpretation
of its own statutory authority would be rejected if that
interpretation were not subject to the Chevron frame-


39
work. See Arlington Br. 31-44; see also New Orleans
Br. 21-25, 32-38. That argument lacks merit.
The statutory provision at issue was enacted as part
of the Communications Act of 1934. See 1996 Act
§704(a), 110 Stat. 151 (“adding” the provision as a new
paragraph “at the end” of 47 U.S.C. 332(c)). Pursuant to
47 U.S.C. 201(b), the Commission is generally empow-
ered to “prescribe such rules and regulations as may be
necessary in the public interest to carry out the provi-
sions of [that Act].” As this Court held in Iowa Utilities
Board, 525 U.S. at 378, Section 201(b) authorizes the
Commission to implement the provisions of the Commu-
nications Act—even those, like Section 332(c)(7), that
were added by Congress in 1996. This broad grant of
authority empowered the Commission to interpret the
ambiguous language of Section 332(c)(7)(B). See Pet.
App. 41a-42a (In enacting Section 332(c)(7), Congress
“surely recognized that it was legislating against the
background of the Communications Act’s general grant
of rulemaking authority to the FCC.”); see also 47
U.S.C. 151, 154(i), 303(r).
In arguing that the FCC’s broad authority to admin-
ister the Communications Act does not encompass the
FCC action at issue here, petitioners rely in part on the
savings clause in Section 332(c)(7)(A). The savings
clause states that, “[e]xcept as provided in [Section
332(c)(7)], nothing in [the Communications Act] shall
limit or affect the authority of a State or local govern-
ment or instrumentality thereof over decisions regard-
ing the placement, construction, and modification of
personal wireless service facilities.” 47 U.S.C.
332(c)(7)(A). As the court of appeals explained, howev-
er, Section 332(c)(7)(A) says nothing about the Commis-
sion’s authority to interpret the limitations that Section


40
332(c)(7)(B) itself imposes. The savings clause merely
“prohibits the FCC from imposing restrictions or limita-
tions that cannot be tied to the language of [Section]
332(c)(7)(B).” Pet. App. 41a.10
As explained above, this Court has recognized that,
when Congress intends “to curtail in a particular area
the broad rulemaking authority granted” by an agency’s
general rulemaking provision, the Court would “expect[]
[Congress] to do so in language expressly describing an
exception” from that rulemaking provision, “or at least
referring specifically to the section.” American Hosp.
Ass’n, 499 U.S. at 613. If Congress had intended to
except Section 332(c)(7) from the FCC’s rulemaking
authority under 47 U.S.C. 151, 154(i), 201(b), and 303(r),
it could have referred specifically to those provisions, or
it could have expressly precluded the Commission from
interpreting the provisions of Section 332(c)(7) (or the
“reasonable period of time” requirement in particular).
Congress did not do so. Cf. 47 U.S.C. 334(a).
Petitioners also maintain that, because Congress in-
tended for courts to resolve disputes regarding particu-
lar zoning officials’ compliance with 47 U.S.C.
332(c)(7)(B)(ii), the FCC lacks power to construe that

10 The FCC explained in the declaratory ruling that, “under the
regime that we adopt today, the State or local authority will have the
opportunity, in any given case that comes before a court, to rebut the
presumption that the established timeframes are reasonable.” Pet.
App. 112a. Thus, even if a state or local zoning authority fails to rule
on a particular wireless siting application within the 90- or 150-day
period described in the declaratory ruling, a reviewing court may
conclude based on all the relevant circumstances that the authority
did not fail to act “within a reasonable period of time.” See id. at 59a,
60a, 62a-63a. That fact makes it particularly clear that the declarato-
ry ruling does not subject state and local officials to obligations going
beyond those imposed by the 1996 Act itself.


41
provision. Arlington Br. 31-32; New Orleans Br. 50-52.
This Court rejected a similar argument in Iowa Utilities
Board. There, the Court upheld the FCC’s decision to
issue rules governing state commissions’ resolution of
disputes between telephone companies regarding their
statutory duties to interconnect with other carriers,
even though the Communications Act provides for judi-
cial review of state commission decisions arbitrating
such disputes. The Court explained that Congress’s
“assignment[ ]” of the adjudicatory task to state com-
missions did “not logically preclude the [FCC]’s issuance
of rules to guide the state-commission judgments.”
Iowa Utils. Bd., 525 U.S. at 385. Similarly here, the fact
that Congress entrusted the resolution of particular
disputes to the courts did not preclude the FCC from
assisting the courts in that endeavor by exercising its
general authority to interpret ambiguous terms of the
Communications Act.
Under the rebuttable presumptions established by
the agency, the courts remain the ultimate arbiters as to
whether a local zoning authority has failed to act on a
wireless facility siting application “within a reasonable
period of time.” As the court of appeals recognized,
while Section 332(c)(7)(B)(v) authorizes judicial en-
forcement of the “reasonable period of time” require-
ment, it “does not address the FCC’s power to adminis-
ter [Section] 332(c)(7)(B)(ii) in contexts other than those
involving a specific dispute between a state or local
government and persons affected by the government’s
failure to act.” Pet. App. 42a-43a. The FCC’s guidance
regarding the meaning of Section 332(c)(7)(B)(ii)’s am-
biguous terms will not impair the courts’ authority un-
der Section 332(c)(7)(B)(v) “to make factual determina-
tions, and to apply those determinations to the law.”


42
United States v. Haggar Apparel Co., 526 U.S. 380, 391
(1999).
Petitioners also contend that the legislative history
supports their view that Congress did not intend for the
FCC to interpret Section 332(c)(7)(B). Arlington Br. 32-
33. They emphasize that the Conference Report on the
legislation directed the FCC to terminate its pending
rulemakings. See Pet. App. 209a. It is hardly surpris-
ing that Congress discountenanced possible regulatory
action that was premised on the pre-amendment Com-
munications Act and that might have undermined the
new legislation.11 Nothing in the Conference Report
suggested, however, that Congress intended to displace
the settled principle of administrative law that the FCC
may resolve ambiguities in the Communications Act,
including ambiguities in the new Section 332(c)(7).12
Finally, petitioners identify no plausible reason that
Congress would have excepted Section 332(c)(7)(B) from

11 A petition for rulemaking pending at the Commission when the
1996 Act was enacted asked the FCC to preempt state and local
governments from enforcing zoning restrictions that inhibited con-
struction of wireless infrastructure. That petition argued that the
Commission had authority to do so under pre-1996 Act provisions of
the Communication Act: 47 U.S.C. 332(a) and 332(c)(3)(A) (1994).
See Cellular Telecomms. Indus. Ass’n’s Pet. for Rule Making 4-5
(1994).
12 Petitioners assert that Congress did not intend “to give preferen-
tial treatment” to zoning applications filed by wireless telecommuni-
cations providers. Arlington Br. 33 (quoting Pet. App. 210a). But no
zoning applicants other than wireless service providers have a feder-
ally enforceable right to receive a ruling on their applications “within
a reasonable period of time.” 47 U.S.C. 332(c)(7)(B)(ii). And “nothing
in the FCC’s time frames necessarily requires state and local gov-
ernments to provide greater preference to wireless zoning applica-
tions than is already required by [Section] 332(c)(7)(B)(ii) itself.” Pet.
App. 61a.


43
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 wireless siting 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)(ii), by contrast, each court adjudicating a
suit brought under Section 332(c)(7)(B)(v) would be
required either to assess the defendant’s “reasonable-
ness” without reference to the practices that generally
prevail in this context, or to attempt to replicate the
inquiry that the FCC conducted. There is no evident
reason that Congress would have preferred either of
those approaches to the one that the Commission adopt-
ed.13

13 In recently enacted legislation, Congress again imposed limita-
tions on local zoning authority related to wireless infrastructure. In
the Middle Class Tax Relief and Job Creation Act of 2012, Congress
provided that “[n]otwithstanding” Section 704 of the 1996 Act (which
added Section 332(c)(7)) or “any other provision of law, a State or
local government may not deny, and shall approve, any eligible facil-
ities request for a modification of an existing wireless tower or base
station that does not substantially change the physical dimensions of
such tower or base station.” Pub. L. No. 112-96, § 6409(a)(1), 126



44

CONCLUSION

The judgment of the court of appeals should be af-
firmed.
Respectfully submitted.

DONALD B. VERRILLI, JR.
SEAN A. LEV
Solicitor General
General Counsel
MALCOLM L. STEWART
PETER KARANJIA
Deputy Solicitor General
Deputy General Counsel
JOSEPH R. PALMORE
JACOB M. LEWIS
Assistant to the Solicitor
Associate General Counsel
General
JAMES M. CARR

MATTHEW J. DUNNE
Counsel
Federal Communications
Commission
DECEMBER 2012

Stat. 232; see id. § 6409(a)(2), 126 Stat. 232-233 (defining “eligible
facilities request” as “any request for modification of an existing
wireless tower or base station that involves,” among other things,
“collocation of new transmission equipment” or “replacement of
transmission equipment”). Although Congress did not insert that
2012 provision into the Communications Act, it nonetheless provided
that, with exceptions not relevant here, “[t]he Commission shall im-
plement and enforce [the title of the 2012 statute in which the new
zoning provision appears] as if [that] title is a part of the Communica-
tions Act of 1934.” Id. § 6003(a), 126 Stat. 204. There is no reason to
think that Congress would have provided the FCC with authority to
implement this new zoning restriction if it had previously divested
the agency of authority to implement the obviously related re-
strictions in Section 332(c)(7). It is also telling that the mechanism
Congress chose to give the FCC implementation authority was not a
section-specific provision, but instead treatment of the new provision
“as if” it was in the Communications Act, thus triggering Section
201(b) and the other sources of the agency’s general administrative
authority.


APPENDIX


1. 47 U.S.C. 151 provides:

Purposes of chapter; Federal Communications Commis-
sion created

For the purpose of regulating interstate and foreign
commerce in communication by wire and radio so as to
make available, so far as possible, to all the people of the
United States, without discrimination on the basis of
race, color, religion, national origin, or sex, a rapid, effi-
cient, Nation-wide, and world-wide wire and radio com-
munication service with adequate facilities at reasonable
charges, for the purpose of the national defense, for
the purpose of promoting safety of life and property
through the use of wire and radio communications, and
for the purpose of securing a more effective execution of
this policy by centralizing authority heretofore granted
by law to several agencies and by granting additional
authority with respect to interstate and foreign com-
merce in wire and radio communication, there is created
a commission to be known as the “Federal Communica-
tions Commission”, which shall be constituted as herein-
after provided, and which shall execute and enforce the
provisions of this chapter.



(1a)

2a
2. 47 U.S.C. 154(i) provides:

Federal Communications Commission

* * * * *
(i) Duties and powers
The Commission may perform any and all acts, make
such rules and regulations, and issue such orders, not
inconsistent with this chapter, as may be necessary in
the execution of its functions.
* * * * *

3. 47 U.S.C. 201(b) provides:

Service and charges

* * * * *
(b) All charges, practices, classifications, and regula-
tions for and in connection with such communication
service, shall be just and reasonable, and any such
charge, practice, classification, or regulation that is un-
just or unreasonable is declared to be unlawful: Provid-
ed, That communications by wire or radio subject to this
chapter may be classified into day, night, repeated, un-
repeated, letter, commercial, press, Government, and
such other classes as the Commission may decide to be
just and reasonable, and different charges may be made
for the different classes of communications: Provided
further, That nothing in this chapter or in any other pro-
vision of law shall be construed to prevent a common
carrier subject to this chapter from entering into or op-
erating under any contract with any common carrier not
subject to this chapter, for the exchange of their ser-
vices, if the Commission is of the opinion that such con-


3a
tract is not contrary to the public interest: Provided
further, That nothing in this chapter or in any other pro-
vision of law shall prevent a common carrier subject to
this chapter from furnishing reports of positions of ships
at sea to newspapers of general circulation, either at a
nominal charge or without charge, provided the name of
such common carrier is displayed along with such ship
position reports. The Commission may prescribe such
rules and regulations as may be necessary in the public
interest to carry out the provisions of this chapter.

4. 47 U.S.C. 303(r) provides:

Powers and duties of Commission

Except as otherwise provided in this chapter, the
Commission from time to time, as public convenience, in-
terest, or necessity requires, shall—
* * * * *
(r) Make 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 chapter, or any international radio or wire commu-
nications treaty or convention, or regulations annexed
thereto, including any treaty or convention insofar as it
relates to the use of radio, to which the United States is
or may hereafter become a party.
* * * * *





4a
5. 47 U.S.C. 332 provides:

Mobile services

(a) Factors which Commission must consider
In taking actions to manage the spectrum to be made
available for use by the private mobile services, the
Commission shall consider, consistent with section 151 of
this title, whether such actions will—
(1) promote the safety of life and property;
(2) improve the efficiency of spectrum use and re-
duce the regulatory burden upon spectrum users,
based upon sound engineering principles, user opera-
tional requirements, and marketplace demands;
(3) encourage competition and provide services to
the largest feasible number of users; or
(4) increase interservice sharing opportunities be-
tween private mobile services and other services.
(b) Advisory coordinating committees
(1) The Commission, in coordinating the assignment
of frequencies to stations in the private mobile services
and in the fixed services (as defined by the Commission
by rule), shall have authority to utilize assistance fur-
nished by advisory coordinating committees consisting
of individuals who are not officers or employees of the
Federal Government.
(2) The authority of the Commission established in
this subsection shall not be subject to or affected by the
provisions of part III of title 5 or section 1342 of title 31.
(3) Any person who provides assistance to the Com-
mission under this subsection shall not be considered, by


5a
reason of having provided such assistance, a Federal
employee.
(4) Any advisory coordinating committee which fur-
nishes assistance to the Commission under this subsec-
tion shall not be subject to the provisions of the Federal
Advisory Committee Act.
(c) Regulatory treatment of mobile services
(1) Common carrier treatment of commercial mobile
services
(A) A person engaged in the provision of a service
that is a commercial mobile service shall, insofar as
such person is so engaged, be treated as a common
carrier for purposes of this chapter, except for such
provisions of subchapter II of this chapter as the
Commission may specify by regulation as inapplica-
ble to that service or person. In prescribing or
amending any such regulation, the Commission may
not specify any provision of section 201, 202, or 208
of this title, and may specify any other provision only
if the Commission determines that—
(i) enforcement of such provision is not neces-
sary in order to ensure that the charges, practices,
classifications, or regulations for or in connection
with that service are just and reasonable and are
not unjustly or unreasonably discriminatory;
(ii) enforcement of such provision is not neces-
sary for the protection of consumers; and
(iii) specifying such provision is consistent with
the public interest.
(B) Upon reasonable request of any person
providing commercial mobile service, the Commis-


6a
sion shall order a common carrier to establish physi-
cal connections with such service pursuant to the
provisions of section 201 of this title. Except to the
extent that the Commission is required to respond to
such a request, this subparagraph shall not be con-
strued as a limitation or expansion of the Commis-
sion’s authority to order interconnection pursuant to
this chapter.
(C) The Commission shall review competitive
market conditions with respect to commercial mobile
services and shall include in its annual report an
analysis of those conditions. Such analysis shall in-
clude an identification of the number of competitors
in various commercial mobile services, an analysis of
whether or not there is effective competition, an
analysis of whether any of such competitors have a
dominant share of the market for such services, and
a statement of whether additional providers or clas-
ses of providers in those services would be likely to
enhance competition. As a part of making a deter-
mination with respect to the public interest under
subparagraph (A)(iii), the Commission shall consider
whether the proposed regulation (or amendment
thereof) will promote competitive market conditions,
including the extent to which such regulation (or
amendment) will enhance competition among provid-
ers of commercial mobile services. If the Commis-
sion determines that such regulation (or amendment)
will promote competition among providers of com-
mercial mobile services, such determination may be
the basis for a Commission finding that such regula-
tion (or amendment) is in the public interest.
(D) The Commission shall, not later than 180 days
after August 10, 1993, complete a rulemaking re-


7a
quired to implement this paragraph with respect to
the licensing of personal communications services,
including making any determinations required by
subparagraph (C).
(2) Non-common carrier treatment of private mobile
services
A person engaged in the provision of a service that is
a private mobile service shall not, insofar as such person
is so engaged, be treated as a common carrier for any
purpose under this chapter. A common carrier (other
than a person that was treated as a provider of a private
land mobile service prior to August 10, 1993) shall not
provide any dispatch service on any frequency allocated
for common carrier service, except to the extent such
dispatch service is provided on stations licensed in the
domestic public land mobile radio service before Janu-
ary 1, 1982. The Commission may by regulation termi-
nate, in whole or in part, the prohibition contained in the
preceding sentence if the Commission determines that
such termination will serve the public interest.
(3) State preemption
(A) Notwithstanding sections 152(b) and 221(b) of
this title, no State or local government shall have any
authority to regulate the entry of or the rates charged
by any commercial mobile service or any private mobile
service, except that this paragraph shall not prohibit a
State from regulating the other terms and conditions of
commercial mobile services. Nothing in this subpara-
graph shall exempt providers of commercial mobile ser-
vices (where such services are a substitute for land line
telephone exchange service for a substantial portion of
the communications within such State) from require-
ments imposed by a State commission on all providers of


8a
telecommunications services necessary to ensure the
universal availability of telecommunications service at
affordable rates. Notwithstanding the first sentence of
this subparagraph, a State may petition the Commission
for authority to regulate the rates for any commercial
mobile service and the Commission shall grant such pe-
tition if such State demonstrates that—
(i) market conditions with respect to such services
fail to protect subscribers adequately from unjust and
unreasonable rates or rates that are unjustly or un-
reasonably discriminatory; or
(ii) such market conditions exist and such service
is a replacement for land line telephone exchange
service for a substantial portion of the telephone land
line exchange service within such State.
The Commission shall provide reasonable opportunity
for public comment in response to such petition, and
shall, within 9 months after the date of its submission,
grant or deny such petition. If the Commission grants
such petition, the Commission shall authorize the State
to exercise under State law such authority over rates,
for such periods of time, as the Commission deems nec-
essary to ensure that such rates are just and reasonable
and not unjustly or unreasonably discriminatory.
(B) If a State has in effect on June 1, 1993, any regu-
lation concerning the rates for any commercial mobile
service offered in such State on such date, such State
may, no later than 1 year after August 10, 1993, petition
the Commission requesting that the State be authorized
to continue exercising authority over such rates. If a
State files such a petition, the State’s existing regulation
shall, notwithstanding subparagraph (A), remain in ef-
fect until the Commission completes all action (including


9a
any reconsideration) on such petition. The Commission
shall review such petition in accordance with the proce-
dures established in such subparagraph, shall complete
all action (including any reconsideration) within 12
months after such petition is filed, and shall grant such
petition if the State satisfies the showing required under
subparagraph (A)(i) or (A)(ii). If the Commission grants
such petition, the Commission shall authorize the State
to exercise under State law such authority over rates,
for such period of time, as the Commission deems neces-
sary to ensure that such rates are just and reasonable
and not unjustly or unreasonably discriminatory. After
a reasonable period of time, as determined by the Com-
mission, has elapsed from the issuance of an order under
subparagraph (A) or this subparagraph, any interested
party may petition the Commission for an order that the
exercise of authority by a State pursuant to such sub-
paragraph is no longer necessary to ensure that the
rates for commercial mobile services are just and rea-
sonable and not unjustly or unreasonably discriminato-
ry. The Commission shall provide reasonable opportuni-
ty for public comment in response to such petition, and
shall, within 9 months after the date of its submission,
grant or deny such petition in whole or in part.
(4) Regulatory treatment of communications satellite
corporation
Nothing in this subsection shall be construed to alter
or affect the regulatory treatment required by title IV
of the Communications Satellite Act of 1962 [47 U.S.C.
741 et seq.] of the corporation authorized by title III of
such Act [47 U.S.C. 731 et seq.].


10a
(5) Space segment capacity
Nothing in this section shall prohibit the Commission
from continuing to determine whether the provision of
space segment capacity by satellite systems to providers
of commercial mobile services shall be treated as com-
mon carriage.
(6) Foreign ownership
The Commission, upon a petition for waiver filed
within 6 months after August 10, 1993, may waive the
application of section 310(b) of this title to any foreign
ownership that lawfully existed before May 24, 1993, of
any provider of a private land mobile service that will be
treated as a common carrier as a result of the enactment
of the Omnibus Budget Reconciliation Act of 1993, but
only upon the following conditions:
(A) The extent of foreign ownership interest shall
not be increased above the extent which existed on
May 24, 1993.
(B) Such waiver shall not permit the subsequent
transfer of ownership to any other person in violation
of section 310(b) of this title.
(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in
this chapter shall limit or affect the authority of a
State or local government or instrumentality thereof
over decisions regarding the placement, construc-
tion, and modification of personal wireless service
facilities.


11a
(B) Limitations
(i) The regulation of the placement, construction,
and modification of personal wireless service facili-
ties by any State or local government or instrumen-
tality thereof—
(I) shall not unreasonably discriminate among
providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of pro-
hibiting the provision of personal wireless ser-
vices.
(ii) A State or local government or instrumentali-
ty thereof shall act on any request for authorization
to place, construct, or modify personal wireless ser-
vice facilities within a reasonable period of time after
the request is duly filed with such government or in-
strumentality, taking into account the nature and
scope of such request.
(iii) Any decision by a State or local government
or instrumentality thereof to deny a request to place,
construct, or modify personal wireless service facili-
ties shall be in writing and supported by substantial
evidence contained in a written record.
(iv) No State or local government or instrumen-
tality thereof may regulate the placement, construc-
tion, and modification of personal wireless service
facilities on the basis of the environmental effects of
radio frequency emissions to the extent that such fa-
cilities comply with the Commission’s regulations
concerning such emissions.
(v) Any person adversely affected by any final ac-
tion or failure to act by a State or local government


12a
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 instrumen-
tality thereof that is inconsistent with clause (iv) may
petition the Commission for relief.
(C) Definitions
For purposes of this paragraph—
(i) the term “personal wireless services” means
commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange
access services;
(ii) the term “personal wireless service facili-
ties” means facilities for the provision of personal
wireless services; and
(iii) the term “unlicensed wireless service”
means the offering of telecommunications ser-
vices using duly authorized devices which do not
require individual licenses, but does not mean the
provision of direct-to-home satellite services (as
defined in section 303(v) of this title).
(8) Mobile services access
A person engaged in the provision of commercial mo-
bile services, insofar as such person is so engaged, shall
not be required to provide equal access to common car-
riers for the provision of telephone toll services. If the
Commission determines that subscribers to such ser-
vices are denied access to the provider of telephone toll


13a
services of the subscribers’ choice, and that such denial
is contrary to the public interest, convenience, and ne-
cessity, then the Commission shall prescribe regulations
to afford subscribers unblocked access to the provider of
telephone toll services of the subscribers’ choice
through the use of a carrier identification code assigned
to such provider or other mechanism. The requirements
for unblocking shall not apply to mobile satellite ser-
vices unless the Commission finds it to be in the public
interest to apply such requirements to such services.
(d) Definitions
For purposes of this section—
(1) the term “commercial mobile service” means
any mobile service (as defined in section 153 of this
title) that is provided for profit and makes intercon-
nected service available (A) to the public or (B) to
such classes of eligible users as to be effectively
available to a substantial portion of the public, as
specified by regulation by the Commission;
(2) the term “interconnected service” means ser-
vice that is interconnected with the public switched
network (as such terms are defined by regulation by
the Commission) or service for which a request for
interconnection is pending pursuant to subsection
(c)(1)(B) of this section; and
(3) the term “private mobile service” means any
mobile service (as defined in section 153 of this title)
that is not a commercial mobile service or the func-
tional equivalent of a commercial mobile service, as
specified by regulation by the Commission.


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