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

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Released: January 8, 2013

Nos. 11-1545 and 11-1547



IN THE

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
REPLY BRIEF FOR PETITIONERS
CITY OF ARLINGTON ET AL.

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




TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii
REPLY BRIEF FOR PETITIONERS CITY OF
ARLINGTON ET AL. ................................................... 1
I. The Fifth Circuit Erred In Holding That
Courts Defer To Agencies’ Assertion Of
Interpretive Jurisdiction. ...................................... 3
A. The Government Errs In Asserting That
Agency Assertions Of Interpretive
Jurisdiction Trigger Chevron Deference. ....... 4

B. The Government Errs In Claiming That
An Agency’s General Regulatory
Authority Empowers It To Determine Its
Interpretive

Jurisdiction Over A
Statutory Provision Such As Section
332(C)(7). ......................................................... 6

II. This Case Illustrates That Interpretive
Jurisdiction Is Properly Determined De Novo .... 15
CONCLUSION ........................................................... 26






ii

TABLE OF AUTHORITIES
Cases
Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990) .................................2, 9, 10, 20
Aegerter v. City of Delafield,
174 F.3d 886 (7th Cir. 1999) ................................ 21
American Hospital Association v. NLRB,
499 U.S. 606 (1991) ................................................ 9
AT&T Corp. v. Iowa Utilities Bd.,
525 U.S. 366 (1999) ....................................... passim
Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984) ....................................... passim
Comm’r of Internal Revenue v. Clark,
489 U.S. 726 (1989) .............................................. 17
Dole v. United Steelworkers of Am.,
494 U.S. 26 (1990) .................................................. 5
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .............................................. 14
Gomez v. United States,
490 U.S. 858 (1989) .............................................. 13
Gonzales v. Oregon,
546 U.S. 243 (2006) .............................................. 14
Gregory v. Ashcroft,
501 U.S. 452 (1991) .............................................. 24
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................ 12
Mississippi Power & Light Co. v. Mississippi,
487 U.S. 354 (1988) ............................................ 5, 7


iii

N.Y. SMSA Ltd. P’shp v. Town of Riverhead
Town Bd.,
118 F. Supp. 2d 333 (E.D.N.Y. 2000) ................... 21
New York v. United States,
505 U.S. 144 (1992) .............................................. 23
Rapanos v. United States,
547 U.S. 715 (2006) .............................................. 14
Reiter v. Cooper,
507 U.S. 258 (1993) .............................................. 13
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ................................................ 2
SNET Cellular, Inc. v. Angell,
99 F. Supp. 2d 190 (D.R.I. 2000) .......................... 21
Town of Amherst v. Omnipoint Comm’ns
Enters.,
173 F.3d 9 (1st Cir. 1999) ..................................... 19
Union Pac. R.R. v. Bhd. of Locomotive Eng’rs &
Trainmen,
130 S. Ct. 584 (2009) .............................................. 6
United States v. Mead,
533 U.S. 218 (2001) .................................8, 9, 10, 14
Verizon v. FCC,
No. 11-1355 (D.C. Cir.) ........................................... 2
Village of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926) .............................................. 23
Statutes
19 U.S.C. § 1624 ......................................................... 8
29 U.S.C. § 159(b) ....................................................... 9
29 U.S.C. § 1861 ................................................... 9, 20



iv

Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 ............................................ 18
47 U.S.C. § 151 ..................................................... 17
47 U.S.C. § 154(i) .................................................. 17
47 U.S.C. § 201(b) ................................................. 17
47 U.S.C. § 251 ..................................................... 16
47 U.S.C. § 252 ..................................................... 16
47 U.S.C. § 303(r) ................................................. 17
47 U.S.C. § 332(c)(7) ...................................... passim
47 U.S.C. § 332(c)(7)(A) ........................................ 22
47 U.S.C. § 332(c)(7)(B) .......................................... 6
47 U.S.C. § 332(c)(7)(B)(ii) ................................... 22
47 U.S.C. § 332(c)(7)(B)(iv) ................................... 18
47 U.S.C. § 332(c)(7)(B)(v) .................................... 20
Other Authorities
Black’s Law Dictionary (8th ed. 2004) .................... 17
H.R. Rep. No. 104-204, 1996 U.S.C.C.A.N. 10
(1995) .................................................................... 24
In re Artichoke Broad. Co., 10 FCC Rcd. 12,631
(1995) .................................................................... 24
Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 Geo. L.J. 833 (2001) .......... 2







REPLY BRIEF FOR PETITIONERS
CITY OF ARLINGTON ET AL.
In 47 U.S.C. § 332(c)(7), Congress enacted outer
boundaries on “regulation of the placement,
construction, and modification of personal wireless
facilities,” but otherwise left state and local
governments the flexibility to apply their ordinary
rules governing zoning and construction. The FCC
claims that Congress delegated to it the power to
authoritatively interpret Section 332(c)(7). On that
basis, the FCC claims the power to require that local
zoning processes facilitate national
telecommunications policy.
Petitioners challenge the FCC’s threshold
assertion that it possesses this “interpretive
jurisdiction” over Section 332(c)(7) – i.e., the final
authority to resolve ambiguities in the statute’s
meaning. This Court granted certiorari to decide
how a court should evaluate such a dispute. The
government argues, and the Fifth Circuit held, that
courts must defer to an administrative agency with
respect to every assertion of authority that
implicates the agency’s “jurisdiction.” On that view,
the agency has the power to interpret the statute
unless Congress enacts an express, jurisdiction-
stripping provision. U.S. Br. 18-19, 31-32.
By contrast, petitioners argue that mere
ambiguity (much less silence) cannot grant an
agency this sweeping interpretive power. Rather, a
court determines de novo, using ordinary tools of
statutory construction, whether Congress intended
to grant the agency interpretive authority over the


2

provision in question. The agency’s view remains
relevant, but only to the extent of its power to
persuade. See Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944).
The government and certain other parties and
amici urge this Court to apply a uniform rule to
govern the review of all agency assertions of any
type of “jurisdiction.” By contrast, we suggest that
the Court proceed incrementally and address only
the distinct form of “jurisdiction” actually presented
by the case: an agency’s power to interpret a
statutory provision authoritatively. Because that
power is a “precondition” to the two-stage Chevron
framework, Adams Fruit Co., Inc. v. Barrett, 494
U.S. 638, 649 (1990), the academic literature often
labels its determination “Chevron Step 0,” e.g.,
Thomas W. Merrill & Kristin E. Hickman, Chevron’s
Domain, 89 Geo. L.J. 833, 912-13 (2001).
The Court can address other forms of agency
“jurisdiction” in cases in which they are actually
implicated. The Court should not let itself be drawn
into
such
disputes
unnecessarily by the
government’s broader regulatory agenda, and it is
unclear that those cases will all be resolved through
an invariable rule in which the label “jurisdiction”
ipso facto determines the outcome. This case instead
involves the long-established and easily identified
question of an agency’s “interpretive jurisdiction” –
here, whether Congress gave the FCC the power to
interpret Section 332(c)(7) authoritatively. That
question plainly is decided de novo. The judgment of


3

the court of appeals can and should be reversed on
that basis.1
I. The Fifth Circuit Erred In Holding That
Courts Defer To Agencies’ Assertion Of
Interpretive Jurisdiction.
The government defends the Fifth Circuit’s
categorical holding that courts defer to an
administrative agency’s interpretation of any
statutory provisions that “define the agenc[y’s]
authority to act.” U.S. Br. 18. But the government’s
theory is unclear and inconsistent. Most of its
arguments sweepingly assert as an absolute
principle of administrative law that Congress always
intends every agency to decide any matter that can
be called “jurisdictional,” including even an agency’s
claim that it possesses interpretive authority over a
statute. E.g., id. 32 (“But if the statutory text is
ambiguous – either with respect 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.”); see also id. 11, 12, 14, 20, 22, 29

1 Petitioners do not “disclaim[] the circuit split” described
by the petition for certiorari. U.S. Br. 26 n.6. Acknowledging
the circuit split, the Fifth Circuit resolved this case by applying
an across-the-board rule that all agency determinations of
“jurisdiction” receive Chevron deference. Pet. App. 36a-37a. In
deciding the case, this Court could itself adopt a categorical
rule. But for the reasons given in the text, petitioners believe
that the case can and should be decided more narrowly.


4

(similar). But at other times – and particularly in
the headings of its brief – the government suggests
that its position is limited to cases in which “an
agency interprets a statute that has been generally
entrusted to its administration.” Id. 15; see also id.
29. Broadly or narrowly drawn, the argument
reduces to the erroneous claim that an agency may
decide its own authority to implement a statute.
A. The Government Errs In Asserting
That Agency Assertions Of Interpretive
Jurisdiction Trigger Chevron
Deference.
1. The government’s first, broad theory is that
every agency is entitled to deference with respect to
every assertion of jurisdiction, including the agency’s
assertion that Congress granted it interpretive
authority. That claim is obviously irreconcilable
with this Court’s precedents. It is settled that a
court determines an agency’s interpretive
jurisdiction de novo. See Pet. Br. 19-23 (collecting
cases). An agency receives deference only when
exercising authority delegated by Congress. Chevron
U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843-44 (1984). The Fifth Circuit’s
contrary holding puts the cart before the horse: it
assumes the conclusion that Congress intended
courts to defer to the agency’s views. In many cases,
it will be obvious that Congress did give the agency
that authority, but the question must first be asked.
The government’s contrary claim that the
Court’s “consistent practice” has been to apply
Chevron deference to all questions of agency
“jurisdiction,” U.S. Br. 11, is inexplicable. In at least


5

seventeen cases, this Court has determined an
agency’s interpretive jurisdiction de novo. See Pet.
Br. 19-23. Faced with our unequivocal
representation that “this Court has never deferred to
the agency’s view that Congress intended to delegate
it authority,” id. 19, the government persists that it
is “settled” that the Court always defers to every
agency interpretation of any ambiguous
jurisdictional provision, U.S. Br. 18. But it cites no
majority opinion of this Court. Instead, it invokes a
concurrence and a dissent, both more than twenty
years old. Id. (citing Mississippi Power & Light Co.
v. Mississippi, 487 U.S. 354, 381 (1988) (Scalia, J.,
concurring in the judgment); Dole v. United
Steelworkers of Am., 494 U.S. 26, 54 (1990) (White,
J., dissenting)). That imbalance in authority speaks
for itself, and the reason for it is obvious: the
government has no answer to petitioners’ showing
that those separate opinions address only other
forms of agency power, not the antecedent
determination of the agency’s interpretive
jurisdiction. See Pet. Br. 24-25 & nn.1 & 2.
2. Much of the government’s brief is devoted to
the proposition that Chevron deference attaches to
those other, distinct “jurisdictional” assertions by
agencies. But the only reason it gives that those
arguments are relevant to this case is that it would
be “inadministrable” and “unworkable” to
distinguish between assertions of agency authority.
U.S. Br. 11, 22. That claim is not only mistaken, see,
e.g., IMLA Open. Br. 33-35, but also depends on
lumping together very different issues related to
agencies’ authority under the heading “jurisdiction,”
which is a word with “many, too many, meanings.”


6

Union Pac. R.R. v. Bhd. of Locomotive Eng’rs &
Trainmen, 130 S. Ct. 584, 596 (2009).
In fact, there is an obvious distinction between
the threshold question of interpretive jurisdiction
and other issues relating to an agency’s “authority to
act.” U.S. Br. 18. Take this case. Neither the FCC’s
declaratory ruling, nor the Fifth Circuit’s decision,
nor the government’s brief had the slightest trouble
identifying the agency’s power to interpret Section
332(c)(7) as a distinct inquiry. See U.S. Br. 5 (“As a
threshold matter, the Commission determined that
it had ‘the authority to interpret Section 332(c)(7).’”
(quoting Pet. App. 87a)); id. 9 (“Having found the
Communications Act ambiguous with respect to the
agency’s authority to construe Section 332(c)(7)(B),
the court of appeals upheld as reasonable the
Commission’s decision to exercise that power.”
(citing Pet. App. 45a-51a)); id. 11, 12, 23, 29, 31-32,
33-34, 36, 38, 39 (all recognizing the question of an
agency’s power to interpret a statute as a distinct
issue).
B. The Government Errs In Claiming That
An Agency’s General Regulatory
Authority Empowers It To Determine
Its Interpretive Jurisdiction Over A
Statutory Provision Such As Section
332(C)(7).
1. This Court’s precedent equally precludes the
government’s contention that an agency with general
regulatory authority over a statute is automatically
entitled to Chevron deference when it asserts
interpretive jurisdiction over an individual provision
of that statute. This Court has decided several cases


7

that fit that precise fact pattern; each addressed the
agency’s authority de novo. The government is
unable to identify any decision supporting its
contrary view.
In AT&T Corp. v. Iowa Utilities Bd., 525 U.S.
366 (1999), the Court considered two distinct
challenges to FCC regulations implementing the
local-competition provisions of the 1996
Telecommunications Act: (i) that Congress did not
authorize the FCC to interpret those provisions (i.e.,
that the agency lacked interpretive jurisdiction); and
(ii) that if the FCC did have that interpretive
authority, its regulations nonetheless conflicted with
the statute. The government argued that the
agency’s general regulatory authority under the Act
entitled it to Chevron deference with respect to both
claims, including the FCC’s threshold determination
that it had interpretive authority over the provisions
of the 1996 statute. See U.S. Br. 42 (arguing that
agency’s assertion of interpretive jurisdiction should
be sustained because, “[e]ven if there were some
ambiguity in those provisions, the Commission’s
interpretation of them would be entitled to
substantial deference, for ‘it is settled law that the
rule of deference applies even to an agency’s
interpretation of its own statutory authority or
jurisdiction.’” (quoting Mississippi Power, 487 U.S. at
381 (Scalia, J., concurring in the judgment)); id. 48.
But this Court did not accept that argument.
Instead, every member of the Court addressed the
agency’s authority to implement the local-
competition provisions – which the majority (per
Scalia, J.) described as “underlying FCC jurisdiction”


8

– de novo. See 525 U.S. at 377-85; id. at 407-12
(opinion of Thomas, J., dissenting). So the
government’s quotation (Br. 15) of this Court’s
statement in Iowa Utilities that “Congress is well
aware that the ambiguities it chooses to produce in a
statute will be resolved by the implementing
agency,” 525 U.S. at 397, is misleading. That
quotation actually refers to the Court’s resolution of
the substantive challenge to the FCC’s regulations,
which the Court reached only after its antecedent, de
novo determination that Congress delegated to the
FCC the power to interpret the provisions added by
the 1996 Act. See, e.g., id. at 387, 392, 395, 396
(after addressing agency’s interpretive jurisdiction
de novo, finding that FCC’s reading of definition of
“network element” was “eminently reasonable”; that
rule on separation of network elements was “well
within the bounds of the reasonable”; and that “pick
and choose” rule was “not only reasonable, it is the
most readily apparent”; but FCC had not interpreted
the statute “in a reasonable fashion” in adopting
rules on “necessary and impair” standards).
Likewise, in United States v. Mead, 533 U.S. 218
(2001), the Court recognized the “general delegation
to [the Treasury] Secretary to issue rules and
regulations for the admission of goods.” Id. at 222
(citing 19 U.S.C. § 1624). But notwithstanding that
“general rulemaking power,” the Court considered de
novo whether the specific statutory provisions
relating to classification rulings indicated that
“Congress meant to delegate authority to Customs”
to act with the force of law. Id. at 231-32.


9

And in Adams Fruit Co. v. Barrett, 494 U.S. 638
(1990), the statute at issue (the Migrant and
Seasonal Agricultural Worker Protection Act) gave
the Secretary of Labor broad authority to “issue such
rules and regulations as are necessary to carry out”
the Act. 29 U.S.C. § 1861. The Court nevertheless
considered de novo the agency’s authority to
interpret the scope of the statute’s private right of
action and held that the agency lacked the power “to
regulate the scope of the judicial power vested by the
statute.” Adams Fruit, 494 U.S. at 650.
The government’s position cannot be reconciled
with Iowa Utilities, Mead, or Adams Fruit. It
nonetheless argues (Br. 30-31) that its theory is
supported by American Hospital Association v.
NLRB, 499 U.S. 606 (1991). But American Hospital
is a Chevron Step 1, not Step 0, case. No one
disputed that the agency (the National Labor
Relations Board) had the authority to interpret the
relevant statutory provision, which addressed
bargaining units. Instead, the petitioner maintained
that the Board’s regulation specifying the number of
bargaining units in acute care hospitals
substantively conflicted with a provision of the
statute requiring that the Board make a bargaining
unit determination “in each case.” 29 U.S.C.
§ 159(b). The question was thus not the Board’s
interpretive jurisdiction (i.e., whether its regulatory
authority reached the statutory provision addressing
the number of bargaining units), but whether the
substance of its regulation was compatible with
Section 159(b).


10

The government also quotes two statements by
this Court that a “general” delegation of rulemaking
authority triggers Chevron deference with respect to
rules validly promulgated pursuant to that
authority. U.S. Br. 29, 33. That is both
uncontroversial and irrelevant: the delegation may
be general or specific, but its meaning is always
determined de novo. Neither statement suggests,
and this Court has never held, that such general
authority entitles the agency to deference regarding
whether Congress intended that general authority to
extend to a particular statutory provision such as
Section 332(c)(7). To the contrary, in one of the two
cases, the Court determined de novo that the
challenged regulation did not fall within the agency’s
rulemaking authority. Mead, 533 U.S. at 231-34.
2. The FCC’s argument that its general power
to interpret the Communications Act implies the
further authority to decide whether it may
authoritatively interpret Section 332(c)(7) violates
the cardinal rule that an agency cannot “bootstrap”
itself into its own jurisdiction. Adams Fruit, 494
U.S. at 650 (citation omitted). Put another way, the
FCC’s argument begs the question presented by this
case: is Section 332(c)(7) subject to the agency’s
general interpretive authority?
The government’s argument also makes no
sense as a presumption of congressional intent.
Chevron rests on the sensible understanding that
when Congress decides to delegate interpretive
authority to an agency, it then expects the agency to
apply its expertise to fill in gaps in the relevant
statutory provisions. But the government’s


11

argument would erect a radically different
presumption: that Congress intends agencies to
decide whether they or instead the courts have final
interpretive authority to resolve ambiguities in
statutes, with the consequence that the agency has
interpretive authority unless Congress expressly
withdraws it. That is an unsound assumption,
because it does not reflect Congress’s actual practice.
Indeed, we are unaware of any statute in which
Congress has expressly given an agency the power to
determine whether it has interpretive authority over
a statute. So there is no reason to believe that
Congress would do so impliedly, as the government’s
reliance on the ambiguity of Section 332(c)(7)
necessarily presumes.
Nor is this the type of technical question that
Congress would expect to be decided by an agency
rather than a court. To the contrary, as the
seventeen precedents set forth in our opening brief
illustrate, reading a statute to determine whether
Congress delegated interpretive jurisdiction to an
agency is a quintessential judicial task, calling for an
ordinary exercise of statutory construction.
The government’s claim that this case proves
the opposite is very misleading. According to the
government, after receiving hundreds of comments,
“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.’”
U.S. Br. 21 (Pet. App. 78a-79a, 96a-97a). But the
quoted analysis is not in the relevant part of the
FCC’s ruling – its parsing of its own “[a]uthority to


12

[i]nterpret [s]ection 332(c)(7)” (see Pet. App. 84a-87a)
– in which the agency addressed the statute and
precedents of the agency and courts. Instead, the
agency made the policy judgments quoted by the
Solicitor General only after finding that it had
interpretive authority over Section 332(c)(7), then
turned to establishing the substantive “[t]ime for
[a]cting on [f]acility [s]iting [a]pplications.” See Pet.
App. 92a-124a.
Further, the determination of interpretive
jurisdiction amounts to the allocation of power
between the branches of government. It determines
whether ambiguities in the statute’s meaning will be
resolved by courts or by the Executive Branch. Our
constitutional structure entrusts those allocative
decisions to the neutral judiciary, not agencies
burdened by the self-interest of the opportunity to
expand their own power. The government’s startling
argument that instead permitting the Executive
Branch to make those decisions “promotes
separation-of-powers principles by leaving
permissible policy choices to policy-making bodies,”
U.S. Br. 32, is nothing less than an assault on
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Indeed, it is not clear that Congress could
delegate this authority to an administrative agency,
consistent with the nondelegation principle that only
Congress may exercise the Article I legislative
powers. See Pet. Br. 29. The government’s position
permits the Executive Branch to make the
quintessentially legislative judgment that the
Executive rather than the courts will be the final
arbiters of the meaning of ambiguous statutory


13

terms. But the Solicitor General has not identified
any historical precedent for such a practice.

Whatever the ultimate outcome of that
constitutional question if Congress were ever to
delegate interpretive authority expressly, here the
Court should follow its “settled policy” of construing
statutes to avoid potential constitutional
invalidation by finding no delegation implicit in
Section 332(c)(7). Gomez v. United States, 490 U.S.
858, 864 (1989).
The Solicitor General also significantly
understates the prospect that his fellow members of
the Executive Branch will use this claimed authority
to aggrandize power to themselves. Given the
choice, an agency would rarely disclaim the
authority to finally resolve ambiguities in a statute.
The agency might choose not to exercise that power
in a particular case, but it rarely would deny its
existence outright. In fact, the government does not
identify any decision of this Court in which an
agency ever did so. Its citation to one twenty-year-
old decision, which involved a 1969 ruling of the
long-since-disbanded Interstate Commerce
Commission, is inapt. Br. 26 (citing Reiter v. Cooper,
507 U.S. 258, 269 (1993)). In even that one case, the
Commission did not decide it lacked authority to
interpret the provision; that issue was not before the
Court. Rather, the issue was whether under the
relevant statute the courts or the ICC had the
“power to decree reparations relief.” Reiter, 507 U.S.
at 269.
The government finally says that for Congress to
prevent an agency from seizing the final interpretive


14

authority over a statute, “it need only make that
intent clear, either by defining the agency’s
affirmative powers in a way that unambiguously
excludes the relevant activities, or by enacting a
specific exception to a grant of regulatory authority.”
U.S. Br. 31-32. That is all: just perfect clarity in
every instance. In addition to its other flaws, the
government’s position certainly does not reflect how
Congress actually writes laws. And in turn, the
government’s theory squarely conflicts with this
Court’s holding that the determination of whether
an agency’s position is consistent with a statute is
made on the basis of “traditional tools of statutory
construction,” U.S. Br. 17 (quoting Chevron, 467 U.S.
at 843 n.9), not per se rules. See Mead, 533 U.S. at
229-31; see also, e.g., FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 134 (2000) (FDA lacked
the authority to regulate cigarettes despite the
absence of any express limitation); Gonzales v.
Oregon, 546 U.S. 243, 259 (2006) (Attorney General
had limited authority to implement the Controlled
Substances Act even absent express congressional
limitation); Rapanos v. United States, 547 U.S. 715,
751-52 (2006) (although Congress had refused to
limit the Army Corps of Engineers’ authority under
the Clean Water Act, a limitation nevertheless
existed in the terms of the statute).
The Fifth Circuit accordingly erred in deferring
to the FCC’s assertion that it possesses the final
interpretive authority to resolve ambiguities in
Section 332(c)(7), rather than deciding that question
de novo.


15

II. This Case Illustrates That Interpretive
Jurisdiction Is Properly Determined De
Novo.
The government asserts that the FCC has
interpretive jurisdiction over Section 332(c)(7)
because Congress did not expressly bar the agency
from invoking its general authority to implement the
Communications Act. On that view, the role of
Section 332(c)(7) is not to grant state and local
governments the flexibility to account for local
conditions within the outer bounds specified by
Congress, but rather to grant the FCC the sweeping
power to use Section 332(c)(7) as a tool to implement
the broader policies it believes are embodied
throughout the Act. Thus, although the FCC
characterizes its existing ruling as modest, the
agency could presumably go much further and
provide for a mandatory fifteen-day review period for
wireless siting requests. Telecommunications
companies have also urged the FCC to conclude that
it has jurisdiction to rule that an application will be
deemed granted if not timely acted upon. Pet. App.
108a-09a.
The FCC’s arguments fail on the merits and
illustrate why courts must determine the scope of
agencies’ interpretive jurisdiction de novo, rather
than deferring to the agencies’ self-interested
judgments expanding their own power. Manifestly,
none of the government’s arguments – which are
based on the statute, its legislative history, and this
Court’s decisions – relate to technical matters that
Congress would expect to be resolved by the FCC,
not a court. Although the government’s reading of


16

the statute survived the Fifth Circuit’s deferential
review because it was not “impermissible,” Pet. App.
51a, the FCC’s broad assertion of interpretive
authority is not the statute’s best reading.
1. The government asserts that its
interpretation follows from the holding of Iowa
Utilities that the FCC’s general regulatory authority
applies to two provisions added by the 1996
Telecommunications Act. But as discussed in Part I,
supra, the government’s argument fails to
acknowledge that this Court determined the FCC’s
authority to implement those provisions de novo, not
deferentially. This Court did not accept – and it
makes no sense to conclude – that Congress left to
the FCC the decision whether the FCC had that
interpretive authority.
Furthermore, Iowa Utilities did not adopt a
categorical rule that every provision added to the
Communications Act is subject to the FCC’s general
regulatory authority absent an express contrary
statement by Congress. As the majority
acknowledged, the FCC’s interpretive jurisdiction
“assuredly” turns (525 U.S. at 378 n.5) on “what
th[e] later enacted statute contemplates” (id. at 420
(Breyer, J., concurring in part and dissenting in
part)). The provisions at issue in Iowa Utilities – 47
U.S.C. §§ 251 and 252 – created a uniform federal
regulatory regime in which the states could
participate or not at their discretion. Recognizing
that “a federal program administered by 50
independent state agencies is surpassing strange”
(525 U.S. at 378 n.6), the Court found no reason to
“speculat[e]” (id. at 378 n.5) that Congress intended


17

those provisions to not be subject to the FCC’s
general regulatory authority.
Section 332(c)(7) is very different. It preserves
local authority rather than enacting a federal
regulatory program. Section 332(c)(7) provides in its
very first sentence that “nothing” else in the
Communications Act “shall limit or affect” state and
local zoning authority. That is not a “savings clause”
that “merely provides that other provisions of the
Communications Act should not be construed to
impose separate limitations on local zoning
authority.” U.S. Br. 14 (emphasis omitted). By its
terms, the exclusion in Section 332(c)(7) reaches the
FCC’s general regulatory authority – which is set
forth in Sections 1, 4(i), 201(b), and 303(r) of the Act
– as well as the agency’s policy in favor of speeding
the deployment of wireless facilities. Thus, the
FCC’s adoption in this proceeding of its “shot clock”
rule – which mandates expedited decisions on
wireless siting applications – certainly “affect[s]”
local authority, as would of course the many other
rules the agency could presumably enact pursuant to
its claimed interpretive authority. See Black’s Law
Dictionary 92 (8th ed. 2004) (to “affect” is “to produce
an effect on; to influence in some way”).
The FCC’s contrary interpretation effectively
nullifies Section 332(c)(7)’s prohibition on invoking
other provisions of the act that “affect” state and
local rulemaking. That provision must be read “to
preserve the primary operation of” the exclusion.
Comm’r of Internal Revenue v. Clark, 489 U.S. 726,
739 (1989). The government fails to explain how it
reads the exclusion, but presumably interprets it


18

merely as a formal prohibition on a court expressly
invoking other provisions of the Communications Act
to limit state and local wireless siting authority. In
practice, however, the government would render the
exclusion a dead letter by permitting the FCC by
rule or order to pursue all the “policies” embodied in
those otherwise-excluded provisions of the Act. See,
e.g., Pet. App. 103a-106a (FCC ruling explaining
that deadlines were intended to further build-out
requirements for 700 MHz spectrum, advance
wireless 911 services, and promote advanced
services under another statute entirely, the Recovery
Act).
The statute’s structure reflects, however, that
when Congress wanted to subject this area of
traditional state and local authority to FCC
rulemaking, it said so expressly. In the 1996 Act,
Congress both authorized the FCC to undertake a
rulemaking on the effects of “radio frequency
emissions” (110 Stat. 56 § 704(b)) and provided in
Section 332(c)(7)(B)(iv) that “the Commission’s
regulations” take precedence over contrary state and
local regulation.
The statutory history is equally instructive.
Congress considered an earlier House alternative
that would have provided for an FCC rulemaking to
establish a “policy” to ensure that state and local
governments acted “within a reasonable period of
time after the request is fully filed.” Pet. App. 213a.
But Congress instead enacted the very different
provisions of Section 332(c)(7), which forbids the
FCC from resorting to other provisions of the
Communications Act. Yet the FCC reads the statute


19

to impose the mandate from the House bill that
Congress determined not to adopt.
The essence of Section 332(c)(7) is thus to
recognize and embrace a principally state and local
regulatory regime for wireless siting decisions, in
contrast to the broader national regime
contemplated by provisions of the Communications
Act like those considered in Iowa Utilities. Congress
did not intend to allow the FCC to require Arlington,
Texas to follow the same timetables for zoning
decisions as Arlington, Virginia. Rather, the statute
requires each state and local government to honor its
own zoning policies, without targeting cell tower
applications for unique, hostile treatment in the
form of bans, discrimination, and delays. Town of
Amherst v. Omnipoint Comm’ns Enters., 173 F.3d 9,
17 (1st Cir. 1999) (Congress conceived that this
“experiment in federalism” would produce “at some
cost and delay for the carriers” individual solutions
“best adapted to the needs and desires of particular
communities”); Pet. App. 210a (Conference Report)
(“It is not the intent of this provision to give
preferential treatment to the personal wireless
service industry in the processing of requests, or to
subject their requests to any but the generally
applicable time frames for zoning decision.”). But
the government’s reading turns the statute on its
head, converting it into a tool for national
policymaking by the FCC.
The relevant precedent is accordingly not Iowa
Utilities, but instead Louisiana Public Service
Commission v. FCC, 476 U.S. 355 (1986), which our
opening brief cited seven times yet the government


20

completely ignores. Just as Section 332(c)(7)(A)
provides that “nothing in this Act shall limit or
affect” state and local wireless siting authority, the
provision in that case (Section 152(b)) stated that
“nothing in this chapter shall be construed to apply
or to give the Commission jurisdiction with respect
to” interstate communications services. Addressing
the question de novo, this Court held that “this
provision fences off from FCC reach or regulation
intrastate matters,” and takes precedence over any
other “provision declaring a general statutory
purpose.” 476 U.S. at 370. Congress notably
enacted Section 332(c)(7)’s exclusionary “nothing in
this chapter” provision against the backdrop of this
Court’s ruling in Louisiana Public Service
Commission.
The government’s reliance on Iowa Utilities is
also flawed because Section 332(c)(7)’s judicial
review provision makes this case better analogized
to Adams Fruit. As discussed, the statute in that
case gave the Secretary of Labor sweeping authority
to “issue such rules and regulations as are necessary
to carry out” the Act. 29 U.S.C. § 1861. But this
Court held that power did not include the authority
to interpret the private right of action under the
statute, because Congress had not authorized the
Secretary to “regulate the scope of the judicial power
vested by the statute.” Adams Fruit, 494 U.S. at
650. Section 332(c)(7) has a parallel structure.
Congress gave enforcement authority over Section
332(c)(7) to the courts, and specifically withheld that
authority from the FCC. 47 U.S.C. § 332(c)(7)(B)(v).


21

Nor can it be seriously argued that the statute
requires FCC implementation. For the thirteen
years prior to the FCC’s assertion of interpretive
jurisdiction in this ruling, the judiciary applied the
statute without difficulty. The courts read Section
332(c)(7) to preserve state and local zoning
requirements rather than to require a national
zoning regime. See, e.g., Aegerter v. City of Delafield,
174 F.3d 886, 892 (7th Cir. 1999) (“Some may
disagree with Congress’s decision to leave so much
authority in the hands of state and local
governments to affect the placement of the physical
infrastructure of an important part of the nation’s
evolving telecommunications network. But that is
what it did when it passed the Telecommunications
Act of 1996, and it is not our job to second-guess that
political decision.”). No court read the statute to
impose national administrative standards, much less
“attempt[ed] to replicate the inquiry that the FCC
conducted” of calculating national averages. U.S. Br.
43; see, e.g., N.Y. SMSA Ltd. P’shp v. Town of
Riverhead Town Bd., 118 F. Supp. 2d 333, 341
(E.D.N.Y. 2000); SNET Cellular, Inc. v. Angell, 99 F.
Supp. 2d 190, 198 (D.R.I. 2000). The FCC’s ruling
in this case thus unavoidably overturns many prior
court decisions. See, e.g., U.S. Br. 40 n.10.
2. The government’s claim that its
interpretation nonetheless represents the best
reading of Section 332(c)(7) is unconvincing. And
again, none of its arguments addresses a matter
within the special technical competence of the FCC,
as opposed to a question of statutory construction for
which courts rather than agencies are better suited.


22

Principally, the government invokes the FCC’s
general regulatory authority over the
Communications Act. But Congress would not have
thought those provisions would override Section
332(c)(7)’s express provision that “nothing” else in
the Communications Act may “affect the authority of
a State or local government.” 47 U.S.C.
§ 332(c)(7)(A) (emphasis added). Contrary to the
government’s submission, no principle of statutory
construction imposes on Congress the burden to
separately identify and negate each source of
regulatory authority and policy that the agency
might someday invoke.
The government next argues that the FCC’s
ruling “does not subject state and local officials to
obligations going beyond those imposed by the 1996
Act itself.” U.S. Br. 40 n.10. But Section 332(c)(7)’s
express exclusionary language is not limited to
additional “obligations.” In broad terms, it forbids
the FCC from invoking other provisions of the Act
that would “affect” state and local decisionmaking.
Unquestionably, the ruling in this case does so, and
thereby “affects” local governments’ ability to decide
wireless siting applications in a manner and on a
schedule that reflect local conditions. That was the
very point.
Section 332(c)(7) thus provides that state and
local governments must act on applications “within a
reasonable
period of time.” 47 U.S.C.
§ 332(c)(7)(B)(ii) (emphasis added). As discussed,
courts interpreted the phrase “reasonable” to give
state and local governments the flexibility to account
for local circumstances. By contrast, the FCC reads


23

the same term to give the agency the flexibility to
impose a uniform national zoning standard that
conforms to its overall policy goals under the
Communications Act. Never before was a state
following its own law presumed to have violated
federal law. Several states – and municipalities
within those states – now are. Pet. App. 118a (¶ 48);
Pet. 9. Never before was a local government
presumed to have acted unreasonably when it
followed its own standard zoning public hearing
procedures. Now some are. Pet. App. 115a (¶ 44)
(noting that new timelines “accommodate reasonable
processes in most instances”) (emphasis added). The
agency recognized that the risks created by new
federal requirements would in some instances force
local governments to approve applications that they
otherwise would not. Pet. 188a. There is
accordingly no serious argument that the FCC’s
assertion of authority does not “affect” state and
local decisionmaking.
For essentially the same reason, the government
has matters backwards in asserting that the FCC
has interpretive jurisdiction unless Congress
expressly revokes it. The FCC’s ruling represents a
substantial intrusion on a sphere of classically state
and local regulation, see, e.g., Village of Euclid v.
Ambler Realty Co., 272 U.S. 365, 387 (1926), and
communities across the country enact these powers
through local political processes. This case
accordingly directly implicates the presumption that
statutes do not change the balance of federal and
state authority. See New York v. United States, 505
U.S. 144, 166 (1992) (“the Framers explicitly chose a
Constitution that confers upon Congress the power


24

to regulate individuals, not States”); Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991) (“[I]f Congress
intends to alter the ‘usual constitutional balance
between the States and the Federal Government,’ it
must make its intention to do so ‘unmistakably clear
in the language of the statute.’” (citations omitted)).
Accordingly, the better reading is that Congress
concluded that its decision in Section 332(c)(7) to
protect local interests would be better effectuated if
the statute were interpreted by the neutral judiciary
– which is attentive to concerns of federalism –
rather than interpreted by the FCC as a means to
effectuate national telecommunications policy.
Indeed, at the time Congress enacted the statute, the
FCC had itself just expressed the view that zoning
matters are “within the province of, and best
resolved by, local land use authorities.” In re
Artichoke Broad. Co., 10 FCC Rcd. 12,631, 12,633
(1995).
The government’s remaining argument is that
its position is supported by the House Report on the
legislation. U.S. Br. 2-3 (H.R. Rep. No. 204, 104th
Cong., 1st Sess. Pt. 1, at 94 (1995)). But that Report
addresses the House legislation – rejected in
conference – calling for a rulemaking to establish
policy on wireless siting decisions; it does not
address Section 332(c)(7) as enacted. By contrast,
the Conference Report on the enacted legislation –
which the government does not cite – does not
include the language cited by the government,
including regarding a desire for “uniform, consistent”
requirements. H.R. Rep. No. 204 at 94-95.


25

To the contrary, the Conference Report directs
the Commission to terminate any rulemaking related
to wireless citing, and explains that the statute
imposes “limitations on the role and powers of the
Commission . . . relate[d] to land use regulations.”
Pet. App. 209a, 211a. See Pet. Br. 32-33. It explains
that local governments have “flexibility to treat
facilities that create different visual, aesthetic, or
safety concerns differently to the extent permitted
under generally applicable zoning requirements.”
Pet. App. 209a. It adds that “[i]t is not the intent of
this provision to give preferential treatment to the
personal wireless service industry in the processing
of requests, or to subject their requests to any but
the generally applicable time frames for zoning
decision.” Id. 210a. And it specifies that “the courts
shall have exclusive jurisdiction over all . . . disputes
arising under this section.” Id. 209a.
In sum, Section 332(c)(7) illustrates that an
agency’s interpretive jurisdiction is properly
determined de novo.


26

CONCLUSION
The Court should reverse the judgment, or vacate
that judgment and remand the case.
Respectfully submitted,

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

Utility Issues2


2 Petitioners acknowledge as well the financial assistance
provided by the Cities of Austin, Texas and Yuma, Arizona, as
well as the Michigan Municipal League Defense Fund Board.


Document Outline

  • TABLE OF AUTHORITIES
  • REPLY BRIEF FOR PETITIONERS CITY OF ARLINGTON ET AL.
    • I. The Fifth Circuit Erred In Holding That Courts Defer To Agencies Assertion Of Interpretive Jurisdiction.
      • A. The Government Errs In Asserting That Agency Assertions Of Interpretive Jurisdiction Trigger Chevron Deference.
      • B. The Government Errs In Claiming That An Agencys General Regulatory Authority Empowers It To Determine Its Interpretive Jurisdiction Over A Statutory Provision Such As Section 332(C)(7).
    • II. This Case Illustrates That Interpretive Jurisdiction Is Properly Determined De Novo.
  • CONCLUSION

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