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T-Mobile Northeast LLC v. Fairfax County Board of Supervisors

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Released: March 18, 2011




AMICUS BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION

IN SUPPORT OF NEITHER PARTY

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NO. 11-1060

T-MOBILE NORTHEAST LLC,
Appellant,
v.
FAIRFAX COUNTY BOARD OF SUPERVISORS,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA



AUSTIN C. SCHLICK

GENERAL COUNSEL

PETER KARANJIA

DEPUTY GENERAL COUNSEL

RICHARD K. WELCH

ACTING ASSOCIATE GENERAL

COUNSEL

JAMES M. CARR
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


TABLE OF CONTENTS

Page

STATEMENT OF INTEREST...................................................................................1
STATEMENT OF FACTS .........................................................................................2
A.
Section 332(c)(7) of the Communications
Act ...............................................................................................2
B. The
FCC's
Declaratory Ruling...................................................5
C. The
Present Appeal .....................................................................7
ARGUMENT .............................................................................................................9
I.
THE FCC HAS REJECTED THIS COURT'S
"BLANKET BAN" INTERPRETATION OF
SECTION 332(c)(7)(B)(i)(II). ............................................................10
II.
THE FCC'S INTERPRETATION OF SECTION
332(c)(7)(B)(i)(II) IS ENTITLED TO
DEFERENCE......................................................................................13
CONCLUSION........................................................................................................15

i

TABLE OF AUTHORITIES

Page

Cases


AT&T Corp. v. Iowa Util. Bd., 525 U.S. 366 (1999) .......................................9
AT&T Wireless PCS, Inc. v. City Council of Va. Beach,
155 F.3d 423 (4th Cir. 1998) .................................................... 5, 12, 13
Chevron USA v. Natural Resources Def. Council, 467
U.S. 837 (1984) .............................................................................. 9, 10
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113
(2005) ....................................................................................................4
Clear Wireless, LLC v. City of Wilmington, No. 10-218-
MPT, 2010 WL 3463729 (D. Del. Aug. 30, 2010)................................2
Elm Grove Coal Co. v. Director, Office of Workers'
Comp. Programs, 480 F.3d 278 (4th Cir. 2007)..................................13
Fernandez v. Keisler, 502 F.3d 337 (4th Cir. 2007) ............................... 10, 13
Liberty Towers, LLC v. Zoning Hearing Bd. of Lower
Makefield, No. 10-1666, 2010 WL 3769102 (E.D.
Pa. Sept. 28, 2010).................................................................................2
Morton v. Ruiz, 415 U.S. 199 (1974)...............................................................9
National Cable & Telecommunications Ass'n v. Brand X
Internet Servs., 545 U.S. 967 (2005).................................... 5, 9, 10, 13
Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005) ........................................4
Second Generation Properties, L.P. v. Town of Pelham,
313 F.3d 620 (1st Cir. 2002)................................................................11
Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51
(1st Cir. 2001)........................................................................................4
Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of
Paramus, No. 09-4940, 2010 WL 4868218 (D.N.J.
Nov. 22, 2010) .......................................................................................2
ii

Page

Town of Amherst v. Omnipoint Commc'ns Enters., 173
F.3d 9 (1st Cir. 1999).............................................................................3
USCOC of Virginia RSA # 3, Inc. v. Montgomery Co. Bd.
of Supervisors, 343 F.3d 262 (4th Cir. 2003) ........................................6

Administrative Decisions


Amendment of the Commission's Rules to Establish Part
27, the Wireless Communications Service, 12 FCC
Rcd 10785 (1997)..................................................................................3
Petition for Declaratory Ruling to Clarify Provisions of
Section 332(c)(7)(B), 24 FCC Rcd 13994 (2009),
petitions for review pending, City of Arlington and
City of San Antonio v. FCC,
5th Cir. Nos. 10-
60039 & 10-60805............................................ 2, 5, 6, 7, 10, 11, 12, 14
Petition for Declaratory Ruling to Clarify Provisions of
Section 332(c)(7)(B), 25 FCC Rcd 1215 (Wireless
Bur. 2010)..............................................................................................2

Statutes and Regulations


47 U.S.C. 151................................................................................................9
47 U.S.C. 151 et seq. ....................................................................................1
47 U.S.C. 332(c)(7)(A).................................................................................4
47 U.S.C. 332(c)(7)(B) .................................................................................8
47 U.S.C. 332(c)(7)(B)(i)(I) .........................................................................9
47 U.S.C. 332(c)(7)(B)(i)(II)....................... 5, 6, 8, 9, 10, 11, 12, 13, 14, 15
47 U.S.C. 332(c)(7)(B)(v) ............................................................................7
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 ............................................................................................3

iii

Page

Others


S. Conf. Rep. No. 104-230, at 1 (1996)...........................................................3
iv



IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NO. 11-1060

T-MOBILE NORTHEAST LLC,
Appellant,
v.
FAIRFAX COUNTY BOARD OF
SUPERVISORS,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF VIRGINIA

AMICUS BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION

IN SUPPORT OF NEITHER PARTY

STATEMENT OF INTEREST

Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, the
Federal Communications Commission respectfully submits this brief as amicus
curiae. The FCC has primary responsibility for implementing and enforcing the
Communications Act of 1934, 47 U.S.C. 151 et seq. This case involves review
of a district court's application of section 332(c)(7)(B)(i)(II) of the Act and the
FCC's construction of that provision in a recent declaratory ruling. See Petition
for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC Rcd


2

13994, 14015-19 54-65 (2009) ("Declaratory Ruling"), petitions for review
pending, City of Arlington and City of San Antonio v. FCC, 5th Cir. Nos. 10-60039
& 10-60805.1 The FCC has an interest in ensuring that the Act and the agency's
precedents are correctly interpreted, but otherwise takes no position on the merits
of this appeal.

STATEMENT OF FACTS

A.

Section 332(c)(7) of the Communications Act

Wireless telecommunications services play a prominent and pervasive role
in "the economic, civic, and social lives of over 270 million Americans."
Declaratory Ruling, 24 FCC Rcd at 13995 3. Increasingly, Americans have
come to rely "on their mobile devices for broadband services" (such as high-speed
Internet access) as well as voice services. Id. "Without access to mobile wireless
networks, however, consumers cannot receive voice and broadband services from
providers." Id.

1 Although two municipalities have petitioned for review of the Declaratory Ruling
in the Fifth Circuit, no party asked that court to stay the Declaratory Ruling. And
the FCC's Wireless Telecommunications Bureau denied a request for a stay in
January 2010. Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B)
, 25 FCC Rcd 1215 (Wireless Bur. 2010). Therefore, the Declaratory
Ruling
is currently in effect. Indeed, several district courts in the Third Circuit
have ruled that the FCC's statutory construction in the Declaratory Ruling
supersedes the Third Circuit's contrary reading of the statute. See Sprint Spectrum
L.P. v. Zoning Bd. of Adjustment of Paramus
, No. 09-4940, 2010 WL 4868218
(D.N.J. Nov. 22, 2010); Liberty Towers, LLC v. Zoning Hearing Bd. of Lower
Makefield
, No. 10-1666, 2010 WL 3769102 (E.D. Pa. Sept. 28, 2010); Clear
Wireless, LLC v. City of Wilmington
, No 10-218-MPT, 2010 WL 3463729 (D. Del.
Aug. 30, 2010).


3

An effective national wireless telecommunications network depends on the
periodic construction and modification of cellular phone towers and antenna sites.
Local residents, though, sometimes resist the erection of such facilities in their
communities for aesthetic and other reasons. As a result, "zoning approval for new
[wireless] facilities is both a major cost component and a major delay factor in
deploying wireless systems." Amendment of the Commission's Rules to Establish
Part 27, the Wireless Communications Service, 12 FCC Rcd 10785, 10833 90
(1997).
Congress balanced these competing federal and local concerns when it
adopted the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
("1996 Act"). The 1996 Act, which substantially amended the Communications
Act, established "a pro-competitive, de-regulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced
telecommunications ... services to all Americans by opening all
telecommunications markets to competition." S. Conf. Rep. No. 104-230, at 1
(1996).
As part of the 1996 Act, Congress added section 332(c)(7) to the
Communications Act. That provision reflects "a deliberate compromise between
two competing aims to facilitate nationally the growth of wireless telephone
service and to maintain substantial local control over [the] siting of [cellular
phone] towers" and other wireless telecommunications infrastructure. Town of
Amherst v. Omnipoint Commc'ns Enters., 173 F.3d 9, 13 (1st Cir. 1999). Section
332(c)(7) "attempts to strike a balance between the states' interests in regulating


4

land use and the federal government's interest in facilitating the development of
wireless telephone service." Pinney v. Nokia, Inc., 402 F.3d 430, 455 (4th Cir.
2005).
Reflecting this balance, section 332(c)(7), entitled "Preservation of local
zoning authority," contains two parts. In the first part, entitled "General
authority," section 332(c)(7)(A) preserves the residual zoning authority of State
and local governments "over decisions regarding the placement, construction, and
modification of personal wireless service facilities" (such as cell towers and
transmitters). 47 U.S.C. 332(c)(7)(A). In the second part, entitled "Limitations,"
section 332(c)(7)(B) "imposes specific limitations on the traditional authority of
[S]tate and local governments to regulate the location, construction, and
modification of such facilities." City of Rancho Palos Verdes v. Abrams, 544 U.S.
113, 115 (2005). These "substantive and procedural limitations ... subject [State
and local governments] to an outer limit upon their ability to regulate ... land use"
in the wireless communications context. Southwestern Bell Mobile Sys., Inc. v.
Todd, 244 F.3d 51, 57 (1st Cir. 2001) (internal quotation marks omitted).
Congress adopted these restrictions on local zoning authority to "reduc[e] ... the
impediments imposed by local governments upon the installation of facilities for
wireless communications." Rancho Palos Verdes, 544 U.S. at 115.
As relevant here, one of the statute's limitations on local zoning authority is
set forth in section 332(c)(7)(B)(i)(II), which provides that State or local regulation
of the siting of wireless service facilities "shall not prohibit or have the effect of
prohibiting the provision of personal wireless services." 47 U.S.C.


5

332(c)(7)(B)(i)(II). The Act does not define what constitutes an actual or an
"effective" prohibition of wireless services for purposes of section
332(c)(7)(B)(i)(II). That task is left to the FCC as the administrative agency
charged with interpreting and implementing the Communications Act. See
National Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S.
967, 980-81 (2005) ("Brand X").

B.

The FCC's Declaratory Ruling

On July 11, 2008, CTIA The Wireless Association, a national trade
association of wireless telephone service providers, filed a petition for declaratory
ruling with the FCC. Among other things, it sought clarification of the meaning of
section 332(c)(7)(B)(i)(II)'s prohibition provision. Noting that various courts of
appeals had disagreed over the meaning of that provision, CTIA contended that
some courts had misconstrued the provision to permit the denial of a wireless
facility siting application "so long as a single wireless provider serves the area."
Declaratory Ruling, 24 FCC Rcd at 14015 54. In particular, CTIA noted that in
1998, a panel of this Court had concluded that section 332(c)(7)(B)(i)(II) only
applies when a State or local authority has adopted a blanket ban on wireless
service facilities. Id. at 14016 n.175 (citing AT&T Wireless PCS, Inc. v. City
Council of Va. Beach, 155 F.3d 423, 428-29 (4th Cir. 1998) ("Virginia Beach")).
Under that reading of the statute, the deployment of wireless facilities could be


6

thwarted simply because another wireless provider already serves the same area.2
CTIA asked the Commission to clarify that State or local regulation of wireless
facility siting violates section 332(c)(7)(B)(i)(II) if it "effectively prohibits one
carrier from providing service because service is available from one or more other
carriers." Id. at 14015 54.
In a declaratory ruling issued in November 2009, the FCC agreed with CTIA
that section 332(c)(7)(B)(i)(II) is not as narrow as the Court in Virginia Beach
understood. Focusing on the statutory language and the congressional objective of
fostering the deployment of wireless services, the agency concluded that if a State
or local government denies a wireless facility siting application "solely because
one or more carriers serve a given geographic market," it "has engaged in unlawful
regulation that prohibits or ha[s] the effect of prohibiting the provision of personal
wireless services, within the meaning of Section 332(c)(7)(B)(i)(II)." Declaratory
Ruling, 24 FCC Rcd at 14016 56 (internal quotation marks omitted). The
Commission found that this reading was supported by both the text of the statute,
id. at 14017 58, and the pro-competitive "goals of the Communications Act," id.
at 14017 61.

2 The Court later recognized "the theoretical possibility that the denial of an
individual permit could amount to a prohibition of service if the service could only
be provided from a particular site," but it observed that "such a scenario seems
unlikely in the real world." USCOC of Virginia RSA # 3, Inc. v. Montgomery Co.
Bd. of Supervisors
, 343 F.3d 262, 268 (4th Cir. 2003) (internal quotation marks
omitted).


7

In reaching this conclusion, the Commission expressly rejected the Virginia
Beach panel's "interpretation that the statute only limits localities from prohibiting
all personal wireless services (i.e., a blanket ban or `one-provider' approach)."
Declaratory Ruling, 24 FCC Rcd at 14017 60 (emphasis added). Noting that
"Congress sought ultimately to improve [wireless] service quality and lower prices
for consumers," the Commission explained that its construction of the statute
"promotes these statutory objectives more effectively" than the narrow reading
adopted in Virginia Beach, "which could perpetuate significant coverage gaps
within any individual wireless provider's service area and, in turn, diminish the
service provided to [its] customers." Id. at 14017-18 61. "In addition," the
Commission explained, under the blanket ban approach, "competing providers may
find themselves barred from entering markets to which they would have access
under our interpretation of the statute, thus depriving consumers of the competitive
benefits the Act seeks to foster." Id. at 14018 61.

C.

The Present Appeal

To expand the scope of its wireless telecommunications service in Fairfax
County, Virginia, T-Mobile Northeast LLC ("T-Mobile") applied to the County
Board of Supervisors ("the Board") for permission "to extend an existing 100-foot
transmission pole ... by 10 feet and to install a wireless telecommunications
facility on the extension." JA783. After a public hearing, the Board denied T-
Mobile's applications in early 2010.
Pursuant to 47 U.S.C. 332(c)(7)(B)(v), T-Mobile filed suit against the
Board in the United States District Court for the Eastern District of Virginia. It


8

claimed that the Board, by denying T-Mobile's applications, violated several
provisions of 47 U.S.C. 332(c)(7)(B). Among other things, T-Mobile alleged
that the Board's decision "prohibited, or had the effect of prohibiting, the provision
of personal wireless services in violation of 332(c)(7)(B)(i)(II)." JA791.
T-Mobile and the Board filed cross-motions for summary judgment. On
December 17, 2010, the district court granted the Board's motion and denied T-
Mobile's motion. JA816.
In rejecting T-Mobile's "effective prohibition" claim under 47 U.S.C.
332(c)(7)(B)(i)(II), the district court stated that it was "not persuaded by T-
Mobile's suggestion" that the FCC's Declaratory Ruling "rejects the effective
prohibition standard of the Fourth Circuit." JA810. The court construed the
Declaratory Ruling to prohibit only what the court described as "the one-provider
rule," under which zoning authorities may deny a siting application "based solely
on the presence of other wireless service providers in the area." JA810-11. In the
district court's view, the "one-provider rule" is distinct from the blanket ban
approach adopted by the Court in Virginia Beach, and the FCC's rejection of the
former did not necessarily entail the rejection of the latter. Thus, the district court
understood that "the FCC's criticism of the Fourth Circuit's `blanket ban
requirement' as set forth in Virginia Beach is limited in context to the one-provider
rule and does not reject the holding [of Virginia Beach] in its entirety." JA811.
The district court went on to conclude that "the one-provider rule is not
implicated" in this case because "the Board's decision was based on traditional
zoning principles and not on the presence of other service providers." JA811.


9

In its appeal from the district court's ruling, T-Mobile argues that the district
court erred in finding that the Board did not violate section 332(c)(7)(B)(i)(II).
Specifically, T-Mobile contends that the Board's denial of T-Mobile's applications
effectively prohibited the provision of wireless service in violation of section
332(c)(7)(B)(i)(II).3

ARGUMENT

"Congress has delegated to the [FCC] the authority to `execute and enforce'
the Communications Act." Brand X, 545 U.S. at 980 (quoting 47 U.S.C. 151).
Accordingly, "the ambiguities" that Congress incorporated into the statute "will be
resolved by [the FCC as] the implementing agency." AT&T Corp. v. Iowa Util.
Bd., 525 U.S. 366, 397 (1999). The FCC's power to administer the
Communications Act therefore "necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or explicitly, by Congress."
Chevron USA v. Natural Resources Def. Council, 467 U.S. 837, 843 (1984)
(quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). The Commission cannot
effectively implement the Communications Act and avoid inconsistent judicial
interpretations of the same statutory provision unless the courts apply the
agency's reasonable interpretation of the statute's ambiguities. Consequently, the
FCC has a strong interest in ensuring that when a court adjudicates a dispute
involving an ambiguous provision of the Act, the court honors the agency's

3 T-Mobile also asserts that the Board violated 47 U.S.C. 332(c)(7)(B)(i)(I) by
unreasonably discriminating against T-Mobile. This brief does not address any
aspect of that claim.


10

reasonable reading of the statute. As the Supreme Court has explained, "[i]n such
a case, a court may not substitute its own construction of a statutory provision for a
reasonable interpretation made by the [FCC]." Id. at 844.
The FCC takes no position here on the ultimate merits of T-Mobile's claims
against the Board. The sole purpose of this amicus brief is to call to the Court's
attention the authoritative interpretation of section 332(c)(7)(B)(i)(II) that the
Commission adopted in its November 2009 Declaratory Ruling. The agency's
statutory interpretation is controlling, even if the Court adopted a different reading
of the statute in previous cases. See Brand X, 545 U.S. at 982-86; see also
Fernandez v. Keisler, 502 F.3d 337, 347-51 (4th Cir. 2007) (deferring to an
agency's statutory interpretation that conflicted with prior Fourth Circuit
precedent).

I.

THE FCC HAS REJECTED THIS COURT'S
"BLANKET BAN" INTERPRETATION OF
SECTION 332(c)(7)(B)(i)(II).

In the Declaratory Ruling, the Commission concluded that if a local zoning
authority denies a wireless siting application "solely because one or more carriers
serve a given geographic market," it "has engaged in unlawful regulation that
prohibits or ha[s] the effect of prohibiting the provision of personal wireless
services, within the meaning of Section 332(c)(7)(B)(i)(II)." Declaratory Ruling,
24 FCC Rcd at 14016 56. The agency acknowledged that "this provision could
be interpreted in the manner endorsed by several courts" including this Court in
Virginia Beach "as a safeguard against a complete ban on all personal wireless
service within the State or local jurisdiction." Id. at 14017 57. But the


11

Commission reasoned that "under the better reading of the statute," the restriction
on zoning authority imposed by section 332(c)(7)(B)(i)(II) should apply "not just
to" land use applications by "the first [wireless] carrier to enter into the market, but
also to" siting requests by "all subsequent entrants." Id.
The Commission adopted this reading for several reasons. First, it found
that this interpretation is "consistent with the statutory language referring to the
prohibition of `the provision of personal wireless services' rather than the singular
term `service.'" Declaratory Ruling, 24 FCC Rcd at 14017 58. The Commission
explained that Congress's use of the plural term "services" suggests that Congress
"contemplated that there be multiple carriers competing to provide services to
consumers." Id. (quoting Second Generation Properties, L.P. v. Town of Pelham,
313 F.3d 620, 634 (1st Cir. 2002)).
Second, the Commission noted that if the presence of a single wireless
service provider in a locality automatically precluded a finding of prohibition of
service under section 332(c)(7)(B)(i)(II), the statute would fail to reach some State
and local regulation that in fact prohibits the provision of wireless service. In
particular, when the first carrier serving an area does not provide service to the
entire locality, "a zoning approach that subsequently prohibits or effectively
prohibits additional carriers ... may leave segments of the population unserved or
underserved.... Such action on the part of the [State or local government] would
contradict the clear intent of the statute." Declaratory Ruling, 24 FCC Rcd at
14017 59.


12

Finally, the Commission determined that its reading of section
332(c)(7)(B)(i)(II) is "most consistent" with the statute's purposes. Declaratory
Ruling, 24 FCC Rcd at 14017 61. "In promoting the construction of nationwide
wireless networks by multiple carriers, Congress sought ultimately to improve
service quality and lower prices for consumers." Id. The Commission concluded
that its statutory interpretation "promotes these statutory objectives more
effectively than the alternative" approach adopted in the Virginia Beach case. Id.
That narrow construction of the statute, the agency explained, "could perpetuate
significant coverage gaps within any individual wireless provider's service area"
and could bar "competing providers ... from entering markets to which they would
have access under [the FCC's] interpretation of the statute, thus depriving
consumers of the competitive benefits the Act seeks to foster." Id. at 14017-18
61.4

4 The panel that decided Virginia Beach in 1998 did not have the benefit of the
FCC's views regarding the meaning of section 332(c)(7)(B)(i)(II). In justifying its
"blanket ban" reading of the provision, the Court in Virginia Beach stated that any
alternative reading of section 332(c)(7)(B)(i)(II) that allowed the statute "to apply
to individual decisions would effectively nullify local authority by mandating
approval of all (or nearly all) applications." Virginia Beach, 155 F.3d at 428. But
the FCC rejected that premise in its Declaratory Ruling. It explained that its
reading of the statute did not mandate approval of any siting applications: "[W]e
construe the statute to bar State and local authorities from prohibiting the provision
of services of individual carriers solely on the basis of the presence of another
carrier in the jurisdiction; State and local authority to base zoning regulation on
other grounds is left intact by this ruling." Declaratory Ruling, 24 FCC Rcd at
14017 60 (emphasis added).


13

II.

THE FCC'S INTERPRETATION OF SECTION
332(c)(7)(B)(i)(II) IS ENTITLED TO DEFERENCE.

As this Court has recognized, the Supreme Court's 2005 Brand X decision
"explained the proper interplay between a prior judicial decision" interpreting a
statute "and an agency construction of the same statutory provision." Elm Grove
Coal Co. v. Director, Office of Workers' Comp. Programs, 480 F.3d 278, 291 (4th
Cir. 2007). In Brand X, the Supreme Court held that a "prior judicial construction
of a statute trumps" the implementing agency's construction of the same statute
"only if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency discretion."
Brand X, 545 U.S. at 982. When a statutory provision is ambiguous, however, the
implementing agency's reasonable construction of the statute supersedes any prior
judicial interpretation of the statute that conflicts with the agency's reading. Id. at
982-86. Under these circumstances, a federal court must "accept the agency's
construction of the statute, even if the agency's reading differs from what the court
believes is the best statutory interpretation." Elm Grove, 480 F.3d at 292 (quoting
Brand X, 545 U.S. at 980); see also Fernandez, 502 F.3d at 347-51 (rejecting
Fourth Circuit precedent in favor of superseding authoritative agency
interpretation).
When this Court interpreted section 332(c)(7)(B)(i)(II) in Virginia Beach, it
did not suggest that its interpretation was compelled by unambiguous statutory
language. See Virginia Beach, 155 F.3d at 428-29. Nor can there be any serious
dispute that section 332(c)(7)(B)(i)(II) is ambiguous. Indeed, the terms "prohibit


14

or have the effect of prohibiting" are not defined in the statute. And, as the
Commission noted in the Declaratory Ruling, several courts of appeals have
disagreed about how to construe that language. See Declaratory Ruling, 24 FCC
Rcd at 14016 56 & n.175. Because the FCC reasonably construed that
ambiguous language, its interpretation is controlling.
Accordingly, the Commission's Declaratory Ruling precludes the Court
from applying a "blanket ban" or "one-provider" interpretation of section
332(c)(7)(B)(i)(II) in this case. To the extent that the district court understood that
the Declaratory Ruling did not reject Virginia Beach's "blanket ban" reading of
section 332(c)(7)(B)(i)(II), the district court erred, and this Court should clarify
that Virginia Beach is no longer good law on that issue.5

5 The district court seemed to assume that the "blanket ban" approach is
meaningfully different from the "one-provider" interpretation of the statute. See
JA811 ("the FCC's criticism of the Fourth Circuit's `blanket ban requirement' as
set forth in Virginia Beach is limited in context to the one-provider rule and does
not reject the holding in its entirety"). In the Declaratory Ruling, however, the
FCC explained that a "blanket ban" requirement and a "one-provider" rule have
the same practical effect. See Declaratory Ruling, 24 FCC Rcd at 14017 60
(rejecting "the interpretation that the statute only limits localities from prohibiting
all personal wireless services (i.e., a blanket ban or `one-provider' approach)").
Just like a "one-provider" rule, a "blanket ban" interpretation of the statute would
permit a zoning authority to deny a wireless siting application solely because
another carrier already serves the area. In the Commission's judgment, such an
outcome is at odds with both the text and the fundamental purpose of the statute.
See id. at 14016-18 56-61.


15

CONCLUSION

This Court should apply the FCC's authoritative interpretation of 47 U.S.C.
332(c)(7)(B)(i)(II), as set forth in the Declaratory Ruling, and reject any contrary
Circuit precedent.



Respectfully submitted,




AUSTIN C. SCHLICK

GENERAL COUNSEL




PETER KARANJIA

DEPUTY GENERAL COUNSEL



RICHARD K. WELCH

ACTING ASSOCIATE GENERAL COUNSEL



/s/JAMES M. CARR
JAMES M. CARR
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740 (TELEPHONE)
(202) 418-2819 (FAX)


March 18, 2011




IN THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
T-MOBILE NORTHEAST LLC,
)
)
APPELLANT,
)
)
V.
)
)
FAIRFAX COUNTY BOARD OF
)
NO. 11-1060
SUPERVISORS,
)
)
A
)
PPELLEE.



CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby certify
that the accompanying "Amicus Brief for the Federal Communications
Commission" in the captioned case contains 3476 words.

/S/James M. Carr
James M. Carr
Counsel
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740 (TELEPHONE)
(202) 418-2819 (FAX)
March 18, 2011



11-1060

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT


T-Mobile Northeast, LLC, Appellant,

v.

Fairfax County Board of Supervisors, Appellee.


CERTIFICATE OF SERVICE



I, James M. Carr, hereby certify that on March 18, 2011, I electronically
filed the foregoing Amicus Curiae Brief with the Clerk of the Court for the
United States Court of Appeals for the Fourth Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.

Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.

T.Scott Thompson, Esq.
Elizabeth D. Teare
Leslie Moylan, Esq.
Virginia State Bar Number 31809
Daniel Reing, Esq.
Office of the County Attorney
Davis Wright Tremaine LLP
12000 Government Center Parkway
1919 Pennsylvania Avenue, N.W.
Suite 549
Suite 200
Fairfax, Virginia 22035-0064
Washington, D.C. 20006
Attorney for the Fairfax County
Attorneys for T-Mobile Northeast,
Board of Supervisors
LLC





/s/ James M. Carr


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