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City of Arlington, TX, et al. v. FCC & USA, No. 10-60039 (5th Cir.)

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Released: January 23, 2012
Case: 10-60039 Document: 00511733094 Page: 1 Date Filed: 01/23/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

January 23, 2012
No. 10-60039
Lyle W. Cayce
Clerk
CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF
AMERICA,
Respondents.
On Petitions for Review of an Order of the
Federal Communications Commission
Before DAVIS, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
The City of Arlington, Texas and the City of San Antonio, Texas seek
review of a Declaratory Ruling and subsequent Order on Reconsideration that
the Federal Communications Commission (FCC or Commission) issued in
response to a petition for a declaratory ruling by a trade association of wireless
telephone service providers, CTIA—The Wireless Association® (CTIA). In the
proceeding before the FCC, CTIA sought clarification of Sections 253 and
332(c)(7) of the Communications Act of 1934, as amended,
1 regarding local
47
1
U.S.C. §§ 253, 332(c)(7).

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No. 10-60039
review of wireless facility siting applications. We deny Arlington’s petition for
review on the merits. We dismiss San Antonio’s petition for review because we
lack jurisdiction to consider it.

I

As part of the Telecommunications Act of 1996 (TCA or the Act),
2 Congress
amended the Communications Act of 1934 by adding Section 332(c)(7). That
provision, codified as 47 U.S.C. § 332(c)(7), restricts the authority of state and
local governments with respect to decisions regarding the placement and
construction of wireless communications facilities. It provides:
(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, construction, and modification of
personal wireless service facilities.
(B) Limitations

(i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any
State or local government or instrumentality thereof–
(I) shall not unreasonably discriminate among
providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless
services.
(ii) A State or local government or instrumentality
thereof shall act on any request for authorization to place,
construct, or modify personal wireless service facilities within
a reasonable period of time after the request is duly filed with
such government or instrumentality, taking into account the
nature and scope of such request.
Pub.
2
L. No. 104–104, 110 Stat. 56.
2

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(iii) Any decision by a State or local government or
instrumentality thereof to deny a request to place, construct,
or modify personal wireless service facilities shall be in
writing and supported by substantial evidence contained in a
written record.
(iv) No State or local government or instrumentality
thereof may regulate the placement, construction, and
modification of personal wireless service facilities on the basis
of the environmental effects of radio frequency emissions to
the extent that such facilities comply with the Commission’s
regulations concerning such emissions.
(v) Any person adversely affected by any final action or
failure to act by a State or local government or any
instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or failure
to act, commence an action in any court of competent
jurisdiction. The court shall hear and decide such action on
an expedited basis. Any person adversely affected by an act
or failure to act by a State or local government or any
instrumentality thereof that is inconsistent with clause (iv)
may petition the Commission for relief.
Section 332(c)(7) seeks to reconcile two competing interests—Congress’s
desire to preserve the traditional role of state and local governments in
regulating land use and zoning and Congress’s interest in encouraging the rapid
development of new telecommunications technologies by removing the ability of
state and local governments to impede the construction and modification of
wireless communications facilities through delay or irrational decisionmaking.
3
3 See City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005) (“Congress
enacted the [TCA] to promote competition and higher quality in American telecommunications
services and to encourage the rapid deployment of new telecommunications technologies. One
of the means by which it sought to accomplish these goals was reduction of the impediments
imposed by local governments upon the installation of facilities for wireless communications,
such as antenna towers.” (internal quotation marks and citations omitted)); T-Mobile Cent.,
LLC v. Unified Gov’t of Wyandotte Cnty., Kan. City, Kan.
, 546 F.3d 1299, 1306 (10th Cir. 2008)
(“Congress adopted the TCA in order to promote competition and higher quality in
telecommunications services and to encourage the rapid deployment of new
telecommunications technologies. The TCA furthered these goals by reducing the
3

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Section 332(c)(7)(A), by providing that “nothing in this chapter shall limit or
affect the authority of a State or local government or instrumentality thereof
over decisions regarding the placement, construction, and modification of
personal wireless service facilities,” acts to protect state and local government
authority. Section 332(c)(7)(B), on the other hand, imposes “several substantive
and procedural limitations that subject [state and local governments] to an outer
limit upon their ability to regulate personal wireless services land use issues.”4
In 2008, CTIA filed a petition for a declaratory ruling with the FCC in
which it requested that the FCC clarify certain provisions of the
Communications Act of 1934, including several of § 332(c)(7)(B)’s limitations.
The petition asserted that ambiguities in the statute had allowed local
governments to impede the placement and construction of wireless facilities,
harming consumers’ access to wireless services. CTIA’s petition made four
specific requests.
First, CTIA requested that the FCC provide guidance on what constitutes
a “failure to act” for purposes of § 332(c)(7)(B)(v). The FCC was requested to
clarify the time periods within which a state or locality must act on wireless
facility siting applications. The petition suggested that the Commission find
that there has been a failure to act if there is no final action within 45 days from
the submission of a wireless facility application and within 75 days from
submission of other wireless siting facility applications.
impediments that local governments could impose to defeat or delay the installation of
wireless communications facilities such as cell phone towers, and by protecting against
irrational or substanceless decisions by local authorities.” (internal citations and quotation
marks omitted)).
4 Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001) (internal quotation
marks and citations omitted); see also U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364
F.3d 250, 253 (5th Cir. 2004) (observing that § 332(c)(7)(B) imposes substantive and procedural
limits on local governments’ exercise of zoning authority).
4

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Second, CTIA asked the FCC to find that, in the event no final action was
taken within the suggested 45- and 75-day time periods, the application would
be deemed granted. Alternatively, CTIA proposed that the FCC establish a
presumption that, if a zoning authority could not explain a failure to act within
the time frames, a reviewing court should find a violation of § 332(c)(7)(B)(ii) and
issue an injunction granting the underlying application.
Third, CTIA requested that the FCC interpret § 332(c)(7)(B)(i), which bars
state and local governments from taking action that would “prohibit or have the
effect of prohibiting the provision of personal wireless services.”
5 CTIA noted
that federal courts had split on the question of whether that provision prevented
state and local governments from barring entry of additional wireless service
providers into a given market based solely on the existence of another provider
within that market.6 CTIA suggested that the FCC declare that the existence
of one or more other carriers in a given geographic market is not by itself a
sufficient defense against a suit seeking to enforce § 332(c)(7)(B)(i)(II).
Fourth and finally, CTIA requested the FCC to declare that the TCA
preempts any ordinance that automatically requires a wireless carrier to seek
a variance, regardless of the type and location of the wireless siting proposal.
As support for this request, CTIA pointed to 47 U.S.C. § 253, which provides in
pertinent part: “No State or local statute or regulation, or other State or local
legal requirement, may prohibit or have the effect of prohibiting the ability of
47
5
U.S.C. § 332(c)(7)(B)(i)(II).
6 Compare, e.g., Metheny v. Becker, 352 F.3d 458, 461 n.2 (1st Cir. 2003) (observing that
in the First Circuit “a provider is not precluded from obtaining relief under the Act simply
because some other provider services the gap in question”), with AT&T Wireless PCS, Inc. v.
City Council of City of Va. Beach
, 155 F.3d 423, 428 (4th Cir. 1998) (concluding that the
statute “only applies to ‘blanket prohibitions’ and ‘general bans or policies,’ not to individual
zoning decisions”).
5

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any entity to provide any interstate or intrastate telecommunications service.”7
The FCC issued a public notice seeking comment on CTIA’s petition, and
the record reflects that, in response to the notice, the FCC received dozens of
comments from wireless service providers, local zoning authorities, and other
interested parties. In 2009, the FCC issued the Declaratory Ruling, in which it
granted in part and denied in part CTIA’s petition.8
With respect to CTIA’s request that the FCC establish time frames in
which state and local governments must act on zoning requests, the FCC
declared that “a reasonable period of time” for purposes of § 332(c)(7)(B)(ii)
presumptively would be 90 days for personal wireless service facility siting
applications requesting collocations9 and 150 days for all other applications.1
0
The FCC further determined that a lack of decision within these time frames
would constitute a failure to act under § 332(c)(7)(B)(v).1
1 The FCC stated,
however, that personal wireless service providers and state or local governments
could, by mutual consent, extend the prescribed time frames.12 In addition, the
FCC concluded that, if an applicant submits an incomplete application, the time
it takes for the applicant to respond to a state or local government’s request for
additional information would not count toward the 90- or 150-day time frame if
the state or local government notified the applicant that the application was
incomplete within 30 days of receiving the application.13
47
7
U.S.C. § 253(a).
24
8
FCC Rcd. 13994 (2009).
9 Collocations involve modifications to already existing wireless facilities.
1 24
0
FCC Rcd. 13994 ¶ 32 (2009).
1
1 Id.
1
2 Id. at ¶ 32.
1
3 Id. at ¶ 53.
6

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The FCC rejected CTIA’s proposal that the FCC deem as granted
applications on which final action was not taken within the prescribed time
frames.14 The FCC observed that § 332(c)(7)(B)(v)’s provision for a cause of
action in a court of competent jurisdiction based on a state or local government’s
“failure to act” indicated Congress’s “intent that courts should have the
responsibility to fashion appropriate case-specific remedies.”1
5 Accordingly, the
FCC concluded that, although the 90- and 150-day time frames established by
the Declaratory Ruling were presumptively reasonable, state or local authorities
would have the opportunity in any given case to rebut that presumption in
court.16
Finally, the FCC addressed CTIA’s request that the FCC interpret
§ 332(c)(7)(B)(i) and 47 U.S.C. § 253. With respect to § 332(c)(7)(B)(i), the FCC
determined “that a State or local government that denies an application for
personal wireless service facilities siting solely because ‘one or more carriers
serve a given geographic market’ has engaged in unlawful regulation” that
violates § 332(c)(7)(B)(i)(II)’s prohibition on regulation that “prohibits or ha[s]
the effect of prohibiting the provision of personal wireless services.”1
7 With
respect to § 253, the FCC rejected CTIA’s request that the FCC should rely upon
that provision to preempt state laws and local ordinances that require wireless
service providers to obtain a variance before siting facilities.1
8 The FCC noted
that CTIA was not seeking the preemption of any particular ordinance and “that
any further consideration of blanket variance ordinances should occur within the
1
4 Id. at ¶ 39.
1
5 Id.
1
6 Id. at ¶ 42.
1
7 Id. at ¶ 55.
1
8 Id. at ¶ 67.
7

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factual context of specific cases.”19
Several organizations subsequently filed a petition for reconsideration,
which the FCC ultimately rejected in its Reconsideration Order. After the FCC
issued the Declaratory Ruling, but before it issued the Reconsideration Order,
the City of Arlington filed a petition for review of the Declaratory Ruling in this
court. We issued an order holding Arlington’s petition for review in abeyance
pending the outcome of the above-referenced petition for reconsideration. After
the FCC issued the Reconsideration Order, the City of San Antonio, which had
also intervened in support of Arlington’s petition for review, filed its own petition
seeking review of both the Declaratory Ruling and the Reconsideration Order.
We have also allowed several parties to intervene in support of or in opposition
to the petitions.

II

We first address an issue involving this court’s jurisdiction. As we noted
above, this case involves two separate petitions for review—Arlington’s petition
and San Antonio’s petition. Many of the issues Arlington and San Antonio raise
are the same. Both cities claim (1) the FCC lacked statutory authority to
establish the 90- and 150-day time frames; (2) the FCC’s 90- and 150-day time
frames conflict with the language of § 332(c)(7)(B)(ii) and (v); (3) the FCC’s
actions were arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law; and (4) the FCC violated the Administrative Procedure
Act (APA) because its establishment of the 90- and 150-day time frames
constituted a rulemaking subject to the APA’s notice-and-comment
requirements.
Each city also raises issues unique to its own petition. Arlington raises a
procedural due process claim. San Antonio presents two additional issues: (1) a
1
9 Id.
8

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challenge to the FCC’s interpretation of § 332(c)(7)(B)(i), and (2) a claim that the
FCC failed to comply with the Regulatory Flexibility Act.20 The FCC contends,
however, that we lack jurisdiction to consider San Antonio’s additional
arguments because San Antonio did not timely file its petition for review. Before
we address the merits of the cities’ arguments, we must address the issue of our
jurisdiction.

A


San Antonio filed its petition for review pursuant to 47 U.S.C. § 402(a),
which provides that “[a]ny proceeding to enjoin, set aside, annul, or suspend any
order of the Commission . . . shall be brought as provided by and in the manner
prescribed in chapter 158 of Title 28.” Chapter 158 of Title 28 grants this court
jurisdiction over “all final orders of the Federal Communications Commission
made reviewable by section 402(a) of Title 47.”2
1 Chapter 158 also states that a
party seeking review of “a final order reviewable under this chapter” must file
a petition for review of the order within 60 days after entry of the order.2
2 This
60-day period “‘is jurisdictional and cannot be judicially altered or expanded.’”23
The FCC issued the Declaratory Ruling on November 18, 2009. Arlington
filed its petition for review of the Declaratory Ruling on January 14, 2010,
within the 60-day period set forth in 28 U.S.C. § 2344. We have jurisdiction to
consider that petition and the issues Arlington raises. San Antonio, however,
did not file its petition until October 1, 2010, well beyond the expiration of the
60-day period. Nevertheless, San Antonio argues that its petition for review of
2 5
0
U.S.C. § 601 et seq.
2 28
1
U.S.C. § 2342(1).
2
2 Id. at § 2344.
23 Brazoria Cnty., Tex. v. EEOC, 391 F.3d 685, 688 (5th Cir. 2004) (quoting Texas v.
United States, 749 F.2d 1144, 1146 (5th Cir. 1985)).
9

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the Declaratory Ruling is timely because it was filed within 60 days of the FCC’s
issuance of the Reconsideration Order.
It is the general rule that filing a petition for reconsideration with the FCC
will toll the 60-day period for filing a petition for review of the agency’s action
in this court.24 As the FCC notes, however, San Antonio did not file a petition
for reconsideration of the Declaratory Ruling. Rather, other parties affected by
the Declaratory Ruling filed the petition for reconsideration that culminated in
the Reconsideration Order, and San Antonio simply submitted comments in
support of that petition. The issue here, then, is whether a petition for
reconsideration filed by one party to an agency action tolls § 2344’s 60-day period
for a party that did not file its own petition for reconsideration.
We conclude that a petition for reconsideration filed by one party does not
toll § 2344’s 60-day period for parties that do not file petitions for
reconsideration. We reach this decision because “finality with respect to agency
action is a party-based concept.”25 It is well-established that “a petition for
agency reconsideration by one party does not affect the right of other parties to
seek judicial review.”26 In other words, the petition for reconsideration filed in
24 See Sw. Bell Tel. Co. v. FCC, 116 F.3d 593, 596-97 (D.C. Cir. 1997); Bellsouth Corp.
v. FCC, 17 F.3d 1487, 1489-90 (D.C. Cir. 1994) (“[O]nce a party petitions the agency for
reconsideration of an order or any part thereof, the entire order is rendered nonfinal as to that
party.”).
25 Bellsouth Corp., 17 F.3d at 1489 (internal quotation marks and citations omitted);
see also W. Penn Power Co. v. EPA, 860 F.2d 581, 587 (3d Cir. 1988) (“[A]n agency action can
be final for one party and nonfinal for another.”); Winter v. ICC, 851 F.2d 1056, 1062 (8th Cir.
1988) (“[I]n multi-party proceedings one party may seek judicial review of an agency decision
while another party seeks administrative reconsideration, resulting in both tribunals having
jurisdiction. An agency decision may thus be final for one purpose yet nonfinal for another
purpose.”).
26 Cal. Dep’t of Water Res. v. FERC, 361 F.3d 517, 521 (9th Cir. 2004); see also W. Penn
Power Co., 860 F.2d at 586 (“It is well established, for example, that when two parties are
adversely affected by an agency’s action, one can petition for reconsideration before the agency
at the same time that the other seeks judicial redetermination.”).
10

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this case did not affect San Antonio’s right to file a petition for review in this
court as of the date the FCC issued the Declaratory Ruling, and we would have
been able to exercise jurisdiction over such a petition for review so long as San
Antonio itself did not file a petition for reconsideration. Because “there is no
principled way to distinguish between the concept of finality for purposes of
triggering the running of a time limit for appeals and the concept of finality for
the purpose of appellate court jurisdiction,”2
7 we conclude that San Antonio’s
failure to petition for reconsideration of the Declaratory Ruling rendered the
Declaratory Ruling a final agency decision with respect to San Antonio both for
purposes of conferring jurisdiction on this court and for purposes of triggering
§ 2344’s time period. San Antonio thus had 60 days from November 18, 2009,
to file a petition for review in this court of the Declaratory Ruling. The city did
not file its petition until October 1, 2010, months after its 60-day period to file
a petition for review had expired, and we lack jurisdiction to consider the
petition insofar as it challenges the Declaratory Ruling.

B

San Antonio also argues we can consider its petition, notwithstanding the
fact that it was untimely with respect to the Declaratory Ruling, because the
petition also challenges the FCC’s Reconsideration Order. There is no doubt
that San Antonio’s petition for review is timely insofar as it challenges the FCC’s
Reconsideration Order. The Reconsideration Order is not a reviewable order,
however, because it merely denied rehearing of matters decided in the
Declaratory Ruling. It contained no new or additional determinations. San
Antonio did not petition for reconsideration of the Declaratory Ruling, and in
such a situation, San Antonio cannot challenge the rulings in the Declaratory
Order by challenging only the Reconsideration Order. As the Supreme Court
2
7 W. Penn Power Co., 860 F.2d at 585-86.
11

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explained in ICC v. Brotherhood of Locomotive Engineers: “where a party
petitions an agency for reconsideration on the ground of ‘material error,’ i.e., on
the same record that was before the agency when it rendered its original
decision, ‘an order which merely denies rehearing of . . . [the prior] order is not
itself reviewable.’”2
8 Here, the arguments San Antonio raises in its petition for
review, and the arguments it submitted in support of the petition for
reconsideration, all were originally presented to the agency during the
proceedings leading up to the issuance of the Declaratory Ruling. Accordingly,
in addition to lacking jurisdiction to review San Antonio’s petition insofar as it
challenges the Declaratory Ruling, we also lack jurisdiction to consider the
petition as a challenge to the Reconsideration Order.

C


San Antonio maintains that we can consider all of its arguments, even if
we lack jurisdiction over its petition for review, because it intervened in support
of Arlington’s timely petition for review in this court. Our precedent compels us
to disagree. In Brazoria County, Texas v. EEOC,29 we held that a party could not
rely on her timely intervention with respect to another party’s petition for review
to raise matters outside the scope of the other party’s petition.3
0 We arrived at
this holding because motions to intervene must be filed within 30 days after
filing of the petition for review3 —which
1
itself must be filed within 60 days after
the agency’s final action3 —thus
2
creating a situation in which intervenors can
2 482 U.S
8
. 270, 280 (1987) (quoting Microwave Commc’ns, Inc. v. FCC, 515 F.2d 385,
387 n.7 (D.C. Cir. 1974)).
2 391
9
F.3d 685 (5th Cir. 2004).
3
0 Id. at 688-89.
3
1 See Fed. R. App. P. 15(d).
3 28
2
U.S.C. § 2344.
12

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request review of issues as late as 90 days after the agency’s final action.
Because permitting an intervenor to raise additional issues for review would
contravene § 2344’s 60-day time period for filing petitions for review, we
observed that intervenors “are bound by the issues raised in the petitions for
review.”3
3 Thus, we generally limit intervenors to raising arguments addressing
only those issues presented in the petitions for review.3
4
As discussed above, Arlington has raised five issues. San Antonio’s
argument that the FCC failed to comply with the Regulatory Flexibility Act and
its challenge to the FCC’s interpretation of § 332(c)(7)(B)(i) do not relate to those
issues, and we lack jurisdiction to consider them. Accordingly, we will limit our
discussion to only those issues Arlington has raised. We will, however, consider
the arguments of San Antonio and other intervenors that relate to those issues.

III

The cities contend the FCC violated the APA when it established the 90-
and 150-day time frames. The APA identifies three types of agency
proceedings—rulemaking, adjudication, and licensing—and prescribes specific
procedures applicable to those proceedings.3
5 When an agency engages in
rulemaking it must, subject to certain statutory exceptions, satisfy the APA’s
familiar notice-and-comment requirements.3
6 Adjudications, by contrast, are not
33 Brazoria Cnty., Tex., 391 F.3d at 689 (quoting United Gas Pipe Line Co. v. FERC, 824
F.2d 417, 437 (5th Cir. 1987)).
34 Id. But see Kan. City S. Indus., Inc. v. ICC, 902 F.2d 423, 434-35 (5th Cir. 1990)
(exercising jurisdiction over an issue raised by an intervenor when the intervenor “filed its
motion for leave to intervene in the proceedings in this Court not only within Rule 15(d)’s
thirty-day filing requirement for intervention motions but also within section 2344’s sixty-day
filing requirement for petitions for review of ICC orders”).
3
5 See Sierra Club v. Peterson, 185 F.3d 349, 366 (5th Cir. 1999).
3 5
6
U.S.C. § 553.
13

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subject to those requirements.37 The cities argue the FCC violated the APA
because the time frames constitute new rules subject to the APA’s notice-and-
comment requirements for rulemaking and the FCC failed to comply with the
those requirements.
The FCC makes two arguments in response. First, the FCC notes the
Declaratory Ruling was the product of adjudication, not rulemaking, and thus
was not subject to the APA’s notice-and-comment requirements. Alternatively,
the FCC suggests that any new rules included in the Declaratory Ruling were
interpretive rules excepted from the notice-and-comment requirements.

A

We first consider whether the 90- and 150-day time frames were not
subject to the APA’s notice-and-comment requirements because the Declaratory
Ruling was the product of adjudication rather than rulemaking. It is well-
established that agencies can choose to announce new rules through adjudication
rather than rulemaking.38 Agencies typically enjoy “very broad discretion [in
deciding] whether to proceed by way of adjudication or rulemaking.”3
9 The
notice-and-comment requirements for rulemaking would ordinarily not apply to
37 Id. at § 554; Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001) (“There
is no notice and comment requirement for an agency adjudication.”).
3
8 See, e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (observing that an
agency “is not precluded from announcing new principles in an adjudicative proceeding”);
Mobil Exploration & Producing N. Am., Inc. v. FERC, 881 F.2d 193, 198 (5th Cir. 1989)
(stating that an agency “may establish rules of general application in either a statutory
rulemaking procedure or an individual adjudication”).
39 Time Warner Entm’t Co., L.P. v. FCC, 240 F.3d 1126, 1141 (D.C. Cir. 2001); see also
Bell Aerospace Co., 416 U.S. at 294 (observing that “the choice between rulemaking and
adjudication lies in the first instance within the Board’s discretion”); SEC v. Chenery Corp.,
332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by general rule or by
individual, ad hoc litigation is one that lies primarily in the informed discretion of the
administrative agency.”); Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 797 (5th Cir.
2000) (“Agencies have discretion to choose between adjudication and rulemaking as a means
of setting policy.”).
14

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the FCC’s decision to establish the time frames if the FCC exercised its
discretion to issue the Declaratory Ruling pursuant to its adjudicative powers.
We examine two aspects of an agency action when determining whether
an agency action was a rulemaking or an adjudication. First, we consider the
agency’s characterization of its own action.4
0 Second, we must examine the
ultimate product of the agency action.4
1 Both of these considerations lead us to
agree with the FCC that the Declaratory Ruling was the result of an
adjudication and not a rulemaking.
First, the FCC itself claims it was engaging in adjudication when it issued
the Declaratory Ruling. As we have previously recognized, we “accord
significant deference to an agency’s characterization of its own action.”4
2 This
deference is not absolute, however. Otherwise, an agency would be able to
escape the APA’s notice-and-comment requirements simply by labeling a
rulemaking an adjudication.4
3 Whether the FCC’s action here constituted an
adjudication or a rulemaking ultimately turns on the attributes of the
Declaratory Ruling itself.
The Declaratory Ruling is designated as a “Declaratory Ruling,” and it was
issued pursuant to 47 C.F.R. § 1.2. Section 1.2 grants the FCC the power to
issue declaratory orders and is derivative of § 554(e) of the APA.4
4 Section 554(e)
4
0 Am. Airlines, Inc., 202 F.3d at 797.
4
1 Id.
4
2 Id.
4
3 Cf. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000) (“It is well
established that an agency may not escape the notice and comment requirements . . . by
labeling a major substantive legal addition to a rule a mere interpretation.”).
44 47 C.F.R. § 1.2(a) (“The Commission may, in accordance with section 5(d) of the
Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling
terminating a controversy or removing uncertainty.”); see also Wilson v. A.H. Belo Corp., 87
F.3d 393, 397 n.4 (9th Cir. 1996) (“Because 5 U.S.C. § 554(e) grants the FCC authority to issue
15

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provides: “The agency, with like effect as in the case of other orders, and in its
sound discretion, may issue a declaratory order to terminate a controversy or
remove uncertainty.” Because § 554(e) is a subsection of the provision in the
APA governing formal adjudication, we have held that declaratory rulings issued
pursuant to its grant of authority are informal adjudications under the APA.4
5
We see no reason to treat the Declaratory Ruling differently: it was the product
of adjudication.46

B

Our conclusion that the Declaratory Ruling resulted from adjudication
does not end our review of the FCC’s purported non-compliance with the APA.
Although, as noted above, agencies enjoy broad discretion in choosing whether
to establish a rule through adjudication or rulemaking,4
7 that discretion is not
unlimited. The agency ultimately remains subject to the constraints of the APA,
which requires courts to review the agency’s action to determine whether it was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.”48 The Ninth Circuit, for example, has identified certain situations in which
‘declaratory orders,’ and because 47 C.F.R. § 1.2 is derived from § 554(e), it appears that the
terms ‘declaratory order’ and ‘declaratory ruling’ are used interchangeably.”).
4
5 See Am. Airlines, Inc., 202 F.3d at 796-98 (treating a declaratory order issued
pursuant to § 554(e) as an informal adjudication); Texas v. United States, 866 F.2d 1546, 1555
(5th Cir. 1989) (same); see also Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir. 2007)
(“[T]here is no question that a declaratory ruling can be a form of adjudication.” (internal
citation omitted)).
46 See Am. Airlines, Inc., 202 F.3d at 798; Radiofone, Inc. v. FCC, 759 F.2d 936, 939
(D.C. Cir. 1985) (“There is no doubt that the Commission’s action in this case was an
adjudication and not a rulemaking. It is captioned ‘Declaratory Ruling,’ a category of action
which, according to the Commission’s rules, is taken ‘in accordance with section 5(d) of the
Administrative Procedure Act,’ 47 C.F.R. § 1.2 (1984). That subsection, now codified at 5
U.S.C. § 554(e) (1982), pertains to adjudication.” (internal footnote omitted)).
4
7 Am. Airlines, Inc., 202 F.3d at 797.
4 5
8
U.S.C. § 706(2)(A).
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an agency’s reliance on adjudication instead of rulemaking constitutes an abuse
of discretion.4
9 Even though we conclude the Declaratory Ruling was the product
of an adjudication, we will consider whether the FCC abused its discretion or
otherwise violated the law by promulgating the 90- and 150-day time frames
through adjudication rather than rulemaking.50 On this point, we harbor serious
doubts as to the propriety of the FCC’s choice of procedures.
Specifically, we note that the Declaratory Ruling’s 90- and 150-day time
frames bear all the hallmarks of products of rulemaking, not adjudication.
Adjudications typically “resolve disputes among specific individuals in specific
cases, whereas rulemaking affects the rights of broad classes of unspecified
individuals.”5
1 In American Airlines, Inc. v. Department of Transportation, we
held that the Department of Transportation properly used § 554(e)’s declaratory
ruling mechanism to resolve a dispute involving the application of the federal
law governing airline service at Love Field airport.5
2 In that case we specifically
observed that “because DOT’s order interpreted the rights of a small number of
parties properly before it, DOT did not abuse its discretion by acting through an
49 See MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145, 1151 (9th Cir. 2008) (“An
agency adjudication may require a notice and comment period if it constitutes de facto
rulemaking that affects the rights of broad classes of unspecified individuals.” (internal
quotation marks and citations omitted)); Miguel-Miguel v. Gonzales, 500 F.3d 941, 950 (9th
Cir. 2007) (“Of course, in certain circumstances an agency may abuse its discretion by
announcing new rules through adjudication rather than through rulemaking, such as when
the rule operates retroactively and disturbs settled expectations.”).
50 See Am. Airlines, Inc., 202 F.3d at 798 (reviewing agency’s decision to proceed by
adjudication rather than rulemaking for abuse of discretion); see also NLRB v. Bell Aerospace
Co.
, 416 U.S. 267, 294 (1974) (“[T]here may be situations where [an agency’s] reliance on
adjudication would amount to an abuse of discretion . . . .”).
51 Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994); see also
Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1187-88 (9th Cir. 2010) (per curiam);
San Juan Cable LLC v. P.R. Tel. Co., Inc., 612 F.3d 25, 33 n.3 (1st Cir. 2010).
5 202
2
F.3d at 797-98.
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adjudicatory proceeding.”5
3
Similarly, in Mobil Exploration & Producing North America, Inc. v.
FERC,54 we reviewed an agency’s decision to institute a new one-year time limit
for successors in interest in gas-producing properties to obtain a new certificate
of public convenience and necessity.5
5 The agency instituted the new limit in the
course of reviewing a particular successor’s application for a certificate.5
6
Petitioners challenged the limit on a number of grounds, including that the limit
should have been instituted using the formal rulemaking procedure in the APA,
and we held that the agency did not abuse its discretion in choosing to establish
the limit through adjudication rather than rulemaking.5
7 In doing so, we
specifically noted that the new time limit was “a relatively minor procedural
requirement with limited effect” due to the fact that there were “fewer than 250
large producers that would be subject to the one-year successor filing
requirement.”58 Here, the FCC established the 90- and 150-day time frames, not
in the course of deciding any specific dispute between a wireless provider and a
state or local government, but in a proceeding focused exclusively on providing
an interpretation of § 332(c)(7)(B) that would apply prospectively to every state
and local government in the United States.
It is true that an agency need not be presented with a specific dispute
between two parties in order to use § 554(e)’s declaratory ruling mechanism,
because § 554 does not limit an agency’s use of declaratory rulings to
5
3 Id. at 798.
5 881
4
F.2d 193 (5th Cir. 1989).
5
5 Id. at 195-96.
5
6 Id. at 196.
5
7 Id. at 198-99.
5
8 Id. at 199.
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terminating controversies between parties. Section 554 also empowers agencies
to use declaratory rulings to “remove uncertainty,” and there are cases
suggesting an agency may use a declaratory ruling to issue interpretations of
law that are both general and prospective in their application and divorced from
a specific dispute between parties. In Qwest Services Corp. v. FCC,5
9 the District
of Columbia Circuit upheld the FCC’s use of a declaratory ruling to announce
that certain types of prepaid calling cards were telecommunications services and
that their providers were subject to regulation under the TCA.6
0 In Chisholm v.
FCC,6
1 the District of Columbia Circuit similarly upheld the FCC’s use of a
declaratory ruling to determine the application of the Communication Act’s
equal-time provision to specific types of appearances by political candidates.6
2
Nevertheless, even these cases involved concrete and narrow questions of law
the resolutions of which would have an immediate and determinable impact on
specific factual scenarios. Here, by contrast, the FCC has provided guidance on
the meaning of § 332(c)(7)(B)(ii) and (v) that is utterly divorced from any specific
application of the statute. The time frames’ effect with respect to any particular
dispute arising under § 332(c)(7)(B)(ii) will only become clear after adjudication
of the dispute in a court of competent jurisdiction. This is classic rulemaking.63
Nevertheless, we need not decide whether the FCC abused its discretion
by failing to use notice-and-comment rulemaking to establish the time frames.
We also do not address the FCC’s argument that, even if it did engage in
5 509
9
F.3d 531 (D.C. Cir. 2007).
6
0 Id. at 536-37.
6 538
1
F.2d 349 (D.C. Cir. 1976).
6
2 Id. at 364-66.
6
3 See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994)
(“Rulemaking, in contrast, is prospective, and has a definitive effect on individuals only after
the rule subsequently is applied.”).
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rulemaking, the rulemaking was interpretative rulemaking of the type excepted
from the APA’s notice-and-comment requirements.6
4 We need not decide these
questions because any failure by the FCC to comply with the APA in this case
was harmless.6
5
“[T]he harmless error rule requires the party asserting error to
demonstrate prejudice from the error.”6
6 An agency’s failure to comply with the
APA is harmless when the agency’s mistake “clearly had no bearing on the
procedure used or the substance of decision reached.”67 In conducting the
harmless error inquiry, we inform our analysis with a number of potentially
relevant factors, including (1) “an estimation of the likelihood that the result
would have been different”; (2) “an awareness of what body (jury, lower court,
administrative agency) has the authority to reach that result”; (3) “a
consideration of the error’s likely effects on the perceived fairness, integrity, or
public reputation of judicial proceedings”; and (4) “a hesitancy to generalize too
broadly about particular kinds of errors when the specific factual circumstances
in which the error arises may well make all the difference.”6
8
6 5
4
U.S.C. § 553(d)(2).
65 See United States v. Johnson, 632 F.3d 912, 930 (5th Cir. 2011) (“The APA demands
that courts reviewing agency decisions under the Act ‘[take] due account . . . of the rule of
prejudicial error.’” (alteration in original) (quoting 5 U.S.C. § 706)); Jicarilla Apache Nation
v. U.S. Dep’t of the Interior
, 613 F.3d 1112, 1121 (D.C. Cir. 2010) (“The harmless error rule
applies to agency action because ‘[i]f the agency’s mistake did not affect the outcome, if it did
not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.’”
(alteration in original) (quoting PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)).
66 Air Can. v. Dep’t of Transp., 148 F.3d 1142, 1156 (D.C. Cir. 1998); see also Shinseki
v. Sanders, 129 S. Ct. 1696, 1706 (2009) (“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency’s determination.”).
67 U.S. Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (quoting Braniff Airways
v. Civil Aeronautics Bd., 379 F.3d 453, 466 (D.C. Cir.1967)) (internal quotation marks
omitted).
6
8 Shinseki, 129 S. Ct. at 1707; see also Johnson, 632 F.3d at 930.
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The APA’s notice-and-comment procedures are familiar:
Under the APA, agencies issuing rules must publish notice of
proposed rulemaking in the Federal Register and shall give
interested persons an opportunity to participate in the rule making
by allowing submission of comments. In addition, the APA requires
that publication of a substantive rule shall be made not less than 30
days before its effective date.69
When an agency fails to comply with the APA’s notice and comment procedures,
the touchstone is “whether it is clear that the lack of notice and comment did not
prejudice the petitioner.”70 In this case, there is no indication that any failure
of the FCC to comply with the APA’s notice-and-comment procedures prejudiced
Arlington or the intervenors.
As an initial matter, the FCC published notice of CTIA’s petition in the
Federal Register, and the notice requested comments on CTIA’s request that the
FCC “clarify the time period in which a state or local zoning authority will be
deemed to have failed to act on a wireless facility siting application.”7
1 The
notice also referenced CTIA’s requests that the FCC establish specific time
frames and implement a system under which an application would be deemed
granted if a zoning authority failed to act within the applicable time frame.7
2 It
is true that the FCC labeled its published notice as a request for comment on a
“Petition for Declaratory Ruling” rather than as a “Notice of Proposed
Rulemaking,” but, as the District of Columbia Circuit has repeatedly held, such
a deficiency is not fatal because “‘to remand solely because the Commission
6
9 Johnson, 632 F.3d at 927 (internal quotation marks and citations omitted); see also
5 U.S.C. § 553(b)-(d).
7
0 Johnson, 632 F.3d at 931.
7
1 See Wireless Telecommunications Bureau seeks Comment on Petition for Declaratory
Ruling by CTIA, 73 Fed. Reg. 50972, 50972 (Aug. 29, 2008).
7
2 Id. at 50972-73.
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labeled the action a declaratory ruling would be to engage in an empty
formality.’”73
We also cannot ignore the fact that, after publishing the notice in the
Federal Register, the FCC received and considered comments from dozens of
interested parties, including several of the cities involved in this litigation.
Many of those comments raised the very issues now raised before this court, and
the FCC addressed those issues in its Declaratory Ruling. Indeed, we are not
aware of a single argument the cities now present to this court that was not
considered by the FCC in the agency proceedings below. These facts call to mind
our recent observations in United States v. Johnson:
The purpose of notice-and-comment rulemaking is to assure fairness
and mature consideration of rules having a substantial impact on
those regulated. The process allows the agency to educate itself
before adopting a final order. In addition, public notice requires the
agency to disclose its thinking on matters that will affect regulated
parties. These goals, however, may be achieved in cases where the
agency’s decision-making process centered on the identical
substantive claims as those proposed by the party asserting error,
even if there were APA deficiencies. It follows that when a party’s
claims were considered, even if notice was inadequate, the
challenging party may not have been prejudiced.74
Finally, to the extent the FCC might have failed to comply with the APA’s
30-day waiting period before an adopted rule becomes effective, the cities have
suggested no reason why any such waiting period was needed in this case or
demonstrated any prejudice resulting from the FCC’s failure to delay the
effective date of the Declaratory Ruling. We note that “the purpose of the thirty-
day waiting period is to give affected parties a reasonable time to adjust their
73 See, e.g., U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 40 (D.C. Cir. 2005) (quoting N.Y.
State Comm’n on Cable Television v. FCC, 749 F.2d 804, 815 (D.C. Cir. 1984)).
7
4 Johnson, 632 F.3d at 931 (internal quotation marks, brackets, and citations omitted).
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behavior before the final rule takes effect.”7
5 On this point, the Declaratory
Ruling itself recognized the need “to give State and local governments an
additional period to review currently pending applications before an applicant
might file suit.”76 The FCC determined that, for all zoning applications that had
been pending for less than 90 days (with respect to collocation applications) or
150 days (with respect to all other applications) at the time of the issuance of the
Declaratory Ruling, state or local governments would have an additional 90- or
150-day period before their inaction would be presumed unreasonable under the
time frames.7
7 For those applications that had been pending for longer than the
applicable time frame at the time of the Declaratory Ruling, the FCC determined
state or local governments would have 60 days from the provision of notice by
the applicant before the applicant would be able to seek judicial relief.7
8 The
cities have not demonstrated that the FCC’s approach here burdened them in
any way. Nor have they pointed to zoning applications they were forced to
address earlier due to the FCC’s failure to comply with the 30-day waiting
period.
We conclude that any error in the FCC’s choice to establish the time
frames in the Declaratory Ruling instead of through notice-and-comment
rulemaking was plainly harmless. The cities received notice of the issues
pending before the FCC and had the ability to comment on CTIA’s petition in the
agency proceedings. More than sixty cities, towns, and villages, and scores of
other governmental entities or their representatives submitted comments in
response to the FCC’s notice. The FCC considered and addressed all of the
7
5 Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996).
7 24
6
FCC Rcd. 13994 ¶ 51 (2009).
7
7 Id.
7
8 Id.
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substantive issues the cities now raise. Any deficiencies in the procedures
leading to the Declaratory Ruling do not justify vacating and remanding the
order.

IV

The cities also argue the FCC violated due process when it issued the
Declaratory Ruling. The cities base this argument on their assertion that the
FCC failed to comply with 47 C.F.R. § 1.1206(a) when it considered CTIA’s
petition. A note to that regulation provides:
In the case of petitions for declaratory ruling that seek Commission
preemption of state or local regulatory authority and petitions for
relief under 47 U.S.C. 332(c)(7)(B)(v), the petitioner must serve the
original petition on any state or local government, the actions of
which are specifically cited as a basis for requesting preemption.
Service should be made on those bodies within the state or local
governments that are legally authorized to accept service of legal
documents in a civil context. Such pleadings that are not served
will be dismissed without consideration as a defective pleading and
treated as a violation of the ex parte rules unless the Commission
determines that the matter should be entertained by making it part
of the record under § 1.1212(d) and the parties are so informed.7
9
The cities claim CTIA did not serve its petition on the state and local
governments whose delays served as the impetus for CTIA’s petition. According
to the cities, CTIA’s failure to serve the petition necessitated its dismissal and
the FCC’s failure to do so resulted in a denial of due process.
The FCC responds that its decision not to dismiss CTIA’s petition was
justified by its own interpretation of § 1.1206(a). In the Declaratory Ruling, the
FCC concluded: “By its terms, the service requirement does not apply to a
petition that cites examples of the practices of unidentified jurisdictions to
demonstrate the need for a declaratory ruling interpreting provisions of the
7 47
9
C.F.R. § 1.1206(a) note 1.
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Communications Act.”80 The FCC notes that CTIA’s petition did not identify
specific municipalities and that nothing in its rules required the petition to do
so.
Reduced to its essence, the cities’ claim is that the FCC violated due
process by failing to ensure that CTIA’s petition was served on the specific state
and local governments whose delays caused CTIA to petition the FCC for the
Declaratory Ruling. We do not believe that due process required such individual
service in this case because the FCC, in issuing the Declaratory Ruling, was not
adjudicating the legality of the actions of those state and local governments. The
FCC was not confronted with a concrete dispute the resolution of which would
have an immediate effect on specific individuals.8
1 As noted above, in this sense
the Declaratory Ruling was more akin to a rulemaking than the typical
adjudication, and we have observed that “[w]hen a rule is established through
statutory rulemaking, public notice and hearing provide the necessary
protection. . . . Such notice is provided by publication of the proposed
rulemaking in the Federal Register, and all parties who will be affected by the
rule are given an opportunity to challenge [the agency’s] action.”8
2 Here, the
FCC provided notice of CTIA’s petition in the Federal Register and allowed all
interested parties to provide comments on CTIA’s petition. Under the
circumstances of this case, those procedures were adequate to satisfy due
process.
8 24
0
FCC Rcd. 13994 ¶ 68 (2009).
8
1 See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994)
(“[B]ecause adjudications involve concrete disputes, they have an immediate effect on specific
individuals (those involved in the dispute).”).
82 Mobil Exploration & Producing N. Am., Inc. v. FERC, 881 F.2d 193, 199 (5th Cir.
1989); see also Fla. Gas Transmission Co. v. FERC, 876 F.2d 42, 44 (5th Cir. 1989).
25

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V

Regarding the determinations in the FCC’s Declaratory Ruling, we begin
with the cities’ suggestion that the FCC lacked the statutory authority to adopt
the 90- and 150-day time frames. As noted above, those time frames represent
the FCC’s construction of language in § 332(c)(7)(B)(ii) and (v). The cities argue,
however, that § 332(c)(7)(A) precludes the FCC from exercising authority to
implement that language. The cities also note that § 332(c)(7)(B)(v) places
jurisdiction over disputes arising under § 332(c)(7)(B)(ii) in the courts and
suggests that this jurisdictional provision supports its proposed reading of
§ 332(c)(7)(A).
The FCC, on the other hand, contends that it possessed statutory
authority to adopt the 90- and 150-day time frames pursuant to its general
authority to make such rules and regulations as may be necessary to carry out
the Communication Act’s provisions.83 The FCC argues that § 332(c)(7)(A) does
not bar the FCC from exercising this authority because the FCC interprets
§ 332(c)(7)(A) as merely precluding the FCC from imposing additional
limitations on state and local government authority over the wireless facility
zoning process beyond those already provided for in § 332(c)(7)(B). Under the
FCC’s interpretation, the FCC retains the authority to implement the
limitations already set forth in § 332(c)(7)(B).

A

We ordinarily review an agency’s interpretation of the statutes it is
charged with administering using the Chevron two-step standard of review.8
4
Under Chevron, we first ask “whether Congress has directly addressed the
8
3 See, e.g., 47 U.S.C. §§ 151, 154(i), 201(b), 303(r).
84 See Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 796 (5th Cir. 2000).
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precise question at issue.”8 If
5
Congress has addressed the question, “we must
give effect to the unambiguously expressed intent of Congress.”8
6 If we
determine that the statute is silent or ambiguous with respect to the precise
question at issue, however, we then “consider whether the agency’s answer is
based on a permissible construction of the statute.”87 “As long as the agency’s
construction of an ambiguous statute is permissible, it must be upheld.”
88
Although we engage in the Chevron analysis when reviewing an agency’s
interpretation of a statute it is charged with administering, we do not use
Chevron when reviewing an agency’s interpretation of a statute it is not charged
with administering.8
9
The issue in the instant case is whether the FCC possessed statutory
authority to administer § 332(c)(7)(B)(ii) and (v) by adopting the 90- and 150-day
time frames. Although it is clear that Chevron review does not apply once it is
determined that an agency lacks authority to interpret a statute, the parties
dispute whether Chevron review should apply when we determine the extent of
the agency’s jurisdiction. The FCC argues that an agency’s interpretation of its
own statutory authority is subject to review under Chevron. The cities, on the
other hand, argue the issue presents “a pre-Chevron question of law regarding
the scope of the FCC’s authority” and that such a question of law is subject to de
85 Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 711 (2011)
(quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984)) (internal
quotation marks omitted).
86 Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 393 (5th Cir. 2008) (quoting Chevron,
476 U.S. at 843) (internal quotation marks omitted).
87 Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 749 (5th Cir. 2011) (quoting
Chevron, 476 U.S. at 483) (internal quotation marks omitted).
8
8 Am. Airlines, Inc., 202 F.3d at 796.
8
9 Id.
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novo review.
The Supreme Court has not yet conclusively resolved the question of
whether Chevron applies in the context of an agency’s determination of its own
statutory jurisdiction,9
0 and the circuit courts of appeals have adopted different
approaches to the issue. Some circuits apply Chevron deference to disputes over
the scope of an agency’s jurisdiction,9
1 some do not,9
2 and some circuits have thus
far avoided taking a position.9
3 In this circuit, we apply Chevron to an agency’s
interpretation of its own statutory jurisdiction, and therefore, we will apply the
Chevron framework when determining whether the FCC possessed the statutory
authority to establish the 90- and 150-day time frames.9
4
90 See Pruidze v. Holder, 632 F.3d 234, 237 (6th Cir. 2011) (collecting cases and
observing that the Supreme Court has yet to resolve the debate over whether Chevron applies
to disputes about the scope of an agency’s jurisdiction).
91 See, e.g., Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1145-46 (10th Cir. 2010) (en banc)
(“Of course, courts afford considerable deference to agencies interpreting ambiguities in
statutes that Congress has delegated to their care, . . . including statutory ambiguities
affecting the agency’s jurisdiction . . . .” (internal citations omitted)); P.R. Mar. Shipping Auth.
v. Valley Freight Sys., Inc.
, 856 F.2d 546, 552 (3d Cir. 1988) (“When Congress has not directly
and unambiguously addressed the precise question at issue, a court must accept the
interpretation set forth by the agency so long as it is a reasonable one. . . . This rule of
deference is fully applicable to an agency’s interpretation of its own jurisdiction.” (internal
citation omitted)).
92 See, e.g., N. Ill. Steel Supply Co. v. Sec’y of Labor, 294 F.3d 844, 846-47 (7th Cir.
2002) (concluding that de novo review is appropriate for questions involving an agency’s
determination of its own jurisdiction); Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998) (reviewing agency’s legal conclusion regarding the scope of its own jurisdiction
without deference to the agency’s determination).
93 See Pruidze, 632 F.3d at 237 (leaving the question unanswered); O’Connell v.
Shalala, 79 F.3d 170, 176 (1st Cir. 1996) (same).
94 Texas v. United States, 497 F.3d 491, 501 (5th Cir. 2007) (observing that Chevron step
one applies to “challenges to an agency’s interpretation of a statute, as well as whether the
statute confers agency jurisdiction over an issue”); Tex. Office of Pub. Util. Counsel v. FCC, 183
F.3d 393, 440-46 (5th Cir. 1999) (applying Chevron to a question concerning the scope of the
FCC’s statutory authority to provide universal service support for schools, libraries, and rural
health-care providers); First Gibraltar Bank, FSB v. Morales, 42 F.3d 895, 901 (5th Cir. 1995)
(per curiam) (“[T]his circuit has accorded deference to an agency’s determination of its own
28

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B

“At the first step of a Chevron analysis, we must determine whether
Congress has directly spoken in a manner that reveals its expressed intent.”9
5
“We use the traditional tools of statutory construction to determine whether
Congress has spoken to the precise point at issue,”96 and “[t]here is no better or
more authoritative expression of congressional intent than the statutory text.”9
7
We determine the plainness or ambiguity of the statutory text by referencing
“the language itself, the specific context in which that language is used, and the
broader context of the statute as a whole.”9
8 “‘[W]here the statutory language is
unambiguous and the statutory scheme is coherent and consistent,’ the language
of the statute is usually where we end.”99 If the statutory language is susceptible
to more than one reasonable interpretation, however, it is ambiguous and we
must proceed to Chevron step two.100
As noted above, the FCC argues that its general authority to make rules
and regulations to carry out the Communications Act includes the power to
implement § 332(c)(7)(B)(ii) and (v). One express grant is found at 47 U.S.C.
statutory authority.”).
95 Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 394 (5th Cir. 2008) (quoting Chevron,
476 U.S. at 843) (internal quotation marks omitted).
9
6 Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 749 (5th Cir. 2011) (citing Tex.
Sav. & Cmty. Bankers Ass’n v. Fed. Hous. Bd., 201 F.3d 551, 554 (5th Cir. 2000)).
9
7 Med. Ctr. Pharm., 536 F.3d at 394.
98 Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
99 Med. Ctr. Pharm., 536 F.3d at 394 (quoting Robinson, 519 U.S. at 340).
10
0 See United States v. Hoang, 636 F.3d 677, 682 (5th Cir. 2011) (“It is familiar learning
that ‘[a] statute is ambiguous if it is susceptible to more than one reasonable interpretation
or more than one accepted meaning.’” (quoting In re Condor Ins. Ltd., 601 F.3d 319, 321 (5th
Cir. 2010)); Comacho v. Tex. Workforce Comm’n, 408 F.3d 229, 234 (5th Cir. 2005) (“Generally,
a statute is ambiguous if it is ‘capable of being understood in two or more possible senses or
ways.’” (quoting Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001)).
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§ 201(b), which provides that “[t]he Commission may prescribe such rules and
regulations as may be necessary in the public interest to carry out the provisions
of this chapter.” The Supreme Court has held the FCC’s rulemaking authority
under § 201(b) extends to provisions added by the TCA because Congress passed
the TCA as an amendment to the Communications Act.10
1 Congress retains the
ability to restrict its grant of power to an agency, though, and the cities argue
Congress included language in the TCA precluding the FCC from using the
Communication Act’s grant of general authority to implement § 332(c)(7)(B)’s
limitations.10
2 The cities point to § 332(c)(7)(A), which provides: “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, construction, and modification of personal
wireless service facilities.” The cities also claim that § 332(c)(7)(B)(v)’s vesting
of jurisdiction in the courts to review disputes arising under § 332(c)(7)(B)(ii)
evinces Congress’s intent to remove jurisdiction over § 332(c)(7)(B)(ii) from the
FCC.
The question we confront under Chevron is whether these provisions
unambiguously indicate Congress’s intent to preclude the FCC from
implementing § 332(c)(7)(B)(ii) and (v). If they do, the FCC lacked statutory
authority to issue the 90- and 150-day time frames. If the provisions are
ambiguous, however, we must defer to the FCC’s interpretation—an
interpretation under which the FCC possessed authority to issue the 90- and
10
1 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 (1999) (“We think that the grant
in § 201(b) means what it says: The FCC has rulemaking authority to carry out the ‘provisions
of this Act,’ which include §§ 251 and 252, added by the Telecommunications Act of 1996.”);
see also AT&T Commc’ns v. BellSouth Telecomms. Inc., 238 F.3d 636, 641 (5th Cir. 2001).
10
2 Cf. First Gibraltar Bank, FSB v. Morales, 42 F.3d 895, 901 (5th Cir. 1995) (per
curiam) (“As part of its legislative powers, Congress designates the scope of agency authority,
and if Congress so chooses, it can subsequently restrict or limit that delegation of power to the
agency.”).
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150-day time frames—so long as the FCC’s interpretation represents a
reasonable construction of their terms. For the following reasons, we conclude
neither § 332(c)(7)(A) nor § 332(c)(7)(B)(v) unambiguously preclude the FCC
from establishing the 90- and 150-day time frames.
First, we note that § 332(c)(7)(A), when it states “[e]xcept as provided in
this paragraph,” removes § 332(c)(7)(B)’s limitations from its reach and
recognizes those limitations as legitimate intrusions into state and local
governments’ traditional authority over zoning decisions. The fundamental
question then, is whether § 332(c)(7)(A), in restricting the TCA’s limitations on
state or local zoning authority to only those contained in § 332(c)(7)(B), also
precludes the FCC from implementing those limitations by relying on its general
rulemaking authority under the Communications Act. This is a question to
which § 332(c)(7)(A) itself does not provide a clear answer. Section 332(c)(7)(A)
states Congress’s desire to make § 332(c)(7)(B)’s limitations the only limitations
confronting state and local governments in the exercise of their zoning authority
over the placement of wireless services facilities, and thus certainly prohibits the
FCC from imposing restrictions or limitations that cannot be tied to the
language of § 332(c)(7)(B). Whether the FCC retains the power of implementing
those limitations, however, remains unresolved.
Congress’s silence on this point is not without implication. Had Congress
intended to insulate § 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. The FCC’s general grant of
authority would ordinarily extend to amendments to the Communications Act,
like § 332(c)(7)(B)’s limitations, in the absence of specific statutory limitations
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on that authority,103 and Congress certainly knew how to specifically restrict the
FCC’s general authority over the Communications Act as it clearly restricted the
FCC’s ability to use that authority in other contexts.10
4 Here, however, Congress
did not clearly remove the FCC’s ability to implement the limitations set forth
in § 332(c)(7)(B), and this Congressional silence leaves § 332(c)(7)(A)’s effect on
the FCC’s authority to administer § 332(c)(7)(B)’s limitations ambiguous.
Moreover, the cities’ reliance on § 332(c)(7)(B)(v) does not resolve
§ 332(c)(7)(A)’s ambiguity. The cities contend that, by establishing jurisdiction
in the courts over specific disputes arising under § 332(c)(7)(B)(ii), Congress
indicated its intent to remove that provision from the scope of the FCC’s general
authority to administer the Communications Act. The cities read too much into
§ 332(c)(7)(B)(v)’s terms, however. Although § 332(c)(7)(B)(v) does clearly
establish jurisdiction in the courts over disputes arising under § 332(c)(7)(B)(ii),
the provision does not address the FCC’s power to administer § 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.
Accordingly, one could read § 332(c)(7) as a whole as establishing a framework
in which a wireless service provider must seek a remedy for a state or local
government’s unreasonable delay in ruling on a wireless siting application in a
court of competent jurisdiction while simultaneously allowing the FCC to issue
an interpretation of § 332(c)(7)(B)(ii) that would guide courts’ determinations of
disputes under that provision.
The Sixth Circuit recently addressed a similar statutory scheme in
10
3 See AT&T Corp., 525 U.S. at 378.
10
4 See, e.g., 47 U.S.C. § 152(b) (listing specific exceptions to the FCC’s authority over
the Communications Act); La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369-76 (1986) (holding
§ 152(b) “denies the FCC the power to preempt state regulation of depreciation for intrastate
ratemaking purposes”).
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Alliance for Community Media v. FCC.105 That decision involved provisions of
the Communications Act that delegated to municipalities, in the form of local
franchising authorities (LFAs), the power to award cable franchises.10
6 The
provisions at issue further provided that an LFA could not “unreasonably refuse
to award an additional competitive franchise,”10
7
and “endowed potential
entrants with a judicial remedy by entitling them to commence an action in a
federal or state court within 120 days after receiving a final, adverse decision
from an LFA.”10 After the FCC promulgated rules delineating situations that
8
would constitute an unreasonable refusal to award a cable franchise, petitioners
claimed (among other arguments) that the statute’s identification of courts as
the forum for aggrieved cable operators to obtain relief deprived the FCC of
statutory authority to exercise its rulemaking power. The court rejected that
argument, holding that “the availability of a judicial remedy for unreasonable
denials of competitive franchise applications does not foreclose the agency’s
rulemaking authority over section 621(a)(1).”109 The decision in Alliance for
Community Media supports the conclusion that there is nothing inherently
unreasonable about reading § 332(c)(7) as preserving the FCC’s ability to
implement § 332(c)(7)(B)(ii) while providing for judicial review of disputes under
§ 332(c)(7)(B)(ii) in the courts.11
0 Section 332(c)(7)(B)(v)’s vesting in the courts
10 529
5
F.3d 763 (6th Cir. 2008).
10
6 Id. at 768.
10
7 Id.
10
8 Id.
10
9 Id. at 775.
11
0 Id. at 776 (“[W]e believe that courts can grant deference to the Order while
maintaining their Congressionally-granted authority to make factual determinations and
provide relief to aggrieved cable operators.”). Cf. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366,
385 (1999) (“While it is true that the 1996 Act entrusts state commissions with the job of
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of jurisdiction over disputes arising under § 332(c)(7)(B)(ii) thus does not
unambiguously preclude the FCC from taking the action at issue in this case.
In sum, we conclude that § 332(c)(7) is ambiguous with respect to the
FCC’s authority to establish the 90- and 150-day time frames. Although the
statute clearly bars the FCC from using its general rulemaking powers under
the Communications Act to create additional limitations on state and local
governments beyond those the statute provides in § 332(c)(7)(B), the statute is
silent on the question of whether the FCC can use its general authority under
the Communications Act to implement § 332(c)(7)(B)’s limitations. We proceed
to Chevron step two.

C

Once we determine that a statute is silent or ambiguous with respect to
a question at issue, we must defer to the agency’s resolution of the question if
the agency’s interpretation is based on a permissible construction of the
statute.11
1 In addition to arguing that the plain text of § 332(c)(7) precludes the
FCC from establishing the 90- and 150-day time frames, the cities make a
number of other arguments that seemingly attack the permissibility of any
construction of the statute that would allow the FCC to exercise the power that
it did in this case. First, the cities claim § 332(c)(7)’s legislative history supports
their proposed reading of § 332(c)(7) and not the FCC’s. Second, they suggest
that a construction of § 332(c)(7) that would grant the FCC authority to
implement § 332(c)(7)(B)’s limitations on state and local government would
conflict with the principle that “if Congress intends to preempt a power
approving interconnection agreements and granting exemptions to rural LECs, these
assignments . . . do not logically preclude the [FCC’s] issuance of rules to guide the state-
commission judgments.” (internal citations omitted)).
111 See, e.g., Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010)
(quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984)).
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traditionally exercised by a state or local government, it must make its intention
to do so unmistakably clear in the language of the statute.”11
2 Finally, they
suggest the FCC itself had long recognized that it lacked jurisdiction with
respect to § 332(c)(7)(B)’s limitations. These arguments are not persuasive.
Regarding the legislative history surrounding the passage of § 332(c)(7),
the cities note Congress considered but ultimately did not enact a version of the
statute that directed the FCC to “prescribe and make effective a policy regarding
State and local regulation of the placement, construction, modification, or
operation of facilities for the provision of commercial mobile services.”11
3 The
cities also point to the Conference Report from the passage of the TCA, which
provides in pertinent part:
The conference agreement creates a new section 704 which prevents
Commission preemption of local and State land use decisions and
preserves the authority of State and local governments over zoning
and land use matters except in the limited circumstances set forth
in the conference agreement. The conference agreement also
provides a mechanism for judicial relief from zoning decisions that
fail to comply with the provisions of this section. It is the intent of
the conferees that other than under section 332(c)(7)(B)(iv) of the
Communications Act of 1934 as amended by this Act and section
704 of the Telecommunications Act of 1996 the courts shall have
exclusive jurisdiction over all other disputes arising under this
section. Any pending Commission rulemaking concerning the
preemption of local zoning authority over the placement,
construction or modification of CMS facilities should be
terminated.114
The cities argue the FCC’s construction of § 332(c)(7) contravenes this legislative
history. The implication, then, is that this legislative history clarifies any
112 City of Dallas, Tex. v. FCC, 165 F.3d 341, 347-48 (5th Cir. 1999) (quoting Gregory
v. Ashcroft, 501 U.S. 452, 460 (1991)) (internal quotation marks and citations omitted).
11 H
3
.R. REP. NO. 104-204, pt. 1, at 25 (1995).
11 H
4
.R. REP. NO. 104-458, at 207-08 (1996) (Conf. Rep.).
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ambiguity in § 332(c)(7)’s plain text and indicates Congress’s intent to remove
from the FCC the authority to implement § 332(c)(7)(B)(ii) and (v).
This argument fails, however, because the legislative history itself is
ambiguous. Although the legislative history surrounding the passage of
§ 332(c)(7) indicates Congress intended the provision to remove from the FCC
the authority to make new rules limiting or affecting state and local government
authority over wireless zoning decisions, the legislative history, like the statute
itself, is silent as to the FCC’s ability to use its general rulemaking power to
provide guidance with respect to the limitations § 332(c)(7)(B) expressly imposes
on state and local governments. In other words, the legislative history does no
more than indicate Congress’s intent to bar the FCC from imposing additional
limitations on state and local government authority. It does not indicate a clear
intent to bar FCC implementation of the limitations already expressly provided
for in the statute. Under these circumstances, we cannot conclude that the
legislative history “is so clear and compelling . . . that it leaves no doubt as to
Congress’s intent.”11
5
The cities also suggest that interpreting § 332(c)(7) in a way that would
allow the FCC to implement § 332(c)(7)(B)(ii) and (v) conflicts with the principle
that “if Congress intends to preempt a power traditionally exercised by a state
or local government, it must make its intention to do so unmistakably clear in
the language of the statute.”11
6 The cities assert that the FCC’s new 90- and 150-
day time frames displace state laws establishing different time frames.
The cities’ argument is unconvincing because those state laws are already
preempted, at least to the extent that the state time limits violate
§ 332(c)(7)(B)(ii)’s requirement that state and local authorities rule on zoning
11
5 Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 396 (5th Cir. 2008).
116 City of Dallas, Tex., 165 F.3d at 347-48 (quoting Gregory, 501 U.S. at 460) (internal
quotation marks and citations omitted).
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requests in a reasonable amount of time. That section already acts to preempt
these state laws by creating a federal time frame defined through reference to
reasonableness. No one could plausibly argue, for example, that if a state passed
a law stating that local governments had ten years to rule on such applications,
§ 332(c)(7)(B)(ii) would not have the effect of preempting that law insofar as an
aggrieved party would likely be able to petition a court for relief under
§ 332(c)(7)(B)(v) well before the expiration of the state’s time frame. FCC action
interpreting what amount of time is “reasonable” under § 332(c)(7)(B)(ii) only
further refines the extent of the preemption that Congress has already explicitly
provided. We thus see no conflict between the FCC’s ability to interpret
§ 332(c)(7)(B)’s limitations on state and local government authority and the
principle that Congress must unmistakably indicate its intent to preempt a
power traditionally exercised by state or local governments because Congress
has indicated a preference for federal preemption of state and local laws
governing the time frames for wireless zoning decisions.117
Finally, the cities argue that “[u]ntil its dramatic shift in the [Declaratory
Ruling], the FCC had long recognized the statutory limits on its jurisdiction
under Section 332(c)(7).” The cities claim the FCC’s exercise of authority to
interpret § 332(c)(7)(B)(ii) and (v) conflicts with the FCC’s own longstanding
interpretation of its jurisdiction. The cities note that the Supreme Court, in New
Process Steel, L.P. v. NLRB,11
8 made the following observation when interpreting
the statute establishing the NLRB’s quorum requirements: “That our
interpretation of the delegation provision is consistent with the Board’s
longstanding practice is persuasive evidence that it is the correct one,
117 Cf. AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379 n.6 (1999) (“This is, at bottom,
a debate not about whether the States will be allowed to do their own thing, but about whether
it will be the FCC or the federal courts that draw the lines to which they must hew.”).
11
8 130 S. Ct. 2635 (2010).
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notwithstanding the Board’s more recent view.”11
9
We are not persuaded by this argument in this case, however, because the
FCC interpretations to which the cities direct us do not adopt the position that
the FCC lacks authority to implement § 332(c)(7)(B)’s limitations. For example,
in In re Facilitating the Provision of Spectrum-Based Services to Rural Areas and
Promoting Opportunities for Rural Telephone Companies to Provide Spectrum-
Based Services, the FCC did observe that “Section 332(c)(7) generally preserves
local authority over land use decisions, and limits the Commission’s authority
in this area,”120 but a review of that order makes clear that the limitation to
which the FCC was referring was § 332(c)(7)(B)(v)’s grant of exclusive
jurisdiction to the courts over most disputes arising under § 332(c)(7)(B).12
1 The
FCC’s order in In re Cingular Wireless L.L.C.122 and a letter from the chief of the
FCC’s Wireless Telecommunications Bureau12
3 similarly contained observations
on the limits of the FCC’s authority to consider petitions challenging specific
state or local government action. As already discussed, that § 332(c)(7)(B)(v)
vests exclusive jurisdiction in the courts to consider specific disputes arising
under § 332(c)(7)(B) does not limit the FCC’s ability to implement § 332(c)(7)(B)’s
limitations. Thus, the FCC’s acknowledgment of this limitation hardly suggests
that the FCC also recognized a limit on its authority under § 201(b).

D

For the above reasons, we conclude the FCC is entitled to deference with
11
9 Id. at 2641-42.
12
0 19 FCC Rcd. 24084 ¶ 123 (2004).
12
1 Id. at n.368.
12
2 18 FCC Rcd. 13126 ¶ 21 (2003).
12
3 Letter from Michele C. Farquhar to Mr. Thomas E. Wheeler (Jan. 13, 1997), 1997
WL 14744.
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respect to its exercise of authority to implement § 332(c)(7)(B)(ii) and (v). The
language of § 332(c)(7) is silent with respect to the FCC’s power to exercise this
authority, and none of the cities’ arguments convince us that the FCC’s
interpretation of its statutory authority is impermissible. The FCC thus did not
lack statutory authority to establish the 90- and 150-day time frames.

VI

We now consider whether the 90- and 150-day time frames themselves also
pass muster under Chevron. The time frames represent the FCC’s attempt to
implement § 332(c)(7)(B)(ii) and (v). Section 332(c)(7)(B)(ii) requires state and
local governments to “act on any request for authorization to place, construct, or
modify personal wireless service facilities within a reasonable period of time
after the request is duly filed with such government or instrumentality, taking
into account the nature and scope of such request.” Section 332(c)(7)(B)(v)
provides that any person adversely affected by a state or local government’s
“failure to act” may “within 30 days after such . . . failure to act, commence an
action in any court of competent jurisdiction.” In the Declaratory Ruling, the
FCC defined “a reasonable period of time” for purposes of § 332(c)(7)(B)(ii) as,
presumptively, “90 days to process personal wireless service facility siting
applications requesting collocations, and . . . 150 days to process all other
applications.”124 The FCC also concluded that a lack of decision within these
time frames would constitute a failure to act that would be actionable under
§ 332(c)(7)(B)(v).125

A

As usual, we begin with the statutory text. The FCC claims that
§ 332(c)(7)(B)(ii) and § 332(c)(7)(B)(v) are ambiguous and subject to FCC
12 24
4
FCC Rcd. 13994 ¶ 32 (2009).
12
5 Id.
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interpretation. We agree. Specifically, we note that the phrase “a reasonable
period of time,” as it is used in § 332(c)(7)(B)(ii), is inherently ambiguous.12
6
Moreover, because the phrase “a reasonable period of time” serves as a standard
for determining when a “failure to act” has occurred under § 332(c)(7)(B)(v), the
ambiguity in the phrase leaves room for agency guidance on the amount of time
state and local governments have to act on wireless facility zoning applications
before their delay constitutes a failure to act under the statute that would
trigger § 332(c)(7)(B)(v)’s 30-day limitations period on filing an action in court.
We thus owe substantial deference to the FCC’s interpretation of these terms,
and we will disturb the FCC’s interpretation only if it represents an
impermissible construction of § 332(c)(7)(B)(ii) and (v).12
7

B

The cities raise a number of arguments relevant to the reasonableness of
the FCC’s establishment of the 90- and 150-day time frames. They claim the
FCC’s time frames represent unreasonable interpretations of the statute because
they: (1) shift the burden to state and local governments to demonstrate in court
that a delay in acting on a wireless facility zoning application was reasonable,
thus reversing the presumption against preemption; (2) seek to force state or
126 See Alliance for Cmty. Media v. FCC, 529 F.3d 763, 777 (6th Cir. 2008) (observing
that descriptors such as “reasonable” and “unreasonable” are subject to multiple
constructions); Orloff v. FCC, 352 F.3d 415, 420 (D.C. Cir. 2003) (“[T]he generality of these
terms—unjust, unreasonable—opens a rather large area for the free play of agency discretion.”
(internal quotation marks omitted)); Capital Network Sys., Inc. v. FCC, 28 F.3d 201, 204 (D.C.
Cir. 1994) (“Because ‘just,’ ‘unjust,’ ‘reasonable,’ and ‘unreasonable’ are ambiguous statutory
terms, this court owes substantial deference to the interpretation the Commission accords
them.”).
12
7 See, e.g., Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010); U.S.
Telecom Ass’n v. FCC, 227 F.3d 450, 457-58 (D.C. Cir. 2000) (“If we find the statute silent or
ambiguous with respect to the precise question at issue, we proceed to the second step of
Chevron analysis, asking whether the agency’s answer is based on a permissible construction
of the statute. At this stage of Chevron analysis, we afford substantial deference to the
agency’s interpretation of statutory language.” (internal quotation marks and citations
omitted)).
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local government action by creating a heightened threat of litigation; (3) impose
new application completeness requirements; (4) create a national standard for
what constitutes a “reasonable period of time”; and (5) contravene Congressional
intent by giving preferential treatment to the wireless industry in the processing
of zoning applications. After considering these arguments, however, we conclude
that the FCC’s 90- and 150-day time frames are based on a permissible
construction of § 332(c)(7)(B)(ii) and (v) and are thus entitled to Chevron
deference.
1
First, the cities observe that courts addressing actions brought pursuant
to § 332(c)(7)(B)(v) have placed the burden on the plaintiff to prove that a state
or local government has failed to comply with one of § 332(c)(7)(B)’s
requirements.128 They claim the FCC’s time frames reverse this burden by
creating a presumption that a state or local government that fails to act on a
zoning application within the applicable 90- or 150-day time frame has “failed
to act” under § 332(c)(7)(B)(v). The result, they argue, is that “the ‘presumption
against preemption’ is replaced with a presumption for preemption” because the
burden of proof rests on state and local governments to prove the reasonableness
of their delay in cases in which they have failed to act within the time frames.
We disagree with this characterization of the effect of the FCC’s
presumption because it misstates the typical effect of a presumption in a civil
proceeding. Federal Rule of Evidence 301, for example, describes the effect of
presumptions in civil proceedings in federal court. It provides:
In a civil case, unless a federal statute or these rules provide
otherwise, the party against whom a presumption is directed has
128 See, e.g., U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 256 (5th
Cir. 2004) (“The plaintiff carries the burden of proving that no substantial evidence supports
the local government’s decision [in an action challenging the decision under
§ 332(c)(7)(B)(iii)].”).
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the burden of producing evidence to rebut the presumption. But this
rule does not shift the burden of persuasion, which remains on the
party who had it originally.129
We have held that Rule 301 adopts a “bursting-bubble” theory of presumption,
under which “the only effect of a presumption is to shift the burden of producing
evidence with regard to the presumed fact.”130 “If the party against whom the
presumption operates produces evidence challenging the presumed fact, the
presumption simply disappears from the case.”13
1 In other words, once a party
introduces rebuttal evidence sufficient to support a finding contrary to the
presumed fact, the presumption evaporates, and the evidence rebutting the
presumption, and its inferences, must be “judged against the competing evidence
and its inferences to determine the ultimate question at issue.”13
2 The burden
of persuasion with respect to the ultimate question at issue remains with the
party on whom it originally rested.133
We see no reason why this general theory of presumptions does not also
apply to the presumption created by the FCC’s Declaratory Ruling. In an action
seeking to enforce § 332(c)(7)(B)(ii) against a state or local government, the
ultimate burden of persuasion remains with the wireless facilities provider to
12 F
9
ED. R. EVID. 301.
13
0 Pennzoil Co. v. FERC, 789 F.2d 1128, 1136 (5th Cir. 1986).
13
1 Id. at 1136-37.
132 McCann v. Newman Irrevocable Trust, 458 F.3d 281, 288 (3d Cir. 2006) (internal
quotation marks omitted).
13
3 See FED. R. EVID. 301 (noting “the burden of persuasion . . . remains on the party
who had it originally”); cf. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (“It is
important to note, however, that although the McDonnell Douglas presumption shifts the
burden of production to the defendant, the ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff. In this regard it operates like all presumptions, as described in Federal Rule of
Evidence 301.” (internal quotation marks, brackets, and citations omitted)).
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demonstrate that the government unreasonably delayed action on an
application. True, the wireless provider would likely be entitled to relief if it
showed a state or local government’s failure to comply with the time frames and
the state or local government failed to introduce evidence demonstrating that its
delay was reasonable despite its failure to comply. But, if the state or local
government introduced evidence demonstrating that its delay was reasonable,
a court would need to weigh that evidence against the length of the government’s
delay—as well as any other evidence of unreasonable delay that the wireless
provider might submit—and determine whether the state or local government’s
actions were unreasonable under the circumstances.
2
The cities also argue that the 90- and 150-day time frames represent
unreasonable interpretations of the statute because the time frames subject
state and local governments to a heightened risk of litigation by wireless service
providers. The cities suggest that this heightened risk “affects” state or local
governments and thus violates § 332(c)(7)(A). This argument is not convincing,
however, because, although the FCC’s time frames do provide some amount of
certitude as to when a state or local government has unreasonably failed to act
under § 332(c)(7)(B)(ii), the time frames do not create any new risk of litigation
independent from the risk state or local governments have always faced as a
result of § 332(c)(7)(B)(v)’s vesting of jurisdiction in the courts to hear disputes
arising under § 332(c)(7)(B)(ii). As we have already discussed, § 332(c)(7)(A)
does not apply to § 332(c)(7)(B)’s restrictions on state and local governments.
3
The cities also take issue with the FCC’s determination that the 90- and
150-day time frames do not start to run with respect to an application if the
application is incomplete and the state or local government alerts the applicant
to the application’s incompleteness within 30 days of its submission. The effect
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of this determination, they argue, is the imposition of a new “completeness
requirement” that has no basis in § 332(c)(7)(B)(ii).
We disagree. The FCC’s decision to toll the time frames when a state or
local government confronts an incomplete application accounts for the fact that
the completeness of an application affects the ability of a decisionmaker to act
on that application. The FCC recognized that in such cases, a state or local
government could not be presumed to have acted unreasonably simply because
the government failed to act on an application within the time frames. The FCC
also recognized, however, that a state or local government that confronted an
incomplete application, but delayed alerting the applicant to the deficiencies in
the application, should be presumed to have acted unreasonably if the
government ultimately did not act on the application within the time frames.
Thus, the FCC allowed for tolling of the 90- and 150-day time frames in cases of
incompleteness, but also imposed a separate time frame for state and local
governments to notify applicants of incompleteness in order to prevent state and
local governments from manipulating the process. This does not strike us as an
unreasonable application of § 332(c)(7)(B)(ii).134
To the extent the cities argue that state and local governments often will
not become aware of a need for more information with respect to an application
until after the FCC’s 30-day tolling period has expired, we again emphasize the
limited effect of the FCC’s 90- and 150-day time frames. The time frames
represent the FCC’s interpretation of what would generally constitute an
unreasonable delay under § 332(c)(7)(B)(ii), but a court will ultimately decide
whether state or local government action is unreasonable in a particular case.
134 Cf. Alliance for Cmty. Media v. FCC, 529 F.3d 763, 780 (6th Cir. 2008) (“Courts are
‘generally unwilling to review line-drawing performed by the Commission unless a petitioner
can demonstrate that lines drawn . . . are patently unreasonable, having no relationship to the
underlying regulatory problem.’” (alteration in original) (quoting Covad Comm. Co. v. FCC,
450 F.3d 528, 541 (D.C. Cir. 2006))).
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Accordingly, if a state or local government fails to meet the applicable time
frame because deficiencies in an application become apparent more than 30 days
after the application was filed, the government would remain free to argue that
it acted reasonably under the circumstances.
4
Fourth, the cities contend the 90- and 150-day time frames are not
reasonable interpretations of § 332(c)(7)(B)(ii) because the time frames apply
nationwide and thus cannot be squared with § 332(c)(7)(B)(ii)’s command that
what constitutes a “reasonable period of time” should be determined by taking
into account “the nature and scope of such request.” This is an individualized
determination, the argument goes, and a national standard is incompatible with
such a scheme. We cannot agree with the cities on this point, however, because,
as we have already made clear, the 90- and 150-day time frames do not eliminate
the individualized nature of an inquiry into the reasonableness of a state or local
government’s delay. The time frames do provide the FCC’s guidance on what
periods of time will generally be “reasonable” under the statute, of course, and
they might prove dispositive in the rare case in which a state or local
government submits no evidence supporting the reasonableness of its actions.
But in a contested case, courts must still determine whether the state or local
government acted reasonably under the circumstances surrounding the
application at issue.
5
Finally, the cities claim the FCC’s time frames are unreasonable
interpretations of § 332(c)(7)(B) because they will require state and local
governments to give wireless service providers preferential treatment in the
form of prioritized review of wireless zoning applications. They claim this result
clearly conflicts with Congress’s intent, and for support, point to the following
passage from the Conference Report: “It is not the intent of this provision to give
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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[s].”13
5 However, nothing in the FCC’s time frames
necessarily requires state and local governments to provide greater preference
to wireless zoning applications than is already required by § 332(c)(7)(B)(ii)
itself. The statute provides a clear directive that state and local governments
must rule on wireless zoning applications in a “reasonable amount of time,” and
that directive inherently preferences the personal wireless service industry
because other types of state and local zoning decisions are not subject to such a
standard.13 Moreover, as already noted, a
6
state or local government that fails
to act on an application within the FCC’s time frames remains free to argue that
it acted diligently with respect to the application, and such an argument might
include reference to the inability of the government to address the wireless
zoning application within the time frames without neglecting its other
business.13
7
6
In short, we believe the cities’ challenges to the reasonableness of the 90-
and 150-day time frames stem from a misunderstanding of the time frames’
effect on the wireless zoning application process. We do not read the Declaratory
13 H
5
.R. REP. NO. 104-458, at 208 (1996) (Conf. Rep.).
136 Cf. Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 396 (5th Cir. 2008) (observing
that appeals to statutory purpose only overcome an agency’s interpretation of a statute’s text
when “the statute’s purpose is so clear and compelling, despite tension with its plain text, that
it leaves no doubt as to Congress’s intent”).
137 Cf. SNET Cellular, Inc. v. Angell, 99 F. Supp. 2d 190, 198-99 (D.R.I. 2000)
(concluding that a zoning board was not dilatory in its treatment of an application because the
board considered applications in the order in which they were filed, hearings on the
application were postponed due to the protracted nature of hearings on a different application,
and the zoning board tried to expedite matters by supplementing its monthly meetings with
several special meetings regarding the application).
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Ruling as creating a scheme in which a state or local government’s failure to
meet the FCC’s time frames constitutes a per se violation of § 332(c)(7)(B)(ii).
The time frames are not hard and fast rules but instead exist to guide courts in
their consideration of cases challenging state or local government inaction. It
is true that courts considering such cases will owe deference to the FCC’s
determination that a state or local government’s failure to comply with the time
frames constitutes unreasonable delay. In the rare case in which a state or local
government fails to submit any evidence demonstrating the reasonableness of
its inaction, the government’s failure to comply with the FCC’s time frames will
likely be dispositive of the question of the government’s compliance with
§ 332(c)(7)(B)(ii). The more likely scenario, however, is that a state or local
government that has failed to act within the time frames will attempt to rebut
the presumption of unreasonableness by pointing to reasons why the delay was
reasonable. It might do so by pointing to extenuating circumstances, or to the
applicant’s own failure to submit requested information. Or it might note that
it was acting diligently in its consideration of an application,13
8 that the necessity
of complying with applicable state or local environmental regulations occasioned
the delay,13
9 or that the application was particularly complex in its nature or
scope.140 All of these factors might justify the conclusion that a state or local
government has acted reasonably notwithstanding its failure to comply with the
FCC’s time frames. We do not list these possibilities to establish a definitive list
13
8 See id.
139 See N.Y. SMSA Ltd. P’ship v. Town of Riverhead, 45 F. App’x 24, 26-27 (2d Cir. 2002)
(unpublished).
140 See Omnipoint Commc’ns Enters., Inc. v. Town of Amherst, N.H., 74 F. Supp. 2d 109,
122 (D.N.H. 1998) (“The [Zoning Board of Adjustment] chairman noted that the ZBA had
received more information relating to the plaintiff's applications than any previous
applications. In addition, the volume of public response to the applications was extremely
high.”).
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of the circumstances that might cause a state or local government to have acted
reasonably, however, as adjudications of specific disputes under the statute will
ultimately determine how specific circumstances relate to the FCC’s time
frames. Our point here is simply to note both that a variety of circumstances can
affect the consideration and determination of a wireless facility zoning
application, and that these circumstances remain relevant even after the FCC
issued its time frames.

VII

The cities also claim the FCC’s establishment of the 90- and 150-day time
frames was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”14 Agency action is arbitrary and capricious
1
if the agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.14
2
Our scope of review under the arbitrary and capricious standard is narrow, and
we cannot substitute our own judgment for that of the agency.14
3 “We limit our
review to whether the agency articulated a rational connection between the facts
found and the decision made, and it is well-settled that an agency’s action must
be upheld, if at all, on the basis articulated by the agency itself.”14
4 “Our
141 See 5 U.S.C. § 706; Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000) (“Under
the Administrative Procedure Act, agency action is reviewed solely to determine whether it
is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”).
142 Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983).
14
3 Id.
144 Hayward v. U.S. Dep’t of Labor, 536 F.3d 376, 380 (5th Cir. 2008) (internal quotation
marks and citations omitted).
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mandate is not to ‘weigh the evidence pro and con but to determine whether the
agency decision was based on a consideration of relevant factors and whether
there was a clear error of judgment.’”145 “[I]f the agency considers the factors
and articulates a rational relationship between the facts found and the choice
made, its decision is not arbitrary or capricious.”146
We cannot conclude that there has been a clear error of judgment in this
case. The record reflects the FCC issued the Declaratory Ruling only after
receiving dozens of comments from wireless service providers, local zoning
authorities, and other interested parties, and many of those comments supported
the FCC’s conclusion that wireless service providers often face lengthy delays in
the consideration of collocation and new wireless facility zoning applications.
CTIA’s petition, for example, claimed that a survey of its members indicated 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. Comments from wireless services providers
supported CTIA’s claims. T-Mobile USA, Inc., for example, submitted comments
indicating that over thirty percent of T-Mobile’s currently pending proposals
involving new wireless facilities had been pending for more than one year and
that nearly one-third of its currently pending collocation applications had been
pending for more than one year. Verizon Wireless submitted comments claiming
that, of the over 350 non-collocation zoning requests it currently had pending,
over half had been pending for more than six months and nearly 100 had been
pending for more than one year. Alltel Communications, LLC, submitted
comments indicating a number of Alltel’s collocation and new facility
applications had been pending with local zoning authorities for over one year.
145 Id. (quoting Delta Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002)).
14
6 Harris v. United States, 19 F.3d 1090, 1096 (5th Cir. 1994).
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The cities argue that this evidence exaggerates the proportion of
applications that face significant delay with local zoning boards because, by
comparing the number of applications facing significant delays to the number of
applications currently pending with local zoning authorities, the evidence fails
to account for the applications that local zoning authorities have already
approved. The cities also seize on comments by wireless service providers
indicating that the vast majority of local governments act on wireless zoning
applications in a timely manner. Taken together, the cities argue that this
evidence demonstrates that there was no real need for agency action in this case.
We believe the cities’ argument is an invitation for this court to
independently weigh the evidence before the agency, an undertaking that would
exceed the scope of our judicial review. Whether the FCC’s decision in this case
was ideal, or even necessary, is irrelevant to the question of whether it was
arbitrary and capricious “so long as the agency gave at least minimal
consideration to the relevant facts as contained in the record.”147 Here, the
administrative record demonstrates that wireless service providers in many
areas of the country face significant delays with respect to their facilities zoning
applications, and we believe the FCC properly considered this information and
determined that both wireless service providers and zoning authorities would
benefit from FCC guidance on what lengths of delay would generally be
unreasonable under § 332(c)(7)(B)(ii). This conclusion was not arbitrary and
capricious.

VIII

Finally, one of the intervenors in Arlington’s petition for review, the EMR
Policy Institute (EMR), presents the claim that the FCC acted arbitrarily and
capriciously when it dismissed a cross-petition that EMR filed during the agency
147 Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010).
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proceedings. In its petition, EMR claimed FCC regulations concerning the radio
frequency emissions of personal wireless facilities were inadequate and
requested that the FCC interpret § 332(c)(7)(B)(iv) to allow state and local
governments to restrict the siting of personal wireless facilities on the basis of
environmental factors that EMR claimed the FCC failed to address in its
regulations.14
8 We decline to consider EMR’s argument for the same reason we
refuse to consider the additional arguments raised by San Antonio—as an
intervenor, EMR cannot present issues that are not raised in Arlington’s petition
for review.149
* * *
For the above reasons, we DENY Arlington’s petition for review. We
DISMISS San Antonio’s petition for review because we lack jurisdiction to
consider it.
148 Section 332(c)(7)(B)(iv) preempts state or local regulation of the placement of
personal wireless facilities “on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the Commission’s regulations
concerning such emissions.”
14
9 Brazoria Cnty., Tex. v. EEOC, 391 F.3d 685, 689 (5th Cir. 2004).
51

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