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City of Arlington v. FCC, No. 11-1545

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Released: October 31, 2012
Nos. 11-1545 & 11-1547

Supreme Court of the United States




On Petitions for a Writ of Certiorari

to the United States Court of Appeals
for the Fifth Circuit






Counsel of Record
1776 K Street, N.W.
Washington, D.C. 20006
(202) 719-7000
1615 M Street, N.W.
Counsel for Verizon Wireless
Suite 400

Washington, D.C. 20036

(202) 326-7900


Counsel for CTIA—
August 29, 2012
The Wireless Association®

(Additional Counsel Listed On Inside Cover)

1320 North Courthouse Road ASSOCIATION®
9th Floor
1400 16th Street, N.W.
Arlington, Virginia 22201
Suite 600
(703) 351-3860
Washington, D.C. 20036

(202) 785-0081
Counsel for CTIA—
The Wireless Association®

1300 Eye Street, N.W.
Suite 400 West
Washington, D.C. 20005
(202) 515- 2400
Counsel for Verizon Wireless


The question presented by these petitions is
whether, through the general authorizing provisions
of the Communications Act of 1934, such as 47 U.S.C.
§§ 201(b) and 303(r), Congress conveyed jurisdiction
to the Federal Communications Commission to inter-
pret the substantive limitations on local authority
imposed by Section 332(c)(7)(B) of that Act, 47 U.S.C.
§ 332(c)(7)(B).
The primary question urged by petitioners is
whether the Commission’s determination that it
had such jurisdiction is entitled to deference under
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc.
, 467 U.S. 837 (1984). That question,
however, is presented here only if the Court were to
conclude that Congress did not speak clearly as to
the Commission’s jurisdiction.
For the reasons set forth in this Brief in Opposi-
tion, the Commission’s jurisdiction in this case was
in fact clear under the statute. Therefore, no Chevron
issue is presented.



Pursuant to Rule 29.6 of the Rules of this Court,
respondents CTIA—The Wireless Association® and
Cellco Partnership d/b/a Verizon Wireless state the
CTIA—The Wireless Association® (“CTIA”) is a
Section 501(c)(6) not-for-profit corporation organized
under the laws of the District of Columbia and
represents the wireless communications industry.
Members of CTIA include service providers, manu-
facturers, wireless data and Internet companies, and
other industry participants. CTIA has not issued
any shares or debt securities to the public, and CTIA
has no parent companies, subsidiaries, or affiliates
that have issued any shares or debt securities to the
Cellco Partnership d/b/a Verizon Wireless (“Cellco”)
has four partners. Two of the partners, representing
55% of the interest in Cellco, are ultimately owned
by Verizon Communications Inc. (“Verizon”). These
partners are: Bell Atlantic Mobile Systems, Inc. and
GTE Wireless Incorporated (collectively, the “Verizon
Partners”). Neither of the Verizon Partners is
publicly held. Two of the partners, representing
45% of the interest in Cellco, are ultimately owned
by Vodafone Group Plc (“Vodafone”). These partners
are: PCS Nucleus, L.P. and JV PartnerCo, LLC
(collectively, the “Vodafone Partners”). Neither of
the Vodafone Partners is publicly held. Verizon is a
publicly held Delaware corporation. Vodafone is a
publicly held British corporation. Neither Verizon
nor Vodafone has a parent company, and no publicly
held company has a 10% or greater ownership in
either entity.



QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iv
INTRODUCTION ....................................................... 1
STATEMENT .............................................................. 3
JURISDICTION ............................................. 13
CONCLUSION .......................................................... 24



Alliance for Cmty. Media v. FCC, 529 F.3d 763
(6th Cir. 2008) ....................................... 9, 15, 16, 22
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366
(1999) ..................................................... 2, 9, 16, 17,
18, 19, 22, 23
California Dental Ass’n v. FTC, 526 U.S. 756
(1999) ................................................................... 13
Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)......... 1, 2, 11, 12,
13, 14, 15, 18, 23
City of Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005) ...................................... 4, 5, 17
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir.
2010) ..................................................................... 17
Dole v. United Steelworkers, 494 U.S. 26 (1990) ... 13, 14
Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546 (2005) ............................................. 22
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................. 14
Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S.
355 (1986) .......................................................17, 19
New York SMSA Ltd. P’ship v. Town of
Clarkstown, 603 F. Supp. 2d 715 (S.D.N.Y.
2009), aff’d, 612 F.3d 97 (2d Cir. 2010) .................. 4
Omnipoint Holdings, Inc. v. City of Cranston,
586 F.3d 38 (1st Cir. 2009) .................................... 4
Rapanos v. United States, 547 U.S. 715 (2006) ....... 14
Russello v. United States, 464 U.S. 16 (1983) .......... 19

Second Memorandum Opinion and Order and
Notice of Proposed Rulemaking, Procedures
for Reviewing Requests for Relief from State
and Local Regulations Pursuant to Section

332(c)(7)(B)(v) of the Communications Act
of 1934
, 12 FCC Rcd 13494 (1997) ...................... 20

U.S. Const. Art. III ................................................... 22
Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-
385, 106 Stat. 1460 .............................................. 16
Communications Act of 1934, 47 U.S.C. § 151
et seq. ............................................. 1, 2, 5, 9, 12, 14,
16, 17, 18, 19, 20, 23
U.S.C. § 151 ...................................................... 9

47 U.S.C. § 152(b) (§ 2(b)) ........................ 17, 18, 19
§ 154(i) ................................................... 9
§ 201(b) ....................................... 9, 16, 18
§ 253(a) .................................................. 8
§ 303(r) .................................................. 9
U.S.C. § 332 .................................................... 18
332(c)(3) ............................................ 19
332(c)(3)(A) ....................................... 20
§ 332(c)(7) ............................. 5, 15, 18, 19
332(c)(7)(A) ............................... 5, 9, 12,
16, 18, 19, 20

332(c)(7)(B) ....................... 1, 2, 8, 9, 11,
16, 17, 18, 20, 21

47 U.S.C. § 332(c)(7)(B)(i)(I)-(II) ....................... 5, 8

47 U.S.C. § 332(c)(7)(B)(i)(II) ................... 10, 17, 18

47 U.S.C. § 332(c)(7)(B)(ii) ................. 5, 6, 8, 17, 18

47 U.S.C. § 332(c)(7)(B)(iii) ................................... 5

47 U.S.C. § 332(c)(7)(B)(iv) ..................... 5, 6, 20, 21
332(c)(7)(B)(v) ............................. 6, 8, 9,
10, 12, 21, 22
Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 .............................. 5, 8, 16, 20
28 U.S.C. § 2344 ........................................................ 11

H.R. Conf. Rep. No. 104-458 (1996), reprinted
in 1996 U.S.C.C.A.N. 124 ...............................20, 22

CTIAThe Wireless Association®:

Innovation and Competition, at http://
Competition.pdf (last updated Feb. 2011) ............. 3

Petition for Rulemaking, Amendment of
the Commission’s Rules To Preempt State
and Local Regulation of Tower Siting for

Commercial Mobile Services Providers,
RM-8577 (FCC filed Dec. 22, 1994) .................... 20

The U.S. Wireless Industry Overview, at
Industry_Overview.pdf (last updated Apr.
25, 2012) ................................................................. 3

Wireless Quick Facts, at
(last visited Aug. 24, 2012) .................................... 3
Steven J. Eagle, Wireless Telecommunications,
Infrastructure Security, and the NIMBY
Problem, 54 Cath. U. L. Rev. 445 (2005) .............. 4
I Richard J. Pierce, Jr., Administrative Law
Treatise (5th ed. 2010) ......................................... 15


The petitions challenge a declaratory ruling (the
“Ruling”) by respondent Federal Communications
Commission (“FCC” or “Commission”) in which
the agency interpreted a unique provision of the
Communications Act of 1934 that both preserves and
restricts local zoning authority over approvals for
wireless facility construction. The provision at issue,
47 U.S.C. § 332(c)(7)(B), prohibits local governments
from unreasonably delaying action on wireless facil-
ity siting requests and authorizes expedited federal
judicial review of local actions or failures to act.
Based on evidence provided by respondents CTIA
The Wireless Association® (“CTIA”) and Cellco Part-
nership (“Verizon Wireless”; collectively with CTIA,
“wireless respondents”), the Commission concluded
that unreasonable delays (ranging from many months
to several years) were occurring in a substantial
number of cases, in violation of the Communications
Act. It then issued the Ruling, which (among other
things) establishes presumptively reasonable 90- and
150-day periods within which the Commission found
local governments should be able to act in the major-
ity of cases.
Petitioners (the “Cities” and “CTC”) are local gov-
ernments that wish to delay wireless facility siting
requests for longer than the Commission’s 90- and
150-day timetables permit. They argue that the
Commission lacked jurisdiction to issue the Ruling.
The Commission rejected this argument, relying on
its general authority to interpret the Communica-
tions Act and rejecting petitioners’ arguments that
Congress had withdrawn that authority as to
§ 332(c)(7)(B). The Fifth Circuit stated that it
deferred to that ruling under Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). Petitioners now urge the Court to grant
certiorari to answer the question whether Chevron
deference applies to an agency’s statutory construc-
tion when the agency is determining the extent of its
own statutory authority.
These petitions are poor vehicles to answer that
question because the Commission’s jurisdiction to
issue the Ruling is clear. Both the plain text of the
Communications Act and this Court’s decision in
AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366
(1999), compel the conclusion that Congress has spo-
ken directly to the question whether the Commission
had authority to construe § 332(c)(7)(B). Petitioners’
attempts to argue that Congress withdrew that au-
thority in other parts of § 332(c)(7)(B) are too flawed
even to demonstrate ambiguity, much less to estab-
lish Congress’s intent. Neither of the provisions to
which they point restricts the Commission’s jurisdic-
tion either expressly or by any reasonable implica-
tion. If the Court were to grant certiorari, it would
likely affirm without any need to apply Chevron and
would not advance the law in any meaningful way.
Accordingly, certiorari should be denied.



1. Americans’ use of wireless communications
services has grown enormously over the past two
decades, and it continues to grow at a rapid pace. As
of December 2011, there were 331.6 million U.S.
wireless subscriber connections – reflecting an in-
crease of nearly 100 million during the previous five
years alone.1 The market to serve those subscribers
is fiercely competitive: as of February 2011, more
than 91% of Americans can choose from four or more
facilities-based wireless providers; and, in 2009, about
66 million wireless consumers took advantage of such
competitive choices and changed wireless carriers.2
Everyone benefits from the nationwide growth of
competitive wireless services. Consumers use wire-
less services for enhanced productivity, for greater
personal convenience, and for a wide array of enter-
tainment and leisure options. The availability of
ubiquitous, seamless wireless coverage also protects
public safety by ensuring quick, reliable access to
emergency services. And the wireless industry is
also a major driver of capital investment and creator
of jobs.3

1 See CTIA, Wireless Quick Facts, at
media/industry_info/index.cfm/AID/10323 (last visited Aug. 24,
2012). This brief cites up-to-date statistics and background
information on the wireless industry. Citations to similar but
older information from the record before the Commission are
available in the wireless respondents’ court of appeals brief at
pages 5 to 7.
2 See CTIA, Innovation and Competition, at http://files.ctia.
org/pdf/020411_-_Innovation_Competition.pdf (last updated Feb.
3 See generally CTIA, The U.S. Wireless Industry Overview, at
(last updated Apr. 25, 2012).

Wireless carriers’ ability to deliver the benefits
of seamless nationwide coverage, however, depends
on their ability to build wireless facilities. Though
wireless service is widely acknowledged to be popular
and beneficial, the facilities on which it depends
can sometimes be unpopular with nearby property
owners. As courts faced with wireless tower siting
controversies have noted, people tend to “find wire-
less facilities unsightly” and to “worry [that they]
lower property values.” Omnipoint Holdings, Inc. v.
City of Cranston, 586 F.3d 38, 51 n.9 (1st Cir. 2009).
Local residents sometimes respond to these concerns
by exerting “pressure” on their local government rep-
resentatives “to tighten and strictly enforce zoning
restrictions on wireless facilities, creating numerous
pockets of resistance for wireless carriers.” Id.
2. Recognizing this “‘not in my backyard’ . . .
problem,” Omnipoint Holdings, 586 F.3d at 51 n.9,4
and the threat it poses to a truly national wireless
network, Congress acted in 1996 “to encourage the
rapid deployment of new telecommunications tech-
nologies” by “reduc[ing] . . . the impediments imposed
by local governments upon the installation of [wire-
less] facilities.” City of Rancho Palos Verdes v.
, 544 U.S. 113, 115 (2005) (internal quotation
marks omitted). Congress’s chosen means for doing

4 See also, e.g., New York SMSA Ltd. P’ship v. Town of
Clarkstown, 603 F. Supp. 2d 715, 717 n.4 (S.D.N.Y. 2009) (“There
is a NIMBY (not in my backyard) problem with regard to [wire-
less] towers. While everyone wants good cell service, homeown-
ers are concerned about the effect of the unsightly structures on
property values.”), aff ’d, 612 F.3d 97 (2d Cir. 2010) (per curiam);
Steven J. Eagle, Wireless Telecommunications, Infrastructure
Security, and the NIMBY Problem, 54 Cath. U. L. Rev. 445,
455-57 (2005) (discussing this problem generally with regard to
wireless facilities).

so was to “impose[] specific limitations on the tradi-
tional authority of state and local governments to
regulate the location, construction, and modification of
such facilities.” Id. Those limitations are embodied
in 47 U.S.C. § 332(c)(7), one of the many pro-
competitive reforms and additions to the Communi-
cations Act that were made as part of the Telecom-
munications Act of 1996 (“1996 Act”).
Section 332(c)(7) forbids any state or local govern-
ment from “unreasonably discriminat[ing] among
providers of functionally equivalent [personal wireless]
services” and from “prohibit[ing] or . . . effect[ively]
. . . prohibiting the provision of personal wireless
services.” 47 U.S.C. § 332(c)(7)(B)(i)(I)-(II). A state
or local government must also respond to a wire-
less facility siting or modification request “within a
reasonable period of time . . . , taking into account
the nature and scope of such request.” Id.
§ 332(c)(7)(B)(ii). If it denies the request, it must do
so “in writing,” and its action must be “supported by
substantial evidence contained in a written record.”
Id. § 332(c)(7)(B)(iii). In addition, it may not deny a
request “on the basis of the environmental effects of
radio frequency emissions” so long as the provider
involved has complied with FCC regulations on that
subject. Id. § 332(c)(7)(B)(iv).
Congress further provided that, other than the
limitations set forth in § 332(c)(7), “nothing in [the
Communications Act] shall limit or affect [state and
local] authority . . . over decisions regarding the
placement, construction, and modification of per-
sonal wireless service facilities.” Id. § 332(c)(7)(A).
Congress created a judicial cause of action for “[a]ny
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
[§ 332(c)(7)]” and directed that any such action be
“hear[d] and decide[d] . . . on an expedited basis.” Id.
§ 332(c)(7)(B)(v). Separately, it authorized anyone
aggrieved by a violation of § 332(c)(7)(B)(iv), the
radio frequency provision, to seek relief from the
Commission. See id.
3. On July 11, 2008, respondent CTIA filed a
petition for a declaratory ruling from the Commis-
sion. See FCC C.A. E.R. Tab 1. CTIA explained that
a significant and unacceptable number of wireless
tower siting requests were being delayed past any
reasonable period of time, contrary to the mandate
of § 332(c)(7)(B)(ii). CTIA presented evidence, which
the Commission later found credible, to support these
contentions. As the Commission later explained in
the Ruling:
[B]ased on data [CTIA] compiled from its
members, there were [in 2008] more than 3,300
pending personal wireless service facility siting
applications before local jurisdictions. “Of those,
approximately 760 [were] pending final action
for more than one year. More than 180 such
applications [were] awaiting final action for more
than 3 years
.” Moreover, almost 350 of the 760
applications that were pending for more than
one year were requests to collocate on existing
towers, and 135 of those collocation applications
were pending for more than three years.
Pet. App. 98a (fourth and fifth alterations in original;
footnotes omitted).5 CTIA also submitted examples of

5 The delays in collocation applications were particularly
probative evidence of unreasonable local conduct because collo-
cation involves simply sharing an existing facility rather than
building a new one. See Pet. App. 116a-117a (adopting an

situations in which particular localities had delayed
proceedings for multiple years, held dozens of hear-
ings, and ultimately forced a wireless carrier to go to
court before construction could begin. See FCC C.A.
E.R. Tab 1, at 14-15.
Wireless carriers with direct experience of drawn-
out controversies over tower siting submitted addi-
tional evidence in support of CTIA’s position. For
example, Verizon Wireless reported that it had more
than 350 new site applications pending, of which
more than half had been pending for more than six
months, and “nearly 100” for more than a year. Pet.
App. 65a-66a. In addition, “in Northern California,
27 of 30 [Verizon Wireless] applications took more
than 6 months, with 12 applications taking more
than a year, and 6 taking more than two years to be
approved”; and, “in Southern California, 25 applica-
tions took more than two years to be approved, with
52 taking more than a year, and 93 taking more than
6 months.” Id. at 98a-99a (internal quotation marks

industry definition of collocation that covers applications that
“do[ ] not involve a ‘substantial increase in the size of a tower’ ”).
There is no legitimate local interest in taking a year – much
less three – to decide a collocation application.
6 The Commission also had before it comments from T-Mobile,
reporting that just under a third of its then-pending applica-
tions (both for new facility applications and for collocations) had
been delayed for more than a year, see Pet. App. 65a; Sprint
Nextel, reporting delays of 28 to 36 months in certain California
communities, see id. at 98a; the California Wireless Association,
reporting delays of 16 months to 2 years in California, see id. at
98a n.103; and NextG Networks, reporting delays of 10 to 25
months, see id. at 99a. See also id. at 66a, 98a-100a (additional
data for T-Mobile and Alltel).

CTIA further explained that, although these
lengthy delays unquestionably at some point became
unreasonable “failure[s] to act” for which district
courts could grant a remedy under § 332(c)(7)(B)(v),
the 1996 Act was silent as to exactly when a locality’s
delay became an actionable failure to act. To solve
this problem, CTIA asked the Commission to declare
specific periods beyond which any delay would be a
failure to act within “a reasonable period of time,”
and therefore would violate § 332(c)(7)(B)(ii). CTIA
initially sought a 45-day period for collocation appli-
cations and a 90-day period for new facility applica-
tions. CTIA also sought a declaration that, in light
of the 1996 Act’s strong policy preference for competi-
tion among different service providers, it is an un-
lawful “prohibit[ion] . . . [on] the provision of personal
wireless services,” 47 U.S.C. § 332(c)(7)(B)(i)(I)-(II),
for a locality to deny one wireless provider permis-
sion to serve a particular area solely because another
provider was already serving the same area.7
A number of local governments, including the
Cities and CTC, filed comments in opposition to
CTIA’s petition for declaratory ruling. Among other
things, they argued that the Commission lacked
jurisdiction to interpret § 332(c)(7)(B).
4. On November 18, 2009, the Commission
issued a declaratory ruling (“Ruling”), granting some
(but not all) of the relief requested in the petition.

7 CTIA further requested that the Commission declare that
local ordinances that automatically required a wireless provider
to seek a zoning variance in order to build a wireless tower or
facility were preempted by 47 U.S.C. § 253(a). The Commission
did not act on this request because it found that any such ruling
should occur in the case of a specific challenge to a specific

It concluded that it had authority to interpret
§ 332(c)(7)(B), relying on 47 U.S.C. §§ 151, 154(i),
201(b), and 303(r), the statutory provisions that give
the FCC general authority to execute, interpret,
and enforce the Communications Act, and otherwise
to perform its functions. See Pet. App. 87a-88a. It
rejected contentions by opponents of the petition that
either § 332(c)(7)(A) or § 332(c)(7)(B)(v) should be
construed to make exceptions to the Commission’s
general rulemaking authority. In reaching this
consideration, the Commission relied on the plain
text granting it rulemaking authority and also on
this Court’s decision in AT&T Corp. v. Iowa Utilities
, 525 U.S. 366 (1999), and the Sixth Circuit’s
decision in Alliance for Community Media v. FCC,
529 F.3d 763 (6th Cir. 2008). See Pet. App. 87a-90a.
It also concluded that its rulings were consistent
with § 332(c)(7)(A) because it was not “imposing new
limitations on State and local governments,” but was
“merely interpret[ing] the limits Congress already
imposed on State and local governments.” Id. at 90a-
On the merits, the Commission determined that
CTIA and individual providers had provided “exten-
sive statistical evidence” to support a finding of
“unreasonable delays” and “obstruct[ion],” while the
state and local governments that had attempted
to rebut that evidence had produced no more than
“isolated anecdotes.” Id. at 100a-102a. It further
found that local governments should generally be
reasonably able to review applications for colloca-
tions within 90 days and for new wireless facilities
within 150 days. See id. at 115a-116a. Although
CTIA, Verizon Wireless, and other industry partici-
pants had presented evidence suggesting that it

would be reasonable to process applications in half
that time, the Commission reasoned that it should
allow more time for “explor[ing] collaborative solu-
tions,” for localities “to prepare a written explanation
of their decisions,” and for “reasonable, generally
applicable procedural requirements in some commu-
nities.” Id. at 114a-115a. It also gave weight to the
processing times described by local-government
commenters, almost all of which were consistent with
its 90- and 150-day findings. See id. at 117a-118a.
Based on its findings, the Commission declared
that a local government presumptively fails to act on
a collocation application within a reasonable period
of time if it does not act within 90 days for a colloca-
tion or 150 days for a new facility. See id. at 96a-97a.
At that time, a “failure to act” has occurred within
the meaning of § 332(c)(7)(B)(v), and the provider
may seek judicial review – though the local govern-
ment remains free to show in court that the circum-
stances of a particular application made the time it
took reasonable. See id. at 97a, 114a-115a. The
Commission declined to adopt any presumption
about the remedy for unreasonable delay, finding it
more consistent with congressional intent for the
courts to determine such questions on a case-by-case
basis. See id. at 108a-109a.
In a separate section of the Ruling, the Commis-
sion also agreed with CTIA “that a State or local
government that denies an application for personal
wireless service facilities siting solely because ‘one
or more carriers [already] serve a given geographic
market’ has engaged in unlawful regulation that
‘prohibits or ha[s] the effect of prohibiting the provi-
sion of personal wireless services.’” Id. at 127a (quot-
ing CTIA’s petition and 47 U.S.C. § 332(c)(7)(B)(i)(II))

(second alteration in original; footnote omitted).
“[A]ny other interpretation of [§ 332(c)(7)(B)(i)(II)],”
it concluded, “would be inconsistent with the [1996]
Act’s pro-competitive purpose.” Id. at 128a.8
5. Petitioners City of Arlington and City of San
Antonio filed petitions for review in the Fifth Circuit,
again arguing that the Commission lacked jurisdic-
tion to interpret § 332(c)(7)(B) and also raising vari-
ous other arguments that the Commission’s decisions
were arbitrary, capricious, and otherwise contrary to
statute. On January 23, 2012, the court of appeals
denied Arlington’s petition on the merits and dis-
missed San Antonio’s for lack of jurisdiction. See Pet.
App. 1a-2a.9
The court of appeals held that the Commission had
statutory authority to issue the Ruling. See id. at
34a-51a. It began by considering whether Chevron
deference applied. It acknowledged that the circuits
disagree over whether to “apply Chevron deference to
disputes over the scope of an agency’s jurisdiction,”
but concluded that Fifth Circuit precedent required
it to apply Chevron to such disputes. Id. at 37a. It
accordingly first considered whether the statute “un-
ambiguously indicate[d] Congress’s intent to preclude

8 A group of local government organizations sought reconsid-
eration of the Ruling, which the agency denied on August 4,
2010. See Pet. App. 172a-195a. None of the petitioners in this
Court was in that group, and neither petition for certiorari
appears to raise the issues addressed in the order denying re-
9 The court of appeals held that it lacked jurisdiction over
San Antonio’s petition because that petition had not been filed
within the 60-day time limit imposed by 28 U.S.C. § 2344. See
Pet. App. 12a-17a. San Antonio does not challenge that ruling
before this Court.

the FCC from implementing § 332(c)(7)(B)(ii) and
(v),” id. at 40a, and held that it did not.
As to § 332(c)(7)(A), the court of appeals reasoned
that the provision “certainly prohibits the FCC from
imposing restrictions or limitations [on state or local
zoning authority] that cannot be tied to the language
of § 332(c)(7)(B),” but does not speak to the question
“[w]hether the FCC retains the power of implement-
those limitations.” Id. at 41a (emphasis added).
It further held that § 332(c)(7)(B)(v), although estab-
lishing judicial jurisdiction over “specific dispute[s]
between a state or local government and persons
affected by the government’s failure to act,” does “not
address the FCC’s power to administer § 332(c)(7)(B)(ii)
in contexts other than those” specific disputes. Id. at
42a-43a (emphasis added). Accordingly, it proceeded
to Chevron step two, where it found the FCC’s inter-
pretation reasonable despite petitioners’ invocation
of legislative history and the presumption against
preemption. See id. at 45a-51a.
The court of appeals also rejected Arlington’s addi-
tional arguments that the Ruling was issued without
proper notice and comment, see id. at 17a-31a; that
the Ruling violated certain state and local govern-
ments’ due process rights, see id. at 31a-34a; that
the 90- and 150-day presumptive time periods were
inconsistent with the Communications Act, see id. at
51a-63a; and that the Commission had acted arbitra-
rily and capriciously, see id. at 63a-67a.
Petitioners sought rehearing en banc, which the
court of appeals denied. See id. at 196a-197a.








The question whether Chevron deference can apply
to an agency’s determination of its statutory juris-
diction may well warrant this Court’s review. These
petitions, however, are unsuitable vehicles for answer-
ing that question. That is because, if this Court were
to grant certiorari, it would likely conclude that the
Commission clearly did have jurisdiction to issue
the Ruling in dispute. Under Chevron or any other
standard of statutory construction, “[i]f the intent of
Congress is clear, that is the end of the matter.” 467
U.S. at 842. The Court would accordingly have no
need to resolve the degree of judicial deference due to
the agency, and the resulting affirmance would not
resolve any unsettled question or advance the law in
any meaningful way.
In several previous cases, the Court has not de-
cided whether Chevron applies to issues concerning
an agency’s jurisdiction after finding it clear either
that the agency had jurisdiction or that the agency
lacked jurisdiction. For one example, in California
Dental Association v. FTC, 526 U.S. 756 (1999), the
Court “ha[d] no occasion to review the [Federal Trade
Commission’s (“FTC”)] call for deference” on a ques-
tion of the agency’s own jurisdiction because the
FTC’s interpretation of the statute was “clearly the
better reading of the statute under ordinary prin-
ciples of construction.” Id. at 766. For another, in
Dole v. United Steelworkers, 494 U.S. 26 (1990), the
Court declined to apply Chevron to a jurisdictional
question because the statute “clearly expresse[d]
Congress’ intention” to withhold authority. Id. at 42;

cf. id. at 54-55 (White, J., dissenting) (arguing that
Chevron should apply even though the question was
jurisdictional). Other examples are not difficult to
The Court’s history of declining to reach the
Chevron issue in other cases suggests that, before
committing the resources necessary for plenary review
of this case, it is prudent to take an initial look at
the underlying statutory question and to consider
whether that question appears sufficiently close that
this Court would likely find Chevron relevant. As
explained in Part II.B, the statutory question is not
close. Accordingly, further review is not warranted.11

10 See, e.g., Rapanos v. United States, 547 U.S. 715, 739, 758,
788 (2006) (containing a plurality opinion, a concurrence, and
a dissent discussing Chevron as applied to a jurisdictional stat-
ute, but no holding of the Court); FDA v. Brown & Williamson
Tobacco Corp.
, 529 U.S. 120, 132-33 (2000) (citing Chevron before
resolving a dispute over agency jurisdiction to regulate tobacco
products, but concluding that “Congress ha[d] directly spoken to
the issue”).
11 The Fifth Circuit’s statement that the Communications Act
was “ambiguous with respect to the FCC’s authority” is not to
the contrary when read in context. Pet. App. 44a-45a. From
the court of appeals’ perspective, the Chevron question was
already settled as a matter of circuit precedent. See id. at 37a
& n.94. Accordingly, the only question before that court was
“whether the[ ] provisions [cited by petitioners] unambiguously
indicate[d] Congress’s intent to preclude the FCC from imple-
menting” the limits that the Communications Act undisputedly
places on local authority. Id. at 40a (emphasis added). Because
it did not face any uncertainty about whether Chevron applied,
the court of appeals had no reason to linger on the question
whether to end the case on Chevron step one or step two.
This Court, by contrast, would be confronted with a significant
unresolved question about Chevron’s scope and would accord-
ingly look harder at whether the underlying statutory question
required resort to Chevron.

In addition, this case is a flawed vehicle for devel-
oping the Chevron doctrine because the Fifth Cir-
cuit’s opinion leaves open an alternate ground for af-
firmance that does not implicate Chevron at all. The
Commission defended its order below in part on the
theory that “[a]ny rules that the Commission adopted
in the [Ruling] were interpretative,” rather than
substantive. FCC C.A. Br. 54. The Commission
made this argument in the context of rebutting an
alleged failure to provide proper notice and comment,
and the court of appeals did not reach the question
because it found that any such error was harmless.
See Pet. App. 26a. But if the Ruling was inter-
pretative, then the question whether it was within
the agency’s general substantive rulemaking author-
ity is no longer presented, because “any agency has
the inherent power to issue interpretative rules.”
I Richard J. Pierce, Jr., Administrative Law Treatise
§ 6.4, at 433 (5th ed. 2010). Accordingly, the judg-
ment of the court of appeals can stand on that basis
without any need to consider the extent of the agen-
cy’s general authority at all, much less the precise
scope of Chevron deference.




1. Neither the Cities nor CTC argue that there is
any circuit split relevant to the underlying statutory
question whether the Commission had jurisdiction
to interpret and implement § 332(c)(7). The closest
circuit authority is Alliance for Community Media
v. FCC, 529 F.3d 763 (6th Cir. 2008), in which the
Sixth Circuit rejected a challenge to FCC rulemaking
authority based on arguments very similar to those
that petitioners advance in this case. See id. at

773-74; Pet. App. 43a-44a (discussing Alliance for
Community Media
); id. at 88a-90a (same). Petition-
ers attempt (unpersuasively) to distinguish Alliance
for Community Media
,12 but make no claim that it
or any other authority creates a conflict that would
warrant review.
2. As for the merits, the FCC’s jurisdiction to
issue the Ruling in this case is clear under § 201(b)
of the Communications Act as interpreted by this
Court’s decision in AT&T Corp. v. Iowa Utilities
, 525 U.S. 366 (1999). By its plain terms,
§ 201(b) authorizes the Commission to “prescribe
such rules and regulations as may be necessary in
the public interest to carry out the provisions of” the
Act. 47 U.S.C. § 201(b). Relying on that general
grant of rulemaking authority, Iowa Utilities Board
held that, as a general matter, the FCC has jurisdic-
tion over matters that are within the “substantive
reach” of the Communications Act – including parts
of the 1996 Act that extended that reach. 525 U.S.
at 380. Both the agency and the court of appeals
correctly relied upon that general principle. See Pet.
App. 39a, 87a.
Section 332(c)(7)(B) extends the substantive reach
of the Communications Act to impose limitations on
state and local decisionmaking concerning wireless
tower siting, including the requirement that local

12 The Cities’ sole ground for distinguishing Alliance for
Community Media is that the Cable Television Consumer Pro-
tection and Competition Act of 1992, which the Sixth Circuit
construed in that case, did not include language comparable to
§ 332(c)(7)(A), on which they principally rely. Because their
arguments based on § 332(c)(7)(A) lack merit, see infra pp. 18-20,
their attempted distinction does as well. CTC does not cite
Alliance for Community Media in its petition at all.

review of a wireless facility siting application be
limited to a “reasonable period of time.” 47 U.S.C.
§ 332(c)(7)(B)(ii). Similarly, § 332(c)(7)(B) forbids
any state or local government action that “prohibit[s]
or ha[s] the effect of prohibiting the provision of
personal wireless services.” Id. § 332(c)(7)(B)(i)(II).
Congress imposed those “specific limitations on the
traditional authority of state and local governments”
in order “to encourage the rapid deployment of new
telecommunications technologies.” City of Rancho
Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005)
(internal quotation marks omitted).
Thus, § 332(c)(7)(B) “unquestionably” conveys Con-
gress’s intent to “take[] . . . away from the States,”
Iowa Utils. Bd., 525 U.S. at 379 n.6, exclusive control
of the timing and content of local decisions about
wireless tower siting. As a result, this is not a case
in which state law, rather than federal law, governs
the subject matter in dispute. Cf. Louisiana Pub.
Serv. Comm’n v. FCC
, 476 U.S. 355, 370 (1986)
(“Louisiana PSC”) (holding that 47 U.S.C. § 152(b)
“fences off from FCC reach or regulation” certain
subjects of intrastate rate regulation, which are regu-
lated by state commissions). Nor is it a case in which
an area is left to unregulated private action, to be
shaped by market competition rather than by either
federal or state law. Cf. Comcast Corp. v. FCC, 600
F.3d 642, 661 (D.C. Cir. 2010) (holding that the FCC
had failed to justify its attempt to regulate an inter-
net service provider). Rather, it is a case in which
the Communications Act undisputedly imposes sub-
stantive restrictions on local government entities as
a matter of federal law.
Accordingly, the court of appeals could and should
have resolved this question based on this Court’s

holding that an “expansion of the substantive scope
of the [Communications] Act” means a “pari passu
expansion of Commission jurisdiction.” Iowa Utils.
Bd., 525 U.S. at 380. To be sure, that is a statutory
holding: Congress could change it either expressly
or by implication. But petitioners have offered no
persuasive reason to think that Congress has done so
here – and certainly none that could overcome the
plain language of § 201(b).
3. Despite these clear grants of authority to the
agency, petitioners rely on two provisions of § 332(c)(7)
to argue that Congress affirmatively withheld from
the FCC jurisdiction to interpret the substantive
provisions of § 332(c)(7)(B)(i)(II) and (B)(ii). Neither
provision creates any ambiguity that would require
resort to Chevron or warrant this Court’s review.
a. The Cities rely on § 332(c)(7)(A). See Cities
Pet. 24. That subsection provides that, “[e]xcept as
provided in this paragraph, nothing in this [Act]
shall limit or affect the authority of a State or local
government or instrumentality thereof over decisions
regarding the placement, construction, and modifica-
tion of personal wireless service facilities.” 47 U.S.C.
§ 332(c)(7)(A). This is a savings clause; it says
nothing about the Commission’s jurisdiction to imple-
ment or interpret other parts of § 332, and it certainly
does not withdraw the enabling power conferred by
§ 201(b). Further, its reference to restrictions of local
authority “provided in this paragraph” reemphasizes
that the substantive provisions of § 332(c)(7)(B) do
“limit” state and local “authority.”
A comparison to § 2(b) of the Act is instructive.
Section 2(b) provides that, with certain exceptions,
“nothing in this [Act] shall be construed to apply or
to give the Commission jurisdiction with respect to”

certain matters that are reserved to the states. Id.
§ 152(b) (emphasis added). This language, on which
the Court relied in Louisiana PSC, is a clear restric-
tion on FCC jurisdiction of just the kind that peti-
tioners contend is found in § 332(c)(7)(A). But the
contrast between the language that Congress used in
§ 2(b) to restrict jurisdiction and the omission of any
comparable language from § 332(c)(7)(A) is fatal to
the Cities’ argument. See Russello v. United States,
464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but
omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”)
(alteration in original; internal quotation marks
omitted); Pet. App. 42a & n.104.13
The Cities argue that “it is hard to imagine
[§ 332(c)(7)(A)’s] purpose” if it does not restrict the
Commission’s jurisdiction. Cities Pet. 26. On the
contrary, the natural reading of § 332(c)(7)(A) still
provides protection for local zoning authority. When
Congress enacted § 332(c)(7), the FCC was consider-
ing a petition by CTIA for an order broadly preempt-
ing local zoning processes as applied to wireless facil-
ities, using its authority under § 332(c)(3), which
prevents states from “regulat[ing] the entry of . . .
any commercial mobile service or any private mobile

13 Recognizing this problem, the Cities assert in a footnote
that “the logical reading of Section 332(c)(7) is that it is broader,
not narrower[,] than” § 2(b). Cities Pet. 26 n.11. The assertion
is unpersuasive. Section 2(b) explicitly limits both the “substan-
tive reach” of the Communications Act, Iowa Utils. Bd., 525 U.S.
at 380, and the FCC’s jurisdiction to enforce the Act. Section
332(c)(7)(A) limits the substantive reach of the Act (though not
the provisions that the FCC actually construed here) and does
not mention agency jurisdiction.

service.” 47 U.S.C. § 332(c)(3)(A).14 The FCC later
cited § 332(c)(7)(A) in dismissing that petition.15
Thus, the provision has meaningful effect when read
as a savings clause that preserves some local zoning
authority from preemption, subject to the restrictions
in § 332(c)(7)(B) – but leaving intact the Commis-
sion’s jurisdiction to interpret those restrictions, just
as it can interpret any other provision of the Act.16
The Cities also argue that, if the FCC’s general
rulemaking authority applies to § 332(c)(7)(B), then
§ 332(c)(7)(B)(iv),17 which gives specific preemptive

14 See CTIA’s Petition for Rulemaking, Amendment of the
Commission’s Rules To Preempt State and Local Regulation
of Tower Siting for Commercial Mobile Services Providers
RM-8577 (FCC filed Dec. 22, 1994).
15 See Second Memorandum Opinion and Order and Notice of
Proposed Rulemaking, Procedures for Reviewing Requests for
Relief from State and Local Regulations Pursuant to Section
332(c)(7)(B)(v) of the Communications Act of 1934
, 12 FCC Rcd
13494, ¶ 116 & n.137 (1997).
16 The same dispute – whether the FCC should preempt local
zoning authority entirely – accounts for the conference commit-
tee’s statement that “[a]ny pending [FCC] rulemaking concern-
ing the preemption of local zoning authority over the placement,
construction or modification of [commercial mobile service]
facilities should be terminated.” H.R. Conf. Rep. No. 104-458,
at 208 (1996) (“Conf. Rep.”), reprinted in 1996 U.S.C.C.A.N.
124, 222, cited in Cities Pet. 6, 28. Congress’s desire to save
local zoning authority as applied to wireless towers from total
oblivion does not support petitioners’ argument that Congress
meant to prevent the FCC from issuing guidance concerning the
restrictions that the 1996 Act itself put in place.
17 Subsection (iv) states that “[n]o State or local government
or instrumentality thereof may regulate the placement, con-
struction, 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

effect to FCC regulations concerning “the environ-
mental effects of radio frequency emissions,” is “sur-
plusage.” Cities Pet. 28. It is quite likely that the
FCC could have, in its discretion, exercised such
preemptive power without the specific language in
§ 332(c)(7)(B)(iv). But that does not render subsec-
tion (iv) surplusage: instead, the language expresses
Congress’s specific intent that the FCC’s radio fre-
quency emission regulations would have preemptive
effect, taking the preemption decision away from the
agency and making it a matter of statutory law.
b. CTC relies on § 332(c)(7)(B)(v). See CTC
Pet. 19. That subsection creates a cause of action in
federal or state court for any person “adversely af-
fected by any final action or failure to act by a State
or local government or any instrumentality thereof
that is inconsistent with” § 332(c)(7)(B). 47 U.S.C.
§ 332(c)(7)(B)(v). It also specifically authorizes a
person “adversely affected by an act or failure to act
by a State or local government or any instrumen-
tality thereof that is inconsistent with clause (iv) [to]
petition the Commission for relief.” Id.
CTC argues that § 332(c)(7)(B)(v) reflects Congress’s
alleged intent to divide authority between the courts
and the FCC, leaving the FCC jurisdiction only over
claims that stem from a violation of subsection (iv).
Section 332(c)(7)(B)(v), however, contains no language
restricting the FCC’s authority, which Congress could
easily have inserted had it meant to do so.18 More-

Commission’s regulations concerning such emissions.” 47 U.S.C.
§ 332(c)(7)(B)(iv).
18 Thus, the legislative history that CTC quotes in which a
conference committee expressed “ ‘the intent of the conferees
that,’ ” with certain exceptions, “ ‘the courts shall have exclusive
jurisdiction over all . . . disputes arising under this section,’ ”

over, even if § 332(c)(7)(B)(v) is interpreted as a grant
of exclusive judicial jurisdiction where it applies, it
does not (and could not) convey to the courts the
jurisdiction to issue general guidance in the form of
a declaratory ruling. Instead, § 332(c)(7)(B)(v) deals
only with procedures for resolving disputes about
particular “act[s],” “final action[s],” or “failure[s] to
act” – the types of disputes that make up concrete
Article III cases and controversies. The FCC’s decla-
ratory ruling was not addressed to any such particu-
lar dispute.
In addition, CTC’s argument closely parallels one
that this Court rejected in Iowa Utilities Board.
There, this Court held that, although “the 1996 Act
entrusts state commissions with the job of approving
interconnection agreements and granting exemptions
to rural [local exchange carriers],” these assignments
did “not logically preclude the [FCC’s] issuance
of rules to guide the state-commission judgments.”
525 U.S. at 385 (citation omitted). Just so here:
Congress’s decision to give the courts the job of
hearing complaints against local authorities does not
logically preclude the FCC from providing guidance
to the courts and to parties whose disputes have not
yet ripened for judicial decision. See also Alliance for
Cmty. Media
, 529 F.3d at 775 (holding that “the
availability of a judicial remedy” for “unreasonable”
actions by state and local governments “does not
foreclose the [FCC’s] rulemaking authority”).
c. Finally, both the Cities and CTC – as well as
their amici – contend that principles of federalism

CTC Pet. 26 (quoting Conf. Rep. 208), is not entitled to weight.
See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005) (explaining that “the authoritative statement is the
statutory text, not the legislative history”).

support restricting the FCC’s jurisdiction here. See
Cities Pet. 22-23, 31; CTC Pet. 26-28; NWRA et al.
Amici Br. 25-26. These arguments fail because, as
we have shown, the exercise of federal authority here
is supported by the unambiguous (and uncontested)
language of the Communications Act. The question
of the extent to which that federal authority is to be
exercised by an administrative, as opposed to a judi-
cial, actor does not implicate any significant federal-
ism concern.
Once again, petitioners’ argument is contrary to
Iowa Utilities Board, in which Justice Scalia’s opinion
for this Court rejected the notion that principles of
federalism deserved weight in this Court’s reasoning
about the allocation of authority between the federal
courts and the FCC:
The appeals by [two partial dissents] to what
might loosely be called “States’ rights” are most
peculiar, since there is no doubt, even under their
view, that if the federal courts believe a state
commission is not regulating in accordance with
federal policy they may bring it to heel. 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. To
be sure, the FCC’s lines can be even more restric-
tive than those drawn by the courts – but it is
hard to spark a passionate “States’ rights” debate
over that detail.
525 U.S. at 378 n.6. So too here. This is not a case
about federalism. It is also not ultimately a case
about Chevron, which at most gave the court of
appeals added comfort about affirming the FCC’s
correct construction of the Communications Act. It

presents only a straightforward question of statutory
interpretation that can and should be resolved in the
FCC’s favor without any deference being required.
Nothing about that question warrants review by
this Court.19


The petitions for a writ of certiorari should be

19 The third question presented in CTC’s petition asks
whether the FCC “usurp[ed] the jurisdiction and authority
reserved for State and local governments by Congress . . . by
creating additional limitations on state and local governments
beyond those provided for in the statute.” CTC Pet. i. Although
CTC thus initially frames this question as jurisdictional, the
corresponding arguments in the body of its petition appear
to contend that the FCC’s actions were contrary to statute or
otherwise arbitrary and capricious. See, e.g., id. at 24-37. To
the extent that CTC intends to raise such questions, they clearly
do not warrant review. No division of the circuits is alleged, the
question is specific to the facts of this case, and the court of
appeals’ decision is correct for the reasons expressed in that
court’s opinion.

Respectfully submitted,
Counsel of Record
1776 K Street, N.W.
Washington, D.C. 20006
(202) 719-7000
1615 M Street, N.W.

Suite 400
Washington, D.C. 20036
(202) 326-7900
1320 North Courthouse Road (
9th Floor

Arlington, Virginia 22201
(703) 351-3860

1400 16th Street, N.W.
Suite 600
Washington, D.C. 20036
1300 Eye Street, N.W.
(202) 785-0081
Suite 400 West

Washington, D.C. 20005
Counsel for CTIA—
(202) 515- 2400
The Wireless Association®

Counsel for Verizon Wireless

August 29, 2012

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