No. _____
IN THE
Supreme Court of the United States
CITY OF ARLINGTON, TEXAS; CITY OF LOS ANGELES,
CALIFORNIA; COUNTY OF LOS ANGELES, CALIFORNIA;
CITY OF SAN ANTONIO, TEXAS; COUNTY OF SAN
DIEGO, CALIFORNIA; AND TEXAS COALITION OF
CITIES FOR UTILITY ISSUES,
Petitioners,
v.
UNITED STATES OF AMERICA;
FEDERAL COMMUNICATIONS COMMISSION,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
THOMAS C. GOLDSTEIN
KEVIN K. RUSSELL
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Avenue, NW
Suite 404
Washington, DC 20015
(202) 362-0636
THOMAS D. BUNTON
SENIOR DEPUTY
COUNTY COUNSEL
COUNTY OF SAN DIEGO
1600 Pacific Highway
Room 355
San Diego, CA 92101
(619) 531-6456
Counsel for Petitioner
County of San Diego, California
JOSEPH VAN EATON
Counsel of Record
JAMES R. HOBSON
MATTHEW K. SCHETTENHELM
BEST BEST & KRIEGER LLP
2000 Pennsylvania Avenue, NW
Suite 4300
Washington, DC 20006
(202) 785-0600
Joseph.VanEaton@bbklaw.com
Counsel for Petitioners
City of Arlington, Texas; 
City of Los Angeles, California;
County of Los Angeles,
California; City of San Antonio,
Texas; and Texas Coalition of
Cities for Utility Issues
Questions Presented
This case involves a challenge to the FCC’s juris-
diction to implement §332(c)(7) of the Communica-
tions Act of 1934, titled “Preservation of Local Zon-
ing Authority.” Section 332(c)(7) imposes certain
limitations on State and local zoning authority over
the placement of wireless service facilities, but
authorizes the FCC to address only one of these
limitations; it states that no other provision “in this
Act” may “limit” or “affect” State and local authority
over wireless facilities placement. The FCC con-
cluded that other provisions “in this Act” authorize it
to adopt national zoning standards to implement
§332(c)(7). The Fifth Circuit deferred to the FCC’s
jurisdictional determination applying Chevron
U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), but
acknowledged that “[t]he Supreme Court has not yet
conclusively resolved the question of whether Chev-
ron applies in the context of an agency’s determina-
tion of its own statutory jurisdiction, and the circuit
courts of appeals have adopted different approaches
to this issue.”
The case presents two questions:
1. Whether, contrary to the decisions of at least
two other circuits, and in light of this Court’s guid-
ance, a court should apply Chevron to review an
agency’s determination of its own jurisdiction; and
2. Whether the FCC may use its general author-
ity under the Communications Act to limit or affect
State and local zoning authority over the placement
of personal wireless service facilities.
ii
Parties to the Proceeding
Petitioners below are the City of Arlington,
Texas, and the City of San Antonio, Texas. Interve-
nors supporting the Petitioners are the Cable and
Telecommunications Committee of the New Orleans
City Council; the City of Carlsbad, California; the
City of Dallas, Texas; the City of Dubuque, Iowa; the
County of Fairfax, Virginia; the City of Glendale,
California; the City of Los Angeles, California; the
County of Los Angeles, California; the City of Port-
land, Oregon; the City of San Antonio, Texas; the
County of San Diego, California; the EMR Policy
Institute; the International Municipal Lawyers
Association; the National Association of Counties;
the National Association of Telecommunications
Officers and Advisors; the National League of Cities;
the Texas Coalition of Cities for Utility Issues; and
the United States Conference of Mayors.
Respondents are the United States of America
and the FCC. Intervenors supporting the Respon-
dents are CTIA-The Wireless Association and Cellco
Partnership.
None of the Petitioners is a non-governmental
corporation.
iii
Table of Contents
Questions Presented .................................................. i
Parties to the Proceeding.......................................... ii
Opinion and Order Below ......................................... 1
Jurisdiction................................................................ 1
Statutory Provisions Involved .................................. 1
Statement of the Case............................................... 3
Reasons for Granting the Writ ............................... 12
I. The Lower Courts Are Divided Over
Chevron’s Application to Jurisdictional
Questions. ..................................................... 13
A. There Is a Conflict Among the
Circuits as to Chevron’s
Application. ........................................ 13
B. Chevron Should Not Apply to an
Agency’s Jurisdictional
Determinations. ................................. 16
II. Applying Chevron Led the Court To
Expand the FCC’s Authority and To
Upset Congress’s Careful Jurisdictional
Balance. ........................................................ 21
III. This Case Allows the Court To Settle
Recurring Issues of National
Importance.................................................... 30
Conclusion ............................................................... 32
iv
APPENDIX
A. Opinion of the U.S. Court of
Appeals for the Fifth Circuit
(Jan. 23, 2012).................................... 1a
B. Declaratory Ruling of the
Federal Communications
Commission, WT Docket No. 08-
165 (Nov. 18, 2009) .......................... 69a
C. Order on Reconsideration of the
Federal Communications
Commission, WT Docket No. 08-
165 (Aug. 3, 2010) .......................... 172a
D. Fifth Circuit Denial of
Rehearing En Banc (Mar. 29,
2012)............................................... 196a
E. Statutes and Legislative
History............................................ 198a
vTable of Authorities
Page(s)
CASES
ACLU v. FCC,
823 F.3d 1554 (D.C. Cir. 1987)...........................16
Addison v. Holly Hill Fruit Products, Inc.,
322 U.S. 607 (1944).............................................18
AKM LLC v. Sec’y of Labor,
675 F.3d 752 (D.C. Cir. 2012).............................16
Alliance v. Community Media v. FCC,
529 F.3d 763 (6th Cir. 2008)...............................27
Altria Group Inc. v. Good,
555 U.S. 70 (2008)...............................................29
American Library Ass’n v. FCC,
406 F.3d 689 (D.C. Cir. 2005).............................15
AT&T Corp. v. Iowa Utilities Board,
525 U.S. 366 (1999).............................................27
Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313 (Fed. Cir. 1998)...........................15
Brotherhood of Locomotive Eng’rs v. United
States,
101 F.3d 718 (D.C. Cir. 1996).............................15
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984)..................................... passim
Comm’r of Internal Revenue v. Clark,
489 U.S. 726 (1989).............................................28
Duncan v. Walker,
533 U.S. 167 (2001).............................................28
vi
Durable Mfg. Co. v. United States DOL,
578 F.3d 497 (7th Cir. 2009)...............................14
Gonzales v. Oregon,
546 U.S. 243 (2006).............................................20
Hydro Res., Inc. v. EPA,
608 F.3d 1131 (10th Cir. 2010)...........................15
Louisiana PSC v. FCC,
476 U.S. 355 (1986).................................25, 26, 27
Lyon County Bd. of Comm’rs v. EPA,
406 F.3d 981 (8th Cir. 2005)...............................15
Mayo Found. for Med. Educ. & Research v.
United States,
131 S. Ct. 704 (2011)...........................................20
Mississippi Power & Light Co. v. Mississippi,
487 U.S. 354 (1988).............................................20
N. Am. Van Lines Inc. v. NLRB,
869 F.2d 596 (D.C. Cir. 1989).............................15
N. Ill. Steel Supply Co. v. Sec’y of Labor,
294 F.3d 844 (7th Cir. 2002).........................14, 15
Natural Resources Defense Council v.
Gorsuch,
685 F.2d 718 (D.C. Cir. 1982).............................19
NE Hub Partners, L.P. v. CNG Transmission
Corp.,
239 F.3d 333 (3d Cir. 2001) ................................15
New York Shipping Asso. v. Federal Maritime
Com.,
854 F.2d 1338 (D.C. Cir. 1988)...........................15
Oklahoma Natural Gas Co. v. FERC,
28 F.3d 1281 (D.C. Cir. 1994).............................15
vii
Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005) ..............................4, 5, 13, 31
Social Sec. Bd. v. Nierotko,
327 U.S. 358 (1946).............................................18
Town of Amherst v. Omnipoint Communs.
Enters., Inc.,
173 F.3d 9 (1st Cir. 1999) .....................................7
United States v. Home Concrete & Supply,
LLC,
182 L. Ed. 2d 746 (2012) ....................................21
United States v. Mead Corp.,
533 U.S. 218 (2001).......................................20, 21
United Transp. Union-Illinois Legislative Bd.
v. Surface Transp. Bd.,
183 F.3d 606 (7th Cir. 1999)...............................14
STATUTES
28 U.S.C. §1254(1)......................................................1
28 U.S.C. §2112........................................................30
28 U.S.C. §2344........................................................11
47 U.S.C. §151............................................................4
47 U.S.C. §154(i) ........................................................4
47 U.S.C. §201(b)..............................................4, 7, 27
47 U.S.C. §220..........................................................26
47 U.S.C. §303(r) ........................................................4
47 U.S.C. §303(v)........................................................3
47 U.S.C. §332(c)(7).......................................... passim
Telecommunications Act of 1996, 110 Stat. 56
§704(b)...................................................................6
viii
OTHER AUTHORITIES
Daniel A. Lyons, Tethering the Administra-
tive State: The Case Against Chevron Def-
erence for FCC Jurisdictional Claims, 36
Iowa J. Corp. L. 823 (2011)
Ernest Gellhorn & Paul Verkuil, Controlling
Chevron-Based Delegations, 20 Cardozo L.
Rev. 989, 1008-09 (1999) ....................................16
H.R. Conf. Rep. No. 104-458 (1996) (Conf.
Report).............................................................6, 28
H.R. Rep. No. 104-204, 1996 U.S.C.C.A.N. 10
(1995)...............................................................5, 24
In re Annual Report and Analysis of
Competitive Market Conditions With
Respect to Mobile Wireless, Including
Mobile Services, Fifteenth Report,
WT Docket No. 10-133, FCC 11-103 at
¶ 310 (June 27, 2011) .........................................31
In re Acceleration of Broadband Deployment:
Expanding the Reach and Reducing the
Cost of Broadband Deployment by
Improving Policies Regarding Public
Rights of Way and Wireless Facilities
Siting,
26 FCC Rcd. 5384 (2011) ....................................32
Nathan A. Sales & Jonathan H. Adler, The
Rest is Silence: Chevron Jurisdiction,
Agency Deference, and Statutory Silences,
2009 U. Ill. L. Rev. 1497 (2009)....................16, 17
ix
Nathan S. Chapman & Michael W.
McConnell, Due Process as Separation of
Powers, 121 Yale L.J. 1672 (2012) ...............16, 17
Thomas W. Merrill, Chevron’s Domain, 89
Geo. L.J. 833 (2009) ......................................16, 17
Timothy K. Armstrong, Chevron Deference
and Agency Self-Interest, 13 Cornell J.L. &
Pub. Pol’y 203 (2004) ..........................................17
Petition for a Writ of Certiorari
Petitioners respectfully seek a writ of certiorari to
the United States Court of Appeals for the Fifth
Circuit.
Opinion and Order Below
The court’s opinion (App. 1a-68a) is reported at
668 F.3d 229 (5th Cir. 2012). The FCC’s Declaratory
Ruling (App. 69a-171a) is reported at 24 FCC Rcd.
13994 (Nov. 18, 2009) (“Declaratory Ruling”), recon-
sideration denied, 25 FCC Rcd. 11157 (Aug. 3, 2010)
(App. 172a-195a).
Jurisdiction
The court entered its judgment on January 23,
2012, and entered an order denying petitions for
rehearing en banc on March 29, 2012. (App. 195a-
196a). This Court’s jurisdiction is invoked under
28 U.S.C. §1254(1).
Statutory Provisions Involved
Section 332(c)(7) of the Communications Act of
1934 provides:
Preservation of local zoning authority.
(A) General authority. Except 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 modification of per-
sonal wireless service facilities.
(B) Limitations.
2(i) The regulation of the placement, construction,
and modification of personal wireless service facili-
ties by any State or local government or instrumen-
tality thereof—
(I) shall not unreasonably discriminate among
providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of pro-
hibiting the provision of personal wireless services.
(ii) A State or local government or instrumental-
ity 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.
(iii) Any decision by a State or local government
or instrumentality thereof to deny a request to place,
construct, or modify personal wireless service facili-
ties shall be in writing and supported by substantial
evidence contained in a written record.
(iv) No State or local government or instrumen-
tality thereof may regulate the placement, construc-
tion, and modification of personal wireless service
facilities on the basis of the environmental effects of
radio frequency emissions to the extent that such
facilities comply with the Commission’s regulations
concerning such emissions.
(v) Any person adversely affected by any final ac-
tion or failure to act by a State or local government
or any instrumentality thereof that is inconsistent
with this subparagraph may, within 30 days after
3such action or failure to act, commence an action in
any court of competent jurisdiction. The court shall
hear and decide such action on an expedited basis.
Any person adversely affected by an act or failure to
act by a State or local government or any instrumen-
tality thereof that is inconsistent with clause (iv)
may petition the Commission for relief.
(C) Definitions. For purposes of this paragraph—
(i) the term “personal wireless services” means
commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange
access services;
(ii) the term “personal wireless service facilities”
means facilities for the provision of personal wireless
services; and
(iii) the term “unlicensed wireless service” means
the offering of telecommunications services using
duly authorized devices which do not require indi-
vidual licenses, but does not mean the provision of
direct-to-home satellite services (as defined in sec-
tion 303(v) [47 U.S.C. §303(v)]).
* * *
Other relevant statutory provisions appear in the
appendix.
Statement of the Case
This case concerns a dispute between local gov-
ernments and the FCC over whether the federal
agency may affect State and local authority over the
placement of wireless communications facilities by,
inter alia, establishing uniform FCC-mandated
deadlines for State and local action on zoning appli-
4cations. Petitioners claimed that Congress deliber-
ately designed §332(c)(7) to prevent the FCC from
interfering with State and local zoning decisions:
Congress required State and local decisions to meet
certain standards, subject only to exclusive judicial
review (with one exception); it directed the FCC to
address radio frequency (RF)-emissions matters; and
it provided that “nothing” else “in this Act” may
“limit or affect” local authority over wireless facility
placement. The FCC claimed that it could establish
federal policy implementing §332(c)(7)(B) by using
four other provisions of the Act, 47 U.S.C. §§151,
154(i), 201(b), and 303(r).
Rather than resolve the dispute through de novo
review, the Fifth Circuit deferred to the FCC’s
jurisdictional determination, and then upheld the
FCC’s Declaratory Ruling.
1. Added to the Communications Act by the Tele-
communications Act of 1996,1 §332(c)(7) establishes
what several justices of this Court have described as
an unusually “comprehensive” statutory scheme for
balancing the interests of the federal, state, and local
governments in deployment of wireless facilities.
Rancho Palos Verdes v. Abrams, 544 U.S. 113, 131
(2005) (Stevens, J., concurring); see also id. at 129
(describing §332(c)(7) as “a comprehensive and
exclusive remedial scheme”) (Breyer, J., concurring).
1 Pub. L. 104-104, 110 Stat. 56 (Feb. 8, 1996). The Telecommu-
nications Act of 1996 is a series of amendments to the Commu-
nications Act of 1934, 48 Stat. 1064, 47 U.S.C. §151 et seq. (the
“Communications Act” or the “Act”).
5The House of Representatives initially had
passed language empowering the FCC to “prescribe
and make effective a policy regarding State and local
regulation of the placement, construction, modifica-
tion, or operation of facilities for the provision of
commercial mobile services.” H.R. Rep. No. 104-204
at 25, 1996 U.S.C.C.A.N. 10 (1995). App. 212a. The
bill directed the FCC to adopt “policies” requiring a
local government to act “within a reasonable period
of time after the request is fully filed with such
government or instrumentality.” Id.
Congress, however, “ultimately rejected the na-
tional approach and substituted a system based on
cooperative federalism.” Rancho Palos Verdes, 544
U.S. at 128 (Breyer, J., concurring). In conference,
Congress opted for the current §332(c)(7) titled
“Preservation of Local Zoning Authority.” The stat-
ute consists of a paragraph with five limitations on
State and local zoning authority,2 and an opening
“general authority” clause stating that “[e]xcept as
provided in this paragraph, nothing in this Act shall
limit or affect” this State and local authority. 47
U.S.C. §332(c)(7)(A).
Section 332(c)(7) gives the FCC authority to ad-
dress only one of the statute’s limitations, the bar on
State and local siting decisions based on the envi-
ronmental effects of radio frequency (“RF”) emis-
2 47 U.S.C. §332(c)(7)(B)(i)-(iv).
6sions.3 Otherwise, it directs courts to resolve issues
arising under §332(c)(7) on an expedited basis. The
Conference Report confirmed that except for the
provisions concerning the effects of radio frequency
(“RF”) emissions, Congress intended for the courts to
have “exclusive jurisdiction over all other disputes
arising under this section.” H.R. Rep. No. 104-458
(1996) (Cong. Rep.) at 207-208. The Report directed
that “[a]ny pending [FCC] rulemaking concerning
the preemption of local zoning authority over the
placement, construction or modification of CMS
facilities should be terminated.” Id. It further ex-
plained that the requirement that a local govern-
ment act within a “reasonable period of time” is not
intended “to give preferential treatment to the
personal wireless service industry in the processing
of requests, or to subject their requests to any but
the generally applicable time frames for zoning
decision.” Id. The statute’s generally-worded lan-
guage was not an invitation for federal policymak-
ing, but a direction to the court to consider State and
local practices in light of local circumstances.
2. For the next 13 years, the FCC did not regulate
State and local zoning authority under §332(c)(7),
except to address RF-emissions matters. Sec-
tion 332(c)(7) operated by allowing courts to apply
the statute to local facts, in what one court described
as a “refreshing experiment in federalism”: Con-
gress’s effort to “produce (albeit at some cost and
3 47 U.S.C. §332(c)(7)(B)(iv),(v). Congress separately authorized
the agency to make rules regarding RF emissions. Telecommu-
nications Act of 1996, 110 Stat. 56 §704(b).
7delay for the carriers) individual solutions best
adapted to the needs and desires of particular com-
munities.” Town of Amherst v. Omnipoint Communs.
Enters., Inc., 173 F.3d 9, 17 (1st Cir. 1999).
3. In 2008, the wireless industry—led by CTIA-
The Wireless Association—filed a petition for a
declaratory ruling asking the FCC to, inter alia,
adopt short, uniform deadlines for State and local
action under §332(c)(7). States and local govern-
ments, including Petitioners, argued that the FCC
had no jurisdiction to issue any ruling under
§332(c)(7) other than a ruling related to RF emis-
sions. In 2009, in the Declaratory Ruling, the FCC
granted the industry its requested relief in signifi-
cant part.
a. The FCC ruled that it had authority to im-
plement §332(c)(7) pursuant to four provisions of the
Act outside of §332(c)(7)—§§1, 4(i), 201(b), and
303(r). App. 87a (¶ 23). These provisions, with slight
variations, generally permit the FCC to “prescribe
such rules and regulations as may be necessary in
the public interest to carry out the provisions of this
Act.” 47 U.S.C. §201(b); App. 87a (¶ 23); the FCC’s
exercise of authority under these provisions gives
rise to remedies under Title IV of the Communica-
tions Act, 47 U.S.C. §401 et seq.
The FCC claimed that §332(c)(7)(A)—the preser-
vation clause stating that “nothing” else “in this Act”
may “limit” or “affect” State and local authority—
only forbids the agency from creating additional
“limitations” beyond those that the statute enumer-
ates. App. 90a, 134a (¶¶ 25, 64). The FCC did not
8explain, however, how §332(c)(7)(A)’s preservation
clause allows it to use §§1, 4(i), 201(b), and 303(r) to
“affect” State and local authority. It recognized that
its ruling did affect local authority, stating, inter
alia, that State and local governments must act in
accordance not only with the statute, but with limi-
tations on local authority “as defined” by the agency.
App. 90a (¶ 25).
b. The FCC’s Declaratory Ruling adopted two ba-
sic rules.
First, the FCC addressed timing issues. Acknowl-
edging a conflict with the standards in particular
States and local governments, the FCC adopted
national standards defining what constitutes a State
or local government’s “failure to act” if it does not
release a decision within “a reasonable period of time
after the request is duly filed . . . taking into account
the nature and scope of such request.” App. 116a-
120a, ¶¶ 46-48. The FCC ruled that absent an appli-
cant’s agreement, if a State or local government does
not release its decision 90 days after the applicant
files a collocation application or within 150 days
after the filing of all other applications, it automati-
cally constitutes a “failure to act,” and presumptively
constitutes an unreasonable “period of time” on the
merits. App. 72a, 106a-108a, 111a-112a (¶¶ 4, 37,
42). Unless the applicant agrees otherwise, this
forces the State or local government into court on a
fixed timetable (regardless of how reasonable its
delay may be), and then requires the State or local
government to overcome the presumption on the
merits by explaining its delay. App. 111a-112a (¶
42).
9The FCC stated that while its policy choice would
conflict with those of various States, its choices
accommodated reasonable State and local processes
“in most instances.” App 114a (¶ 44).
? The FCC noted that of the eight State statutes
discussed in its record, Connecticut law on its
fact authorizes “a longer process” (180 days)
than the FCC’s rules permit. App. 118a (¶ 48).
? California requires applications to be proc-
essed within 60 days, after a 30-day review
period for completeness, but only if no envi-
ronmental review is required. App. 117a (cit-
ing Cal. Gov’t Code §§65940 & 65943). The
FCC chose not to provide for delays for envi-
ronmental reviews.
? North Carolina has a “collocation” time period
of 45 days for processing after a 45-day review
period for application completeness, but only if
the collocation does not increase the height of
the facility. Otherwise, the time for action is
tied to the time for action on other land use
applications. App. 117a (citing N.C. Code Ann.
§153A-349.53). The FCC applied a different
test for determining whether the collocation
deadline should apply.
? Minnesota requires applications to be proc-
essed within 60 days, which can be extended
an additional 60 days upon written notice to
the applicant. App. 117a (¶ 47, citing Minn.
Stat. Ann. §15.99). Under the FCC’s rules,
times can be extended, but only with the con-
sent of the applicant. App. 122a (¶ 49).
10
The FCC explained that a State’s choice for a longer
period for review would not preclude an applicant
from suing the State or local government using the
FCC’s new, shorter timelines. App. 120a (¶ 50)
(noting that the applicant “may bring suit under
§332(c)(7)(B)(v) after 90 days or 150 days, subject to
the 30-day limitation period on filing, and may
consider pursuing any remedies granted under the
State or local regulation when that applicable time
limit has expired.”).
Neither facet of the FCC’s new timing rules—its
fixed trigger for judicial review or its presumption
against local governments on the merits—existed
under §332(c)(7)(B)’s plain terms; the FCC pointed to
no court that had adopted them. In addition, because
the rules apply to only one class of zoning applica-
tion (those for the placement of “personal wireless
service facilities”), they have the effect of requiring a
State or local government to prioritize wireless
applications over other zoning matters.
Second, the FCC adopted a ruling under
§332(c)(7)(B)(i)(II), which provides that a State or
local government “shall not prohibit or have the
effect of prohibiting the provision of personal wire-
less services.” The agency ruled that a State or local
government violates this provision if it denies an
application “solely because ‘one or more carriers
serve a given geographic market.’” App. 127a-128a
(¶ 56).
4. On January 14, 2010, the City of Arlington,
Texas, filed a petition for review with the Fifth
Circuit, which had jurisdiction pursuant to 47 U.S.C.
11
§402(a) and 28 U.S.C. §2344. The court initially
deferred review, then ruled after the FCC considered
petitions for reconsideration.4
A central question was whether the FCC had ju-
risdiction to implement §332(c)(7). While the Fifth
Circuit expressly acknowledged that this Court had
not resolved the issue and that other circuits had
adopted conflicting approaches, it ruled that
Chevron required it to defer to the FCC’s own as-
sessment of its jurisdiction. App. 37a. The court
recognized that §332(c)(7)(A) limited the FCC’s
authority, but ruled that if it were ambiguous, the
court “must defer” to the FCC’s permissible interpre-
tation. App. 40a. The court proceeded to deem the
statute ambiguous in various ways. App. 41a-45a.
The court reasoned that since the FCC’s general
authority under these other sections would ordinar-
ily apply to a Communications Act amendment,
Congress must “specifically restrict” the agency’s
general authority, and “clearly remove” the agency’s
authority to apply these other Act provisions to
§332(c)(7). App. 42a.
The Fifth Circuit did not ask whether Congress
would intend the FCC to clarify any ambiguity in
this jurisdictional provision (or whether the FCC had
any special expertise to evaluate zoning decisions); it
did not apply any traditional statutory presumptions
4 App. 10a. The City of San Antonio, Texas, joined a number of
other parties in intervening in support of this petition, and also
later filed its own petition for review after the agency’s denial
of reconsideration.
12
for interpretations of exceptions; and it did not
examine §332(c)(7)(A) in the context of other provi-
sions of the Communications Act, or of §332(c)(7)
itself. It proceeded to rule that “none of the cities’
arguments convince us that the FCC’s interpretation
of its statutory authority is impermissible.”
App. 51a.
Reasons for Granting the Writ
The decision below sharpens a significant diver-
gence among the circuit courts about Chevron’s
application to an agency’s determination of its own
jurisdiction. The Fifth Circuit’s approach—
effectively that statutory ambiguity alone allows an
agency to claim broad new authority—raises impor-
tant questions that this Court should resolve. The
court’s analysis inverts the doctrine that an agency
has only the authority Congress grants it, and
contravenes the principles underlying Chevron.
This case illustrates the problem with a standard
of review that transforms textual ambiguity into a
jurisdictional grant. Section 332(c)(7) represented
Congress’s careful and comprehensive effort to
balance the State and local interests in managing
land use—a quintessential State function—with the
federal interests in encouraging national deployment
of wireless facilities. Through this “complex and
novel statutory scheme,” Congress rejected an FCC-
guided “national approach” to zoning, and instead
adopted a system of “cooperative federalism.” Ran-
cho Palos Verdes, 544 U.S. at 123 (Breyer, J., con-
curring).
13
Section 332(c)(7)’s language, context, and unusu-
ally clear legislative history all indicate that the
FCC’s role under the statute is not general, but
specific: it extends only to a narrow, technical issue
(RF-emissions). Yet by applying Chevron to defer to
the FCC’s determination that it has general author-
ity to make rules governing the State and local
zoning process under §332(c)(7), the decision below
adopts the very “national approach” that Congress
considered and rejected. This has significant conse-
quences for State and local governments, including
for communities that have made different policy
choices about the appropriate time for local review.5
I. The Lower Courts Are Divided Over Chevron’s
Application to Jurisdictional Questions.
A. There Is a Conflict Among the Circuits as to
Chevron’s Application.
The Fifth Circuit correctly observed that its deci-
sion implicates a circuit conflict:
The Supreme Court has not yet con-
clusively resolved the question of
whether Chevron applies in the con-
text of an agency’s determination of its
own statutory jurisdiction, and the cir-
cuit courts of appeals have adopted
different approaches to the issue.
Some circuits apply Chevron deference
to disputes over the scope of an
5 See, e.g., supra, at 9 (discussing Connecticut, California,
North Carolina, and Minnesota).
14
agency’s jurisdiction, some do not, and
some circuits have thus far avoided
taking a position. In this circuit, we
apply Chevron to an agency’s interpre-
tation of its own statutory jurisdiction.
App. 37a-38a (internal notes omitted). There is little
prospect that the conflict will be resolved without
this Court’s intervention.
1. The Seventh Circuit and Federal Circuit re-
view an agency’s determination of its statutory
jurisdiction de novo. The Seventh Circuit has re-
peatedly declined to apply a deferential standard to
jurisdictional questions. N. Ill. Steel Supply Co. v.
Sec’y of Labor, 294 F.3d 844, 847 (7th Cir. 2002);
United Transp. Union-Illinois Legislative Bd. v.
Surface Transp. Bd., 183 F.3d 606, 612 (7th Cir.
1999). The court has explained that “[a]lthough
agency determinations within the scope of delegated
authority are entitled to deference, it is fundamental
‘that an agency may not bootstrap itself into an area
in which it has no jurisdiction.’” Durable Mfg. Co. v.
United States DOL, 578 F.3d 497, 501 (7th Cir.
2009) (quoting Adams Fruit Co., Inc. v. Barrett, 494
U.S. 638, 650 (1990)).6 The Federal Circuit applies
the same standard. Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998).
2. The Fifth Circuit joins the Third, Eighth, and
Tenth Circuit at the opposite extreme. These courts
6 The Seventh Circuit has recognized that “the Supreme Court
has not definitively ruled on the issue.” N. Ill. Steel Supply Co.,
294 F.3d at 847.
15
resolve jurisdictional questions by applying Chevron;
they do not independently analyze Congress’s juris-
dictional decisions. NE Hub Partners, L.P. v. CNG
Transmission Corp., 239 F.3d 333, 355 (3d Cir. 2001)
citing Puerto Rico Mar. Shipping Auth. v. Valley
Freight Sys., Inc., 856 F.2d 546, 552 (3d Cir. 1988);
Lyon County Bd. of Comm’rs v. EPA, 406 F.3d 981,
983 (8th Cir. 2005); Hydro Res., Inc. v. EPA, 608
F.3d 1131, 1145-1146 (10th Cir. 2010).
3. No court’s decisions more clearly demonstrate
the lower courts’ long struggle here than the D.C.
Circuit’s. While the court has applied Chevron to
jurisdictional questions, Oklahoma Natural Gas Co.
v. FERC, 28 F.3d 1281, 1284 (D.C. Cir. 1994);
Brotherhood of Locomotive Eng’rs v. United States,
101 F.3d 718, 726 (D.C. Cir. 1996), it has also de-
clined to do so. New York Shipping Asso. v. Federal
Maritime Com., 854 F.2d 1338, 1362-1363 (D.C. Cir.
1988); N. Am. Van Lines Inc. v. NLRB, 869 F.2d 596,
598 (D.C. Cir. 1989). In some cases, the court has
attempted to draw a distinction based on the nature
of the question before it. See, e.g., Am. Library Ass’n
v. FCC, 406 F.3d 689, 699 (D.C. Cir. 2005) (noting
that the FCC’s “self-serving invocation of Chevron
leaves out a crucial threshold consideration, i.e.,
whether the agency acted pursuant to delegated
authority.”); accord ACLU v. FCC, 823 F.3d 1554,
1567 n.32 (D.C. Cir. 1987). Most recently, Judge
Janice Rogers Brown authored a concurring opinion
in AKM LLC v. Sec’y of Labor, 675 F.3d 752, 766
(D.C. Cir. 2012), explaining that regardless of the
court’s “general” rule requiring Chevron deference, it
is improper on jurisdictional questions that present
16
“undisputed jurisdictional facts,” at least absent
“some clear indication from Congress that it has
delegated jurisdiction-defining authority.”
B. Chevron Should Not Apply to an Agency’s
Jurisdictional Determinations.
Both scholars and this Court’s teachings confirm
that Chevron should not apply automatically to an
agency’s jurisdictional determinations.
1. Addressing what a leading article has called
“the most important—and vexing—question” involv-
ing Chevron’s domain, many legal scholars have
concluded that Chevron should not apply when an
agency interprets a statute to determine its own
jurisdiction.7 They recognize that a no-deference rule
is “implicit in Chevron” and follows from the fact
that agencies “can act only to the extent that Con-
gress has delegated them the power to do so.” Sales,
2009 U. Ill. L. Rev. at 1532; see also Merrill, 89 Geo.
L.J. at 912-13. The scholars have noted that agencies
“have no comparative advantage in reading statutes”
over courts; Gellhorn, 20 Cardozo L. Rev. at 1009;
that an agency’s self-interest “may cloud its judg-
7 Thomas W. Merrill, Chevron’s Domain, 89 Geo. L.J. 833, 909-
911 (2009); Nathan A. Sales & Jonathan H. Adler, The Rest is
Silence: Chevron Jurisdiction, Agency Deference, and Statutory
Silences, 2009 U. Ill. L. Rev. 1497 (2009); Nathan S. Chapman
& Michael W. McConnell, Due Process as Separation of Powers,
121 Yale L.J. 1672, 1786-87 (2012); Ernest Gellhorn & Paul
Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L.
Rev. 989, 1008-09 (1999); Timothy K. Armstrong, Chevron
Deference and Agency Self-Interest, 13 Cornell J.L. & Pub.
Pol’y 203 (2004).
17
ment,” id., and that independent judicial review
furthers due process and enhances fairness and the
perception of fairness. Chapman, 121 Yale L.J. at
1786-87; Armstrong, 13 Cornell J.L. & Pub. Pol’y at
268-285. Perhaps above all else, independent review
ensures that Congress’s judgments about the scope
of an agency’s authority will be honored: “Just as
foxes should not guard henhouses, agencies should
not be entrusted to police the limits on their own
regulatory authority.” Sales, 2009 U. Ill L. Rev. at
1533.
This case demonstrates that these scholars have
it right, at least in cases like this one. Here, the FCC
has an interest in facilitating its own policy interests
by expanding its jurisdiction. Yet both Petitioners
and the FCC agree that Congress intended to limit
FCC authority in some respects; the question is how
much. Resolving this pure legal issue does not touch
on the agency’s specialized or technical expertise
over communications matters. Yet reading Chevron
to grant the agency discretion to make the jurisdic-
tional determination essentially allows the agency to
re-balance Congress’s careful statutory structure to
further its own interests.
2. While this Court has not definitely resolved
the issue, its cases at least suggest that the Fifth
Circuit approach—mechanically deferring to agency
jurisdictional determinations unless Congress has
“clearly removed” the authority to make those de-
terminations— as highly questionable.
a. Pre-Chevron, in Addison v. Holly Hill Fruit
Products, Inc., 322 U.S. 607 (1944), the Court re-
18
fused to defer to a statutory interpretation of the
Administrator of the Fair Labor Standards Act
because “[t]he determination of the extent of author-
ity given to a delegated agency by Congress is not
left for the decision of him in whom authority is
vested.” Id. at 616; see also Social Sec. Bd. v.
Nierotko, 327 U.S. 358, 369 (1946) (deciding the
limits of agency authority is a judicial function.”).
b. In Chevron itself, jurisdiction was not in
doubt. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.
837 (1984). The decision does, however, shed impor-
tant light on the scope of the doctrine it announced.
Chevron concerned a provision of the Clean Air Act
that required certain States to establish a permit
program regulating “stationary sources” of air pollu-
tion. Id. at 840. The EPA defined “stationary source”
plantwide, rather than adopting a definition tied to
each pollution-emitting device at a plant. Id. at 856.
Reviewing the agency’s order, the D.C. Circuit
decided that the purposes of the non-attainment
program required it to set-aside the agency’s policy
choice. Natural Resources Defense Council v. Gor-
such, 685 F.2d 718, 727 (D.C. Cir. 1982).
19
Adopting its now well-known test,8 the Court re-
versed, and upheld the EPA’s rule. Id. at 728. The
Court explained that it had applied this deferential
approach whenever the “meaning or reach of a
statute has involved reconciling conflicting policies,
and a full understanding of the force of the statutory
policy in the given situation has depended upon
more than ordinary knowledge.” Id. at 844. As
discussed above, however, discerning the limits of an
agency’s jurisdiction involves a purely legal, not a
policy, question that does not implicate agency
expertise.
c. In Chevron’s immediate aftermath, individual
Justices disputed whether the Court’s deference on
this policy question should also extend to basic
questions of the agency’s own jurisdiction, particu-
larly where the issue does not turn on matters
within an agency’s expertise.
In Mississippi Power & Light Co. v. Mississippi,
487 U.S. 354, 380-82 (1988), Justice Scalia wrote a
8 Chevron, U.S.A., Inc., 467 U.S. at 842-843 (“First, always, is
the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress has not
directly addressed the precise question at issue, the court does
not simply impose its own construction on the statute, as would
be necessary in the absence of an administrative interpreta-
tion. Rather, if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.”) (internal footnotes omitted).
20
concurring opinion claiming that Chevron’s “rule of
deference applies even to an agency’s interpretation
of a statute designed to confine its authority” be-
cause there is no “discernible line between an
agency’s exceeding its authority and an agency’s
exceeding authorized application of its authority.” Id.
at 381.
Justice Brennan disagreed. Id. at 387. He ex-
plained that “this Court has never deferred to an
agency’s interpretation of a statute designed to
confine the scope of its jurisdiction.” Id. Instead, he
said that “[o]ur agency deference cases have always
been limited to statutes the agency was ‘entrusted to
administer’” and “[a]gencies do not ‘administer’
statutes confining the scope of their jurisdiction, and
such statutes are not ‘entrusted’ to agencies.” Id. He
explained that the normal reasons for agency defer-
ence do not apply in this setting.
d. While the Court has still not resolved this
fundamental debate, it has established that a court
does not owe Chevron deference automatically, or
“merely because [a] statute is ambiguous and an
administrative official is involved.” Gonzales v.
Oregon, 546 U.S. 243, 258 (2006). Instead, a court
must first scrutinize whether “the agency’s generally
conferred authority and other statutory circum-
stances” make apparent “that Congress would expect
the agency to be able to speak with the force of law
when it addresses ambiguity in the statute.” United
States v. Mead Corp., 533 U.S. 218, 229 (2001);
21
Mayo Found. for Med. Educ. & Research v. United
States, 131 S. Ct. 704, 714 (2011).9
* * *
The Fifth Circuit’s automatic application of
Chevron to the FCC’s interpretation of this statutory
limit on its authority cannot be squared with Mead,
which requires a more searching examination of
Congress’s intent, particularly “where an unusually
basic legal question is at issue.” NCTA v. Brand X
Internet Servs., 545 U.S. at 1004 (2005) (Breyer, J.,
concurring); United States v. Mead Corp., 533 U.S.
218, 229 (2001). Had the Court considered the juris-
dictional issue de novo (as at least the Seventh and
Federal Circuits would), or engaged in a more care-
ful and searching examination of the statute, the
court would have found that the FCC lacks authority
to adopt the Declaratory Ruling. See, infra, Part II.
II. Applying Chevron Led the Court To Expand the
FCC’s Authority and To Upset Congress’s Careful
Jurisdictional Balance.
Under the Fifth Circuit’s analysis of whether
§332(c)(7)(A) bars the FCC from using its general
authority in the Act to regulate the State and local
siting process under §332(c)(7), Chevron deference
played a decisive role.
9 See also United States v. Home Concrete & Supply, LLC, 132
S. Ct. 1836, 182 L. Ed. 2d 746, 759 (2012) (Scalia, J., concur-
ring) (noting that “a pre-Chevron determination that language
is ambiguous does not alone suffice; the pre-Chevron Court
must in addition have found that Congress wanted the particu-
lar ambiguity in question to be resolved by the agency.”)
22
1. Because the court accorded Chevron deference
to the FCC’s jurisdictional determination, it did not
seek the statute’s best reading; it asked only
whether the FCC’s interpretation was permissible.
The court deemed the statute ambiguous in various
ways,10 then applied Chevron’s second step to rule
that “none of the cities’ arguments convince us that
the FCC’s interpretation of its statutory authority is
impermissible.” App. 51a.
2. If the court had itself conducted a complete
statutory analysis applying traditional tools of
statutory construction, it would have found that
Congress did not intend for the FCC to make policy
affecting State and local authority in this area.
a. Section 332(c)(7)’s subject matter (local land
use processes) and the entities that implement these
processes (State and local governments) are not the
subjects of the Communications Act. 47 U.S.C. §152.
The FCC has no experience in managing zoning, nor
is there an obvious national standard to which the
agency could look (or did look) in deciding how much
time is required to process applications in particular
States or local communities. It is unlikely that
Congress would authorize the FCC to intrude into
10 App. 41a (§332(c)(7)(A) does not “unambiguously preclude”
FCC action); App. 41a (Ҥ332(c)(7)(A) itself does not provide a
clear answer”); App. 42a (issue “remains unresolved”); App. 42a
(noting that Congress “did not clearly remove” FCC’s ability to
implement §332(c)(7)(A)); App. 42a-43a (Congress’s “silence”
leaves §332(c)(7)(A)’s effect on the FCC’s authority to adminis-
ter §332(c)(7)(B)’s limitations ambiguous) App. 43a (noting
that “one could read” §332(c)(7)(A) as the FCC does).
23
these areas without saying so expressly. Yet rather
than say so expressly, Congress granted the FCC
authority to act in one area (RF emissions) while
granting the courts exclusive jurisdiction to address
all other disputes arising under §332(c)(7).
b. The consequence of FCC regulation of State
and local land use processes is significant, as this
case illustrates. If the FCC deadlines pass (without
extension by mutual agreement), an applicant must
file a complaint within 30 days, triggering expedited
judicial review. The State or local government’s
decision is presumptively unreasonable, and the
State or local government must expend resources to
defend its action. It must do so even if (to take an
example) the time was required to comply with State
environmental laws or to implement other policies
reflected in State and local deadlines. See, supra, at
9 (discussing State laws). The review and the ex-
pense are triggered not because the State and local
policies are unreasonable, but because the FCC
created a federal zoning policy. That is something
that the courts could not do, and have never done
under their case-specific approach to §332(c)(7).
It is unlikely that Congress intended to undercut
State and local laws without some indication it
intended to do so. Congress’s emphasis on judicial
review in §332(c)(7), while not determinative, cer-
tainly cuts against finding that Congress intended
the FCC to establish federal policies in this area.
Likewise, the conference report explains that
§332(c)(7)(B)(ii)’s requirement that a local govern-
ment act within a “reasonable period of time” is not
intended “to give preferential treatment to the
24
personal wireless service industry in the processing
of requests, or to subject their requests to any but
the generally applicable” zoning time frames. H.R.
Rep. No. 104-204 at 25, 1996 U.S.C.C.A.N. 10 (1995).
Yet, even if no cases are actually filed, the inevitable
effect of a policy that threatens States and local
governments with litigation if they do not meet FCC
deadlines is that State and local governments must
give precedence and special treatment to wireless
applicants at the expense of other zoning applicants
and policies.
2. a. Read in this context, the plain language of
§332(c)(7)(A)’s preservation clause is clear: it pre-
vents any other provision of the Communications Act
from “affect[ing]” or “limit[ing]” State or local au-
thority. Section 332(c)(7), it follows, is both compre-
hensive and self-contained: the FCC may act where
§332(c)(7) gives it a role (to address RF matters), but
not elsewhere. The FCC therefore may not use §§1,
4(i), 201(b), and 303(r) to assert jurisdiction over
State and local zoning processes with respect to
matters that are addressed in §332(c)(7), e.g., to
define what constitutes “substantial evidence,” what
constitutes a “written record,” what constitutes a
“reasonable time” for action, and so on. As the FCC
itself recognized, its use of §§1, 4(i), 201(b), and
303(r) to create national standards necessarily
“affects” and is intended to “affect” State and local
authority. App. 90a (¶ 25) (noting that State and
local governments must comply with §332(c)(7) “as
defined herein”); see also App. 133a (¶ 62) (noting
that certain State and local decisions are “unaf-
fected” by its Declaratory Ruling).
25
b. The FCC’s reading cannot be squared with
§332(c)(7)(A)’s plain language. The FCC contends
that §332(c)(7)(A)’s preservation clause only forbids
it from creating “additional limitations” beyond
those enumerated in §332(c)(7)(B). The agency
therefore concludes that it may use §§1, 4(i), 201(b),
and 303(r) to establish national rules for local zoning
that are binding on States, local governments, and
the courts, if the rules relate to some matter men-
tioned in §332(c)(7)(B). Pet. App. 87a-91a (¶¶ 23-25).
But the “limits” created by the FCC’s rules—the
specific federal deadlines—are “additional limita-
tions” that appear nowhere in the Act. Moreover, the
FCC’s claim that the statute only prevents it from
creating additional “limits” reads the word “affect”
out of the statute. By selecting its preferred reading
of §332(c)(7) to advance its own policies, the FCC
necessarily affects State and local authority. Indeed,
the agency’s creation of an overriding federal stan-
dard “independent” of state standards, see supra,
has an additional “[e]ffect” on State law beyond the
court review contemplated by §332(c)(7) itself. Like-
wise, the agency’s presumption that State and local
governments have acted unreasonably—which
appears nowhere in §332(c)(7)’s text—”affects” State
and local authority.
The FCC’s reading of §332(c)(7) cannot be justi-
fied simply because §332(c)(7) appears in the Com-
munications Act, which the FCC generally imple-
ments. The Court’s decision in Louisiana PSC v.
FCC, 476 U.S. 355, 373 (1986) is analogous, and to
the contrary. The case concerned a preservation
clause stating that “except as provided” in certain
26
sections, “nothing in this Act shall be construed to
apply or to give the Commission jurisdiction with
respect to” certain matters related to intrastate
service. The Court ruled that this clause forbids the
FCC from using another Act provision (47 U.S.C.
§220) to preempt intrastate depreciation practices.
The Court explained that the “nothing in this Act”
clause “fences off” intrastate matters “from FCC
reach or regulation.” Id. at 370. Likewise,
§332(c)(7)(A) fences off State and local authority
from “limits” or “affects” caused by §§1, 4(i), 201(b),
and 303(r)—and by any other provision of the Act.11
Unless §332(c)(7) is read to have this “fencing off”
effect, it is hard to imagine its purpose. If Congress
had added §332(c)(7)’s limitations to the Act without
the “nothing in this Act” language, the FCC could
still only implement the limitations that Congress
established; it could not create new ones out of whole
cloth. The FCC (and Fifth Circuit applying Chevron)
thus reads §332(c)(7) as if the limiting language did
not exist. Tellingly, the FCC (and the Fifth Circuit)
found support for the FCC’s action in the Sixth
Circuit’s decision in Alliance v. Community Media v.
FCC, 529 F.3d 763 (6th Cir. 2008). There, the court
11 The Fifth Circuit seems to have found it significant that the
Congress did not use the phrase “jurisdiction” in Section
332(c)(7)(A). App. 42a n.104. However, the logical reading of
Section 332(c)(7) is that it is broader, not narrower than the
clause at issue in Lousiana PSC, and seals off an entire subject
matter area from FCC action, direct or indirect. By contrast, in
Lousiana PSC, no one doubted that the FCC had authority to
address depreciation practices, so long as it did not assert
jurisdiction over intrastate depreciation rates.
27
found that the FCC could rely on its general rule-
making authority to implement §621(a)(1) of the
Communications Act, a provision that contains no
language limiting the applicability of “other provi-
sions” of the Communications Act. 47 U.S.C.
§541(a)(1).
The Fifth Circuit’s approach here misconstrues
the Court’s decision in AT&T Corp. v. Iowa Utilities
Board, 525 U.S. 366 (1999). AT&T endorsed Justice
Breyer’s recognition that “‘Congress enacted [the]
language [of §201(b)] in 1938,’ and . . . whether it
confers ‘general authority to make rules implement-
ing the more specific terms of a later enacted statute
depends upon what that later enacted statute con-
templates.’ AT&T Corp., 525 U.S. at 420 (emphasis
added); id. at 378 n.5 (finding Justice Breyer’s
statement “assuredly true.”). Section 332(c)(7)(A)
indicates what it “contemplates” expressly: “nothing
in this Act” may “limit” or “affect” the State and local
authority that §332(c)(7) addresses. That Congress
may enact such a limitation is well-established: “An
agency may not confer power upon itself. To permit
an agency to expand its power in the face of a con-
gressional limitation on its jurisdiction would be to
grant to the agency power to override Congress.” La.
Pub. Serv. Comm’n, 476 U.S. at 374-75. Requiring
Congress to do more to shield an area from FCC
policymaking—as the Fifth Circuit would—turns
this fundamental principle on its head.
c. Other interpretive tools indicate that Con-
gress intended to prevent the FCC from adopting
national regulations to implement §332(c)(7).
28
First, Petitioners’ statutory interpretation has
direct support in the statute’s legislative history; the
FCC’s has none. As explained, Congress rejected a
provision that would have granted the FCC the very
authority it exercised here in favor of §332(c)(7). The
conference report directs that the FCC must termi-
nate “[a]ny pending [FCC] rulemaking concerning
the preemption of local zoning authority over the
placement, construction or modification of CMS
facilities.” H.R. Rep. No. 104-458 at 207-208 (1996)
(Conf. Report).
Second, this Court has indicated that courts
should avoid statutory interpretations that would
render other statutory language superfluous. Dun-
can v. Walker, 533 U.S. 167, 174 (2001). The FCC’s
reading defies this canon. If the FCC is correct that
Congress intended and expected the FCC to use §§1,
4(i), 201(b), and 303(r) to address any matter men-
tioned in §332(c)(7), the specific grant of authority to
the FCC to address RF issues in §332(c)(7)(B) is
surplusage.
Third, this Court has instructed that “[i]n con-
struing provisions . . . in which a general statement
of policy is qualified by an exception, we usually read
the exception narrowly in order to preserve the
primary operation of the provision.” Comm’r of
Internal Revenue v. Clark, 489 U.S. 726, 739 (1989).
The FCC’s interpretation defies this canon. It re-
quires a court to read the “except as provided in this
paragraph” broadly so that State and local authority
may be “limit[ed]” and “affect[ed]” not only by the
language “provided” in §332(c)(7)(B), but also by the
29
FCC’s implementation of this provided language
using §§1, 4(i), 201(b), and 303(r).
Finally, the Fifth Circuit’s approach—requiring
an unambiguous statement of Congressional in-
tent—requires it to ignore basic presumptions that
this Court has established. This Court has adopted a
presumption against preemption instructing that a
court must “begin . . . ‘with the assumption that the
historic police powers of the states [are] not to be
superseded by the Federal Act unless that was the
clear and manifest purpose of Congress.’” Altria
Group Inc. v. Good, 555 U.S. 70, 77 (2008), citing
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947) (emphasis added). This assumption “applies
with particular force when Congress has legislated
in a field traditionally occupied by the States.” Id.
This presumption supports Petitioners’—not the
FCC’s—interpretation, because only Petitioners’
reading would prevent federal preemption by agency
action where it is not Congress’s “clear and manifest”
intent.
* * *
In sum, the court’s resolution of this case turned
on its abbreviated and piecemeal Chevron analysis,
and its deference to an FCC jurisdictional determi-
nation that is inconsistent with the best reading of
§332(c)(7) considered as a whole. Review is appropri-
ate to ensure that §332(c)(7) is applied as Congress
intended.
30
III. This Case Allows the Court To Settle Recurring
Issues of National Importance.
This case presents recurring issues with serious
national ramifications both as a matter of adminis-
trative law, and under the Communications Act.
1. As a matter of administrative law, it is critical
that the Court clarify the recurring issue of whether
and how Chevron applies when an agency deter-
mines its own statutory jurisdiction. This very issue
is central in other important cases now pending in
the courts. See, e.g., Daniel A. Lyons, Tethering the
Administrative State: The Case Against Chevron
Deference for FCC Jurisdictional Claims, 36 Iowa J.
Corp. L. 823 (2011) (discussing FCC’s claim of au-
thority over the Internet).
But deferring to an agency’s jurisdictional conclu-
sion is especially intolerable when the courts of
appeals fail to do so uniformly. This permits an
agency’s jurisdictional claim and ensuing rules to be
binding in one circuit but not in others—a result
especially problematic because agency cases are
often assigned to courts of appeals randomly.
28 U.S.C. §2112. This creates a patchwork of “fed-
eral” rules, where results are determined by lottery.
This case presents a particularly strong vehicle for
resolving this issue given the strong indicia of Con-
gress’s intent, and the non-technical, purely legal
nature of the jurisdictional issue.
2. Resolving the FCC’s proper role with respect
to §332(c)(7) is of continuing and growing impor-
tance.
31
Allowing the FCC to interject itself into local zon-
ing processes and to make every local government
subject to federally-established zoning rules has a
direct effect on State and local governments. The
effect is legal (States and their processes would be
subject to federal administrative regulation); finan-
cial (federal rules and processes increase costs and
raise the spectre of increased litigation); and conse-
quential (the federal rules necessarily require local
governments that wish to avoid litigation to give
precedence to wireless zoning applications over other
applications). In Rancho Palos Verdes, these factors
were significant in determining that a §1983 remedy
was inconsistent with §332(c)(7)’s statutory scheme.
These factors also warrant granting the petition
here, to maintain Congress’s balance.
The issue is likely growing in importance. The
cellular industry estimates that there were approxi-
mately 10,000 cell sites at year end 2002. By year
end 2010, the number of cell sites had grown to
approximately 253,000, and the number continues to
grow—about 30,000 sites were added between 2010
and year end 2011.12 The wireless industry has
already returned to the FCC and asked it to adopt
12 CTIA’s Semi-Annual Wireless Industry Survey, available at
http://files.ctia.org/pdf/CTIA_Survey_Year_End_2011_Graphics
.pdf (last accessed June 26, 2011); see also In re Annual Report
and Analysis of Competitive Market Conditions With Respect
to Mobile Wireless, Including Mobile Services, Fifteenth
Report, WT Docket No. 10-133, FCC 11-103 at ¶ 310 (June 27,
2011) (noting that one provider alone, Verizon, would need to
add between 17,400 and 27,400 sites to its network).
32
stricter rules. The agency recently released a far-
reaching Notice of Inquiry aimed at “[i]mproving
policies [r]egarding . . . [w]ireless [f]acilities [s]iting.”
In re Acceleration of Broadband Deployment: Ex-
panding the Reach and Reducing the Cost of Broad-
band Deployment by Improving Policies Regarding
Public Rights of Way and Wireless Facilities Siting,
26 FCC Rcd. 5384 (2011). The FCC cited the De-
claratory Ruling (¶¶ 13, 48 n.45), and stated its
belief that “the Commission has broad general
rulemaking authority that would allow it to issue
rules interpreting section[ ] . . . 332.” Id. at ¶ 57; see
also id. at ¶ 51. Therefore, the FCC is likely to use
the Fifth Circuit’s decision to assert broad and
sweeping authority to regulate all types of State,
local, and private property.
Conclusion
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
33
Respectfully submitted,
Joseph Van Eaton
Counsel of Record
James R. Hobson
Matthew K. Schettenhelm
BEST BEST & KRIEGER, LLP
2000 Pennsylvania Avenue NW, Suite 4300
Washington, DC 20006
(202) 785-0600
joseph.vaneaton@bbklaw.com
Counsel for Petitioners City of Arlington, Texas;
City of Los Angeles, California; County of Los
Angeles, California; City of San Antonio, Texas,
and Texas Coalition of Cities for Utilities Issues
Thomas C. Goldstein
Kevin K. Russell
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Avenue NW, Suite 404
Washington, DC 20015
(202) 362-0636
Thomas D. Bunton
Senior Deputy County Counsel
COUNTY OF SAN DIEGO
1600 Pacific Highway
Room 355
San Diego, CA 92101
(619) 531-6456
Counsel for Petitioner
County of San Diego, California
June 27, 2012
1a
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 10-60039
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 review of wireless facility
1 47 U.S.C. §§ 253, 332(c)(7).
2a
siting applications. We deny Arlington’s petition for
review on the merits. We dismiss San Antonio’s peti-
tion for review because we lack jurisdiction to con-
sider it.
I
As part of the Telecommunications Act of 1996
(TCA or the Act),2 Congress amended the Communi-
cations 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 in-
strumentality thereof over decisions regarding
the placement, construction, and modification
of personal wireless service facilities.
(B) Limitations
(i) The regulation of the place-
ment, construction, and modification of
personal wireless service facilities by
any State or local government or in-
strumentality thereof–
2 Pub. L. No. 104–104, 110 Stat. 56.
3a
(I) shall not unreasonably
discriminate among provid-
ers of functionally equiva-
lent 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 instru-
mentality, taking into account the na-
ture and scope of such request.
(iii) Any decision by a State or lo-
cal government or instrumentality
thereof to deny a request to place, con-
struct, or modify personal wireless ser-
vice facilities shall be in writing and
supported by substantial evidence con-
tained in a written record.
(iv) No State or local government
or instrumentality thereof may regulate
the placement, construction, and modi-
fication of personal wireless service fa-
cilities on the basis of the environ-
mental effects of radio frequency emis-
sions to the extent that such facilities
4a
comply with the Commission’s regula-
tions concerning such emissions.
(v) Any person adversely affected
by any final action or failure to act by a
State or local government or any in-
strumentality thereof that is inconsis-
tent with this subparagraph may,
within 30 days after such action or fail-
ure 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 ad-
versely affected by an act or failure to
act by a State or local government or
any instrumentality thereof that is in-
consistent with clause (iv) may petition
the Commission for relief.
Section 332(c)(7) seeks to reconcile two com-
peting interests—Congress’s desire to preserve the
traditional role of state and local governments in
regulating land use and zoning and Congress’s inter-
est 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 communi-
cations facilities through delay or irrational deci-
sionmaking.3 Section 332(c)(7)(A), by providing that
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
5a
“nothing in this chapter shall limit or affect the au-
thority of a State or local government or instrumen-
tality thereof over decisions regarding the place-
ment, 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 Communica-
_________________
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 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).
6a
tions 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 applica-
tions. 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 applica-
tions.
Second, CTIA asked the FCC to find that, in
the event no final action was taken within the sug-
gested 45- and 75-day time periods, the application
would be deemed granted. Alternatively, CTIA pro-
posed 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 in-
junction granting the underlying application.
Third, CTIA requested that the FCC interpret
§ 332(c)(7)(B)(i), which bars state and local govern-
ments from taking action that would “prohibit or
have the effect of prohibiting the provision of per-
7a
sonal wireless services.”5 CTIA noted that federal
courts had split on the question of whether that pro-
vision 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 sug-
gested 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 regula-
tion, or other State or local legal requirement, may
prohibit or have the effect of prohibiting the ability
of any entity to provide any interstate or intrastate
telecommunications service.”7
5 47 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”).
7 47 U.S.C. § 253(a).
8a
The FCC issued a public notice seeking com-
ment 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 zon-
ing 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 gov-
ernments must act on zoning requests, the FCC de-
clared 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 applica-
tions requesting collocations9 and 150 days for all
other applications.10 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).11 The FCC stated, however, that per-
sonal wireless service providers and state or local
governments could, by mutual consent, extend the
prescribed time frames.12 In addition, the FCC con-
cluded that, if an applicant submits an incomplete
application, the time it takes for the applicant to re-
spond to a state or local government’s request for
8 24 FCC Rcd. 13994 (2009).
9 Collocations involve modifications to already existing wireless
facilities.
10 24 FCC Rcd. 13994 ¶ 32 (2009).
11 Id.
12 Id. at ¶ 32.
9a
additional information would not count toward the
90- or 150-day time frame if the state or local gov-
ernment notified the applicant that the application
was incomplete within 30 days of receiving the ap-
plication.13
The FCC rejected CTIA’s proposal that the
FCC deem as granted applications on which final ac-
tion 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 ap-
propriate case-specific remedies.”15 Accordingly, the
FCC concluded that, although the 90- and 150-day
time frames established by the Declaratory Ruling
were presumptively reasonable, state or local au-
thorities 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 ser-
vice facilities siting solely because ‘one or more car-
riers serve a given geographic market’ has engaged
13 Id. at ¶ 53.
14 Id. at ¶ 39.
15 Id.
16 Id. at ¶ 42.
10a
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 provi-
sion of personal wireless services.”17 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 ser-
vice providers to obtain a variance before siting fa-
cilities.18 The FCC noted that CTIA was not seeking
the preemption of any particular ordinance and “that
any further consideration of blanket variance ordi-
nances should occur within the factual context of
specific cases.”19
Several organizations subsequently filed a pe-
tition 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
17 Id. at ¶ 55.
18 Id. at ¶ 67.
19 Id.
11a
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 peti-
tion 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 dis-
cretion, or otherwise not in accordance with the law;
and (4) the FCC violated the Administrative Proce-
dure Act (APA) because its establishment of the 90-
and 150-day time frames constituted a rulemaking
subject to the APA’s notice-and-comment require-
ments.
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 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 be-
cause San Antonio did not timely file its petition for
review. Before we address the merits of the cities’
20 5 U.S.C. § 601 et seq.
12a
arguments, we must address the issue of our juris-
diction.
A
San Antonio filed its petition for review pur-
suant to 47 U.S.C. § 402(a), which provides that
“[a]ny proceeding to enjoin, set aside, annul, or sus-
pend 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 re-
viewable by section 402(a) of Title 47.”21 Chapter 158
also states that a party seeking review of “a final or-
der reviewable under this chapter” must file a peti-
tion for review of the order within 60 days after en-
try of the order.22 This 60-day period “‘is jurisdic-
tional and cannot be judicially altered or ex-
panded.’”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, how-
ever, did not file its petition until October 1, 2010,
well beyond the expiration of the 60-day period. Nev-
21 28 U.S.C. § 2342(1).
22 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)).
13a
ertheless, San Antonio argues that its petition for
review of 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 pe-
riod for filing a petition for review of the agency’s ac-
tion 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 af-
fected by the Declaratory Ruling filed the petition for
reconsideration that culminated in the Reconsidera-
tion Order, and San Antonio simply submitted com-
ments 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 reconsidera-
tion filed by one party does not toll § 2344’s 60-day
period for parties that do not file petitions for recon-
sideration. We reach this decision because “finality
with respect to agency action is a party-based con-
cept.”25 It is well-established that “a petition for
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
14a
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 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 con-
cept 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,”27 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 confer-
ring jurisdiction on this court and for purposes of
triggering § 2344’s time period. San Antonio thus
_________________
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.”).
27 W. Penn Power Co., 860 F.2d at 585-86.
15a
had 60 days from November 18, 2009, to file a peti-
tion for review in this court of the Declaratory Rul-
ing. 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 De-
claratory Ruling.
B
San Antonio also argues we can consider its
petition, notwithstanding the fact that it was un-
timely with respect to the Declaratory Ruling, be-
cause the petition also challenges the FCC’s Recon-
sideration Order. There is no doubt that San Anto-
nio’s petition for review is timely insofar as it chal-
lenges the FCC’s Reconsideration Order. The Recon-
sideration Order is not a reviewable order, however,
because it merely denied rehearing of matters de-
cided in the Declaratory Ruling. It contained no new
or additional determinations. San Antonio did not
petition for reconsideration of the Declaratory Rul-
ing, 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 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 or-
der which merely denies rehearing of . . . [the prior]
order is not itself reviewable.’”28 Here, the argu-
28 482 U.S. 270, 280 (1987) (quoting Microwave Commc’ns, Inc.
v. FCC, 515 F.2d 385, 387 n.7 (D.C. Cir. 1974)).
16a
ments San Antonio raises in its petition for review,
and the arguments it submitted in support of the pe-
tition for reconsideration, all were originally pre-
sented to the agency during the proceedings leading
up to the issuance of the Declaratory Ruling. Accord-
ingly, in addition to lacking jurisdiction to review
San Antonio’s petition insofar as it challenges the
Declaratory Ruling, we also lack jurisdiction to con-
sider the petition as a challenge to the Reconsidera-
tion 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 sup-
port of Arlington’s timely petition for review in this
court. Our precedent compels us to disagree. In Bra-
zoria County, Texas v. EEOC, 29we held that a party
could not rely on her timely intervention with re-
spect to another party’s petition for review to raise
matters outside the scope of the other party’s peti-
tion.30 We arrived at this holding because motions to
intervene must be filed within 30 days after filing of
the petition for review31 —which itself must be filed
within 60 days after the agency’s final action32—thus
creating a situation in which intervenors can request
review of issues as late as 90 days after the agency’s
29 391 F.3d 685 (5th Cir. 2004).
30 Id. at 688-89.
31 See Fed. R. App. P. 15(d).
32 28 U.S.C. § 2344.
17a
final action. Because permitting an intervenor to
raise additional issues for review would contravene §
2344’s 60-day time period for filing petitions for re-
view, we observed that intervenors “are bound by the
issues raised in the petitions for review.”33 Thus, we
generally limit intervenors to raising arguments ad-
dressing only those issues presented in the petitions
for review.34
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 Arling-
ton has raised. We will, however, consider the argu-
ments of San Antonio and other intervenors that re-
late 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 proceed-
ings—rulemaking, adjudication, and licensing—and
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”).
18a
prescribes specific procedures applicable to those
proceedings.35 When an agency engages in rulemak-
ing it must, subject to certain statutory exceptions,
satisfy the APA’s familiar notice-and-comment re-
quirements.36 Adjudications, by contrast, are not
subject to those requirements.37 The cities argue the
FCC violated the APA because the time frames con-
stitute 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 re-
quirements. 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
35 See Sierra Club v. Peterson, 185 F.3d 349, 366 (5th Cir.
1999).
36 5 U.S.C. § 553.
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.”).
19a
rather than rulemaking.38 Agencies typically enjoy
“very broad discretion [in deciding] whether to pro-
ceed by way of adjudication or rulemaking.”39 The
notice-and-comment requirements for rulemaking
would ordinarily not apply to 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.40
Second, we must examine the ultimate product of
the agency action.41 Both of these considerations
38 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.”).
40 Am. Airlines, Inc., 202 F.3d at 797.
41 Id.
20a
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 signifi-
cant deference to an agency’s characterization of its
own action.”42 This deference is not absolute, how-
ever. Otherwise, an agency would be able to escape
the APA’s notice-and-comment requirements simply
by labeling a rulemaking an adjudication.43 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.44 Section 554(e) provides: “The
42 Id.
43 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 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 ‘declaratory
orders,’ and because 47 C.F.R. § 1.2 is derived from § 554(e), it
appears that the terms ‘declaratory order’ and ‘declaratory
21a
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 uncer-
tainty.” Because § 554(e) is a subsection of the provi-
sion 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.45 We see no reason to treat the De-
claratory Ruling differently: it was the product of ad-
judication.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
_________________
ruling’ are used interchangeably.”).
45 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)).
22a
through adjudication or rulemaking,47 that discre-
tion 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 an agency’s reliance on
adjudication instead of rulemaking constitutes an
abuse of discretion.49 Even though we conclude the
Declaratory Ruling was the product of an adjudica-
tion, we will consider whether the FCC abused its
discretion or otherwise violated the law by promul-
gating the 90- and 150-day time frames through ad-
judication rather than rulemaking.50 On this point,
47 Am. Airlines, Inc., 202 F.3d at 797.
48 5 U.S.C. § 706(2)(A).
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 . . . .”).
23a
we harbor serious doubts as to the propriety of the
FCC’s choice of procedures.
Specifically, we note that the Declaratory Rul-
ing’s 90- and 150-day time frames bear all the hall-
marks of products of rulemaking, not adjudication.
Adjudications typically “resolve disputes among spe-
cific individuals in specific cases, whereas rulemak-
ing affects the rights of broad classes of unspecified
individuals.”51 In American Airlines, Inc. v. Depart-
ment of Transportation, we held that the Depart-
ment of Transportation properly used § 554(e)’s de-
claratory ruling mechanism to resolve a dispute in-
volving the application of the federal law governing
airline service at Love Field airport.52 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 adjudicatory proceeding.”53
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 con-
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).
52 202 F.3d at 797-98.
53 Id. at 798.
54 881 F.2d 193 (5th Cir. 1989).
24a
venience and necessity.55 The agency instituted the
new limit in the course of reviewing a particular suc-
cessor’s application for a certificate.56 Petitioners
challenged the limit on a number of grounds, includ-
ing 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.57 In doing so, we specifi-
cally 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 suc-
cessor filing requirement.”58 Here, the FCC estab-
lished 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 pre-
sented 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 de-
claratory rulings to terminating controversies be-
tween parties. Section 554 also empowers agencies to
55 Id. at 195-96.
56 Id. at 196.
57 Id. at 198-99.
58 Id. at 199.
25a
use declaratory rulings to “remove uncertainty,” and
there are cases suggesting an agency may use a de-
claratory 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,59 the District of Co-
lumbia Circuit upheld the FCC’s use of a declaratory
ruling to announce that certain types of prepaid call-
ing cards were telecommunications services and that
their providers were subject to regulation under the
TCA.60 In Chisholm v. FCC,61 the District of Colum-
bia Circuit similarly upheld the FCC’s use of a de-
claratory ruling to determine the application of the
Communication Act’s equal-time provision to specific
types of appearances by political candidates.62 Nev-
ertheless, 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 compe-
tent jurisdiction. This is classic rulemaking.63
59 509 F.3d 531 (D.C. Cir. 2007).
60 Id. at 536-37.
61 538 F.2d 349 (D.C. Cir. 1976).
62 Id. at 364-66.
63 See Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442,
26a
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 rulemaking, the rule-
making was interpretative rulemaking of the type
excepted from the APA’s notice-and-comment re-
quirements.64 We need not decide these questions
because any failure by the FCC to comply with the
APA in this case was harmless.65
“[T]he harmless error rule requires the party
asserting error to demonstrate prejudice from the
error.”66 An agency’s failure to comply with the APA
_________________
448 (9th Cir. 1994) (“Rulemaking, in contrast, is prospective,
and has a definitive effect on individuals only after the rule
subsequently is applied.”).
64 5 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.”).
27a
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 po-
tentially relevant factors, including (1) “an estima-
tion of the likelihood that the result would have been
different”; (2) “an awareness of what body (jury,
lower court, administrative agency) has the author-
ity to reach that result”; (3) “a consideration of the
error’s likely effects on the perceived fairness, integ-
rity, 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.”68
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 per-
sons 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
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).
68 Shinseki, 129 S. Ct. at 1707; see also Johnson, 632 F.3d at
930.
69 Johnson, 632 F.3d at 927 (internal quotation marks and
28a
When an agency fails to comply with the APA’s no-
tice and comment procedures, the touchstone is
“whether it is clear that the lack of notice and com-
ment 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 proce-
dures 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.”71 The
notice also referenced CTIA’s requests that the FCC
establish specific time frames and implement a sys-
tem under which an application would be deemed
granted if a zoning authority failed to act within the
applicable time frame.72 It is true that the FCC la-
beled 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 Dis-
trict of Columbia Circuit has repeatedly held, such a
deficiency is not fatal because “‘to remand solely be-
cause the Commission labeled the action a declara-
_________________
citations omitted); see also 5 U.S.C. § 553(b)-(d).
70 Johnson, 632 F.3d at 931.
71 See Wireless Telecommunications Bureau seeks Comment on
Petition for Declaratory Ruling by CTIA, 73 Fed. Reg. 50972,
50972 (Aug. 29, 2008).
72 Id. at 50972-73.
29a
tory ruling would be to engage in an empty formal-
ity.’”73
We also cannot ignore the fact that, after pub-
lishing the notice in the Federal Register, the FCC
received and considered comments from dozens of
interested parties, including several of the cities in-
volved in this litigation. Many of those comments
raised the very issues now raised before this court,
and the FCC addressed those issues in its Declara-
tory Ruling. Indeed, we are not aware of a single ar-
gument 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 observa-
tions in United States v. Johnson:
The purpose of notice-and-comment rulemak-
ing is to assure fairness and mature consid-
eration 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 pro-
posed by the party asserting error, even if
there were APA deficiencies. It follows that
when a party’s claims were considered, even if
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)).
30a
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 pe-
riod before an adopted rule becomes effective, the cit-
ies 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 behavior before the final rule takes effect.”75
On this point, the Declaratory Ruling itself recog-
nized the need “to give State and local governments
an additional period to review currently pending ap-
plications 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.77 For those ap-
plications that had been pending for longer than the
applicable time frame at the time of the Declaratory
74 Johnson, 632 F.3d at 931 (internal quotation marks,
brackets, and citations omitted).
75 Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996).
76 24 FCC Rcd. 13994 ¶ 51 (2009).
77 Id.
31a
Ruling, the FCC determined state or local govern-
ments would have 60 days from the provision of no-
tice by the applicant before the applicant would be
able to seek judicial relief.78 The cities have not dem-
onstrated 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 wait-
ing period.
We conclude that any error in the FCC’s
choice to establish the time frames in the Declara-
tory 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 enti-
ties or their representatives submitted comments in
response to the FCC’s notice. The FCC considered
and addressed all of the 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:
78 Id.
32a
In the case of petitions for declaratory ruling
that seek Commission preemption of state or
local regulatory authority and petitions for re-
lief under 47 U.S.C. 332(c)(7)(B)(v), the peti-
tioner 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 plead-
ings 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.79
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 necessi-
tated its dismissal and the FCC’s failure to do so re-
sulted in a denial of due process.
The FCC responds that its decision not to
dismiss CTIA’s petition was justified by its own in-
terpretation of § 1.1206(a). In the Declaratory Rul-
ing, the FCC concluded: “By its terms, the service
requirement does not apply to a petition that cites
examples of the practices of unidentified jurisdic-
79 47 C.F.R. § 1.1206(a) note 1.
33a
tions to demonstrate the need for a declaratory rul-
ing interpreting provisions of the 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 ef-
fect on specific individuals.81 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 oppor-
tunity to challenge [the agency’s] action.”82 Here, the
80 24 FCC Rcd. 13994 ¶ 68 (2009).
81 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
34a
FCC provided notice of CTIA’s petition in the Fed-
eral Register and allowed all interested parties to
provide comments on CTIA’s petition. Under the cir-
cumstances of this case, those procedures were ade-
quate to satisfy due process.
V
Regarding the determinations in the FCC’s
Declaratory Ruling, we begin with the cities’ sugges-
tion 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 con-
struction 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 read-
ing 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 author-
ity to make such rules and regulations as may be
necessary to carry out the Communication Act’s pro-
visions.83 The FCC argues that § 332(c)(7)(A) does
not bar the FCC from exercising this authority be-
cause the FCC interprets § 332(c)(7)(A) as merely
precluding the FCC from imposing additional limita-
_________________
F.2d 193, 199 (5th Cir. 1989); see also Fla. Gas Transmission
Co. v. FERC, 876 F.2d 42, 44 (5th Cir. 1989).
83 See, e.g., 47 U.S.C. §§ 151, 154(i), 201(b), 303(r).
35a
tions on state and local government authority over
the wireless facility zoning process beyond those al-
ready provided for in § 332(c)(7)(B). Under the FCC’s
interpretation, the FCC retains the authority to im-
plement the limitations already set forth in §
332(c)(7)(B).
A
We ordinarily review an agency’s interpreta-
tion of the statutes it is charged with administering
using the Chevron two-step standard of review.84
Under Chevron, we first ask “whether Congress has
directly addressed the precise question at issue.”85 If
Congress has addressed the question, “we must give
effect to the unambiguously expressed intent of Con-
gress.”86 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 construc-
tion of the statute.”87 “As long as the agency’s con-
struction of an ambiguous statute is permissible, it
84 See Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 796
(5th Cir. 2000).
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).
36a
must be upheld.”88 Although we engage in the Chev-
ron analysis when reviewing an agency’s interpreta-
tion of a statute it is charged with administering, we
do not use Chevron when reviewing an agency’s in-
terpretation of a statute it is not charged with ad-
ministering.89
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 ap-
ply when we determine the extent of the agency’s ju-
risdiction. The FCC argues that an agency’s inter-
pretation 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 novo re-
view.
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,90 and the circuit courts of ap-
88 Am. Airlines, Inc., 202 F.3d at 796.
89 Id.
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).
37a
peals have adopted different approaches to the issue.
Some circuits apply Chevron deference to disputes
over the scope of an agency’s jurisdiction,91 some do
not,92 and some circuits have thus far avoided taking
a position.93 In this circuit, we apply Chevron to an
agency’s interpretation of its own statutory jurisdic-
tion, and therefore, we will apply the Chevron
framework when determining whether the FCC pos-
sessed the statutory authority to establish the 90-
and 150-day time frames.94
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
38a
B
“At the first step of a Chevron analysis, we
must determine whether Congress has directly spo-
ken in a manner that reveals its expressed intent.”95
“We use the traditional tools of statutory construc-
tion 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 in-
tent than the statutory text.”97 We determine the
plainness or ambiguity of the statutory text by refer-
encing “the language itself, the specific context in
which that language is used, and the broader context
of the statute as a whole.”98 “‘[W]here the statutory
language is unambiguous and the statutory scheme
is coherent and consistent,’ the language of the stat-
_________________
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 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).
96 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)).
97 Med. Ctr. Pharm., 536 F.3d at 394.
98 Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
39a
ute is usually where we end.”99 If the statutory lan-
guage is susceptible to more than one reasonable in-
terpretation, however, it is ambiguous and we must
proceed to Chevron step two.100
As noted above, the FCC argues that its gen-
eral 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. § 201(b), which provides
that “[t]he Commission may prescribe such rules and
regulations as may be necessary in the public inter-
est to carry out the provisions of this chapter.” The
Supreme Court has held the FCC’s rulemaking au-
thority under § 201(b) extends to provisions added by
the TCA because Congress passed the TCA as an
amendment to the Communications Act.101 Congress
99 Med. Ctr. Pharm., 536 F.3d at 394 (quoting Robinson, 519
U.S. at 340).
100 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)).
101 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).
40a
retains the ability to restrict its grant of power to an
agency, though, and the cities argue Congress in-
cluded language in the TCA precluding the FCC
from using the Communication Act’s grant of general
authority to implement § 332(c)(7)(B)’s limita-
tions.102 The cities point to § 332(c)(7)(A), which pro-
vides: “Except as provided in this paragraph, noth-
ing in this chapter shall limit or affect the authority
of a State or local government or instrumentality
thereof over decisions regarding the placement, con-
struction, and modification of personal wireless ser-
vice 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 imple-
menting § 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 interpreta-
tion—an interpretation under which the FCC pos-
sessed authority to issue the 90- and 150-day time
frames—so long as the FCC’s interpretation repre-
sents a reasonable construction of their terms. For
102 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.”).
41a
the following reasons, we conclude neither §
332(c)(7)(A) nor § 332(c)(7)(B)(v) unambiguously pre-
clude 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,” re-
moves § 332(c)(7)(B)’s limitations from its reach and
recognizes those limitations as legitimate intrusions
into state and local governments’ traditional author-
ity 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 pre-
cludes 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 con-
fronting state and local governments in the exercise
of their zoning authority over the placement of wire-
less 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 be-
cause Congress surely recognized that it was legis-
lating against the background of the Communica-
42a
tions 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 limita-
tions, in the absence of specific statutory limitations
on that authority,103 and Congress certainly knew
how to specifically restrict the FCC’s general author-
ity over the Communications Act as it clearly re-
stricted the FCC’s ability to use that authority in
other contexts.104 Here, however, Congress did not
clearly remove the FCC’s ability to implement the
limitations set forth in § 332(c)(7)(B), and this Con-
gressional silence leaves § 332(c)(7)(A)’s effect on the
FCC’s authority to administer § 332(c)(7)(B)’s limita-
tions ambiguous.
Moreover, the cities’ reliance on §
332(c)(7)(B)(v) does not resolve § 332(c)(7)(A)’s ambi-
guity. The cities contend that, by establishing juris-
diction 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 dis-
putes arising under § 332(c)(7)(B)(ii), the provision
103 See AT&T Corp., 525 U.S. at 378.
104 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”).
43a
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 govern-
ment and persons affected by the government’s fail-
ure 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 allow-
ing the FCC to issue an interpretation of §
332(c)(7)(B)(ii) that would guide courts’ determina-
tions of disputes under that provision.
The Sixth Circuit recently addressed a similar
statutory scheme in Alliance for Community Media
v. FCC.105 That decision involved provisions of the
Communications Act that delegated to municipali-
ties, in the form of local franchising authorities
(LFAs), the power to award cable franchises.106 The
provisions at issue further provided that an LFA
could not “unreasonably refuse to award an addi-
tional competitive franchise,”107 and “endowed po-
tential 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.”108 After the FCC promul-
gated rules delineating situations that would consti-
105 529 F.3d 763 (6th Cir. 2008).
106 Id. at 768.
107 Id.
108 Id.
44a
tute an unreasonable refusal to award a cable fran-
chise, petitioners claimed (among other arguments)
that the statute’s identification of courts as the fo-
rum for aggrieved cable operators to obtain relief de-
prived the FCC of statutory authority to exercise its
rulemaking power. The court rejected that argu-
ment, holding that “the availability of a judicial rem-
edy for unreasonable denials of competitive franchise
applications does not foreclose the agency’s rulemak-
ing authority over section 621(a)(1).”109 The decision
in Alliance for Community Media supports the con-
clusion that there is nothing inherently unreason-
able 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.110 Section
332(c)(7)(B)(v)’s vesting in the courts of jurisdiction
over disputes arising under § 332(c)(7)(B)(ii) thus
does not unambiguously preclude the FCC from tak-
ing the action at issue in this case.
In sum, we conclude that § 332(c)(7) is am-
biguous with respect to the FCC’s authority to estab-
109 Id. at 775.
110 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 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)).
45a
lish 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 permissi-
ble construction of the statute.111 In addition to argu-
ing 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 con-
struction 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 im-
plement § 332(c)(7)(B)’s limitations on state and lo-
cal government would conflict with the principle that
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)).
46a
“if Congress intends to preempt a power tradition-
ally exercised by a state or local government, it must
make its intention to do so unmistakably clear in the
language of the statute.”112 Finally, they suggest the
FCC itself had long recognized that it lacked juris-
diction 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, modifica-
tion, or operation of facilities for the provision of
commercial mobile services.”113 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 sec-
tion 704 which prevents Commission preemp-
tion of local and State land use decisions and
preserves the authority of State and local gov-
ernments 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 ju-
dicial relief from zoning decisions that fail to
comply with the provisions of this section. It is
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).
113 H.R. REP. NO. 104-204, pt. 1, at 25 (1995).
47a
the intent of the conferees that other than un-
der section 332(c)(7)(B)(iv) of the Communica-
tions Act of 1934 as amended by this Act and
section 704 of the Telecommunications Act of
1996 the courts shall have exclusive jurisdic-
tion over all other disputes arising under this
section. Any pending Commission rulemaking
concerning the preemption of local zoning au-
thority over the placement, construction or
modification of CMS facilities should be ter-
minated.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 am-
biguity in § 332(c)(7)’s plain text and indicates Con-
gress’s intent to remove from the FCC the authority
to implement § 332(c)(7)(B)(ii) and (v).
This argument fails, however, because the leg-
islative history itself is ambiguous. Although the leg-
islative 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 govern-
ment 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 limita-
tions § 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
114 H.R. REP. NO. 104-458, at 207-08 (1996) (Conf. Rep.).
48a
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 con-
clude that the legislative history “is so clear and
compelling . . . that it leaves no doubt as to Con-
gress’s intent.”115
The cities also suggest that interpreting §
332(c)(7) in a way that would allow the FCC to im-
plement § 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 gov-
ernment, it must make its intention to do so unmis-
takably clear in the language of the statute.”116 The
cities assert that the FCC’s new 90- and 150-day
time frames displace state laws establishing differ-
ent 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 au-
thorities rule on zoning requests in a reasonable
amount of time. That section already acts to preempt
these state laws by creating a federal time frame de-
fined through reference to reasonableness. No one
115 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).
49a
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 in-
sofar 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 “reason-
able” 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 limita-
tions on state and local government authority and
the principle that Congress must unmistakably indi-
cate its intent to preempt a power traditionally exer-
cised 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 dra-
matic shift in the [Declaratory Ruling], the FCC had
long recognized the statutory limits on its jurisdic-
tion 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
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.”).
50a
Steel, L.P. v. NLRB,118 made the following observa-
tion when interpreting the statute establishing the
NLRB’s quorum requirements: “That our interpreta-
tion of the delegation provision is consistent with the
Board’s longstanding practice is persuasive evidence
that it is the correct one, notwithstanding the
Board’s more recent view.”119
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 Fa-
cilitating the Provision of Spectrum-Based Services
to Rural Areas and Promoting Opportunities for Ru-
ral 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 au-
thority 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 exclu-
sive jurisdiction to the courts over most disputes
arising under § 332(c)(7)(B).121 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 Bu-
118 130 S. Ct. 2635 (2010).
119 Id. at 2641-42.
120 19 FCC Rcd. 24084 ¶ 123 (2004).
121 Id. at n.368.
122 18 FCC Rcd. 13126 ¶ 21 (2003).
51a
reau123 similarly contained observations on the lim-
its of the FCC’s authority to consider petitions chal-
lenging specific state or local government action. As
already discussed, that § 332(c)(7)(B)(v) vests exclu-
sive 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 limi-
tations. Thus, the FCC’s acknowledgment of this
limitation hardly suggests that the FCC also recog-
nized a limit on its authority under § 201(b).
D
For the above reasons, we conclude the FCC is
entitled to deference with 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 in-
terpretation of its statutory authority is impermissi-
ble. 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 at-
tempt 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, con-
struct, or modify personal wireless service facilities
123 Letter from Michele C. Farquhar to Mr. Thomas E. Wheeler
(Jan. 13, 1997), 1997 WL 14744.
52a
within a reasonable period of time after the request
is duly filed with such government or instrumental-
ity, 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 govern-
ment’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, presump-
tively, “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 in-
terpretation. 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.126 More-
124 24 FCC Rcd. 13994 ¶ 32 (2009).
125 Id.
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
53a
over, 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 gov-
ernments have to act on wireless facility zoning ap-
plications 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 defer-
ence 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).127
B
The cities raise a number of arguments rele-
vant to the reasonableness of the FCC’s establish-
ment of the 90- and 150-day time frames. They claim
the FCC’s time frames represent unreasonable in-
_________________
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.”).
127 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)).
54a
terpretations of the statute because they: (1) shift
the burden to state and local governments to demon-
strate in court that a delay in acting on a wireless
facility zoning application was reasonable, thus re-
versing the presumption against preemption; (2)
seek to force state or local government action by cre-
ating a heightened threat of litigation; (3) impose
new application completeness requirements; (4) cre-
ate a national standard for what constitutes a “rea-
sonable period of time”; and (5) contravene Congres-
sional intent by giving preferential treatment to the
wireless industry in the processing of zoning applica-
tions. 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 Chev-
ron 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 creat-
ing 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
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)].”).
55a
act” under § 332(c)(7)(B)(v). The result, they argue,
is that “the ‘presumption against preemption’ is re-
placed with a presumption for preemption” because
the burden of proof rests on state and local govern-
ments 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 proceed-
ing. Federal Rule of Evidence 301, for example, de-
scribes the effect of presumptions in civil proceed-
ings 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
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 pre-
sumed fact, the presumption simply disappears from
the case.”131 In other words, once a party introduces
129 FED. R. EVID. 301.
130 Pennzoil Co. v. FERC, 789 F.2d 1128, 1136 (5th Cir. 1986).
131 Id. at 1136-37.
56a
rebuttal evidence sufficient to support a finding con-
trary to the presumed fact, the presumption evapo-
rates, and the evidence rebutting the presumption,
and its inferences, must be “judged against the com-
peting evidence and its inferences to determine the
ultimate question at issue.”132 The burden of persua-
sion 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 ac-
tion seeking to enforce § 332(c)(7)(B)(ii) against a
state or local government, the ultimate burden of
persuasion remains with the wireless facilities pro-
vider to demonstrate that the government unrea-
sonably delayed action on an application. True, the
132 McCann v. Newman Irrevocable Trust, 458 F.3d 281, 288
(3d Cir. 2006) (internal quotation marks omitted).
133 See FED. R. EVID. 301 (noting “the burden of
persuasion . . . remains on the party who had it origi-
nally”); 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)).
57a
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 demonstrat-
ing that its delay was reasonable despite its failure
to comply. But, if the state or local government in-
troduced evidence demonstrating that its delay was
reasonable, a court would need to weigh that evi-
dence against the length of the government’s delay—
as well as any other evidence of unreasonable delay
that the wireless provider might submit—and de-
termine whether the state or local government’s ac-
tions 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 litiga-
tion by wireless service providers. The cities suggest
that this heightened risk “affects” state or local gov-
ernments and thus violates § 332(c)(7)(A). This ar-
gument is not convincing, however, because, al-
though the FCC’s time frames do provide some
amount of certitude as to when a state or local gov-
ernment 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
58a
apply to § 332(c)(7)(B)’s restrictions on state and lo-
cal governments.
3
The cities also take issue with the FCC’s de-
termination 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 gov-
ernment alerts the applicant to the application’s in-
completeness within 30 days of its submission. The
effect of this determination, they argue, is the impo-
sition 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 con-
fronts 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 lo-
cal 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 applica-
tion, but delayed alerting the applicant to the defi-
ciencies in the application, should be presumed to
have acted unreasonably if the government ulti-
mately 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 incom-
pleteness in order to prevent state and local govern-
59a
ments 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 appli-
cation 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 unrea-
sonable in a particular case. 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 ar-
gue that it acted reasonably under the circum-
stances.
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 na-
tionwide and thus cannot be squared with §
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))).
60a
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 re-
quest.” This is an individualized determination, the
argument goes, and a national standard is incom-
patible 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 in-
quiry into the reasonableness of a state or local gov-
ernment’s delay. The time frames do provide the
FCC’s guidance on what periods of time will gener-
ally 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 evi-
dence supporting the reasonableness of its actions.
But in a contested case, courts must still determine
whether the state or local government acted rea-
sonably 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 govern-
ments to give wireless service providers preferential
treatment in the form of prioritized review of wire-
less zoning applications. They claim this result
clearly conflicts with Congress’s intent, and for sup-
port, point to the following passage from the Confer-
ence Report: “It is not the intent of this provision to
give preferential treatment to the personal wireless
service industry in the processing of requests, or to
61a
subject their requests to any but the generally appli-
cable time frames for zoning decision[s].”135 How-
ever, 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 ap-
plications in a “reasonable amount of time,” and that
directive inherently preferences the personal wire-
less service industry because other types of state and
local zoning decisions are not subject to such a stan-
dard.136 Moreover, as already noted, a 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 in-
ability of the government to address the wireless
zoning application within the time frames without
neglecting its other business.137
135 H.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
62a
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 Ruling as
creating a scheme in which a state or local govern-
ment’s failure to meet the FCC’s time frames consti-
tutes 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 chal-
lenging 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 gov-
ernment’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 in-
action, 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 rea-
sons why the delay was reasonable. It might do so by
pointing to extenuating circumstances, or to the ap-
plicant’s own failure to submit requested informa-
tion. Or it might note that it was acting diligently in
_________________
to expedite matters by supplementing its monthly meetings
with several special meetings regarding the application).
63a
its consideration of an application,138 that the neces-
sity of complying with applicable state or local envi-
ronmental regulations occasioned the delay,139 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 com-
ply with the FCC’s time frames. We do not list these
possibilities to establish a definitive list of the cir-
cumstances that might cause a state or local gov-
ernment to have acted reasonably, however, as adju-
dications of specific disputes under the statute will
ultimately determine how specific circumstances re-
late to the FCC’s time frames. Our point here is sim-
ply to note both that a variety of circumstances can
affect the consideration and determination of a wire-
less facility zoning application, and that these cir-
cumstances remain relevant even after the FCC is-
sued its time frames.
VII
The cities also claim the FCC’s establishment
of the 90- and 150-day time frames was “arbitrary,
138 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.”).
64a
capricious, an abuse of discretion, or otherwise not in
accordance with law.”141 Agency action is arbitrary
and capricious
if the agency has relied on factors which Con-
gress has not intended it to consider, entirely
failed to consider an important aspect of the
problem, offered an explanation for its deci-
sion 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.142
Our scope of review under the arbitrary and capri-
cious standard is narrow, and we cannot substitute
our own judgment for that of the agency.143 “We limit
our review to whether the agency articulated a ra-
tional 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 articu-
lated by the agency itself.”144 “Our mandate is not to
‘weigh the evidence pro and con but to determine
whether the agency decision was based on a consid-
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).
143 Id.
144 Hayward v. U.S. Dep’t of Labor, 536 F.3d 376, 380 (5th Cir.
2008) (internal quotation marks and citations omitted).
65a
eration 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 de-
cision is not arbitrary or capricious.”146
We cannot conclude that there has been a
clear error of judgment in this case. The record re-
flects 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 considera-
tion 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 pend-
ing proposals involving new wireless facilities had
been pending for more than one year and that nearly
one-third of its currently pending collocation applica-
tions had been pending for more than one year. Veri-
zon Wireless submitted comments claiming that, of
145 Id. (quoting Delta Found., Inc. v. United States, 303 F.3d
551, 563 (5th Cir. 2002)).
146 Harris v. United States, 19 F.3d 1090, 1096 (5th Cir. 1994).
66a
the over 350 non-collocation zoning requests it cur-
rently had pending, over half had been pending for
more than six months and nearly 100 had been
pending for more than one year. Alltel Communica-
tions, LLC, submitted comments indicating a num-
ber of Alltel’s collocation and new facility applica-
tions had been pending with local zoning authorities
for over one year.
The cities argue that this evidence exagger-
ates the proportion of applications that face signifi-
cant delay with local zoning boards because, by com-
paring the number of applications facing significant
delays to the number of applications currently pend-
ing with local zoning authorities, the evidence fails
to account for the applications that local zoning au-
thorities 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 invita-
tion for this court to independently weigh the evi-
dence 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 neces-
sary, 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 administra-
147 Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th
67a
tive record demonstrates that wireless service pro-
viders in many areas of the country face significant
delays with respect to their facilities zoning applica-
tions, and we believe the FCC properly considered
this information and determined that both wireless
service providers and zoning authorities would bene-
fit 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 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 fac-
tors that EMR claimed the FCC failed to address in
its regulations.148 We decline to consider EMR’s ar-
gument for the same reason we refuse to consider
the additional arguments raised by San Antonio—as
_________________
Cir. 2010).
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.”
68a
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 peti-
tion for review because we lack jurisdiction to con-
sider it.
149 Brazoria Cnty., Tex. v. EEOC, 391 F.3d 685, 689 (5th Cir.
2004).
69a
APPENDIX B
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Petition for Declaratory
Ruling to Clarify Provisions
of Section 332(c)(7)(B) to
Ensure Timely Siting
Review and to Preempt
Under Section 253 State and
Local Ordinances that
Classify All Wireless Siting
Proposals as Requiring a
Variance
)
)
)
)
)
)
)
)
)
WT Docket No.
08-165
DECLARATORY RULING
Adopted: November 18, 2009
Released: November 18, 2009
By the Commission: Chairman Genachowski and
Commissioners Copps, McDowell, Clyburn, and
Baker issuing separate statements.
TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION........................................1
II. BACKGROUND ..........................................6
III. DISCUSSION ............................................18
A. Authority to Interpret Section
70a
332(c)(7) .....................................................20
Heading Paragraph #
B. Time for Acting on Facility Siting Ap-
plications....................................................27
C. Prohibition of Service by a Single Pro-
vider ...........................................................54
D. Ordinances Requiring Variances..............66
E. Other Issues...............................................68
IV. CONCLUSION ..........................................71
V. ORDERING CLAUSES.............................72
APPENDIX - A
APPENDIX - B
I. INTRODUCTION
1. This Declaratory Ruling by the Com-
mission promotes the deployment of broadband and
other wireless services by reducing delays in the
construction and improvement of wireless networks.
Wireless operators must generally obtain State and
local zoning approvals before building wireless tow-
ers or attaching equipment to pre-existing struc-
tures. To encourage the expansion of wireless net-
works, Congress has required these entities to act
“within a reasonable period of time” on such re-
quests.1 In many cases, delays in the zoning process
have hindered the deployment of new wireless infra-
structure.2 Accordingly, today we define timeframes
for State and local action on wireless facilities siting
requests, while also preserving the authority of
1 47 U.S.C. § 332(c)(7)(B)(ii).
2 See para. 33, infra.
71a
States and localities to make the ultimate determi-
nation on local zoning and land use policies.
2. On July 11, 2008, CTIA – The Wireless
Association® (CTIA) filed a petition requesting that
the Commission issue a Declaratory Ruling clarify-
ing provisions in Sections 253 and 332(c)(7) of the
Communications Act of 1934, as amended (Commu-
nications Act), regarding State and local review of
wireless facility siting applications (Petition).3 The
Petition raises three issues: the timeframes in
which zoning authorities must act on siting requests
for wireless towers or antenna sites, their power to
restrict competitive entry by multiple providers in a
given area, and their ability to impose certain proce-
dural requirements on wireless service providers. In
this Declaratory Ruling, we grant the Petition in
part and deny it in part to ensure that both localities
and service providers may have an opportunity to
make their case in court, as contemplated by Section
332(c)(7) of the Act.4
3. Wireless services are central to the eco-
nomic, civic, and social lives of over 270 million
Americans.5 Americans are now in the transition
3 In the Matter of Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting
Review and to Preempt under Section 253 State and Local
Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 08-165, Petition for
Declaratory Ruling, filed July 11, 2008 (“Petition”).
4 47 U.S.C. § 332(c)(7).
5 Implementation of Section 6002(b) of the Omnibus Budget
Reconciliation Act of 1993; Annual Report and Analysis of
72a
toward increasing reliance on their mobile devices
for broadband services, in addition to voice services.6
Without access to mobile wireless networks, how-
ever, consumers cannot receive voice and broadband
services from providers. Providers continue to build
out their networks to provide such services, and a
crucial requirement for providing those services is
obtaining State and local governmental approvals for
constructing towers or attaching transmitting
equipment to pre-existing structures. While Section
332(c)(7) of the Communications Act preserves the
authority of State and local governments with re-
spect to such approvals, Section 332(c)(7) also limits
such State and local authority, thereby protecting
core local and State government zoning functions
while fostering infrastructure build out.
4. The first part of this Declaratory Ruling
concludes that we should define what is a presump-
tively “reasonable time” beyond which inaction on a
siting application constitutes a “failure to act.” In
defining this timeframe, we have taken several
measures to ensure that the reasonableness of the
_________________
Competitive Market Conditions With Respect to Mobile
Wireless including Commercial Mobile Services, WT Docket No.
09-66, Notice of Inquiry, 24 FCC Rcd 11357, 11358 ¶ 2 (2009)
(“Mobile Wireless Competition NOI”); see also Fostering
Innovation and Investment in the Wireless Communications
Market, GN Docket No. 09-157, A National Broadband Plan
For Our Future, GN Docket No. 09-51, Notice of Inquiry, 24
FCC Rcd 11322 ¶ 1 (2009) (“Wireless communications is one of
the most important sectors of our economy and one that
touches the lives of nearly all Americans.”).
6 Mobile Wireless Competition NOI, 24 FCC Rcd at 11358 ¶ 2.
73a
time for action “tak[es] into account the nature and
scope” of the siting request.”7 In the event a State or
local government fails to act within the appropriate
time period, the applicant is entitled to bring an ac-
tion in court under Section 332(c)(7)(B)(v) of the
Communications Act, and the court will determine
whether the delay was in fact unreasonable under
all the circumstances of the case. We conclude that
the record supports setting the following timeframes:
(1) 90 days for the review of collocation applications;
and (2) 150 days for the review of siting applications
other than collocations.
5. In the second part of this decision, we
find, as the Petitioner urges, that it is a violation of
Section 332(c)(7)(B)(i)(II) of the Communications Act
for a State or local government to deny a personal
wireless service facility siting application because
service is available from another provider. Finally,
because we have not been presented with any evi-
dence of a specific controversy, we deny the last part
of the Petitioner’s request, that we find that a State
or local regulation that requires a variance or waiver
for every wireless facility siting violates Section
253(a) of the Communications Act.
II. BACKGROUND
6. The Statute. Section 332(c)(7) of the
Act is titled “Preservation of Local Zoning Author-
ity,” and it addresses “the authority of a State or lo-
cal government . . . over decisions regarding the
placement, construction, and modification of per-
7 47 U.S.C. § 332(c)(7)(B)(ii).
74a
sonal wireless service facilities.”8 Personal wireless
service facilities are defined in Section
332(c)(7)(C)(ii) as “facilities for the provision of per-
sonal wireless services,”9 and personal wireless ser-
vices are defined in Section 332(c)(7)(C)(i) as “com-
mercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access ser-
vices.”10
7. Subsection (A) states that nothing in
the Act limits such authority except as provided in
Section 332(c)(7).11 Subsection (B) identifies those
limitations. Among other limitations, Clause (B)(i)
states that “[t]he regulation of the placement, con-
struction, and modification of personal wireless ser-
vice facilities by any State or local government or in-
strumentality thereof . . . shall not prohibit or have
the effect of prohibiting the provision of personal
wireless services.”12 Clause (B)(ii) requires the State
or local government to act on any request to place,
construct, or modify personal wireless service facili-
ties “within a reasonable period of time . . . taking
8 47 U.S.C. § 332(c)(7)(A). Section 332(c)(7) appears in
Appendix B in its entirety.
9 47 U.S.C. § 332(c)(7)(C)(ii).
10 47 U.S.C. § 332(c)(7)(C)(i). “Unlicensed wireless service” is
defined as “the offering of telecommunications services using
duly authorized devices which do not require individual
licenses, but does not mean the provision of direct-to-home
satellite services (as defined in section 303(v)).” 47 U.S.C. §
332(c)(7)(C)(iii).
11 47 U.S.C. § 332(c)(7)(A).
12 47 U.S.C. § 332(c)(7)(B)(i).
75a
into account the nature and scope of such request.”13
Clause (B)(v) permits a person adversely affected by
any final action or failure to act by the State or local
government to commence an action in court within
30 days after such final action or failure to act.14
8. Section 253 of the Communications Act
contains provisions removing barriers to entry in the
provision of telecommunications services.15 Specifi-
cally, Section 253(a) states: “No State or local stat-
ute or regulation, or other State or local legal re-
quirement, may prohibit or have the effect of prohib-
iting the ability of any entity to provide any inter-
state or intrastate telecommunications service.”16
Section 253(d) directs the Commission to preempt
any State or local statute, regulation, or legal re-
quirement that it determines, after notice and an
opportunity for public comment, violates Section
253(a).17
9. The Petition. The Petition contends
that the ability to deploy wireless systems depends
upon the availability of sites for the construction of
towers and transmitters. Before a wireless service
13 47 U.S.C. § 332(c)(7)(B)(ii).
14 47 U.S.C. § 332(c)(7)(B)(v). In the case of an action or failure
to act that is impermissibly based on the environmental effects
of radio frequency emissions pursuant to Section
332(c)(7)(B)(iv), a person adversely affected may also petition
the Commission for relief. Id.
15 47 U.S.C. § 253.
16 47 U.S.C. § 253(a).
17 47 U.S.C. § 253(d).
76a
provider can use a site for a tower or add an antenna
to a tower or other structure, zoning approval is gen-
erally required at the local level, and the local zoning
approval process “can be extremely time-
consuming.”18 The Petition asserts that timely de-
ployment of wireless facilities is essential to achiev-
ing the Communications Act’s public interest goals.19
According to the Petition, delays in the zoning proc-
ess for wireless facility siting applications are imped-
ing those goals.20 The Petition asserts that Section
332(c)(7) of the Communications Act “created a
framework in which states and localities could make
zoning decisions ‘subject to minimum federal stan-
dards – both substantive and procedural – as well as
federal judicial review.’”21 The Petition claims that
those zoning authorities that do not act in a timely
manner are frustrating the goals of the Communica-
tions Act.22
10. Accordingly, the Petition first requests
that the Commission eliminate an ambiguity that
CTIA contends currently exists in Section
18 Petition at 4.
19 Id. at 8-13. The public interest goals identified by the
Petition include nationwide wireless communications services
for all Americans, universal service, advanced
telecommunications services, broadband deployment, spectrum
build-out, and public safety and E911.
20 Id. at 13.
21 Id. at 18 (citing City of Ranchos Palos Verdes v. Abrams, 544
U.S. 113, 128 (2005) (Breyer, J., concurring)).
22 Id. at 19.
77a
332(c)(7)(B)(v) and 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 applica-
tion.23 The Petition requests that the Commission
“declare that the failure to render a final decision
within 45 days of a filing of a wireless siting applica-
tion proposing to collocate on an existing facility con-
stitutes a failure to act for purposes of Section
332(c)(7)(B)(v).”24 Moreover, the Petition requests
that the Commission “declare that the failure to ren-
der a final decision on any other, non-collocation
wireless siting application within 75 days constitutes
a failure to act for purposes of Section
332(c)(7)(B)(v).”25 Relatedly, the Petition asks the
Commission to find that, if a zoning authority fails to
act within the above timeframes, the application
shall be “deemed granted.”26 Alternatively, the Peti-
tion requests that the Commission establish a pre-
sumption under such circumstances that entitles an
applicant to a court-ordered injunction granting the
application unless the zoning authority can justify
the delay.27
11. Second, the Petition requests that the
Commission clarify that Section 332(c)(7)(B)(i)(II),
which forbids State and local facility siting decisions
that “prohibit or have the effect of prohibiting the
23 Id. at 20-23.
24 Id. at 24.
25 Id. at 25-26.
26 Id. at 27-29.
27 Id. at 29-30.
78a
provision of personal wireless services,” bars zoning
decisions that have the effect of preventing a specific
provider from providing service to a location.28 The
Petitioner asserts that this provision prevents a local
zoning authority from denying an application based
on one or more carriers already serving the geo-
graphic area.29
12. Third, the Petition requests that the
Commission preempt, under Section 253(a) of the
Communications Act,30 local ordinances and State
laws that automatically require a wireless service
provider to obtain a variance before siting facilities.31
13. On August 14, 2008, the Wireless Tele-
communications Bureau (WTB) requested comment
on the Petition.32 After a brief extension, comments
were due on September 29, 2008, and replies were
due on October 14, 2008.33 Hundreds of comments
28 Id. at 30-35 (citing 47 U.S.C. § 332(c)(7)(B)(i)(II)).
29 Id. at 31-34.
30 47 U.S.C. § 253(a).
31 Petition at 35-37.
32 Wireless Telecommunications Bureau Seeks Comment On
Petition For Declaratory Ruling By CTIA – The Wireless
Association To Clarify Provisions Of Section 332(c)(7)(B) To
Ensure Timely Siting Review And To Preempt Under Section
253 State And Local Ordinances That Classify All Wireless
Siting Proposals As Requiring A Variance, WT Docket No. 08-
165, Public Notice, 23 FCC Rcd 12198 (WTB 2008).
33 Comments originally were due on September 15, 2008, and
replies were due on September 30, 2008. Several interested
parties requested additional time to submit comments and
replies. While the WTB found that the requests had not
79a
and replies were filed in response to the Public No-
tice, including comments from wireless service pro-
viders, tower owners, local and State government en-
tities, and airport authorities.34
14. Industry commenters generally support
the Petition in all respects.35 They argue that the
Commission has the authority to interpret Section
332(c)(7)36 and that the Commission’s definition of
the reasonable timeframes for State and local gov-
ernments to process facility siting applications will
promote the deployment of advanced networks, in-
cluding broadband.37 Wireless providers assert that
without defined timeframes for State and local gov-
_________________
established good cause for the full extensions desired, the WTB
granted a short extension in order to permit interested parties
additional time “to file more thorough and thoughtful
comments, which should lead to a more complete and better-
informed record.” Wireless Telecommunications Bureau
Grants Extension Of Time To File Comments On CTIA’s
Petition For Declaratory Ruling Regarding Wireless Facilities
Siting, WT Docket No. 08-165, Public Notice, 23 FCC Rcd
13386 (WTB 2008).
34 See generally WT Docket No. 08-165. The major commenters
and the short forms by which they are cited are listed in
Appendix A. Brief comments are not listed but are considered
in this Declaratory Ruling.
35 See, e.g., Verizon Wireless Comments; AT&T Comments;
Rural Cellular Association Comments; PCIA – The Wireless
Infrastructure Association Comments.
36 See, e.g., Sprint Nextel Comments at 8; T-Mobile Comments
at 12; MetroPCS Comments at 5-6.
37 See, e.g., MetroPCS Comments at 6-7; NextG Networks
Comments at 4.
80a
ernments to process personal wireless service facility
siting applications, they face undue delay in some
localities.38 They further argue that timeframes are
necessary so that they know when they should seek
redress from courts for State and local governments’
failure to act in a timely manner.39 They claim that
the Petitioner’s proposed timetables are fair and
should be used to define the “reasonable period of
time” for State and local governments to process fa-
cility siting applications in Section 332(c)(7)(B)(ii).40
15. State and local governments, as well as
airport authorities, oppose the Petition. As an initial
matter, they contend that Congress gave the courts,
rather than the Commission, the authority to inter-
pret Section 332(c)(7) of the Communications Act,
and they cite statutory text and legislative history in
support of their contention.41 Thus, they contend
that the Commission lacks the authority to deter-
mine what is a “reasonable period of time” and when
a “failure to act” or a “prohibition of service” has oc-
curred.42 State and local government commenters
38 See, e.g., Sprint Nextel Comments at 4-5; CalWA Comments
at 2-3; T-Mobile Comments at 6.
39 See, e.g., CalWA Comments at 4; Rural Cellular Association
Comments at 4; T-Mobile Comments at 9-10.
40 See, e.g., Rural Cellular Association Comments at 4-5; T-
Mobile Comments at 11-12; MetroPCS Comments at 7-8.
41 See, e.g., NATOA et al. Comments at 1-5 & 9-11; California
Cities Comments at 18-21; Fairfax County, VA Comments at
14-15.
42 See, e.g., Fairfax County, VA Comments at 14-15; California
Cities Comments at 18-20; City of Dublin, OH Comments at 2-
81a
further argue that both “reasonable period of time”
and “failure to act” have clear meanings, and that
Congress deliberately used these general terms to
preserve State and local government flexibility to
process applications within the typical timeframes
based on the individual circumstances of each case.43
These commenters also oppose either deeming an
application granted in the event of a zoning author-
ity’s “failure to act” or establishing a presumption
entitling an applicant to a court-ordered injunction
granting the application.44
16. The Petitioner requests that the Com-
mission apply Section 253(a) of the Communications
Act to preempt local ordinances and State laws that
automatically require a wireless service provider to
obtain a variance before siting facilities. In address-
ing this request, State and local government com-
menters argue that Section 253(a) cannot be applied
to such ordinances because under Section
332(c)(7)(A), “[n]othing in [the Communications] Act”
outside of Section 332(c)(7) shall limit State or local
authority over personal wireless service facilities sit-
ing decisions.45 The EMR Policy Institute (EMRPI)
_________________
3; Coalition for Local Zoning Authority Comments at 10-11;
NATOA et al. Reply Comments at 7-9.
43 See, e.g., NATOA et al. Comments at 12-14; City of
Philadelphia Comments at 3-4; Florida Cities Comments at 2-4,
15-20; City of Dublin, OH Comments at 2-3; California Cities
Comments at 13-16.
44 See, e.g., California Cities Comments at 17-21; NATOA et al.
Comments at 15-18; SCAN NATOA Comments at 11-12.
45 See, e.g., NATOA et al. Comments at 7; California Cities
82a
filed a Comment and Cross-Petition that, inter alia,
seeks a declaratory ruling relating to the Commis-
sion’s regulations regarding exposure to radio fre-
quency emissions.46
17. Since the filing of the Petition, Con-
gress passed the American Recovery and Reinvest-
ment Act of 2009 (Recovery Act).47 The Recovery Act
directs the Commission to create a national broad-
band plan by February 17, 2010, that seeks to en-
sure that every American has access to broadband
capability and establishes clear benchmarks for
meeting that goal.48 To this end, on April 8, 2009,
the Commission initiated a Notice of Inquiry (NOI)
seeking comment on the best approach to developing
this Plan, the interpretation of key statutory terms,
and a number of specific policy goals.49 Some com-
menters that filed in response to the NOI also filed
their comments in the instant docket, arguing that
the grant of the Petition will promote the availability
of wireless broadband services.50 The Petitioner par-
_________________
Comments at 23-24; Fairfax County, VA Comments at 3;
Michigan Municipalities Comments at 2; N.C. Assoc. of County
Commissioners Comments at 1-2.
46 See EMRPI Comments and Cross-Petition.
47 American Recovery and Reinvestment Act of 2009, Pub. L.
No. 111-5, 123 Stat. 115 (2009) (Recovery Act).
48 Recovery Act § 6001(k).
49 See generally A National Broadband Plan for Our Future,
GN Docket No. 09-51, Notice of Inquiry, 24 FCC Rcd 4342
(2009).
50 See CTIA Comments, GN Docket No. 09-51, at 15-19 (filed
June 8, 2009); PCIA and The DAS Forum Comments, GN
83a
ticularly notes that the delays experienced by wire-
less providers for wireless service facility siting ap-
plications are frustrating the deployment of wireless
broadband services to millions of Americans.51
III. DISCUSSION
18. Under Section 1.2 of the rules, the
Commission “may . . . issue a declaratory ruling ter-
minating a controversy or removing uncertainty.”52
The Commission has broad discretion whether to is-
sue such a ruling.53
19. Below, we address the three issues
raised in CTIA’s Petition. On the first issue, we con-
clude that we should define what constitutes a pre-
sumptively “reasonable period of time” beyond which
inaction on a personal wireless service facility siting
application will be deemed a “failure to act.” We
then determine that in the event a State or local
government fails to act within the appropriate time
period, the applicant is entitled to bring an action in
_________________
Docket 09-51, at 5-6 (filed June 8, 2009); CTIA Reply
Comments, GN Docket No. 09-51, at 13-15 (filed July 21,
2009); Google Inc. Reply Comments, GN Docket 09-51, at 40-41
(filed July 21, 2009).
51 CTIA Comments, GN Docket No. 09-51, at 18 (filed June 8,
2009).
52 47 C.F.R. § 1.2.
53 See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 602 (D.C.
Cir. 1973), cert. denied, 414 U.S. 914 (1973); Telephone
Number Portability; BellSouth Corporation Petition for
Declaratory Ruling and/or Waiver, CC Docket No. 95-116,
Order, 19 FCC Rcd 6800, 6810 ¶ 20 (2004).
84a
court under Section 332(c)(7)(B)(v). At that point,
the State or local government will have the opportu-
nity to present to the court arguments to show that
additional time would be reasonable, given the na-
ture and scope of the siting application at issue. We
next conclude that the record supports setting the
time limits at 90 days for State and local govern-
ments to process collocation applications, and 150
days for them to process applications other than col-
locations. On the second issue raised by the Petition,
we find that it is a violation of Section
332(c)(7)(B)(i)(II) for a State or local government to
deny a personal wireless service facility siting appli-
cation solely because that service is available from
another provider. On the third issue, because the
Petitioner has not presented us with any evidence of
a specific controversy, we deny its request that we
find that a State or local regulation that explicitly or
effectively requires a variance or waiver for every
wireless facility siting violates Section 253(a). Fi-
nally, we address other issues raised in the record,
including dismissal of the EMRPI Cross-Petition.
A. Authority to Interpret Section 332(c)(7)
20. Background. The Petition claims that
the Commission has the authority to interpret am-
biguous provisions in Section 332(c)(7) of the Com-
munications Act by means of a declaratory ruling.54
Wireless providers support the Petition’s assertion,
arguing that the courts have upheld similar inter-
pretive authority in other contexts. These comment-
54 Petition at 20-24.
85a
ers rely in particular on Alliance for Community
Media v. FCC,55 in which the Sixth Circuit upheld
the Commission’s establishment of a timeframe for
local authorities to process cable franchise applica-
tions.56
21. State and local government commenters
disagree, arguing that the statutory text and the leg-
islative history evince congressional intent to deny
the Commission such authority.57 Specifically, State
and local government commenters argue that in ex-
pressly preserving State and local government au-
thority over personal wireless service facility siting
decisions, subject only to the specific limitations
stated in Section 332(c)(7), Congress withheld pre-
emptive authority from the Commission.58 Accord-
ingly, they argue that the Commission does not have
the authority to interpret Section 332(c)(7). They
contend that the legislative history of Section
332(c)(7) further demonstrates this intent, as Con-
gress indicated that “any pending rulemaking con-
cerning the preemption of local zoning authority over
the placement, construction, or modification of
CM[R]S facilities should be terminated.”59 Other
55 529 F.3d 763 (6th Cir. 2008), cert. denied, 129 S.Ct. 2821
(2009) (“Alliance for Community Media”).
56 See, e.g., Sprint Nextel Comments at 8; T-Mobile Comments
at 12; MetroPCS Comments at 5-6.
57 See, e.g., NATOA et al. Comments at 1-5 & 9-11; California
Cities Comments at 18-21; Fairfax County, VA Comments at
14-15.
58 See, e.g., NATOA et al. Comments at 1-5.
59 Id. at 9-10 (citing H.R. Conf. Rep. No. 104-458, at 208)
86a
State and local government commenters assert that
because the courts have exclusive jurisdiction over
all disputes arising under Section 332(c)(7) (except
for those relating to RF emissions), Congress did not
contemplate any role for the Commission in the
State and local zoning approval process. Thus, they
argue, the Commission lacks the authority to deter-
mine what constitutes a “reasonable period of time,”
“failure to act,” or “prohibiti[on of] the provision of
personal wireless services.”60
22. In its Reply, the Petitioner disputes the
claim that Congress “left in place the complete
autonomy of States and localities with respect to
zoning.”61 The Petitioner argues that “it is Congress
that expressly inserted such federal concerns into
the tower siting process, limiting traditional local
authority, when it promulgated Section 332(c)(7)” in
order to reduce delays and impediments at the State
and local level.62 Accordingly, the Petitioner argues
that the Commission’s interpretation of Section
332(c)(7) does not contravene that section’s reserva-
tion to State and local governments of authority to
_________________
(NATOA emphasis removed). NATOA et al. argues that
Congress did not mean to address only those rulemakings in
play in 1996, but any future rulemakings on personal wireless
service facility issues. Id. at 10.
60 See, e.g., Fairfax County, VA Comments at 14-15; California
Cities Comments at 18-20; City of Dublin, OH Comments at 2;
NATOA et al. Reply Comments at 7-9; Coalition for Local
Zoning Authority Comments at 10-11.
61 CTIA Reply Comments at 12.
62 Id. at 12-13 (emphasis in original).
87a
review personal wireless service facility siting appli-
cations to the extent not limited by Section
332(c)(7).63 Moreover, the Petitioner counters in its
Reply that the Petition is not a challenge to a spe-
cific siting decision; thus, Section 332(c)(7)(B)(v)’s
requirement that all controversies regarding siting
decisions (other than those involving RF emissions)
should be heard in the courts does not apply here.64
The Petitioner also asserts that the Sixth Circuit’s
decision in Alliance for Community Media v. FCC
rejected the argument that the Commission’s im-
plementation of a timeframe in the local franchising
regime “improperly intruded on decisions left by
Congress to the courts.”65
23. Discussion. We agree with the Peti-
tioner that the Commission has the authority to in-
terpret Section 332(c)(7). Congress delegated to the
Commission the responsibility for administering the
Communications Act. Section 1 of the Act directs
the Commission to “execute and enforce the provi-
sions of this Act” in order to, inter alia, regulate and
promote communication “by wire and radio” on a na-
tionwide basis.66 Moreover, Section 201(b) of the Act
63 Id. The Petitioner also contends that it does not request that
the Commission “condition or limit the scope of a zoning
authority’s review of a tower siting application,” or that the
Commission “preempt a zoning authority’s review of an
application.” Id. at 2.
64 Id. at 21-22.
65 Id. at 22.
66 47 U.S.C. § 151.
88a
authorizes the Commission “to prescribe such rules
and regulations as may be necessary in the public
interest to carry out the provisions of this Act.”67
Further, Section 303(r) of the Communications Act
states that “the Commission from time to time, as
public convenience, interest or necessity requires
shall … [m]ake such rules and regulations and pre-
scribe such restrictions and conditions, not inconsis-
tent with law, as may be necessary to carry out the
provisions of this Act . . . .”68 Finally, Section 4(i)
states that the Commission “may perform any and
all acts, make such rules and regulations, and issue
such orders, not inconsistent with this Act, as may
be necessary in the execution of its functions.”69
These grants of authority necessarily include Title
III of the Communications Act in general, and Sec-
tion 332(c)(7) in particular.
24. This finding is consistent with our deci-
sion in the Local Franchising Order, in which we
held that the Commission has clear authority to in-
terpret what it means for a local government to “un-
reasonably refuse to award” a franchise to a cable
67 47 U.S.C. § 201(b). See also National Cable & Telecomm.
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)
(“Congress has delegated to the Commission the authority to
‘execute and enforce’ the Communications Act, §151, and to
‘prescribe such rules and regulations as may be necessary in
the public interest to carry out the provisions’ of the Act,
§201(b).”).
68 47 U.S.C. § 303(r).
69 47 U.S.C. § 154(i).
89a
operator in Section 621(a)(1) of the Act.70 That deci-
sion has been upheld by the U.S. Court of Appeals
for the Sixth Circuit in Alliance for Community Me-
dia v. FCC. In that case, the court found that the
Supreme Court’s precedent in AT&T Corp. v. Iowa
Utilities Board71 controlled, and it held that the
Commission “possesses clear jurisdictional authority
to formulate rules and regulations interpreting the
contours of section 621(a)(1)” pursuant to its author-
ity under Section 201(b) to carry out the provisions
of the Communications Act.72 The Court held that
“the statutory silence in section 621(a)(1) regarding
the agency’s rulemaking power does not divest the
agency of its express authority to prescribe rules in-
70 Implementation of Section 621(a)(1) of the Cable
Communications Policy Act of 1984 as amended by the Cable
Television Consumer Protection and Competition Act of 1992,
MB Docket No. 05-311, Report and Order and Further Notice of
Proposed Rulemaking, 22 FCC Rcd 5101, 5128 ¶ 54 (2007)
(“Local Franchising Order”) (interpreting Section 621(a)(1) of
the Act, which prohibits local franchising authorities from
“unreasonably refus[ing] to award” competitive cable
franchises, and holding that if a local franchising authority
fails to act on an application for a local franchise within 90
days for an applicant that already has access to rights-of-way
or 6 months for all other applicants, then an interim franchise
will be deemed granted until the franchising authority takes
action on the application).
71 525 U.S. 366 (1999) (finding, inter alia, that the Commission
has the authority to carry out provisions of the Act, including
the local competition provisions added by the
Telecommunications Act of 1996).
72 529 F.3d at 773-74.
90a
terpreting that provision.”73 The same holds true
here. Section 332(c)(7) falls within the Act; accord-
ingly, the Commission has the authority to interpret
it.
25. We disagree with State and local gov-
ernment commenters that our interpreting the limi-
tations that Congress imposed on State and local
governments in Section 332(c)(7) is the same as im-
posing new limitations on State and local govern-
ments. Our interpretation of Section 332(c)(7) is not
the imposition of new limitations, as it merely inter-
prets the limits Congress already imposed on State
and local governments. Moreover, the legislative
history does not establish that the Commission is
prohibited from interpreting the provisions of Sec-
tion 332(c)(7). The Conference Report states that
“[a]ny pending Commission rulemaking concerning
the preemption of local zoning authority over the
placement, construction or modification of CM[R]S
facilities should be terminated.”74 We read the legis-
lative history as intending to preclude the Commis-
sion from maintaining a rulemaking proceeding to
impose additional limitations on the personal wire-
less service facility siting process beyond those
stated in Section 332(c)(7). Our actions herein will
not preempt State or local governments from review-
ing applications for personal wireless service facili-
ties placement, construction, or modification. State
73 Id. at 774.
74 H.R. Conf. Rep. No. 104-458, 104th Congress, 2nd Sess. 208
(1996).
91a
and local governments will continue to decide the
outcome of personal wireless service facility siting
applications pursuant to the authority Congress re-
served to them in Section 332(c)(7)(A). Under Sec-
tion 332(c)(7)(B)(iii), they may deny such applica-
tions if the denial is “supported by substantial evi-
dence contained in a written record.”75 However,
State and local governments must act upon personal
wireless service facility siting applications “within a
reasonable period of time” as defined herein, and
must not prohibit one carrier’s provision of service
based on the availability of service from another car-
rier, or applicants may commence an action in a
court of competent jurisdiction pursuant to Section
337(c)(7)(B)(v).
26. Moreover, we find that Section
332(c)(7)(B)(v) does not limit our authority to inter-
pret Section 332(c)(7). Section 332(c)(7)(B)(v) states
that “[a]ny person adversely affected by any final ac-
tion or failure to act by a State or local government .
. . may . . . commence an action in any court of com-
petent jurisdiction.”76 State and local governments
argue that Congress gave the courts, not the Com-
mission, exclusive jurisdiction to interpret and en-
force Section 332(c)(7). This is the same argument
that we rejected in the Local Franchising Order. In
that decision, we held that “[t]he mere existence of a
judicial review provision in the Communications Act
does not, by itself, strip the Commission of its other-
75 47 U.S.C. § 332(c)(7)(B)(iii).
76 47 U.S.C. § 332(c)(7)(B)(v).
92a
wise undeniable rulemaking authority.”77 The Sixth
Circuit agreed, holding that “the availability of a ju-
dicial remedy for unreasonable denials of competi-
tive franchise applications does not foreclose the
agency’s rulemaking authority over section
621(a)(1).”78 Accordingly, the fact that Congress pro-
vided for judicial review to remedy a violation of Sec-
tion 332(c)(7) does not divest the Commission of its
authority to interpret the provision or to adopt and
enforce rules implementing Section 332(c)(7).
B. Time for Acting on Facility Siting Ap-
plications
27. Background. Section 332(c)(7)(B)(ii) of
the Communications Act states that State or local
governments must act on requests for personal wire-
less service facility sitings “within a reasonable pe-
riod of time.”79 Section 332(c)(7)(B)(v) further pro-
vides that “[a]ny person adversely affected by any
final action or failure to act”80 by a State or local
government on a personal wireless service facility
siting application “may, within 30 days after such
action or failure to act, commence an action in any
77Local Franchising Order, 22 FCC Rcd at 5129 ¶ 56 (2007).
78 Alliance for Community Media, 529 F.3d at 775 (finding that
this conclusion was supported by the Supreme Court’s decision
in AT&T Corp. v. Iowa Util. Bd. upholding the Commission’s
authority to issue rules governing the States’ resolution of
interconnection arbitrations).
79 47 U.S.C. § 332(c)(7)(B)(ii).
80 47 U.S.C. § 332(c)(7)(B)(v).
93a
court of competent jurisdiction.”81 The Petition as-
serts that the Commission has the authority to and
should define the timeframes by which State and lo-
cal governments must process personal wireless ser-
vice facility siting applications.82 The Petition
claims that in the absence of timeframes, it is un-
clear when a State or local government has failed to
act under the statute. Thus, an aggrieved party
wishing to challenge a State or local government’s
failure to act could miss the 30-day statute of limita-
tions through no fault of its own.83 The Petition pro-
poses that the Commission declare that a State or
local government has failed to act if it does not ren-
der a final decision on a collocation application
within 45 days or on any other application within 75
days. The Petition asserts that the Commission
should declare that, if a zoning authority fails to act
within the prescribed timeframes, the application
shall be “deemed granted.”84 In the absence of such
relief, the Petition argues, the lengthy litigation
process would deprive the applicant of its ability to
construct within a reasonable time, as provided by
the statute.85 Alternatively, the Petition requests
that the Commission establish a presumption that
entitles an applicant to a court-ordered injunction
granting the application, unless the local zoning au-
81 Id.
82 Petition at 20-24.
83 Id. at 20.
84 Id. at 27-28.
85 Id. at 28-29.
94a
thority can demonstrate that the delay was reason-
able.86
28. State and local government commenters
assert that both “reasonable period of time” and
“failure to act” are clear terms and that Congress
used these general terms because it wanted State
and local governments to process applications in the
timeframes in which land use applications are typi-
cally processed. The Act and its legislative history,
they contend, establish that the courts, not the
Commission, should determine whether such proc-
essing is reasonable based on the individual facts in
each case.87 They argue that some applications re-
quire greater time to consider than others, and that
sufficient time is needed to compile a written record
as required by Section 332(c)(7)(B)(iii)88 and to seek
collaborative solutions with wireless providers and
the surrounding communities impacted by the pro-
posed wireless service facilities.89 Finally, they as-
sert that rigid timeframes do not account for time to
amend applications that are often incomplete when
submitted by wireless providers, and may provide
86 See id. at 29-30.
87 See, e.g., NATOA et al. Comments at 12-14; City of
Philadelphia Comments at 3-4; Florida Cities Comments at 2-4;
City of Dublin, OH Comments at 2-3.
88 47 U.S.C. § 332(c)(7)(B)(iii) (denial of a personal wireless
service facility siting application must be rendered “in writing
and supported by substantial evidence contained in a written
record”).
89 See, e.g., California Cities Comments at 13-16; Florida Cities
Comments at 15-20.
95a
incentive for wireless providers to submit incomplete
applications and to delay correcting them until the
application is “deemed granted” (as proposed by the
Petitioner).90
29. Wireless providers argue that the Com-
mission has the authority to define “reasonable pe-
riod of time” and “failure to act,” and that such defi-
nition is necessary because some State and local
governments are unreasonably delaying action on
their applications.91 They further contend that
without defined timeframes, it is unclear when gov-
ernments have failed to act and when they may go to
court for redress.92 They claim that the Petitioner’s
proposed timetables are reasonable.93
30. State and local government commenters
also urge the Commission to reject both the “deemed
granted” proposal and the alternative presumption
in favor of injunctive relief proposed in the Peti-
tion.94 They argue that Congress directed applicants
aggrieved by a failure to act to seek a remedy in
90 See, e.g., Fairfax County, VA Comments at 13; City of
Bellingham, WA Comments at 1-2; Michigan Municipalities
Comments at 19-20.
91 See, e.g., Sprint Nextel Comments at 4-5; CalWA Comments
at 2-3; T-Mobile Comments at 6-9.
92 See, e.g., CalWA Comments at 4; Rural Cellular Association
Comments at 4-5; T-Mobile Comments at 9-10.
93 See, e.g., Rural Cellular Association Comments at 6; T-
Mobile Comments at 11-12; MetroPCS Comments at 7-8.
94 See, e.g., California Cities Comments at 17-21; SCAN
NATOA Comments at 10-12.
96a
court, and assigned to the courts the task of deciding
the appropriate remedy.95 Moreover, they assert,
under the Petitioner’s proposed regime, local gov-
ernments would have no say over siting of facilities
once an application is deemed granted, even where
safety factors justify modification or rejection of the
facility.96
31. Sprint Nextel proposes that the Com-
mission adopt the alternative remedy in the Petition.
It argues that a presumptive grant is consistent with
the Commission’s approach in the Local Franchising
Order, in which the Commission did not deem a
franchise application granted, but provided for an
interim authorization, upon the local government’s
failure to act upon an application in a timely fash-
ion.97 The Petitioner argues in its Reply that be-
cause a State or local authority’s failure to act within
a reasonable time is specifically declared unlawful
under the statute, an automatic grant is appropri-
ate.98
32. Discussion. The evidence in the record
demonstrates that personal wireless service provid-
ers have often faced lengthy and unreasonable de-
lays in the consideration of their facility siting appli-
cations, and that the persistence of such delays is
95 See, e.g., Florida Cities Comments at 6; University of
Michigan Comments at 3-4.
96 See, e.g., Stokes County, N.C. Comments at 2.
97 Sprint Nextel Comments at 9-11 (citing Local Franchising
Order, 22 FCC Rcd 5101, 5139 (2007)).
98 CTIA Reply Comments at 26.
97a
impeding the deployment of advanced and emer-
gency services. To provide guidance, remove uncer-
tainty and encourage the expeditious deployment of
wireless broadband services, we therefore determine
that it is in the public interest to define the time pe-
riod after which an aggrieved party can seek judicial
redress for a State or local government’s inaction on
a personal wireless service facility siting application.
Specifically, we find that a “reasonable period of
time” is, presumptively, 90 days to process personal
wireless service facility siting applications request-
ing collocations, and, also presumptively, 150 days to
process all other applications. Accordingly, if State
or local governments do not act upon applications
within those timeframes, then a “failure to act” has
occurred and personal wireless service providers
may seek redress in a court of competent jurisdiction
within 30 days, as provided in Section
332(c)(7)(B)(v). The State or local government, how-
ever, will have the opportunity to rebut the pre-
sumption of reasonableness.99
99 We note that the operation of this presumption differs
significantly from the Petitioner’s alternative proposal that the
Commission establish a presumption in favor of a court-ordered
injunction granting the application. Under the approach we
are adopting today, if a court finds that the State or local
authority has failed to rebut the presumption that it failed to
act within a reasonable time, the court would then review the
record to determine the appropriate remedy. The State or local
authority’s exceeding a reasonable time for action would not, in
and of itself, entitle the siting applicant to an injunction
granting the application. See para. 39, infra.
98a
33. Need for Action. Initially, we find that
the record shows that unreasonable delays are oc-
curring in a significant number of cases. The Peti-
tion states that based on data the Petitioner com-
piled from its members, there were then more than
3,300 pending personal wireless service facility sit-
ing applications before local jurisdictions.100 “Of
those, approximately 760 [were] pending final action
for more than one year. More than 180 such applica-
tions [were] awaiting final action for more than 3
years.”101 Moreover, almost 350 of the 760 applica-
tions 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.102 In addition, several wireless
providers supplemented the record with their indi-
vidual experiences in the personal wireless service
facility siting application process. For example,
Sprint Nextel asserts that the typical processing
times for personal wireless service facility siting ap-
plications range from 28 to 36 months in several
California communities.103 Verizon Wireless asserts
100 Petition at 15.
101 Id. (emphasis in original).
102 Id. The Petition claims that in “many jurisdictions” it was
taking longer to obtain personal wireless service facility
approvals than in prior years. Id.
103 Sprint Nextel Comments at 5. Sprint Nextel also notes
problems with processing in a New Jersey community. Id. The
California Wireless Association also describes several instances
of delays that ranged from 16 months to two years in
California. CalWA Comments at 2-3.
99a
that “in Northern California, 27 of 30 applications
took more than 6 months, with 12 applications tak-
ing more than a year, and 6 taking more than two
years to be approved”; and that “in Southern Cali-
fornia, 25 applications took more than two years to
be approved, with 52 taking more than a year, and
93 taking more than 6 months.”104 NextG Networks
describes delays of 10 to 25 months for its proposals
to place facilities in public rights-of-way, and states
that such delay occurred even when NextG Net-
works merely sought to replace old equipment.105
Moreover, two wireless providers offer evidence that
the personal wireless service facility siting applica-
tions process is getting longer in several jurisdic-
tions. For example, T-Mobile contends that in Mary-
land, the typical zoning process went from two
months to nine months in four years and in Florida,
from two months to nine months in two years.106
104 Verizon Wireless Comments at 6-7. T-Mobile also cites
specific problems it encountered in four States. T-Mobile
Comments at 7-9. Likewise, MetroPCS describes its experience
with application processing delays in four jurisdictions.
MetroPCS Comments at 8-12.
105 NextG Networks Comments at 5-8.
106 T-Mobile Comments at 6. In its comments, T-Mobile also
references a collocation application submitted in LaGrange,
New York, that was denied following a lengthy review process,
despite the fact that the existing tower was designed to
accommodate multiple carriers and no height increase was
required to hold the proposed installation. T-Mobile Comments
at 26 (Declaration of Sabrina Bordin-Lambert). T-Mobile
appealed the denial to the U.S. District Court, and the Court
ruled in favor of T-Mobile and issued a permanent injunction
directing the town to issue all necessary approvals to permit T-
100a
Verizon Wireless notes that in the Washington, D.C.
metro area, the typical processing time for new
tower applications increased from six to nine months
in 2003 to more than one year in 2008, and the proc-
essing of collocation applications increased from 15
to 30 days in 2003 to more than 90 days in 2008.107
34. This record evidence demonstrates that
unreasonable delays in the personal wireless service
facility siting applications process have obstructed
the provision of wireless services.108 Many wireless
_________________
Mobile’s antenna collocation within 90 days. Omnipoint
Communications, Inc. v. Town of LaGrange, No. 08 Civ.
2201(CM)(GAY) (S.D.N.Y. Aug. 31, 2009). As support for the
injunction, the Court cited the town’s specific actions that
resulted in a lengthy, five-year delay that ultimately prevented
T-Mobile from filling an important gap in service. Id.
107 Verizon Wireless Comments at 6. Moreover, both T-Mobile
and Verizon Wireless provide information concerning pending
applications. T-Mobile asserts that nearly one-third of its then
706 collocation applications had been pending for more than
one year, and 114 of those had been pending for more than
three years. T-Mobile Comments at 7. T-Mobile had 571
pending new tower applications, more than 30 percent of which
had been pending for more than one year, and more than 25 of
these applications had been pending for more than three years.
Id. Verizon Wireless states that data it gathered “indicates
that of the over 400 collocation requests reported as pending,
over 30% of the requests [were] pending for more than six
months.” Verizon Wireless Comments at 6. In addition, it
claims that “[o]f the over 350 non-collocation requests reported
as pending, more than half of those applications [were] pending
for more than 6 months, and nearly 100 of those applications
[were] pending for more than one year.” Id.
108 We note that very late in the process, Petitioner and its
supporters submitted new evidence in the form of letters and
101a
providers have faced lengthy and costly processing.
We disagree with State and local government com-
menters that argue that the Petition fails to provide
any credible or probative evidence that any local
government is engaged in delay with respect to proc-
essing personal wireless service facility siting appli-
cations,109 and that there is insufficient evidence on
_________________
affidavits from carrier representatives that discuss specific
experiences. See Ex Parte Letter from Christopher Guttman-
McCabe, Vice President, Regulatory Affairs, CTIA -- The
Wireless Association, to Marlene H. Dortch, Secretary, Federal
Communications Commission, WT Docket No. 08-165, filed
November 10, 2009, Attached Letters from Michael S. Giaimo,
Thomas C. Greiner, Jr., Scott P. Olson, Paul B. Albritton, and
John W. Nilon, Jr., and Affidavit of Edward L. Donohue.
NATOA and the Coalition for Local Zoning Authority
responded that they have had no opportunity to respond to the
substance of Petitioner's submissions, and suggested that the
Commission should either strike CTIA’s submission from the
record or postpone action on the Petition until communities
named in that submission have been served and given
opportunity to respond. See Ex Parte Letter of Gerald L.
Lederer, Counsel for NATOA and the Coalition for Local Zoning
Authority, to Marlene Dortch, Secretary, Federal
Communications Commission, WT Docket No. 08-165, filed
November 10, 2009. We strongly encourage parties to submit
relevant evidence as early as possible in the course of a
proceeding, and preferably within the established pleading
schedule, so that it may be subjected to the crucible of a
response. Under the circumstances here, we do not give the
record evidence contained in Petitioner’s November 10
submission weight in our analysis.
109 NATOA et al. Comments at 22; Stokes County, N.C.
Comments at 1. Similarly, the County of Sonoma cites the
proliferation of cell phones and towers as evidence that there is
no problem and argues that the Commission should first
investigate whether processing problems really exist. Sonoma
102a
the record as a whole to justify Commission ac-
tion.110 To the contrary, given the extensive statisti-
cal evidence provided by the Petitioner and support-
ing commenters, and the absence of more than iso-
lated anecdotes in rebuttal, we find that the record
amply establishes the occurrence of significant in-
stances of delay.111
35. Delays in the processing of personal
wireless service facility siting applications are par-
ticularly problematic as consumers await the de-
ployment of advanced wireless communications ser-
vices, including broadband services, in all geographic
_________________
Comments at 1.
110 See, e.g, Coalition for Local Zoning Authority Reply
Comments at 5-7; SCAN NATOA Reply Comments at 2-6;
California Cities Reply Comments at 6; NATOA et al. Reply
Comments at 15.
111 The City of Philadelphia argues that the Petitioner’s failure
to identify and serve those local governments toward which its
allegations are directed deprives those governments of a
meaningful opportunity to verify or contest the Petitioner’s
allegations and deprives the Commission of a fair and full
record. City of Philadelphia Comments at 2-3. See also
Coalition for Local Zoning Authority Reply Comments at 5;
Greater Metro Telecom. Consortium et al. Reply Comments at
6. We agree that an opportunity for rebuttal is an important
element of process before making a finding regarding any
individual community’s processes. Today’s decision provides
such an opportunity for rebuttal by establishing presumptively
reasonable timeframes that will allow the reasonableness of
any particular failure to act to be litigated. The record shows
that the State and local government community has had ample
opportunity to respond to the aggregate evidence that supports
our decision.
103a
areas in a timely fashion.112 Wireless providers cur-
rently are in the process of deploying broadband net-
works which will enable them to compete with the
services offered by wireline companies.113 For exam-
ple, Clearwire is deploying a next generation broad-
band wireless network for the 2.5 GHz band using
the Worldwide Inter-Operability for Microwave Ac-
cess (WiMAX) technology.114 Clearwire asserts that
its WiMAX network will “provide a true mobile
broadband experience for consumers, small busi-
nesses, medium and large enterprises, public safety
112 See Petition at 8-10.
113 The Petitioner has submitted a study which asserts that
approximately 23.2 million U.S. residents and 42% of road
miles in the U.S. do not currently have access to 3G mobile
broadband services. It further estimates that approximately
16,000 new towers will need to be constructed and 55,000
existing towers will need to be augmented for both Code
Division Multiple Access (CDMA) and Global System for Mobile
communications (GSM) 3G broadband services to be ubiquitous
to U.S. consumers. CostQuest Associates, Inc., U.S. Ubiquity
Mobility Study, April 17, 2008 at 4, filed as attachment to CTIA
Ex Parte, GN Docket No. 09-51, WT Docket Nos. 08-165, 08-
166, 08-167, 09-66 (filed Aug. 14, 2009).
114 Sprint And Clearwire To Combine WiMAX Businesses,
Creating A New Mobile Broadband Company, News Release,
Sprint Nextel and Clearwire Corp., May 7, 2008
(“Sprint/Clearwire News Release”). See Sprint Nextel Corp.
and Clearwire Corp., Applications for Consent to Transfer
Control of Licenses, Leases, and Authorizations, WT Docket
No. 08-94 and File Nos. 0003462540 et al., Memorandum
Opinion and Order, 23 FCC Rcd 17570, 17619 ¶ 128 ( 2008)
(approving Clearwire and Sprint Nextel’s plan to combine their
2.5 GHz wireless broadband businesses into one company).
104a
organizations and educational institutions.”115 Simi-
larly, we expect that the winners of recent spectrum
auctions will need facility siting approvals in order
to deploy their services to consumers.116 At least one
Advanced Wireless Service (AWS) licensee with na-
tionwide reach already is implementing its new net-
work in the AWS band.117 Moreover, in the 700 MHz
band, the Commission adopted stringent build out
requirements precisely to ensure the rapid and
widespread deployment of services over this spec-
trum.118 State and local practices that unreasonably
115 Sprint/Clearwire News Release. Clearwire’s wireless
broadband service is now available in 14 markets. Clearwire
Introduces CLEAR(TM) 4G WiMax Internet Service in 10 New
Markets, Press Release, Clearwire, Sept. 1, 2009.
116 See Auction of Advanced Wireless Services Licenses Closes:
Winning Bidders Announced for Auction No. 66, Report No.
AUC-06-66-F, Public Notice, 21 FCC Rcd 10521 (WTB 2006);
Auction of 700 MHz Band Licenses Closes; Winning Bidders
Announced for Auction 73, Public Notice, Report No. AUC-08-
73-I (Auction 73), DA 08-595 (rel. Mar. 20, 2008).
117 T-Mobile Comments at 2 (noting that unless it can
expeditiously obtain approvals, its efforts to add high-speed
services and expand coverage will be “significantly hampered”).
118 See Service Rules for the 698-746, 747-762 and 777-792
MHz Bands, WT Docket No. 06-150; Revision of the
Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems, CC Docket No. 94-102;
Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, WT Docket No. 01-309; Biennial
Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless
Radio Services, WT Docket No. 03-264; Former Nextel
Communications, Inc. Upper 700 MHz Guard Band Licenses
and Revisions to Part 27 of the Commission's Rules, WT Docket
105a
delay the siting of personal wireless service facilities
threaten to undermine achievement of the goals that
the Commission sought to advance in these proceed-
ings. Moreover, they impede the promotion of ad-
vanced services and competition that Congress
deemed critical in the Telecommunications Act of
1996119 and more recently in the Recovery Act.120
36. In addition, the deployment of facilities
without unreasonable delay is vital to promote pub-
lic safety, including the availability of wireless 911,
throughout the nation. The importance of wireless
communications for public safety is critical, espe-
cially as consumers increasingly rely upon their per-
sonal wireless service devices as their primary
method of communication. As NENA observes in its
comments:
Calls must be able to be made from as
many locations as possible and dropped
calls must be prevented. This is especially
_________________
No. 06-169; Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, PS
Docket No. 06-229; Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements Through the Year
2010, WT Docket No. 96-86; and Declaratory Ruling on
Reporting Requirement under Commission’s Part 1 Anti-
Collusion Rule, WT Docket No. 07-166, Second Report and
Order, 22 FCC Rcd 15289, 15342-55 ¶¶ 141-177 (2007).
119 Telecommunications Act of 1996, Pub.L. 104-104, Feb. 8,
1996, 110 Stat. 56, codified at 47 U.S.C. § 151 et seq. (1996
Act). The 1996 Act amended the Communications Act of 1934.
120 See supra note 47.
106a
true for wireless 9-1-1 calls which must
get through to the right Public Safety An-
swering Point (“PSAP”) and must be as
accurate as technically possible to ensure
an effective response. Increased availabil-
ity and reliability of commercial and pub-
lic safety wireless service, along with im-
proved 9-1-1 location accuracy, all depend
on the presence of sufficient wireless tow-
ers.121
37. Right to Seek Relief. Given the evi-
dence of unreasonable delays and the public interest
in avoiding such delays, we conclude that the Com-
mission should define the statutory terms “reason-
able period of time” and “failure to act” in order to
clarify when an adversely affected service provider
may take a dilatory State or local government to
court. Specifically, we find that when a State or lo-
cal government does not act within a “reasonable pe-
riod of time” under Section 332(c)(7)(B)(i)(II), a “fail-
ure to act” occurs within Section 332(c)(7)(B)(v). And
because an “action or failure to act” is the statutory
trigger for seeking judicial relief, our clarification of
these terms will give personal wireless service pro-
viders certainty as to when they may seek redress
for inaction on an application. We expect that this
certainty will enable personal wireless service pro-
viders more vigorously to enforce the statutory man-
date against unreasonable delay that impedes the
deployment of services that benefit the public. At
the same time, our action will provide guidance to
121 NENA Comments at 1-2.
107a
State and local governments as to what constitutes a
reasonable timeframe in which they are expected to
process applications, but recognizes that certain
cases may legitimately require more processing
time.122
38. By defining the period after which per-
sonal wireless service providers have a right to seek
judicial relief, we both ensure timely State and local
government action and preserve incentives for pro-
viders to work cooperatively with them to address
community needs. Wireless providers will have the
incentive to resolve legitimate issues raised by State
or local governments within the timeframes defined
as reasonable, or they will incur the costs of litiga-
tion and may face additional delay if the court de-
termines that additional time was, in fact, reason-
able under the circumstances. Similarly, State and
local governments will have a strong incentive to re-
solve each application within the timeframe defined
as reasonable, or they will risk issuance of an injunc-
tion granting the application. In addition, specific
timeframes for State and local government delibera-
tions will allow wireless providers to better plan and
allocate resources. This is especially important as
providers plan to deploy their new broadband net-
works.
122 We recognize that there are numerous jurisdictions that are
processing personal wireless service facility siting applications
well within the timeframes we establish herein. We encourage
these jurisdictions to continue their expeditious processing of
applications for the benefit of wireless consumers.
108a
39. We reject the Petition’s proposals that
we go farther and either deem an application
granted when a State or local government has failed
to act within a defined timeframe or adopt a pre-
sumption that the court should issue an injunction
granting the application. Section 332(c)(7)(B)(v)
states that when a failure to act has occurred, ag-
grieved parties should file with a court of competent
jurisdiction within 30 days and that “[t]he court
shall hear and decide such action on an expedited
basis.”123 This provision indicates Congressional in-
tent that courts should have the responsibility to
fashion appropriate case-specific remedies. As the
Petitioner notes, many courts have issued injunc-
tions granting applications upon finding a violation
of Section 332(c)(7)(B).124 However, the case law
does not establish that an injunction granting the
application is always or presumptively appropriate
when a “failure to act” occurs.125 To the contrary, in
those cases where courts have issued such injunc-
tions upon finding a failure to act within a reason-
able time, they have done so only after examining all
the facts in the case.126 While we agree that injunc-
123 47 U.S.C. § 332(c)(7)(B)(v).
124 See Petition at 28; CTIA Reply Comments at 23-25.
125 We note that many of the cases the Petitioner cites involved
not a failure to act within a reasonable time, but a lack of
substantial evidence or other violation of Section 332(c)(7)(B).
See, e.g., New Par v. City of Saginaw, 301 F.3d 390, 399-400
(6th Cir. 2002); Nat’l Tower, LLC v. Plainville Zoning Bd. of
Appeals, 297 F.3d 14, 24-25 (1st Cir. 2002); Preferred Sites,
LLC v. Troup County, 296 F.3d 1210, 1222 (11th Cir. 2002).
109a
tions granting applications may be appropriate in
many cases, the proposals in personal wireless ser-
vice facility siting applications and the surrounding
circumstances can vary greatly. It is therefore im-
portant for courts to consider the specific facts of in-
dividual applications and adopt remedies based on
those facts.
40. We also disagree with commenters that
argue that the statutory scheme precludes us from
interpreting the terms “reasonable period of time”
and “failure to act” by reference to specific time-
frames. State and local government commenters as-
sert that Congress used these general terms, rather
than setting specific time periods in the Act, because
it wanted to preserve State and local governments’
discretion to process applications in the timeframes
in which each government typically processes land
use applications. They contend that this reading
comports with the complete text of Section
332(c)(7)(B)(ii), which obligates the State or local
government to act “within a reasonable period of
time after the request is duly filed . . . taking into
account the nature and scope of such request.”127
_________________
126 See Tennessee ex rel. Wireless Income Props. v.
Chattanooga, 403 F.3d 392 (6th Cir. 2005); Masterpage
Communications, Inc. v. Town of Olive, NY, 418 F.Supp.2d 66
(N.D.N.Y. 2005).
127 47 C.F.R. § 332(c)(7)(B)(ii) (emphasis added). See NATOA et
al. Comments at 14-15; California Cities Comments at 5-6;
Fairfax County, VA Comments at 6-7; City of Dublin, OH
Comments at 3; City of Grove City, OH Comments at 3; Florida
Cities Comments at 5-6; City of Burien, WA Comments at 4;
Village of Alden, NY Comments at 3.
110a
Moreover, these commenters rely upon the Confer-
ence Agreement, which states that “the time period
for rendering a [personal wireless service facility sit-
ing] decision will be the usual period under such cir-
cumstances” and that “[i]t is not the intent of this
provision to give preferential treatment to the per-
sonal wireless service industry in the processing of
requests, or to subject their requests to any but the
generally applicable time frames for zoning deci-
sion[s].”128
41. Particularly given the opportunities
that we have built into the process for ensuring indi-
vidualized consideration of the nature and scope of
each siting request, we find these arguments un-
availing. Congress did not define either “reasonable
period of time” or “failure to act” in the Communica-
tions Act. As the United States Court of Appeals for
the District of Columbia Circuit has held, the term
“reasonable” is ambiguous and courts owe substan-
tial deference to the interpretation that the Commis-
sion accords to ambiguous terms.129 We similarly
128 H.R. Conf. Rep. No. 104-458, 104th Congress, 2nd Sess. 208
(1996).
129 Capital Network System, Inc. v. FCC, 28 F.3d 201, 204 (D.C.
Cir. 1994). In this case the court stated: “[b]ecause ‘just,’
‘unjust,’ ‘reasonable,’ and ‘unreasonable’ are ambiguous
statutory terms, this court owes substantial deference to the
interpretation the Commission accords them.” The court
upheld the Commission’s rejection of a competitive carrier’s
proposed tariff as patently unlawful because it was not “just
and reasonable” under Section 201(b) of the Act. See also
National Cable & Telecomm. Ass’n v. Brand X Internet Servs.,
545 U.S. at 982-84 (finding that where a statute is ambiguous
and the implementing agency's construction is reasonable, a
111a
found in the Local Franchising Order that the term
“unreasonably refuse to award” a local franchise au-
thorization in Section 621(a)(1) is ambiguous and
subject to our interpretation.130 As in the local fran-
chising context, it is not clear from the Communica-
tions Act what is a reasonable period of time to act
on an application or when a failure to act occurs. As
we find above, by defining timeframes in this pro-
ceeding, the Commission will lend clarity to these
provisions, giving wireless providers and State and
local zoning authorities greater certainty in knowing
what period of time is “reasonable,” and ensuring
that the point at which a State or local authority
“fails to act” is not left so ambiguous that it risks de-
priving a wireless siting applicant of its right to re-
dress.
42. Moreover, our construction of the statu-
tory terms “reasonable period of time” and “failure to
act” takes into account, on several levels, the Section
332(c)(7)(B)(ii) requirement that the “nature and
scope” of the request be considered and the legisla-
tive history’s indication that Congress intended the
decisional timeframe to be the “usual period” under
the circumstances for resolving zoning matters.
First, the timeframes we define below are based on
actual practice as shown in the record. As discussed
below, most statutes and government processes dis-
cussed in the record already conform to the time-
_________________
federal court must accept the agency's construction of the
statute, even if the agency's interpretation differs from prior
judicial construction).
130 Local Franchising Order, 22 FCC Rcd at 5130 ¶ 58 (2007).
112a
frames we define. As such, the timeframes do not
require State and local governments to give prefer-
ential treatment to personal wireless service provid-
ers over other types of land use applications. Sec-
ond, we consider the nature and scope of the request
by defining a shorter timeframe for collocation appli-
cations, consistent with record evidence that colloca-
tion applications generally are considered at a faster
pace than other tower applications. Third, under the
regime that we adopt today, the State or local au-
thority will have the opportunity, in any given case
that comes before a court, to rebut the presumption
that the established timeframes are reasonable. Fi-
nally, we have provided for further adjustments to
the presumptive deadlines in order to ensure that
the timeframes accommodate certain contingencies
that may arise in individual cases, including where
the applicant and the State or local authority agree
to extend the time, where the application has al-
ready been pending for longer than the presumptive
timeframe as of the date of this Declaratory Ruling,
and where the application review process has been
delayed by the applicant’s failure to submit a com-
plete application or to file necessary additional in-
formation in a timely manner.131 For all these rea-
sons, we conclude that our clarification of the broad
terms “reasonable period of time” and “failure to act”
is consistent with the statutory scheme.
43. Timeframes Constituting a “Failure to
Act”. The Petition proposes a 45-day timeframe for
collocation applications and a 75-day timeframe for
131 See infra paras. 49-53.
113a
all other applications.132 The Petition asserts that
because no new towers need to be constructed, collo-
cations are the easiest applications for State and lo-
cal governments to review and, therefore, should
reasonably be reviewed within a shorter period.133
The Petitioner surveyed its members and found that
collocations can take as little as a single day to re-
view, and that all members responding had received
zoning approvals within 14 days.134 With respect to
new facilities or major modifications, the Petitioner’s
members indicated that they had received final ac-
tion “in as little as one day, with hundreds of grants
within 75 days.”135 Wireless providers argue that
the Petitioner’s proposed timeframes are reason-
able,136 and they rely upon State and local processes
as evidence to support that conclusion.137 Moreover,
132 Petition at 24-27. The Petition claims that over 80 percent
of carriers surveyed had had “some collocations granted within
one week” and new builds “granted within 2 weeks.” Petition
at 16.
133 Id. at 24-25.
134 Id. at 25.
135 Id. at 26. All members responding to the survey reported
receiving approvals for new facilities within 30 days. Id.
136 See, e.g., MetroPCS Comments at 12; Rural Cellular
Association Comments at 6; NextG Networks Comments at 9-
12.
137 Sprint Nextel Comments at 6-8 (citing to South Dakota
Public Utility Commission’s model wireless zoning ordinance
and Florida and North Carolina statutes); T-Mobile Comments
at 11-12 (citing to the processing experienced by T-Mobile in
Florida, Georgia, and Texas); MetroPCS Comments at 7-8
114a
there is evidence from local governments that they
are able to decide promptly personal wireless service
facility siting applications. For example, the City of
Saint Paul, Minnesota, has processed personal wire-
less service facility siting applications within 13
days, on average, since 2000,138 and the City of La-
Grande, Oregon, has processed applications on aver-
age in 45 days in the last ten years.139
44. While we recognize that many applica-
tions can and perhaps should be processed within
the timeframes proposed by the Petitioner, we are
concerned that these timeframes may be insuffi-
ciently flexible for general applicability. In particu-
lar, some applications may reasonably require addi-
tional time to explore collaborative solutions among
the governments, wireless providers, and affected
communities.140 Also, State and local governments
may sometimes need additional time to prepare a
written explanation of their decisions as required by
Section 332(c)(7)(B)(iii),141 and the timeframes as
proposed may not accommodate reasonable, gener-
_________________
(citing to the processing experienced by MetroPCS in Delaware
and Pennsylvania); NextG Networks Comments at 9-14 (citing
to North Carolina, Florida & Kentucky statutes).
138 City of Saint Paul, Minnesota and the City’s Board of Water
Commissioners Comments at 10.
139 City of LaGrande, Oregon Comments at 3.
140 Such collaborative processes are asserted to have led to
improved antenna deployments. See, e.g., California Cities
Comments at 13-16.
141 Michigan Municipalities Comments at 14-19.
115a
ally applicable procedural requirements in some
communities.142 Although, as noted above, the re-
viewing court will have the opportunity to consider
such unique circumstances in individual cases, it is
important for purposes of certainty and orderly proc-
essing that the timeframes for determining when
suit may be brought in fact accommodate reasonable
processes in most instances.143
45. Based on our review of the record as a
whole, we find 90 days to be a generally reasonable
timeframe for processing collocation applications and
150 days to be a generally reasonable timeframe for
processing applications other than collocations.
Thus, a lack of a decision within these timeframes
presumptively constitutes a failure to act under Sec-
tion 332(c)(7)(B)(v). At least one wireless provider,
U.S. Cellular, suggests that such 90-day and 150-day
142 See, e.g., Fairfax County, VA Comments at 7-10; City of
Dublin, OH Comments at 3-4; Florida Cities Comments at 8-9.
143 California Cities note that the Commission previously
rejected time limits for itself in a rulemaking concerning
petitions filed pursuant to Section 332(c)(7)(B)(v) because they
would not afford the Commission sufficient flexibility to
account for particular facts in a case. California Cities
Comments at 8-10 (citing 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, WT Docket
No. 97-192, Report and Order, 15 FCC Rcd 22821, 22829-30 ¶
20 (2000)). The timeframes that we adopt account for the
flexibility that may be needed to address different fact
situations, while at the same time adhering to the important
public interest in certainty discussed above.
116a
timeframes are sufficient for State and local gov-
ernments to process applications.144
46. We find that collocation applications
can reasonably be processed within 90 days. Colloca-
tion applications are easier to process than other
types of applications as they do not implicate the ef-
fects upon the community that may result from new
construction. In particular, the addition of an an-
tenna to an existing tower or other structure is
unlikely to have a significant visual impact on the
community. Therefore, many jurisdictions do not re-
quire public notice or hearings for collocations.145
For purposes of this standard, an application is a re-
quest for collocation if it does not involve a “substan-
tial increase in the size of a tower” as defined in the
Nationwide Programmatic Agreement for the Collo-
cation of Wireless Antennas.146 This limitation will
144 U.S. Cellular Reply Comments at 2-3.
145 See, e.g., N.C. Gen. Stat. Ann. § 153A-349.53(a); Fla. Stat.
Ann. § 365.172(12)(a)(1)(a).
146 See T-Mobile Comments at 10-11. A “[s]ubstantial increase
in the size of the tower” occurs if:
(1) [t]he mounting of the proposed antenna on the tower would
increase the existing height of the tower by more than 10%, or
by the height of one additional antenna array with separation
from the nearest existing antenna not to exceed twenty feet,
whichever is greater, except that the mounting of the proposed
antenna may exceed the size limits set forth in this paragraph
if necessary to avoid interference with existing antennas; or (2)
[t]he mounting of the proposed antenna would involve the
installation of more than the standard number of new
equipment cabinets for the technology involved, not to exceed
four, or more than one new equipment shelter; or (3) [t]he
117a
help to ensure that State and local governments will
have a reasonable period of time to review those ap-
plications that may require more extensive consid-
eration.
47. Several State statutes already require
application processing within 90 days. California
and Minnesota require both collocation and non-
collocation applications to be processed within 60
days.147 North Carolina has a time period of 45 days
for processing after a 45-day review period for appli-
cation completeness (for a total of 90 days),148 and
Florida’s process is 45 business days after a 20-
_________________
mounting of the proposed antenna would involve adding an
appurtenance to the body of the tower that would protrude
from the edge of the tower more than twenty feet, or more than
the width of the tower structure at the level of the
appurtenance, whichever is greater, except that the mounting
of the proposed antenna may exceed the size limits set forth in
this paragraph if necessary to shelter the antenna from
inclement weather or to connect the antenna to the tower via
cable; or (4) [t]he mounting of the proposed antenna would
involve excavation outside the current tower site, defined as
the current boundaries of the leased or owned property
surrounding the tower and any access or utility easements
currently related to the site.
47 C.F.R. Part 1, App. B—Nationwide Programmatic
Agreement for the Collocation of Wireless Antennas,
Definitions, Subsection C.
147 Cal. Gov’t. Code §§ 65950 & 65943 (assuming no
environmental review is required; also has 30-day review
period for completeness); Minn. Stat. Ann. § 15.99 (permitting
an additional 60-day extension upon written notice to
applicant).
148 N.C. Gen. Stat. Ann. § 153A-349.52.
118a
business day review period for application complete-
ness (for a total of approximately 91 days, including
weekends).149 Moreover, the evidence submitted by
local governments indicates that most already are
processing collocation applications within 90 days.
Of the approximately 51 localities that submitted in-
formation concerning their processing of collocation
applications, only eight state that their processing is
longer than 90 days. However, five of those localities
indicate that their processing is within 120 days, on
average. Based on these facts, we conclude that a
90-day timeframe for processing collocation applica-
tions is reasonable.
48. We further find that the record shows
that a 150-day processing period for applications
other than collocations is a reasonable standard that
is consistent with most statutes and local processes.
First, of the eight State statutes discussed in the re-
cord that cover non-collocation applications, only one
State, Connecticut, contemplates a longer process.150
Nonetheless, the process in Connecticut is only 30
days longer than the timeframe set forth here.151
149 Fla. Stat. Ann. § 365.172. In addition, the State of
Connecticut’s Connecticut Siting Council states that “most
applications to approve a tower-sharing request are processed
by our agency in four to six weeks.” State of Connecticut’s
Connecticut Siting Council Sept. 24, 2008 Letter at 2.
150 See Conn. Gen. Stat. Ann. §§ 16-50(i) & (p) (action required
within 180 days after application is filed).
151 Moreover, the State of Connecticut, Connecticut Siting
Council states that “applications to approve a new-build tower
are generally reviewed and acted upon in four to five months.”
State of Connecticut’s Connecticut Siting Council Sept. 24,
119a
The other seven States provide for a review period of
60 to 150 days.152 Second, of the processes described
by local governments in the record, most already
routinely conclude within 150 days or less. Ap-
proximately 51 localities submitted information con-
cerning their processing of personal wireless service
facility siting applications. Of those, only twelve in-
dicate that they may take longer than 150 days.
However, four of these twelve cities indicate that
they generally process the applications within 180
days. Based on these facts, we conclude that a 150-
day timeframe for processing applications other than
collocations is reasonable. Accordingly, we do not
agree that the Commission’s imposition of the 90-day
_________________
2008 Letter at 2.
152 The State of California requires applications to be processed
within 60 days, after a 30-day review period for completeness,
assuming no environmental review is required. Cal. Gov’t.
Code §§ 65950 & 65943. The State of Florida requires
applications to be processed within 90 business days, after a
20-business day review period for completeness. Fla. Stat.
Ann. § 365.172. The State of Minnesota requires applications
to be processed within 60 days, which can be extended an
additional 60 days upon written notice to the applicant. Minn.
Stat. Ann. § 15.99. The State of Oregon requires applications
to be processed within 120 days, after a 30-day review period
for completeness. Or. Rev. Stat. § 227.178. The
Commonwealth of Virginia requires applications to be
processed within 90 days, which can be extended an additional
60 days. Va. Code Ann. § 15.2-2232. The State of Washington
requires applications to be processed within 120 days, after a
28-day review period for completeness. Wash. Rev. Code §§
36.70B.080 & 36.70B.070. The State of Kentucky requires
applications to be processed within 60 days. Ky. Rev. Stat.
Ann. § 100.987.
120a
and 150-day timeframes will disrupt many of the
processes State and local governments already have
in place for personal wireless service facility siting
applications.153
49. Related Issues. Section 332(c)(7)(B)(v)
provides that an action for judicial relief must be
brought “within 30 days” after a State or local gov-
ernment action or failure to act.154 Thus, if a failure
to act occurs 90 days (for a collocation) or 150 days
(in other cases) after an application is filed, any
court action must be brought by day 120 or 180 on
penalty of losing the ability to sue. We conclude that
a rigid application of this cutoff to cases where the
parties are working cooperatively toward a consen-
sual resolution would be contrary to both the public
interest and Congressional intent. Accordingly, we
clarify that a “reasonable period of time” may be ex-
tended beyond 90 or 150 days by mutual consent of
the personal wireless service provider and the State
or local government, and that in such instances, the
commencement of the 30-day period for filing suit
will be tolled.
50. To the extent existing State statutes or
local ordinances set different review periods than we
do here, we clarify that our interpretation of Section
332(c)(7) is independent of the operation of these
statutes or ordinances. Thus, where the review pe-
153 See, e.g., California Cities Comments at 10-12; Fairfax
County, VA Comments at 7-10; City of Dublin, OH Comments
at 3-4; Michigan Municipalities Comments at 11-14.
154 47 U.S.C. § 332(c)(7)(B)(v).
121a
riod in a State statute or local ordinance is shorter
than the 90-day or 150-day period, the applicant
may pursue any remedies granted under the State or
local regulation when the applicable State or local
review period has lapsed. However, the applicant
must wait until the 90-day or 150-day review period
has expired to bring suit for a “failure to act” under
Section 332(c)(7)(B)(v). Conversely, if the review pe-
riod in the State statute or local ordinance is longer
than the 90-day or 150-day review period, the appli-
cant may bring suit under Section 332(c)(7)(B)(v) af-
ter 90 days or 150 days, subject to the 30-day limita-
tion period on filing, and may consider pursuing any
remedies granted under the State or local regulation
when that applicable time limit has expired. Of
course, the option is also available in these cases to
toll the period under Section 332(c)(7) by mutual
consent.
51. We further conclude that given the am-
biguity that has prevailed until now as to when a
failure to act occurs, it is reasonable to give State
and local governments an additional period to review
currently pending applications before an applicant
may file suit. Accordingly, as a general rule, for cur-
rently pending applications we deem that a “failure
to act” will occur 90 days (for collocations) or 150
days (for other applications) after the release of this
Declaratory Ruling. We recognize, however, that
some applications have been pending for a very long
period, and that delaying resolution for an additional
90 or 150 days may impose an undue burden on the
applicant. Therefore, a party whose application has
been pending for the applicable timeframe that we
122a
establish herein or longer as of the release date of
this Declaratory Ruling may, after providing notice
to the relevant State or local government, file suit
under Section 332(c)(7)(B)(v) if the State or local
government fails to act within 60 days from the date
of such notice. The notice provided to the State or
local government shall include a copy of this De-
claratory Ruling. This option does not apply to ap-
plications that have currently been pending for less
than 90 or 150 days, and in these instances the State
or local government will have 90 or 150 days from
the release of this Declaratory Ruling before it will
be considered to have failed to act. We find that this
transitional regime best balances the interests of
applicants in finality with the needs of State and lo-
cal governments for adequate time to implement our
interpretation of Section 332(c)(7).
52. Finally, certain State and local govern-
ment commenters argue that the timeframes should
take into account that not all applications are com-
plete as filed and that applicants do not always file
necessary additional information in a timely man-
ner.155 MetroPCS does not contest this argument,
but it further proposes that local authorities should
be required to notify applicants of incomplete appli-
cations within three business days and to inform the
155 See, e.g., Fairfax County, VA Comments at 13; City of
Bellingham, WA Comments at 1-2; Michigan Municipalities
Comments at 19-20; Stokes County, N.C. Comments at 1
(complete application should be required); Florida Cities
Comments at 8-9 (wireless companies should also be held to
timelines for responding to requests from localities concerning
siting applications).
123a
applicant what additional information should be
submitted.156 The Petitioner supports MetroPCS’s
proposal.157 We concur that the timeframes should
take into account whether applications are complete.
Accordingly, we find that when applications are in-
complete as filed, the timeframes do not include the
time that applicants take to respond to State and lo-
cal governments’ requests for additional information.
We also find that reviewing authorities should be
bound to notify applicants within a reasonable pe-
riod of time that their applications are incomplete.
It is important that State and local governments ob-
tain complete applications in a timely manner, and
our finding here will provide the incentive for wire-
less providers to file complete applications in a
timely fashion.
53. Five State statutes discussed in the re-
cord specify a period for a review of the applications
for completeness. The State of Florida requires an
application to be reviewed within 20 business days
for determining whether it is complete;158 the State
of Washington requires review within 28 days;159 the
156 MetroPCS Comments at 12. MetroPCS also proposes that
the zoning authority should be conclusively deemed to have
accepted the filing as complete if it does not respond within
three days.
157 CTIA Reply Comments at 18.
158 See Fla. Stat. Ann. § 365.172 (providing for a 20-business
day review for application completeness, then a 45- business
day period for collocation application processing and a 90-
business day period for all other application processing).
159 Wash. Rev. Code §§ 36.70B.080 & 36.70B.070 (providing for
124a
States of California and Oregon require review
within 30 days;160 and the State of North Carolina
requires review within 45 days.161 Considering this
evidence as a whole, a review period of 30 days gives
State and local governments sufficient time for re-
viewing applications for completeness, while protect-
ing applicants from a last minute decision that ap-
plications should be denied as incomplete. Accord-
ingly, we conclude that the time it takes for an ap-
plicant to respond to a request for additional infor-
mation will not count toward the 90 or 150 days only
if that State or local government notifies the appli-
cant within the first 30 days that its application is
incomplete. We find that the total amount of time,
including the review period for application com-
pleteness, is generally consistent with those States
that specifically include such a review period.
C. Prohibition of Service by a Single Pro-
vider
54. Background. The Petitioner next asks
the Commission to conclude that State or local regu-
_________________
a 28-day review for application completeness, then a 120-day
period for application processing).
160 Cal. Gov’t. Code §§ 65943 & 65950 (providing for a 30-day
review for application completeness, then a 60-day period for
application processing assuming there are no environmental
issues); Or. Rev. Stat. § 227.178 (providing for a 30-day review
for application completeness, then a 120-day period for
application processing).
161 N.C. Gen. Stat. Ann. § 153A-349.52 (providing for a 45-day
review for application completeness, then a 45-day period for
collocation application processing).
125a
lation that effectively prohibits one carrier from pro-
viding service because service is available from one
or more other carriers violates Section
332(c)(7)(B)(i)(II) of the Act.162 The Petitioner con-
tends that the Act does not define what constitutes a
prohibition of service for purposes of Section
332(c)(7)(B)(i)(II).163 The Petitioner asserts that Cir-
cuit court decisions have interpreted this provision
in a number of different ways, including so as to al-
low the denial of an application so long as a single
wireless provider serves the area, thereby creating a
need for the Commission to interpret it.164 The Peti-
tioner argues that its position is consistent with the
pro-competitive goals of the 1996 Telecommunica-
tions Act, and further, that the provision refers to
personal wireless services in the plural, which cuts
against a single provider interpretation.165 Simi-
larly, Section 332(c)(7)(B)(i)(I) bars unreasonable
discrimination among providers, also suggesting a
preference for multiple providers.166 In addition to
supporting the Petitioner’s argument, numerous
wireless providers assert that if local zoning authori-
ties could deny siting applications whenever another
carrier serves the area, competition as intended by
the 1996 Act and the introduction of new technolo-
162 Petition at 30-35.
163 Id. at 30.
164 Id. at 31.
165 Id. at 31-32.
166 Id. at 32.
126a
gies would be impeded, and E911 service and public
safety could be impacted.167
55. Parties opposing the Petition argue that
if, as the Petition suggests, there are local govern-
ments that deny applications solely because of cov-
erage by another provider, the affected provider can,
as courts have recognized, bring a claim of unrea-
sonable discrimination.168 Opponents also argue
that the Petition fails to provide any credible or pro-
bative evidence of a prohibition on the ability of any
provider to provide services.169 Commenters also ar-
gue that granting the Petition would limit State and
local authorities’ ability to regulate the location of
facilities.170 One opposition commenter suggests
that because the interpretation advanced in the Peti-
tion would appear to prevent localities from consid-
ering the presence of service by other carriers in
evaluating an additional carrier’s application for an
antenna site, granting this request could have a
negative impact on airports by increasing the num-
ber of potential obstructions to air navigation.171 Fi-
nally, one commenter argues that because Section
167 See, e.g., Sprint Nextel Comments at 11-12; T-Mobile
Comments at 13-14; NextG Networks Comments at 14-15.
168 See NATOA et al. Comments at 20.
169 Id. at 22.
170 See, e.g., City of Auburn, WA Comments at 3; City of
SeaTac, WA Comments at 2.
171 See North Carolina Department of Transportation’s Division
of Aviation Comments at 2.
127a
332(c)(7)(A)172 states that the zoning authority of a
State or local government over personal wireless
service facilities is only limited by the specific excep-
tions provided in Section 332(c)(7)(B), and because
Section 332(c)(7)(B) does not say that a zoning au-
thority cannot consider the presence of other provid-
ers, the Commission may not impose such a limita-
tion.173
56. Discussion. We conclude that a State or
local government that denies an application for per-
sonal wireless service facilities siting solely because
“one or more carriers serve a given geographic mar-
ket”174 has engaged in unlawful regulation that “pro-
hibits or ha[s] the effect of prohibiting the provision
of personal wireless services,” within the meaning of
Section 332(c)(7)(B)(i)(II). Initially, we note that
courts of appeals disagree on whether a State or lo-
cal policy that denies personal wireless service facil-
ity siting applications solely because of the presence
of another carrier should be treated as a siting regu-
lation that prohibits or has the effect of prohibiting
such services.175 Thus, a controversy exists that is
172 47 U.S.C. § 332(c)(7)(A) (stating “[e]xcept 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.”).
173 See County of Albemarle, VA Comments at 8-9.
174 Petition at 32.
175 Some courts of appeals have found no violation of the “effect
of prohibiting” clause solely because another carrier is
providing service. See APT Pittsburgh L.P. v. Penn Township
128a
appropriately resolved by declaratory ruling.176 We
agree with the Petitioner that the fact that another
carrier or carriers provide service to an area is an
inadequate defense under a claim that a prohibition
exists, and we conclude that any other interpretation
of this provision would be inconsistent with the Tele-
communications Act's pro-competitive purpose.
57. Section 332(c)(7)(B)(i)(II) provides, as a
limitation on the statute’s preservation of local zon-
_________________
Butler County of Pa., 196 F.3d 469, 480 (3d Cir. 1999)
(“evidence that the area the new facility will serve is not
already served by another provider” essential to showing
violation “effect of prohibiting” clause); AT&T Wireless PCS,
Inc. v. City Council of Va. Beach, 155 F.3d 423, 428-29 (4th Cir.
1998) (concluding that the statute only applies when the State
or local authority has adopted a blanket ban on wireless service
facilities). Other courts of appeals have reached the opposite
conclusion. See Second Generation Properties, L.P. v. Town of
Pelham, 313 F.3d 620, 633-34 (1st Cir. 2002) (rejecting a rule
that “any service equals no effective prohibition”); MetroPCS,
Inc. v. City and County of San Francisco, 400 F.3d 715, 731-33
(9th Cir. 2005) (adopting the First Circuit’s analysis).
176 See 47 C.F.R. § 1.2; National Cable & Telecomm. Ass’n v.
Brand X Internet Servs., 125 S.Ct. at 2700 (“A court’s prior
judicial construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court
decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for
agency discretion”). None of the courts of appeals has held that
the meaning of Section 332(c)(7)(B)(i)(II) is unambiguous. See,
e.g., Omnipoint Holdings, Inc., v. City of Cranston, No. 08-2491
(1st Cir. November 3, 2009) (“Beyond the statute’s language, the
[Communications Act] provides no guidance on what
constitutes an effective prohibition, so courts … have added
judicial gloss”).
129a
ing authority, that a State or local government regu-
lation of personal wireless facilities “shall not pro-
hibit or have the effect of prohibiting the provision of
personal wireless services.”177 While we acknowl-
edge that this provision could be interpreted in the
manner endorsed by several courts – as a safeguard
against a complete ban on all personal wireless ser-
vice within the State or local jurisdiction, which
would have no further effect if a single provider is
permitted to provide its service within the jurisdic-
tion – we conclude that under the better reading of
the statute, this limitation of State/local authority
applies not just to the first carrier to enter into the
market, but also to all subsequent entrants.
58. We reach this conclusion for several
reasons. First, our interpretation is consistent with
the statutory language referring to the prohibition of
“the provision of personal wireless services” rather
than the singular term “service.” As the First Cir-
cuit observed, “[a] straightforward reading is that
‘services’ refers to more than one carrier. Congress
contemplated that there be multiple carriers compet-
ing to provide services to consumers.” 178
59. Second, an interpretation that would
regard the entry of one carrier into the locality as
mooting a subsequent examination of whether the
locality has improperly blocked personal wireless
services ignores the possibility that the first carrier
177 47 U.S.C. § 332(c)(7)(B)(i)(II).
178 Second Generation Properties, L.P. v. Town of Pelham, 313
F.3d at 634.
130a
may not provide service to the entire locality, and a
zoning approach that subsequently prohibits or ef-
fectively prohibits additional carriers therefore may
leave segments of the population unserved or under-
served.179 In the words of the First Circuit, the “fact
that some carrier provides some service to some con-
sumers does not in itself mean that the town has not
effectively prohibited services to other consumers.”180
Such action on the part of the locality would contra-
dict the clear intent of the statute.
60. Third, we find unavailing the reasons
cited by the Fourth Circuit (and some other courts)
to support the interpretation that the statute only
limits localities from prohibiting all personal wire-
less services (i.e., a blanket ban or “one-provider”
approach). The Fourth Circuit’s principal concern
was that giving each carrier an individualized right
under Section 332(c)(7)(B)(i)(II) to contest an adverse
zoning decision as an unlawful prohibition of its
179 To the extent a wireless carrier has gaps in its service, a
zoning restriction that bars additional carriers will cement
those gaps in place and effectively prohibit any consumer from
receiving service in those areas. If the gap is large enough, the
people living in the gap area who tend to travel only shorter
distances from home will be left without a usable service
altogether. According to the First Circuit, the presence of the
one carrier in the jurisdiction therefore does not end the
inquiry under Section 332(c)(7)(B): “That one carrier provides
some service in a geographic gap should not lead to
abandonment of examination of the effect on wireless services
for other carriers and their customers.” Second Generation
Properties, L.P v. Town of Pelham. 313 F.3d at 634.
180 Id.
131a
service “would effectively nullify local authority by
mandating approval of all (or nearly all) applica-
tions.”181 As explained below, however, our interpre-
tation of the statute does not mandate such approval
and therefore does not strip State and local authori-
ties of their Section 332(c)(7) zoning rights. Rather,
we construe the statute to bar State and local au-
thorities from prohibiting the provision of services of
individual carriers solely on the basis of the presence
of another carrier in the jurisdiction; State and local
authority to base zoning regulation on other grounds
is left intact by this ruling.
61. Finally, our construction of the provi-
sion achieves a balance that is most consistent with
the relevant goals of the Communications Act. In
promoting the construction of nationwide wireless
networks by multiple carriers, Congress sought ul-
timately to improve service quality and lower prices
for consumers. Our interpretation in this Declara-
tory Ruling promotes these statutory objectives more
effectively than the alternative, which could per-
petuate significant coverage gaps within any indi-
vidual wireless provider’s service area and, in turn,
diminish the service provided to their customers.182
181 AT&T Wireless PCS v. City Council of Va. Beach, 155 F.3d
at 428.
182 See MetroPCS, Inc. v. City and County of San Francisco, 400
F.3d at 732 (result of “one-provider” interpretation is “a crazy
patchwork quilt of intermittent coverage … [that] might have
the effect of driving the industry toward a single carrier,”
quoting Second Generation Properties, L.P. v. Town of Pelham,
313 F.3d at 631).
132a
In addition, under the Fourth Circuit’s approach,
competing providers may find themselves barred
from entering markets to which they would have ac-
cess under our interpretation of the statute, thus de-
priving consumers of the competitive benefits the
Act seeks to foster. As the First Circuit recently
stated, the “one-provider rule” “prevents customers
in an area from having a choice of reliable carriers
and thus undermines the [Act’s] goal to improve
wireless service for customers through industry
competition.”183 In sum, our rejection of this rule
“actually better serves both individual consumers
and the policy goals of the [Communications Act].”184
62. Our determination also serves the Act’s
goal of preserving the State and local authorities’
ability to reasonably regulate the location of facili-
ties in a manner that operates in harmony with fed-
eral policies that promote competition among wire-
less providers.185 As we indicated above, nothing we
do here interferes with these authorities’ considera-
tion of and action on the issues that traditionally in-
form local zoning regulation. Thus, where a bona
fide local zoning concern, rather than the mere pres-
ence of other carriers, drives a zoning decision, it
should be unaffected by our ruling today. The Peti-
183 Omnipoint Holdings, Inc., v. City of Cranston (citing Second
Generation Properties, L.P. v. Town of Pelham, 313 F.3d at
631, 633).
184 MetroPCS, Inc. v. City and County of San Francisco, 400
F.3d at 722.
185 See, e.g., City of Auburn, WA Comments at 3; City of
SeaTac, WA Comments at 2.
133a
tioner appears to recognize this when it states that it
“does not seek a ruling that zoning authorities are
prohibited from favoring collocation over new facili-
ties where collocation is appropriate.”186 Our ruling
here does not create such a prohibition. To the con-
trary, we would observe that a decision to deny a
personal wireless service facility siting application
that is based on the availability of adequate colloca-
tion opportunities is not one based solely on the
presence of other carriers, and so is unaffected by
our interpretation of the statute in this Declaratory
Ruling.
63. We disagree with the assertion that
granting the petition could have a negative impact
on airports by increasing the number of potential ob-
structions to air navigation.187 As the Federal Avia-
tion Administration notes, our action on this Petition
does not alter or amend the Federal Aviation Ad-
ministration’s regulatory requirements and proc-
ess.188 Under the Commission’s rules as well, parties
are required to submit for Federal Aviation Admini-
stration review all antenna structures189 that poten-
tially can endanger air navigation, including those
186 CTIA Reply Comments at 29-30 (emphasis removed).
187 See North Carolina Department of Transportation’s Division
of Aviation Comments at 2.
188 See FAA Comments at 1.
189 Section 17.2(a) of the rules defines “antenna structure” as
including “the radiating and/or receive system, its supporting
structures and any appurtenances mounted thereon.” 47
C.F.R. § 17.2(a).
134a
near airports.190 The Commission requires antenna
structures that exceed 200 feet in height above
ground or which require special aeronautical study
to be painted and lighted191 and also requires an-
tenna structures to conform to the Federal Aviation
Administration's painting and lighting recommenda-
tions.192
64. We reject the assertion that the decla-
ration the Petitioner seeks would violate Section
332(c)(7)(A).193 Subparagraph (A) states that the au-
thority of a State or local government over decisions
regarding the placement, construction, and modifica-
tion of personal wireless service facilities is limited
only by the limitations imposed in subparagraph
(B).194 Because the Petition requests that the Com-
mission clarify one of the express limitations of Sec-
tion 332(c)(7)(B) – i.e., whether reliance solely on the
presence of other carriers effectively operates as a
prohibition under Section 332(c)(7)(B)(i)(II) – we find
that the Petitioner is not seeking an additional limi-
tation beyond those enumerated in subparagraph
(B).
65. In addition, opponents argue that de-
nial of a single application is insufficient to demon-
strate a violation of the “effect of prohibiting”
190 See 47 C.F.R. § 17.7.
191 See 47 C.F.R. § 17.21.
192 See 47 C.F.R. § 17.23.
193 See County of Albemarle, Virginia Comments at 8-9.
194 47 U.S.C. § 332(c)(7)(A).
135a
clause.195 Circuit courts have generally been hesi-
tant to find that denial of a single application dem-
onstrates such a violation, but to varying degrees,
they allow for that possibility.196 We note that the
denial of an application may sometimes establish a
violation of Section 332(c)(7)(B)(ii) if it demonstrates
a policy that has the effect of prohibiting the provi-
sion of personal wireless services as interpreted
herein. Whether the denial of a single application
indicates the presence of such a policy will be de-
pendent on the facts of the particular case.
195 See NATOA et al. Comments at 19-20; Coalition for Local
Zoning Authority Comments at 11.
196 See, e.g., Town of Amherst, N.H. v. Omnipoint
Communications Enterprises, Inc., 173 F.3d 9, 14 (1st Cir.
1999) (“Obviously, an individual denial is not automatically a
forbidden prohibition violating the [effect of prohibiting
clause].”); APT Pittsburgh L.P. v. Penn Township Butler
County of Pa., 196 F.3d at 478-79 (“Interpreting the
[Telecommunications Act’s] ‘effect of prohibiting’ clause to
encompass every individual zoning denial simply because it has
the effect of precluding a specific provider from providing
wireless services, however, would give the [Act] preemptive
effect well beyond what Congress intended. . . . This does not
mean, however, that a provider can never establish that an
individual adverse zoning decision has the ‘effect’ of violating
[Section] 332(c)(7)(B)(i)(II).”); MetroPCS, Inc. v. City and
County of San Francisco, 400 F.3d at 731 (“it would be
extremely dubious to infer a general ban from a single []
denial”). See also T-Mobile, USA, Inc. v. City of Anacortes, 572
F.3d 987, 994-95 (9th Cir. 2009) (finding that because the city
was unable to show that there were any available and feasible
alternatives to T-Mobile's proposed site, the City's denial of T-
Mobile's application constituted a violation of the effect of
prohibiting clause under Section 332(c)(7)(B)(i)(II)).
136a
D. Ordinances Requiring Variances
66. Background. In its Petition, CTIA re-
quests that the Commission preempt, under Section
253(a) of the Act,197 local ordinances and State laws
that effectively require a wireless service provider to
obtain a variance, regardless of the type and location
of the proposal, before siting facilities.198 It asks the
Commission to declare that any ordinance automati-
cally imposing such a condition is “an impermissible
barrier to entry under Section 253(a)” and is there-
fore preempted.199 To support such action, CTIA
provides two examples of zoning limitations in a
“New Hampshire community” and a “Vermont com-
munity” that it claims in effect require carriers to
obtain a special variance.200 Wireless providers that
address this issue agree with the Petition, arguing
that the variance process sets a high evidentiary bar
which diminishes the wireless providers’ prospects of
gaining approval to site facilities.201 Many other
commenting parties are opposed to the Petition’s re-
quest and assert, for example, that Section 332(c)(7)
is the exclusive authority in the Act on matters in-
197 47 U.S.C. § 253(a).
198 See Petition at 35-37.
199 Id. at 37; see also id. at 36 ( “The FCC should declare that
any ordinance that automatically requires a . . . variance . . . is
preempted. . . ”).
200 See id. at 36.
201 See, e.g., Sprint Nextel Comments at 13-14; CalWA Com-
ments at 3; Rural Cellular Association Comments at 8;
MetroPCS Comments at 13.
137a
volving wireless facility siting.202 They maintain
that Section 253 does not apply to wireless facility
siting disputes involving blanket variance ordi-
nances.203
67. Discussion. We deny CTIA’s request for
preemption of ordinances that impose blanket vari-
ance requirements on the siting of wireless facilities.
Because CTIA does not seek actual preemption of
any ordinance by its Petition,204 we decline to issue a
declaratory ruling that “zoning ordinances requiring
variances for all wireless siting requests are unlaw-
ful and will be struck down if challenged in the con-
text of a Section 253 preemption action.”205 CTIA
does not present us with sufficient information or
evidence of a specific controversy on which to base
such action or ruling,206 and we conclude that any
202 47 U.S.C. § 332(c)(7).
203 Several commenters argue that by using the sweeping
phrase “nothing in this chapter,” Congress made clear that it
intended Section 332(c)(7) to override any other provision in the
Communications Act that may be in conflict, including Section
253. They further argue that CTIA’s proposal to have the
Commission broadly preempt any ordinances “effectively”
requiring a variance directly conflicts with Congress’
preservation of local zoning authority in Section 332(c)(7). See,
e.g., NATOA et al. Comments at 7; California Cities Comments
at 23-24; Fairfax County Comments at 3; Michigan
Municipalities Comments at 2; N.C. Assoc. of County
Commissioners Comments at 1-2.
204 See, e.g., CTIA Reply Comments at 33 n.124.
205 Id. at 30.
206 Although the Petition identifies two examples that
Petitioner describes as problematic, it does not represent that
138a
further consideration of blanket variance ordinances
should occur within the factual context of specific
cases. To the extent specific evidence is presented to
the Commission that a blanket variance ordinance is
an effective prohibition of service, then we will in
that context consider whether to preempt the en-
forcement of that ordinance in accordance with the
statute. We note that in denying CTIA’s request, we
make no interpretation of whether and how a matter
involving a blanket variance ordinance for personal
wireless service facility siting would be treated un-
der Section 332(c)(7) and/or Section 253 of the Act.207
E. Other Issues
68. Service Requirements. Numerous par-
ties argue that the Petitioner failed to follow the
Commission’s service requirements with respect to
preemption petitions.208 Our rules require that a
party filing either a petition for declaratory ruling
seeking preemption of State or local regulatory au-
thority, or a petition for relief under Section
332(c)(7)(B)(v), must serve the original petition on
any State or local government whose actions are
_________________
the ordinances explicitly require variances for all applications,
nor does it attempt to demonstrate with any specificity why the
examples effectively require variances in all instances. See
Petition at 36 (briefly describing ordinances of communities in
Vermont and New Hampshire).
207 47 U.S.C. §§ 332(c)(7), 253.
208 See, e.g., Coalition for Local Zoning Authority Comments at
2-4; NATOA et al. Comments at 21; Greater Metro Telecom.
Consortium and City of Boulder, CO Comments at 2-3.
139a
cited as a basis for requesting preemption.209 By its
terms, the service requirement does not apply to a
petition that cites examples of the practices of uni-
dentified jurisdictions to demonstrate the need for a
declaratory ruling interpreting provisions of the
Communications Act.210 Commenters' principal ar-
gument is that the Commission should require the
Petitioner to identify the jurisdictions that it refer-
ences anonymously, which, they assert, would then
trigger the service requirement. However, nothing
in the rules requires that these jurisdictions be iden-
tified. We recognize, as commenters emphasize, that
in the absence of identification it has not been possi-
ble for some local governments to respond to certain
factual statements in the Petition, either directly or
through their associations,211 and we take this into
account in considering the weight we give to these
assertions. At the same time, State and local gov-
209 47 C.F.R. § 1.1206(a), Note 1.
210 We note that the Petitioner did belatedly serve the two local
governments whose ordinances were described in the Petition
as requiring variances; however, as discussed above, we deny
Petitioner’s request to preempt ordinances that require
variances. See Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting
Review and to Preempt under Section 253 State and Local
Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 08-165, Opposition to
Motions for Extension of Time, at 3 n.7 (filed Aug. 26, 2008).
211 See, e.g., City of Philadelphia Comments at 2-3 (arguing
that the failure of the Petitioner to identify and serve the
localities discussed in its Petition denies the Commission a
complete and fair record of the facts).
140a
ernments have entered voluminous evidence into the
record on their own behalf, including responses to
several of the specific examples offered by the Peti-
tioner. Accordingly, we conclude that the record is
sufficient to address the Petitioner's claims.
69. Radiofrequency (RF) Emissions. Sev-
eral commenters argue that we should deny CTIA’s
Petition in order to protect local citizens against the
health hazards that these commenters attribute to
RF emissions.212 Section 332(c)(7)(B)(iv) of the Act
provides that “[n]o State or local government or in-
strumentality 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.”213 To the
extent commenters argue that State and local gov-
ernments require flexibility to deny personal wire-
less service facility siting applications or delay action
on such applications based on the perceived health
effects of RF emissions, this authority is denied by
statute under Section 332(c)(7)(B)(iv). Accordingly,
such arguments are outside the scope of this pro-
ceeding.
70. In its Comments and Cross-Petition,
EMRPI contends that in light of additional data that
212 See, e.g., Catherine Kleiber Comments; E. Stanton Maxey
Comments at 1; Maria S. Sanchez Comments at 1-2; Miranda
R. Taylor Comments at 1-2.
213 47 U.S.C. § 332(c)(7)(B)(iv).
141a
has been compiled since 1996, the RF safety regula-
tions that the Commission adopted at that time are
no longer adequate.214 EMRPI is asking us to revisit
the Commission’s previous decision that the scien-
tific evidence did not support the establishment of
guidelines to address the non-thermal effects of RF
emissions.215 This request is also outside the scope
of the current proceeding, and we therefore dismiss
EMRPI’s Cross-Petition.
IV. CONCLUSION
71. For the reasons discussed above, we
grant in part and deny in part CTIA’s Petition for a
Declaratory Ruling interpreting provisions of Section
332(c)(7) of the Communications Act. In particular,
we find that a “reasonable period of time” for a State
or local government to act on a personal wireless
service facility siting application is presumptively 90
days for collocation applications and presumptively
150 days for siting applications other than colloca-
tions, and that the lack of a decision within these
timeframes constitutes a “failure to act” based on
which a service provider may commence an action in
court under Section 332(c)(7)(B)(v). We also find
that where a State or local government denies a per-
214 EMRPI Comments and Cross-Petition at 4.
215 Guidelines for Evaluating the Environmental Effects of
Radiofrequency Radiation, ET Docket No. 93-62, Second
Memorandum Opinion and Order and Notice of Proposed Rule
Making, 12 FCC Rcd 13494, 13505 ¶ 31 (1997), aff'd sub nom.
Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000),
cert. denied sub nom. Citizens for the Appropriate Placement of
Telecommunications Facilities v. FCC, 531 U.S. 1070 (2001).
142a
sonal wireless service facility siting application
solely because that service is available from another
provider, such a denial violates Section
332(c)(7)(B)(i)(II). By clarifying the statute in this
manner, we recognize Congress’ dual interests in
promoting the rapid and ubiquitous deployment of
advanced, innovative, and competitive services, and
in preserving the substantial area of authority that
Congress reserved to State and local governments to
ensure that personal wireless service facility siting
occurs in a manner consistent with each commu-
nity’s values.
V. ORDERING CLAUSES
72. Accordingly, IT IS ORDERED that,
pursuant to Sections 4(i), 4(j), 201(b), 253(a), 303(r),
and 332(c)(7) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), (j), 201(b), 253(a),
303(r), 332(c)(7), and Section 1.2 of the Commission’s
rules, 47 C.F.R. § 1.2, the Petition for Declaratory
Ruling filed by CTIA—The Wireless Association IS
GRANTED to the extent specified in this Declara-
tory Ruling and otherwise IS DENIED.
73. IT IS FURTHER ORDERED that, pur-
suant to Sections 4(i), 4(j), and 332(c)(7) of the Com-
munications Act of 1934, as amended, 47 U.S.C. §§
154(i), (j), 332(c)(7), and Section 1.2 of the Commis-
sion’s rules, 47 C.F.R. § 1.2, the Cross-Petition filed
by the EMR Policy Institute IS DISMISSED.
FEDERAL COMMUNICATIONS COMMIS-
SION
143a
Marlene H. Dortch
Secretary
144a
APPENDIX A
List of Participants in Proceeding
Comments
AT&T Inc. (AT&T)
Air Line Pilots Association, International
Aircraft Owners and Pilots Association
Airports Council International-North America
Alltel Communications, LLC
American Legislative Exchange Council
American Planning Association
Arthur Firstenberg
Atlantic Technology Consultants, Inc.
Aviation Council of Alabama Inc.
Aviation Department, Charles B. Wheeler
Downtown Airport
B. Blake Levitt
Bartonville, Texas
Broadcast Signal Lab, LLC
Cable and Telecommunications Committee of
the New Orleans City Council
California Wireless Association (CalWA)
Carole Maurer and John Dilworth
Cascade Charter Township, Michigan
Catawba County
Catherine Kleiber
Charles B. Wheeler Downtown Airport
Charleston County Planning Department,
Charleston County, South Carolina
Citizens Against Government Waste
City of Airway Heights, Washington State
City of Albany, California
City of Albuquerque, New Mexico
145a
City of Anacortes, Washington
City of Apple Valley, Dakota County Minne-
sota
City of Arlington, Texas
City of Auburn, Washington (City of Auburn,
WA)
City of Austin, Texas
City of Bartonville, Texas
City of Bellevue, Washington
City of Bellingham, Washington (City of Bel-
lingham, WA)
City of Bloomington Minnesota
City of Boca Raton
City of Burien, Washington (City of Burien,
WA)
City of Champaign, Illinois
City of Cincinnati, Ohio
City of Columbia, South Carolina
City of Coppell, Texas
City of Dallas, Texas
City of Des Plaines, Illinois
City of Dublin, Ohio (City of Dublin, OH)
City of Dubuque
City of Evanston, Illinois
City of Farmers Branch
City of Gahanna, Ohio
City of Golf Shores
City of Grand Rapids
City of Greensboro, North Carolina
City of Grove City, Ohio (City of Grove City,
OH)
City of Gulf Shores, Alabama
City of Hammond, Michigan
146a
City of Henderson, Nevada
City of Houston, Texas
City of Huntsville, Alabama
City of Kasson, Minnesota
City of Kirkland, Washington
City of Lancaster, Texas
City of LaGrande, Oregon
City of Las Vegas, Nevada
City of Longmont, Colorado
City of Lucas, Texas
City of New Ulm, Minnesota
City of North Oaks
City of North Ridgeville, Ohio
City of Oak Park Heights
City of Philadelphia
City of Plymouth, Minnesota
City of Prior Lake, Minnesota
City of Red Wing
City of Richardson Texas
City of Rowlett Texas
City of Saint Paul, Minnesota and the City’s
Board of Water Commissioners
City of San Antonio, Texas
City of Scottsdale
City of SeaTac, Washington (City of SeaTac,
WA)
City of Sebastopol
City of Tyler
City of Walker, Michigan
City of Wichita and Sedgwick County, Kansas
Clear Creek County, Colorado
147a
Coalition for Local Zoning Authority City of
Los Angeles, et al. (Coalition for Local Zon-
ing Authority)
Connecticut Siting Council, State of Connecti-
cut
County of Albemarle, Virginia
County of Frederick, Virginia
County of Goochland & Office of the County
Attorney
County of Sonoma (Sonoma County, CA)
Craven County Board of Commissioners
CTIA - The Wireless Association (Petitioner)
Domagoj Vucic
Donna G. Haldane
DuPage Mayors and Managers Conference
Elizabeth Kelley
Evelyn Savarin
FCC Intergovernmental Advisory Committee
Fairfax County, VA
Federal Aviation Administration (FAA)
Florida Airports Council
Florida Department of Transportation
GMTC-RCC
George Heartwell, Mayor of City of Grand
Rapids, Michigan
Glenda Cassutt
Goochland County, Virginia
Grand County, Colorado
Gray Robinson, P.A.
Greater Metro Telecommunications Consor-
tium, et al.
Incorporated Village of Laurel Hollow
Iredell County, North Carolina
148a
Jill Koontz
Kimberly Kitano
La Grande, Oregon
League of Minnesota Cities
League of Oregon Cities
Lee County Port Authority
Louisville Regional Airport Authority
Maria S. Sanchez
Marilyn Stollon
Marjorie Lundquist
MetroPCS Communications, Inc. (MetroPCS)
Michael C. Seamands
Michigan Municipalities and Other Concerned
Communities (Michigan Municipalities)
Miranda Taylor
Miriam Dyak
Missouri State Aviation Council
National Agricultural Aviation Association
National Association of Counties (NACo)
National Association of State Aviation Offi-
cials
National Association of Telecommunications
Officers and Advisors, National League of
Cities, and United States Conference of
Mayors (NATOA et al.)
National Emergency Number Association
(NENA)
NextG Networks, Inc. (NextG Networks)
North Carolina Association of County Com-
missioners (N.C. Assoc. of County Commis-
sioners)
North Carolina Chapter of the American
Planning Association
149a
North Carolina Department of Transporta-
tion’s Division of Aviation
North Carolina League of Municipalities
Northwest Municipal Conference
NYC Council Member Tony Avella, Chair,
Zoning and Franchises Subcommittee
Olemara Peters
Olmsted County Board of Commissioners
Palm Beach County Planning, Zoning &
Building Department
PCIA—The Wireless Infrastructure Associa-
tion and The DAS Forum
Piedmont Environmental Council, Citizens for
Fauquier County, Shenandoah
Valley Network, and Appalachian Trail Con-
servancy
Pima County, Arizona
Prince William County, Virginia
Robeson County, North Carolina
Rural Cellular Association
SCAN NATOA, Inc. (SCAN NATOA)
San Francisco Neighborhood Antenna-Free
Union
Sandi Maurer
Sanford Airport Authority
Soledad M. de Pinillos
Sprint Nextel Corporation (Sprint Nextel)
State of Connecticut
Stokes County, North Carolina (Stokes
County, N.C.)
Susan Izzo
Texas Municipal League
The Colony, Texas
150a
The EMR Network
The EMR Policy Institute (EMRPI)
The League of California Cities, the California
State Association of Counties, and the City
and County of San Francisco (California
Cities)
The University of Michigan (University of
Michigan)
T-Mobile USA, Inc. (T-Mobile)
Town of Alton, New Hampshire
Town of Apex, North Carolina
Town of Cary, North Carolina
Town of Gilbert, Arizona
Town of Grand Lake, Colorado
Town of Matthews, North Carolina
Town of Trent Woods
United States Cellular Corporation (U.S. Cel-
lular)
Varnum, Riddering, Schmidt & Howlett, LLP
Verizon Wireless
Victoria Jewett
Village of Bay Harbor, Town of Bay Harbor Is-
lands, Town of Cutler Bay, City of Holly-
wood, City of Homestead, City of Miramar,
City of Sunrise, City of Weston (Florida Cit-
ies)
Village of Alden, New York (Village of Alden,
NY)
Village of Buffalo Grove
Village of East Hills, New York
Village of Hoffman Estates
Village of Morton Grove
Village of Mount Prospect, Illinois
151a
Village of New Albany, Ohio
Village of Roslyn Estates (Nassau County,
New York)
Village of Round Lake
Village of Skokie
Wake County (North Carolina) Planning De-
partment
West Sayville Civic Association
Wichita-Sedgwick County Metropolitan Area
Planning Department
Reply Comments
American Consumer Institute Center for Citi-
zen Research
Americans for Tax Reform
Cable and Telecommunications Committee of
the New Orleans City Council
California Wireless Association (CalWA)
Citizens Against Government Waste
City of Albuquerque, New Mexico
City of Cincinnati - City Planning Department
City of New York
City of Philadelphia
City of San Antonio, Texas
City of San Diego
City of Texas City
Coalition for Local Zoning Authority City of
Los Angeles, et al. (Coalition for Local Zon-
ing Authority)
County of Fairfax, Virginia (Fairfax County)
CTIA - The Wireless Association (CTIA Reply)
152a
Greater Metro Telecommunications Consor-
tium, et al.
The League of California Cities, the California
State Association of Counties, and the City
and County of San Francisco (California
Cities)
Montgomery County, Maryland
National Association of Telecommunications
Officers and Advisors, National League of
Cities, and United States Conference of
Mayors (NATOA et al.)
National Association of Towns and Townships
NextG Networks, Inc. (NextG Networks)
Ohio Township Association
PCIA—The Wireless Infrastructure Associa-
tion and The DAS Forum
Rural Telecommunications Group, Inc.
SCAN NATOA, Inc. (SCAN NATOA)
United States Cellular Corporation (U.S. Cel-
lular)
Wisconsin Towns Association
Verizon Wireless
153a
APPENDIX B
Section 332(c) of the Communications Act of 1934
(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 per-
sonal 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 dis-
criminate 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 in-
strumentality 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 instru-
mentality, taking into account the nature and
scope of such request.
154a
(iii) Any decision by a State or local
government or instrumentality thereof to deny
a request to place, construct, or modify per-
sonal wireless service facilities shall be in
writing and supported by substantial evidence
contained in a written record.
(iv) No State or local government or in-
strumentality 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 subpara-
graph 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 expe-
dited basis. Any person adversely affected by
an act or failure to act by a State or local gov-
ernment or any instrumentality thereof that is
inconsistent with clause (iv) may petition the
Commission for relief.
(C) Definitions. For purposes of this
paragraph—
155a
(i) the term “personal wireless services”
means commercial mobile services, unlicensed
wireless services, and common carrier wire-
less exchange access services;
(ii) the term “personal wireless service
facilities” means facilities for the provision of
personal wireless services; and
(iii) the term “unlicensed wireless ser-
vice” means the offering of telecommunica-
tions services using duly authorized devices
which do not require individual licenses, but
does not mean the provision of direct-to-home
satellite services (as defined in section 303(v)).
156a
STATEMENT OF
CHAIRMAN JULIUS GENACHOWSKI
Re: Petition for Declaratory Ruling to Clarify Pro-
visions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt Under
Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as Re-
quiring a Variance, WT Docket No. 08-165.
Wireless communication—mobile—has always
been central to the FCC’s mission. And mobile has
never had greater potential to help address vital pri-
orities—including generating economic growth,
spurring job creation, and advancing national pur-
poses like health care, education, energy independ-
ence, and public safety. We must ensure that Amer-
ica leads the world in mobile.
Because mobile increasingly means broadband
as well as voice, issues involving spectrum policy and
wireless deployment will be important elements of
our National Broadband Plan, due by February 17th,
and we will hear more about that later today. But
even as we work on a National Broadband Plan, we
can and should move forward with concrete actions
to unleash the opportunity of mobile.
To that end, in August the Commission
launched inquiries into how best to promote innova-
tion, investment, and competition in the wireless in-
dustry, as well as how to protect and empower con-
sumers of wireless and other communications ser-
vices.
157a
In October, I outlined a Mobile Broadband
Agenda that included as a key element removing ob-
stacles to robust and ubiquitous mobile networks.
And with today’s Declaratory Ruling, the
Commission moves forward on that agenda and
takes an important step to cut through red tape and
accelerate the deployment of next-generation wire-
less services.
After years on the distant horizon, 4G net-
works are ready to move from the drawing board to
the marketplace. One major provider has already
launched 4G WiMAX service in select markets.
Competitors have announced plans to debut LTE
networks in major markets around the country be-
ginning next year.
The real winners here will be American con-
sumers and businesses, who will soon be able to ex-
perience mobile broadband speeds and capacities
that rival what many fixed broadband customers re-
ceive at home today. These new wireless networks
will change how we communicate and how we en-
gage in commerce. And they hold the promise of im-
proving our quality of life. To take one example of-
fered by the American Telemedicine Association in
encouraging us to take the step we take today, next
generation wireless networks will allow doctors to
start using mobile technology to monitor and treat
chronic illnesses like heart disease and to improve
doctor-patient communications.
Accelerating the deployment of these new
networks is obviously a critical goal for the nation.
But there is a lot of work that remains to be done be-
158a
fore we can enjoy their benefits, and it won’t be easy.
We at the FCC understand the many challenges mo-
bile operators face in turning engineering plans into
actual networks of steel towers, antennas, silicon
chips, and sophisticated electronics. We understand
that sometimes the Commission needs to act, to es-
tablish clear rules of the road to reduce uncertainty
and delay, spur investment, encourage innovation,
and ensure that the benefits of advanced communi-
cations are available to all Americans.
Today’s ruling is one example of creating such
rules. One challenge mobile operators face is getting
timely zoning approvals from state and local officials
before building towers or deploying new equipment.
Recognizing this problem, Congress required these
entities to act on such requests “within a reasonable
period of time.” Yet, despite Congress’s strong
statement, the record before us indicates that delays
have continued to persist in too many states and lo-
calities.
For example, at the time the petition was
filed, of the 3,300 pending zoning applications for
wireless facilities, over 760 had been pending for
more than a year and 180 had been pending for more
than three years. There is evidence that in certain
jurisdictions the tower siting process is getting
longer, even as the need for more towers and for
timely decisions is growing.
Today’s Declaratory Ruling will help end
these unnecessary delays and speed the deployment
of 4G networks, while also respecting the legitimate
159a
concerns of local authorities and preserving their
control over local zoning and land use policies.
Our decision achieves this balance by defining
reasonable and achievable timeframes for state and
local governments to act on zoning applications—90
days for collocations and 150 days for other siting
applications. I want to be clear that the process we
establish does not dictate any substantive outcome
in any particular case, or otherwise limit state and
local governments’ fundamental authority over local
land use. It simply requires that they must reach
land use decisions that involve wireless equipment
in a timely fashion and be able to justify their con-
clusions to a federal district court if challenged, just
as Congress specified.
I should note that we reach today’s Ruling in
response to a petition brought by CTIA, the wireless
industry’s trade association, and I would like to ac-
knowledge CTIA’s role in bringing this important is-
sue to the Commission’s attention. The decision we
reach today does not grant the full relief that the in-
dustry’s petition seeks—for example, the petition ar-
gued for a shorter set of deadlines, and a require-
ment that zoning applications be “deemed granted”
as soon as the deadlines expired. I believe that the
timeframes we adopt today, and the requirement
that parties seek injunctive relief from a court, are
more consistent with preserving State and local sov-
ereignty and with the intent of Congress.
Nevertheless, I believe the rules we adopt to-
day are amply sufficient to the task and will have an
important effect in speeding up wireless carriers’
160a
ability to build new 4G networks—which will in turn
expand and improve the range of wireless choices
available to American consumers. Of course, we
won’t rely just on a belief that our rules are having
the effects we intend. We will continue to monitor
this area closely and ensure that the zoning process
with respect to tower siting is operating in the way
Congress intended.
I would also like to thank the many able rep-
resentatives of state and local governments who
have worked with my office and the Wireless Bureau
to ensure that today’s ruling respects the legitimate
needs and prerogatives of local land use authorities.
And of course special thanks to Ruth Milkman
and her hardworking staff in the Wireless Bureau
for their excellent work on this item, and for striving
to strike a smart and effective balance between the
deployment and expansion of wireless networks and
preserving state and local zoning authority.
161a
STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
Re: Petition for Declaratory Ruling to Clarify Pro-
visions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt Under
Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as Re-
quiring a Variance, WT Docket No. 08-165.
Today’s action makes a further down-payment
on the objectives of the National Broadband Plan to
ensure that all Americans have access to Twenty-
first century communications. Wireless service is
clearly going to play—is already playing—a huge
role in delivering broadband to rural areas—with the
capability of offering connectivity where none exists
today and mind-boggling new services to consumers
as networks are upgraded. Building wireless broad-
band infrastructure—and building it expeditiously—
is integral to our nation’s success in too many ways
to recount here this morning. Nor do we have to go
beyond the obvious in pointing out how urgent it is
to have tower infrastructure in place to support all
this.
Building new wireless towers and attaching
additional antennae to existing towers generally re-
quire—and rightly so—State and local zoning ap-
proval. State and local governments are the ones
best positioned to take into account the legitimate
interests of citizens in their communities in often-
complex zoning decisions. Congress, in enacting Sec-
tion 332 of the Communications Act, preserved this
important zoning role that State and local authori-
162a
ties play. At the same time, in order to encourage
the expansion of wireless networks nationwide, Con-
gress directed that zoning decisions be made “within
a reasonable period of time,” allowing court review
for failure to act within that timeframe.
In today’s decision, we seek to provide greater
certainty to both State and local governments, as
well as to the wireless industry, as to what consti-
tutes a reasonable period of review for collocation
and other tower siting applications. Based on the
record and our interpretation of the statute, we clar-
ify the point at which an applicant may seek—
should it choose to do so—court review where a State
or local zoning authority has not acted. While we
establish a presumption here, nothing in this deci-
sion reduces the authority of a court of relevant ju-
risdiction from assessing, based on the merits of any
individual case, whether a zoning review of more
than 90 days for collocation applications or 150 days
for other tower siting applications is reasonable.
I am a great believer in our federal system of
government, and have not been shy in the past about
opposing Commission action that unnecessarily en-
croached on the authority of State and local govern-
ments. It is for that reason that I strongly dissented
from the 2006 Local Franchising Order—which I
thought went too far in usurping the authority of lo-
cal franchising authorities without an adequately
granular record to justify such action. Additionally,
the Commission announced in that previous decision
that a cable franchise application pending for more
163a
than a given timeframe was deemed granted. Noth-
ing subtle about that approach!
We take no such actions today. Instead, we
actually recognize the rights of State and local juris-
dictions and also the importance of the courts. We
refrain from dictating final outcomes. But we give
an important boost to getting this important infra-
structure building job done so that consumers may
reap more of the blessings of the great potential of
wireless technologies and services. That looks like a
win-win-win to me. So I commend the Chairman for
getting this important item to us, and I thank all my
colleagues, and the Bureau, too, for their hard work
and for listening to the concerns of all parties as we
went about crafting today’s ruling. It’s fair and bal-
anced for real and I am pleased to support it
164a
STATEMENT OF
COMMISSIONER ROBERT M. McDOWELL
Re: Petition for Declaratory Ruling to Clarify Pro-
visions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt Under
Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as Re-
quiring a Variance, WT Docket No. 08-165.
In pursuit of helping to create more choices for
consumers, I have long emphasized the importance
of removing regulatory roadblocks to ease the ability
of new entrants, and existing service providers, to
build more delivery platforms for innovative ser-
vices. For instance, I heartily supported the Com-
mission’s work to: free up the TV white spaces for
unlicensed use, set shot clocks for local video fran-
chise proceedings, and classify broadband services –
no matter the platform – as unregulated Title I in-
formation services, to name just a few examples.
Today we are taking yet another positive de-
regulatory step: We are promoting deployment of
broadband, and other emerging wireless services, by
reducing the delays associated with the construction
and improvement of wireless facilities. I am pleased
to support this declaratory ruling, and I thank
Chairman Genachowski for his leadership in this
area.
Our ruling strikes an elegant balance between
establishing a deregulatory national framework to
clear unnecessary underbrush, while preserving
state and local control over tower siting. In creating
deadlines for decisions on wireless siting requests –
165a
90 days for the review of collocation applications and
150 days for the review of other siting applications –
we have both granted the industry greater certainty
and provided our state and local colleagues reason-
able periods for action, as well as the flexibility, to
fully consider the nature and scope of a particular
siting request. Put another way, our action elimi-
nates unreasonable delay and uncertainty, the costs
of which are passed on to wireless consumers, and
allows our state and local colleagues the continued
ability to safeguard the interests of their constitu-
ents. As we fashion a National Broadband Plan for
Congress, we should continue to adopt simple initia-
tives to speed broadband deployment such as this
one, which will help spur America’s Internet econ-
omy, create jobs, and make us more competitive in-
ternationally.
On a related point, in recent months, I have
heard many in the wireless industry and elsewhere
call for “more spectrum.” Some have suggested a
critical need for many hundreds of megahertz. I
fully agree that identifying additional bandwidth for
long-term growth is a necessary and worthy en-
deavor, and I look forward to engaging in that effort.
In the meantime, though, I hope that today’s action
– and the associated reduction in regulatory costs –
will also free up capital that may be more effectively
used to take better advantage of the immediate fixes
already available in the marketplace. These include
more robust deployment of enhanced antenna sys-
tems; improved development, testing and roll-out of
creative technologies, where appropriate, such as
cognitive radios; and enhanced consideration of, and
166a
more targeted consumer education on, the use of
femto cells. Each of these technological options
augments capacity and coverage, which are espe-
cially important for data and multimedia transmis-
sions.
In short, the Commission’s action today will
save the builders of tomorrow’s broadband infra-
structure time and money. It is my hope that those
two crucial resources will be used to squeeze more
efficiency out of the airwaves while we undergo the
slower process of identifying and bringing more spec-
trum to market. Accordingly, I eagerly anticipate
learning more about the benefits that our decision
today has on technological improvements and, ulti-
mately, on consumers.
Thank you to Ruth Milkman and the talented
Wireless Telecommunications Bureau staff. Also,
many thanks to Austin Schlick and his team in OGC
for strengthening the legal arguments underpinning
this ruling. We especially appreciate the close coor-
dination among your teams and the 8th floor offices
on this draft. Today is a win-win due in no small
part to your efforts.
167a
STATEMENT OF
COMMISSIONER MIGNON L. CLYBURN
Re: Petition for Declaratory Ruling to Clarify Pro-
visions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt Under
Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as Re-
quiring a Variance, WT Docket No. 08-165.
One of the challenges we sometimes face at
the Commission is harmonizing federal and local in-
terests. Having recently arrived at the FCC from a
state commission, I understand both sides of this oc-
casionally unavoidable tension. In my experience,
when these interests collide, the most appropriate
path to resolution can be found in the answer to one
simple question: What outcome is best for consum-
ers?
Today’s item, which explains what constitutes
a “reasonable period of time” to act on a wireless fa-
cility siting application, provides a textbook example
of the merits of such an approach. On the one hand,
states and localities have understandably expressed
concern about ceding power over zoning decisions –
determinations that are clearly within their purview.
On the other hand, the Commission has a strong in-
terest in ensuring the timely rollout of robust wire-
less networks throughout the country, especially in
light of our statutory obligation to develop a national
broadband plan. By asking ourselves what is best
for consumers – in this case whether a specified rea-
sonable time period for acting on wireless facility sit-
ing applications is more advantageous than an
168a
unlimited and undefined timeframe – we are able to
arrive at a decision that, in reality, makes good
sense for all parties.
There is simply no reason to allow an intermi-
nable process for these applications. Consumers suf-
fer when any governmental body – federal, state, or
local – unnecessarily stands in the way of making
timely determinations that have a direct impact on
the quality of their lives. At the same time, consum-
ers are harmed when arbitrary and unreasonable
timeframes are imposed that speed up a process, re-
sulting in decisions lacking appropriate due process
protections or that are based on insufficient evi-
dence.
Today’s compromise preserves, as it must,
state and local governments’ roles as the arbiters of
the merits of wireless service facility siting applica-
tions. It also, based on the record developed, pro-
vides the presumptively reasonable timeframes re-
quired to process these applications. In fact, the
item merely adopts the time frames under which
many responsible jurisdictions already operate in
practice.
The compromise also recognizes, however,
that a need has arisen for the Commission to act
pursuant to its authority under the Communications
Act, in order to ensure that other important Con-
gressional and Commission goals are achieved. By
giving meaning to the phrase “a reasonable period of
time,” we are breathing life into a provision of the
Act that is essential to our mobile future. Consum-
ers rely on all of us – federal, state, and local gov-
169a
ernments – to be responsible and responsive, and by
ensuring an orderly siting application process, we
are doing just that.
I would like to thank the staff of the Wireless
Telecommunications Bureau and the Office of the
General Counsel for their terrific work on this pro-
consumer item. In developing this fine solution to a
tricky problem, they have appropriately accounted
for all of the legitimate interests involved, and have
arrived at an answer that will benefit the provision
of mobile services in the near future. I am pleased to
support this item. Thank you.
170a
STATEMENT OF
COMMISSIONER MEREDITH ATTWELL BAKER
Re: Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt Under
Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 08-165.
Wireless broadband is improving the quality of lives
across the country. By 2020 it is expected that most
people will access the Internet with a wireless device
and that most broadband networks will contain wire-
line and wireless components. As we are learning
every day, building the infrastructure necessary to
support those networks, to bring the benefits of
these networks to the people who need them, any
place, any time is an enormous challenge.
Our action today addresses one important aspect of
network infrastructure deployment—the time it can
take to build out wireless infrastructure--and will
help facilitate the process of building or upgrading
the towers that are necessary to support our wireless
broadband. However, it is only a first step. We will
need to continue to look for ways to encourage and
facilitate broadband deployments in ways that are
consistent with the needs and interests of the com-
munities where they are deployed.
The item before us carefully balances several con-
cerns in accomplishing the Commission’s goal. First,
the item recognizes the rights and duties of local
communities to review and approve applications for
zoning approvals for wireless communications facili-
171a
ties. At the same time, the item also appreciates the
need to provide greater timeliness and certainty to
the men and women who build our mobile broadband
infrastructure.
Several years ago, I was involved NTIA’s compre-
hensive effort to lower barriers for broadband inno-
vation, which included a process for streamlining
and simplifying permitting on federal lands for
rights-of-way, including tower siting. It was a useful
undertaking that helped spur wireless deployments
in previously unserved areas. I hope our action to-
day will be equally successful.
In general, as we seek to promote and encourage our
nation’s broadband infrastructure, and particularly
mobile broadband, we should always seek ways to
streamline the deployment process while at the same
time preserving the interests of local communities. I
believe the item before us is a step in the right direc-
tion.
I am especially pleased that our item today recog-
nizes the streamlined tower citing procedures that
are already in place in a number of states across the
country, and hope other states will follow their lead
as well.
I thank the Chairman and the Bureau leadership for
bringing this item before the Commission, and am
pleased to join my colleagues in lending my support.
172a
APPENDIX C
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Petition for Declaratory
Ruling to Clarify Provisions
of Section 332(c)(7)(B) to
Ensure Timely Siting
Review and to Preempt
Under Section 253 State and
Local Ordinances that
Classify All Wireless Siting
Proposals as Requiring a
Variance
WT Docket No.
08-165
ORDER ON RECONSIDERATION
Adopted: August 3, 2010 Released: August 4, 2010
By the Commission:
I. INTRODUCTION
1. Last November, the Commission in a
Declaratory Ruling established timeframes for State
and local governments to act on wireless facility sit-
ing applications. Five organizations representing
local governments requested that we reconsider a
portion of that ruling relating to the suspension of
these time periods when an application is incomplete
as filed. Today, we reaffirm our decision that the
173a
timeframes – 90 days for collocations and 150 days
for other wireless facility siting applications – are
automatically tolled only when the reviewing gov-
ernment notifies the applicant of the incompleteness
within the first 30 days after receipt. In so doing, we
promote the timely deployment of innovative broad-
band and other wireless services while preserving
the legitimate authority of State and local govern-
ments, in furtherance of the goals of our initial deci-
sion and consistent with the recommendations of the
National Broadband Plan.
II. BACKGROUND
2. On July 11, 2008, CTIA–The Wireless
Association® (CTIA) filed a petition requesting that
the Commission issue a declaratory ruling clarifying
the provisions of the Communications Act that pro-
vide for State and local review of personal wireless
facility siting applications.1 Principally, CTIA
sought clarification of provisions in Section 332(c)(7)
of the Communications Act that it contended were
ambiguous and had been interpreted in a manner
that allowed zoning authorities to impose unreason-
able impediments to wireless facility siting and the
provision of wireless services.
1 In the Matter of Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting
Review and to Preempt under Section 253 State and Local
Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, Petition for Declaratory Ruling of CTIA–
The Wireless Association®, WT Docket No. 08-165, filed July
11, 2008 (CTIA Petition).
174a
3. Section 332(c)(7) of the Communica-
tions Act generally preserves State and local author-
ity over wireless facility siting, while also placing
important limitations on that authority. Section
332(c)(7)(B)(ii) states that State or local governments
must act on requests for personal wireless service
facility sitings “within a reasonable period of time.”2
Section 332(c)(7)(B)(v) provides that “[a]ny person
adversely affected by any final action or failure to
act” by a State or local government on a personal
wireless service facility siting application “may,
within 30 days after such action or failure to act,
commence an action in any court of competent juris-
diction.”3
4. On August 14, 2008, the Wireless Tele-
communications Bureau (WTB) requested comment
on the Petition.4 Hundreds of comments and replies
were filed in response to WTB’s Public Notice, in-
cluding comments from wireless service providers,
tower owners, local and State government entities,
and airport authorities.5 In the Commission’s Rul-
2 47 U.S.C. § 332(c)(7)(B)(ii).
3 47 U.S.C. § 332(c)(7)(B)(v). See also Ruling, 24 FCC Rcd at
14008-10 ¶¶ 37-42.
4 Wireless Telecommunications Bureau Seeks Comment On
Petition For Declaratory Ruling By CTIA–The Wireless
Association® To Clarify Provisions Of Section 332(c)(7)(B) To
Ensure Timely Siting Review And To Preempt Under Section
253 State And Local Ordinances That Classify All Wireless
Siting Proposals As Requiring A Variance, WT Docket No. 08-
165, Public Notice, 23 FCC Rcd 12198 (WTB 2008) (Public
Notice).
5 See generally WT Docket No. 08-165.
175a
ing,6 in response to record evidence of “lengthy and
unreasonable delays” involving zoning authority re-
view of tower and antenna siting applications,7 the
Commission, among other things, clarified provisions
of Section 332(c)(7) relating to the timeliness of ac-
tion on these applications.8 The Commission found
that unreasonable delays in a significant number of
cases had obstructed the provision of wireless ser-
vices.9 Such delays, the Commission concluded, im-
pede advances in coverage, deployment of advanced
wireless communications services, and competition
that Congress has deemed critical.10
5. To address these findings, the Commis-
sion interpreted what constitutes a “reasonable pe-
6 In the Matter of Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting
Review and to Preempt under Section 253 State and Local
Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 08-165, Declaratory
Ruling, 24 FCC Rcd 13994 (2009) (Ruling).
7 Ruling, 24 FCC Rcd at 14004-06 ¶¶ 32-33.
8 See 47 U.S.C. § 332(c)(7)(B)(ii),(v); see also Ruling, 24 FCC
Rcd at 14010-15 ¶¶ 43-53. The Commission also found that it
is a violation of Section 332(c)(7)(B)(i)(II) of the
Communications Act for a State or local government to deny a
personal wireless service facility siting application because
service is available from another provider. See id. at 14015-19
¶¶ 54-65. In addition, the Commission denied a request to find
that a State or local regulation that requires a variance or
waiver for every wireless facility siting violates Section 253(a)
of the Communications Act. See id. at 14019-20 ¶¶ 66-67.
9 Id. at 14005-06 ¶¶ 33-34.
10 Id. at 14007-08 ¶ 35.
176a
riod of time” and a “failure to act” under Section
332(c)(7) of the Communications Act. The Commis-
sion found that 90 days for processing collocation
applications and 150 days for processing applications
other than collocations are generally reasonable
timeframes.11 The Commission further determined
that failure to meet the applicable timeframe pre-
sumptively constitutes a failure to act under Section
332(c)(7)(B)(v), enabling an applicant to pursue judi-
cial relief within the next 30 days.12 The Commis-
sion defined these time periods as rebuttable pre-
sumptions and acknowledged that more time may be
needed in individual cases.13 In particular, in the
event an applicant pursues a judicial remedy, the
Commission stated that the State or local authority
has the opportunity to rebut the presumption that a
delay was unreasonable.14 Ultimately, the Commis-
sion stated, the court in each case will find whether
the delay was in fact unreasonable under the cir-
cumstances of the case.15 Thus, the Commission’s
Ruling reduces delays in the construction and im-
provement of wireless networks while preserving the
authority of States and localities to make the ulti-
mate determination on local zoning and land use
policies.
11 See Ruling, 24 FCC Rcd at 14012 ¶ 45.
12 See id.; see also 47 U.S.C. § 332(c)(7)(B)(v).
13 See, e.g., Ruling, 24 FCC Rcd at 14004-05, 14010, 14011 ¶¶
32, 42, 44.
14 See id. at 14004-05 ¶ 32.
15 See id. at 13995 ¶ 4.
177a
6. The Commission also defined certain
circumstances that would warrant adjustments to
the presumptive deadlines, including when the ap-
plicant fails to submit a complete application or to
file necessary additional information in a timely
manner.16 Specifically, the Commission stated that
“when applications are incomplete as filed, the time-
frames do not include the time that applicants take
to respond to State and local governments’ requests
for additional information.”17 This automatic tolling,
however, applies only if a zoning authority notifies
an applicant within the first 30 days that its applica-
tion is incomplete.18 The Commission concluded that
allowing for such tolling balances the need for a
State or local government to have sufficient time to
review an application for completeness with the in-
terests of the applicant against a last-minute deci-
sion finding its application incomplete.19 In addi-
tion, the Commission clarified that the presumptive
deadlines for acting on siting applications could be
extended beyond 90 or 150 days by mutual consent,
and that such agreements serve to toll the com-
mencement of the 30-day period for filing suit.20
7. On December 17, 2009, a Petition for
Reconsideration or Clarification (“Petition”) was filed
by the National Association of Telecommunications
16 See id. at 14010 ¶ 42.
17 Id. at 14014 ¶ 52.
18 Id. at 14014-15 ¶ 53.
19 See id.
20 See id. at 14013 ¶ 49.
178a
Officers and Advisors, the United States Conference
of Mayors, the National League of Cities, the Na-
tional Association of Counties, and the American
Planning Association (“Petitioners”).21 In their Peti-
tion:
Petitioners seek reconsideration and clarifica-
tion of the 30 day incompleteness deadline on
both legal and policy grounds. First, the
Commission exceeded its interpretation of its
authority under Section 332(c)(7) in imple-
menting a 30 day review for completeness
deadline because the 30 day incompleteness
21 In the Matter of Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting
Review and to Preempt under Section 253 State and Local
Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, Petition for Reconsideration or
Clarification of the National Association of Telecommunications
Officers and Advisors, the United States Conference of Mayors,
the National League of Cities, the National Association of
Counties, and the American Planning Association, WT Docket
No. 08-165, filed Dec. 17, 2009. Also on December 17, 2009,
Petitioners filed an Emergency Motion for Stay pending
Commission action on their petition. In the Matter of Petition
for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B) to Ensure Timely Siting Review and to Preempt
under Section 253 State and Local Ordinances that Classify All
Wireless Siting Proposals as Requiring a Variance, Emergency
Motion for Stay of the National Association of
Telecommunications Officers and Advisors, the United States
Conference of Mayors, the National League of Cities, the
National Association of Counties, and the American Planning
Association, WT Docket No. 08-165, filed Dec. 17, 2009. On
January 29, 2010, WTB denied this Stay Request. Order, 25
FCC Rcd 1215 (WTB 2010).
179a
deadline imposes additional limitations on
personal wireless service facility siting process
beyond those stated in Section 332(c)(7). Sec-
ond, the ability to toll the shot clock must ex-
tend to valid reasons beyond the facial incom-
pleteness of the application. Third, the 30 day
review period does not reflect the realities of
the zoning application process and will result
in significant problems for local governments
and applicants across the nation and could re-
sult in unnecessary litigation and/or siting de-
lays unless modified. Fourth, the rule should
be reconsidered based on input received by in-
terested parties because the 30 day complete-
ness rule was developed without public notice
and without prior discussions with many in-
terested parties.22
Petitioners further state that while they do not agree
with the Commission’s interpretation of its authority
under Section 332 of the Act, the Petition does not
challenge that interpretation.23 The Commission is-
sued a Public Notice on December 23, 2009, asking
for comments in response to the Petition on or before
January 22, 2010, and reply comments on or before
February 8, 2010.24 The Commission received a total
22 Petition at 4.
23 See Petition at 2.
24 Wireless Telecommunications Bureau Seeks Comment on
Petition for Reconsideration or Clarification of the
Commission’s Declaratory Ruling Clarifying Provisions in
Section 332(c) of the Communications Act, WT Docket No. 08-
165, Public Notice, 24 FCC Rcd 14703 (WTB 2009). Reply
180a
of 21 comments, oppositions and replies in response
to the Petition.25
8. On January 12, 2010, the City of Ar-
lington, Texas, filed a petition for review in the
United States Court of Appeals for the Fifth Circuit
arguing, inter alia, that the Ruling generally exceeds
the Commission’s authority.26 On February 19,
2010, the Commission filed a motion to hold the case
in abeyance pending a decision on the Petition for
Reconsideration. The City of Arlington, NATOA et
al., and other local government representatives op-
posed the motion. On March 4, 2010, the Court of
Appeals granted the Commission’s motion.27
III. DISCUSSION
A. Legal Authority to Impose a 30-Day Pe-
riod for the Automatic Triggering of
Tolling
9. Petitioners first contend that the Com-
mission exceeded its own interpretation of its au-
thority under Section 332(c)(7) of the Act.28 In the
Ruling, the Commission found that while Congress
intended “to preclude the Commission from main-
_________________
comments were not actually required to be filed until February
12, 2010, due to federal government snow closures.
25 Commenters are listed in the Appendix.
26 City of Arlington v. FCC, No. 10-60039 (5th Cir. filed Jan. 12,
2010).
27 City of Arlington v. FCC, No. 10-60039 (5th Cir. order issued
March 4, 2010).
28 Petition at 4.
181a
taining a rulemaking proceeding to impose addi-
tional limitations on the personal wireless service
facility siting process beyond those stated in Section
332(c)(7),” the Commission retains the authority to
interpret the limitations that Congress imposed in
Section 332(c)(7).29 Nevertheless, Petitioners argue,
by allowing State and local governments to toll the
timeframe for acting on an application only within
30 days after the application is filed, the Commission
created an internal deadline for completeness of an
application; and because this deadline is not con-
tained within the Communications Act, petitioners
claim, it constitutes a “new limitation” on State and
local governments in violation of the Commission’s
interpretation of its own authority.30
10. We disagree with Petitioners’ argument
that by defining the period within which the time-
frame for acting on an application may be tolled
automatically, the Commission established a new
limitation on State and local governments that was
29 Ruling, 24 FCC Rcd at 14002 ¶ 25. The Commission was
interpreting the Conference Report on the Telecommunications
Act, which provides that “[a]ny pending Commission
rulemaking concerning the preemption of local zoning authority
over the placement, construction or modification of CM[R]S
facilities should be terminated.” H.R. Conf. Rep. No. 104-458,
104th Congress, 2nd Sess. 208 (1996).
30 See Petition at 5. Government entities that commented on
Petitioners’ legal argument that the 30-day period exceeded the
Commission’s interpretation of its own authority uniformly
supported Petitioners’ analysis. See, e.g., Los Angeles
Comments at 2; San Antonio Comments at 2; Philadelphia
Comments at 2; Livonia Comments at 2.
182a
not within the statute. The Commission determined
that the timeframe may be tolled due to an applica-
tion’s incompleteness, and then specified the circum-
stances under which this tolling may occur, in order
to define how the 90- and 150-day time periods es-
tablished in the Ruling are to be counted in inter-
preting “a reasonable period of time.” In other
words, both the tolling provision and the conditions
for its application address to what extent “a reason-
able period of time” includes or excludes the time for
completing an application upon notification by the
State or local government. The period for tolling is
an integral part of the Commission’s interpretation
of what constitutes a “reasonable period of time,”
and thus is consistent with the Commission’s inter-
pretation of its statutory authority.
11. Moreover, the Commission is under no
statutory obligation to adopt any provision for auto-
matic tolling of the presumptively reasonable time
periods. Petitioners argue that the specification of a
time period for automatic tolling is a “new limita-
tion” on State and local governments, and that the
absence of such a period would allow a State or local
government to unilaterally toll the applicable time-
frame at any point in the process. However, the
Commission would have been within its discretion to
define a “reasonable period of time” without allowing
for any automatic tolling. The Commission included
the automatic tolling provision to address concerns
raised by State and local governments in their com-
ments.31 CTIA's Petition proposed firm timeframes
31 See Ruling, 24 FCC Rcd at 14014 ¶ 52, n.155.
183a
and did not contemplate any circumstances under
which those timeframes would be tolled.32
12. In addition, we note that although Peti-
tioners assume for the purposes of their Petition that
the Commission has the authority to interpret what
is a “reasonable period of time,” their challenge to
the tolling period undercuts this assumption. Were
State and local governments able unilaterally to toll
the decisionmaking period at any time, the Commis-
sion’s authority to define the presumptively reason-
able period in which the statute requires them to act,
which Petitioners assert they are not challenging
here, would be rendered meaningless.
B. Policy Considerations for the 30-Day
Limitation on the Automatic Triggering
of Tolling
13. In addition to their legal argument
against the 30-day limitation on the automatic trig-
gering of tolling, Petitioners offer three policy argu-
ments for modifying this limitation. First, Petition-
ers argue that there are legitimate reasons for toll-
ing the applicable shot clock period that the Ruling
does not address.33 Petitioners note that sometimes,
local governments must get approval or other infor-
mation from governmental or quasi-governmental
entities, such as the Federal Aviation Administra-
tion (FAA), Federal or State environmental authori-
ties, and power utilities, before an application can be
32 See generally, CTIA Petition at 24-27.
33 See Petition at 6.
184a
approved, and that the local government has no con-
trol over the time it takes for these entities to com-
plete their review processes.34 Petitioners contend
that under such circumstances, the applications are
not “incomplete,” nor is the local authority at fault
for the delay.35 Petitioners also argue that in some
instances, the applicant’s action or inaction in com-
pleting obligations related to the review process can
prevent that process from being completed within
the applicable time period.36 As an example, Peti-
tioners note that many jurisdictions require the ap-
plicant to follow publication and notice requirements
before public hearings are convened on a zoning ap-
plication. Petitioners state that if the applicant
makes a mistake in this process, the local govern-
ment has no legal power to proceed with the hear-
ing.37
14. Second, Petitoners predict that the 30-
day tolling period will cause various undesirable
changes in the way zoning authorities process tower
siting applications. They contend that when areas of
concern become known after the 30-day period for
tolling has passed, many State and local govern-
ments will now deny the applications because they
will have insufficient time to engage in necessary fol-
34 See id.; Mentor Comments at 2-3; Fairfax Reply Comments
at 4.
35 See Petition at 6.
36 See id. at 7.
37 See id. See also GMTC Comments at 3-4.
185a
low-up exchanges and modifications.38 In addition,
because State and local governments will not want
to find themselves in need of additional information
after the 30-day period for tolling has lapsed, they
will be forced to adhere to rigid application processes
instead of the more informal zoning processes that
are used for other types of applications.39 Further,
many State and local governments will seek addi-
tional information in the initial filing, even though
such information would be unnecessary for most ap-
plications.40 Petitioners also express concern that in
some instances, rather than face the risk and ex-
pense of litigation, a zoning authority with limited
resources may grant an application that it could not
process within the 90- or 150-day timeframe due to a
delay caused by the applicant or a third party, even
though the State or local government would likely
prevail on the merits.41
15. Third, Petitioners argue that due proc-
ess and fairness require that the rule be reconsid-
ered because the 30-day completeness rule was not
contained in CTIA’s Petition for Declaratory Ruling,
and was developed without public notice and without
prior discussions with interested parties.42 Petition-
38 See id. at 7-8. See also, e.g., Portland Comments at 4;
Albuquerque Comments at 2; Philadelphia Comments at 4-5.
39 See Petition at 8-9. See also Hoffmann Estates Comments at
4-5.
40 See Petition at 8-9.
41 See Petition at 7.
42 See Petition at 10. See also Albuquerque Comments at 3;
186a
ers clarify in their Reply that they take no position
on whether the Commission’s decision to create a 30-
day period for automatically triggering tolling vio-
lated the Administrative Procedure Act; rather, their
concern is that the absence of a full record allegedly
created unintended consequences.43
16. We find Petitioners’ policy arguments
unpersuasive. Fundamentally, the concerns Peti-
tioners assert are addressed by the framework estab-
lished in the Ruling. In particular, the Ruling pro-
vides both that the parties may agree to extend the
presumptive deadline,44 and that the reasonableness
of delay in any case shall be considered by the
court.45 Thus, a State or local government may seek
a tolling agreement with the applicant when a delay
outside the control of the State or local government
occurs, either due to the applicant or to a third
party. Similarly, the State or local government may
request extension of the review period when it needs
to ask an applicant for additional information or
_________________
Fairfax Reply Comments at 2.
43 Petitioners Reply Comments at 4.
44 See Ruling, 24 FCC Rcd at 14013 ¶ 49 (“a ‘reasonable period
of time’ may be extended beyond 90 or 150 days by mutual
consent of the personal wireless service provider and the State
or local government, and . . . in such instances, the
commencement of the 30-day period for filing suit will be
tolled”).
45 See id. at 14010 ¶ 42 (“the State or local authority will have
the opportunity, in any given case that comes before a court, to
rebut the presumption that the established timeframes are
reasonable.”).
187a
analysis after the 30-day period for automatically
triggering tolling has passed. Should an applicant
refuse and instead take the matter to court, the
court will be able to consider whether and to what
extent the particular circumstances justify a deter-
mination that “a reasonable period of time” under
the statute is longer than the presumptively reason-
able 90- or 150-day period. A court may conclude, for
example, that a local government’s request for addi-
tional information on Day 40 that the applicant did
not fully answer until Day 145 was reasonable and
warrants a longer “reasonable period of time” than
the presumptive deadline provides. Thus, applicants
“will have the incentive to resolve legitimate issues
raised by State or local governments within the
timeframes defined as reasonable, or they will incur
the costs of litigation and may face additional delay
if the court determines that additional time was, in
fact, reasonable under the circumstances.”46
17. For similar reasons, we are unper-
suaded that State and local governments will find it
necessary to adopt rigidly formal review processes,
or to require unnecessary information as part of the
application, in response to the 30-day period for
automatically triggering tolling. As discussed above,
the regime described in the Ruling incorporates
flexibility to address unanticipated situations.
Given this flexibility, we expect that governments
and applicants alike will recognize the costs of un-
necessarily formal procedures and avoid them where
possible. Similarly, all parties will have incentives
46 Ruling, 24 FCC Rcd at 14008-09 ¶ 38.
188a
to avoid the uncertainty of litigation that may result
from the unnecessary denial of an application.47
18. We recognize that defending litigation
imposes costs, and that in some instances a State or
local government may choose to grant an application
rather than incur those costs. At the same time, an
overly broad tolling regime would risk countenanc-
ing delays under circumstances where they would
not be reasonable. Moreover, it is impractical to cre-
ate in advance a comprehensive list of circumstances
that would or would not reasonably merit delay.
Therefore, any automatic tolling regime must neces-
sarily balance the risks of engendering litigation and
condoning excessive delay. In the Ruling, the Com-
mission determined that in the common case of an
incomplete application that is discovered within 30
days, a delay should be presumed reasonable and the
review period should be automatically tolled in order
to avoid unnecessary litigation. Where the delay is
due to other causes or the incompleteness is identi-
fied after more than 30 days, case-by-case considera-
tion, in the first instance by the parties, and then by
the court if necessary, is more prudent. Nothing in
the record on reconsideration causes us to revisit
this balance.
19. With respect to Petitioners’ assertion
that the Commission did not seek or receive suffi-
cient information on which to base its decision to
limit the period for automatic tolling, we find that
the record demonstrates otherwise, and that the Rul-
47 See id. at 14008-09 ¶ 39.
189a
ing reflects this. Various government entities raised
the issue that rigid timeframes do not account for
incomplete filings.48 MetroPCS proposed a three-day
review period for a State or local government to de-
termine whether an application is complete, a pro-
posal that CTIA supported.49 Later, PCIA proposed
a 10-day period for tolling,50 and then a 10-business-
day period.51 While the specific length of 30 days
was not proposed in the record, the Commission re-
viewed state statutes that were submitted into the
record in selecting that time period, concluding that
30 days “gives State and local governments sufficient
time for reviewing applications for completeness,
while protecting applicants from a last minute deci-
sion that applications should be denied as incom-
plete.”52 To the extent Petitioners are concerned
that any lack of comment impeded the Commission
from taking into account the ramifications of the 30-
48 See id. at 14014 ¶ 52 n.155.
49 See id. at 14014 ¶ 52, nn. 156-157.
50 See Ex Parte Letter from Michael D. Saperstein, Jr., Esq.,
Public Policy Analyst, PCIA – The Wireless Association, to
Marlene H. Dortch, Secretary, Federal Communications
Commission, WT Docket No. 08-165, Att. at 7 (filed Dec. 5,
2008).
51 See Ex Parte Letter from Michael Fitch, Esq., President and
CEO, PCIA – The Wireless Association, to Marlene H. Dortch,
Secretary, Federal Communications Commission, WT Docket
No. 08-165, at 3-4 (filed Oct. 23, 2009).
52 Ruling, 24 FCC Rcd at 14015 ¶ 53.
190a
day period for tolling,53 our review of the issues
raised here addresses this concern.
C. Other Issues
20. Several commenters raise issues that
are beyond the scope of the Petition. San Antonio
asserts that “all of the CTIA Ruling's interpretations
of Section 332(c)(7)(B)(i), (ii) and (v) exceed the
Commission's authority. . .” and that the decision is
“a rulemaking in disguise” that “fails to comply with
the Regulatory Flexibility Act.”54 Los Angeles claims
that the 90-day period for collocation applications is
too short.55 Because these matters are outside the
scope of the Petition, they should have been raised
through timely Petitions for Reconsideration, and
not for the first time in comments on Petitioners’ Pe-
tition for Reconsideration. Accordingly, we do not
consider them here.
21. In Comments to the Petition, Albuquer-
que raises a new issue, requesting that the Commis-
sion “clarify” that the 90- or 150-day review period is
reset to zero whenever a State or local government
receives new material submitted to remedy a facially
deficient application.56 The Ruling, however, ex-
pressly states that where an application is found to
be incomplete as filed during the 30-day review pe-
riod, “the timeframes do not include the time that
53 See Petitioners Reply Comments at 4.
54 San Antonio Comments at 2.
55 Los Angeles Comments at 3.
56 Albuquerque Comments at 2.
191a
applicants take to respond to State and local gov-
ernments’ requests for additional information.”57
This means that when the information is requested,
the clock stops, and when the applicant provides the
additional information, the clock resumes (thereby
reflecting the passage of time equivalent to the time
from the initial filing of the siting application to the
date that the additional information was requested).
Because Albuquerque’s request for clarification pro-
poses – for the first time after the deadline for filing
petitions for reconsideration – to alter this approach,
the proposal is, in fact, an untimely request for re-
consideration of this part of our decision. In any
event, we are not persuaded that resuming the clock
where it left off is inappropriate in this situation.
The time spent determining that the application is
incomplete is time spent reviewing the application,
and therefore reasonably counts toward the 90 or
150 days.
22. IMLA argues that Congress’s use of the
term “final action” in Section 332(c)(7)(B)(v), and the
absence of “final” in the requirement in Section
332(c)(7)(B)(ii) that the State or local government
“shall act,” create a distinction between the trigger
for a lawsuit based on State or local government ac-
tion and the trigger for a lawsuit based on a failure
to act. IMLA contends that, accordingly, the Com-
mission must modify the Ruling to expressly provide
that the 90- and 150-day time periods only apply to
initial zoning actions, and not to the time period
from the initial decision until completion of final ac-
57 Ruling, 24 FCC Rcd at 14014 ¶ 52.
192a
tion on an administrative appeal.58 In addition to
arguing that IMLA’s request is beyond the scope of
the issues raised in the Petition for Reconsideration,
CTIA contends that the statutory reference to “final
action” is irrelevant when there has been no action.59
IMLA’s request is outside the scope of the Petition,
and we decline to render the ruling that IMLA re-
quests. Given the many variations that are possible
in local procedures and factual circumstances, it is
appropriate for the court to determine whether the
decisionmaking body has failed to act within the
specified timeframe and whether the presumptive
timeframe for action is reasonable in each case.
IV. CONCLUSION
23. We conclude that in interpreting Sec-
tion 332(c)(7), the Commission has the authority to
define a 30-day period after an application for wire-
less facility siting is filed during which a State or lo-
cal government may toll the presumptive deadline
for review due to the application’s incompleteness,
and that this 30-day period is both reasonable and
supported by the record. We therefore deny the Peti-
tion.
V. ORDERING CLAUSE
24. Accordingly, IT IS ORDERED that,
pursuant to Sections 4(i), 4(j), 303(r), 332(c)(7), and
405(a) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), 303(r),
58 See IMLA Comments at 7-10.
59 See CTIA Reply Comments at 9-10.
193a
332(c)(7), 405(a), and Section 1.106 of the Commis-
sion’s rules, 47 C.F.R. § 1.106, the Petition for Re-
consideration or Clarification filed by the National
Association of Telecommunications Officers and Ad-
visors, the United States Conference of Mayors, the
National League of Cities, the National Association
of Counties, and the American Planning Association
IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
194a
APPENDIX
List of Commenters
Oppositions and Comments
Charter Township of Waterford, Michigan
(Waterford)
City of Albuquerque, New Mexico (Albuquerque)
City of Centerville, Minnesota, Member of the North
Metro Telecommunications Commission
(Centerville)
City of Livonia, Michigan (Livonia)
City of Los Angeles, California (Los Angeles)
City of Mentor, Ohio (Mentor)
City of Philadelphia, Pennsylvania (Philadelphia)
City of Portland, Oregon (Portland)
City of San Antonio, Texas (San Antonio)
CTIA – The Wireless Association (CTIA)
Greater Metro Telecommunications Consortium
(GMTC)
International Municipal Lawyers Association (IMLA)
PCIA – The Wireless Infrastructure Association
(PCIA)
T-Mobile USA, Inc. (T-Mobile)
Verizon Wireless
Village of Hoffman Estates, Illinois (Hoffman
Estates)
Reply Comments
CTIA
Fairfax County, Virginia (Fairfax)
National Association of Telecommunications Officers
and Advisors, The United States Conference of
Mayors, National League of Cities, National
195a
Association of Counties, American Planning
Association, and the City of Laredo, Texas
(Petitioners)
PCIA
Late-Filed Reply Comment
Kiku Lani Iwata
196a
APPENDIX D
Date Filed: 3/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 10-60039
CITY OF ARLINGTON, TEXAS, CITY OF SAN
ANTONIO, TEXAS
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA,
Respondents
________________
Petition for Review of an Order of the
Federal Communications Commission
_________________
ON PETITION FOR REHEARING EN BANC
(Opinion ___, 5 Cir., ____, ____, F.3d ____)
Before DAVIS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:
(x) Treating the Petition for Rehearing En Banc
filed by Intervenors City of Dubuque, Iowa;
City of Los Angeles, California; Los Angeles
197a
County, California; Texas Coalition of Cities
for Utility Issues, and Petitioner City of Ar-
lington, Texas as a Petition for Panel Rehear-
ing, the Petition for Panel Rehearing is DE-
NIED. No member of the panel nor judge in
regular active service of the court having re-
quested that the court be polled on Rehearing
En Banc (Fed. R. App. P. and 5th Cir. R. 35),
the Petition for Rehearing En Banc is DE-
NIED.
(x) Treating the Petition for Rehearing En Banc
filed by Intervenor Cable and Telecommunica-
tions Committee of the New Orleans City
Council as a Petition for Panel Rehearing, the
Petition for Panel Rehearing is DENIED. No
member of the panel nor judge in regular ac-
tive service of the court having requested that
the court be polled on Rehearing En banc
(Fed. R. App. P. and 5th Cir. R. 35), the Peti-
tion for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
/s/ Priscilla A. Owen
United States Circuit Judge
198a
APPENDIX E
STATUTES AND LEGISLATIVE HISTORY
FEDERAL STATUTES
Section 1 of the Communications Act,
47 U.S.C. § 151................................................199a
Section 4(i) of the Communications Act,
47 U.S.C. § 154(i) ...........................................200a
Section 201(b) of the Communications Act,
47 U.S.C. § 201(b) ..........................................200a
Section 303(r) of the Communications Act,
47 U.S.C. § 303(r)............................................201a
Sections 401 of the Communciations Act,
47 U.S.C. § 401 ...............................................202a
Section 621 of the Communications Act,
47 U.S.C. § 541................................................203a
Section 704(b) of the Telecommunications
Act of 1996, Pub. L. 104-104, 110 Stat. 56
(Feb. 8, 1996)...................................................208a
LEGISLATIVE HISTORY
H.R. Rep. No. 104-458, at 207-208 (1996)
(Conf. Report)..................................................208a
H.R. Rep. No. 104-204, 1996 U.S.C.C.A.N. 10
(1995)...............................................................212a
199a
Section 1 of the Communications Act,
47 U.S.C. § 151
Purposes of Act; Federal Communications
Commission created
For the purpose of regulating interstate and
foreign commerce in communication by wire
and radio so as to make avail-able, so far as
possible, to all the people of the United States,
without discrimination on the basis of race,
color, religion, national origin, or sex, a rapid,
efficient, nationwide, and world-wide wire and
radio communication service with ade-quate
facilities at reasonable charges, for the purpose
of national defense, for the purpose of
promoting safety of life and property through
the use of wire and radio communication, and
for the purpose of securing a more effective
execution of this policy by centralizing
authority heretofore granted by law to several
agencies and by granting additional author-ity
with respect to interstate and foreign commerce
in wire and radio communication, there is
hereby created a commis-sion to be known as
the "Federal Communications Commission",
which shall be constituted as hereinafter
provided, and which shall execute and enforce
the provisions of this Act.
200a
Section 4(i) of the Communications Act,
47 U.S.C. § 154(i)
Federal Communications Commission
. . .
(i) Duties and powers. The Commission
may perform any and all acts, make such
rules and regulations, and issue such
orders, not inconsistent with this Act, as
may be necessary in the execution of its
functions.
Section 201(b) of the Communications Act,
47 U.S.C. § 201(b)
Service and charges
(a) It shall be the duty of every common carrier
engaged in interstate or foreign communication by
wire or radio to fur-nish such communication service
upon reasonable request therefor; and, in accordance
with the orders of the Commis-sion, in cases where
the Commission, after opportunity for hearing, finds
such action necessary or desirable in the pub-lic
interest, to establish physical connections with other
carriers, to establish through routes and charges
applicable thereto and the divisions of such charges,
and to establish and provide facilities and
regulations for operating such through routes.
(b) All charges, practices, classifications, and
regulations for and in connection with such
communication service, shall be just and reasonable,
and any such charge, practice, classification, or
regulation that is unjust or unreasonable is hereby
201a
declared to be unlawful: Provided, That
communications by wire or radio subject to this Act
may be classified into day, night, repeated,
unrepeated, letter, commercial, press, Government,
and such other classes as the Commission may
decide to be just and reasonable, and different
charges may be made for the different classes of
communications: Provided further, That nothing in
this Act or in any other provision of law shall be
construed to prevent a common car-rier subject to
this Act from entering into or operating under any
contract with any common carrier not subject to this
Act, for the exchange of their services, if the
Commission is of the opinion that such contract is
not contrary to the pub-lic interest: Provided further,
That nothing in this Act or in any other provision of
law shall prevent a common carrier subject to this
Act from furnishing reports of positions of ships at
sea to newspapers of general circulation, either at a
nominal charge or without charge, provided the
name of such common carrier is displayed along with
such ship position reports. The Commission may
prescribe such rules and regulations as may be
necessary in the public interest to carry out the
provisions of this Act.
Section 303(r) of the Communications Act,
47 U.S.C. § 303(r)
General Powers of Commission
(r) Make such rules and regulations and prescribe
such restrictions and conditions, not inconsistent
with law, as may be necessary to carry out the
202a
provisions of this Act, or any international radio or
wire communications treaty or conven-tion, or
regulations annexed thereto, including any treaty or
convention insofar as it relates to the use of radio, to
which the United States is or may hereafter become
a party.
Sections 401 of the Communciations Act,
47 U.S.C. § 401
Enforcement provisions
(a) Jurisdiction. The district courts of the United
States shall have jurisdiction, upon application of the
Attorney Gen-eral of the United States at the request
of the Commission, alleging a failure to comply with
or a violation of any of the provisions of this Act by
any person, to issue a writ or writs of mandamus
commanding such person to comply with the
provisions of this Act.
(b) Orders of Commission. If any person fails or
neglects to obey any order of the Commission other
than for the pay-ment of money, while the same is in
effect, the Commission or any party injured thereby,
or the United States, by its Attorney General, may
apply to the appropriate district court of the United
States for the enforcement of such order. If, after
hearing, that court determines that the order was
regularly made and duly served, and that the person
is in disobe-dience of the same, the court shall
enforce obedience to such order by a writ of
injunction or other proper process, man-datory or
otherwise, to restrain such person or the officers,
agents, or representatives of such person, from
203a
further dis-obedience of such order, or to enjoin upon
it or them obedience to the same.
(c) Duty to prosecute. Upon the request of the
Commission it shall be the duty of any district
attorney [United States Attorney] of the United
States to whom the Commission may apply to
institute in the proper court and to prosecute un-der
the direction of the Attorney General of the United
States all necessary proceedings for the enforcement
of the pro-visions of this Act and for the punishment
of all violations thereof, and the costs and expenses
of such prosecutions shall be paid out of the
appropriations for the expenses of the courts of the
United States.
Section 621 of the Communications Act,
47 U.S.C. § 541
General franchise requirements
(a) Authority to award franchises; public rights-of-
way and easements; equal access to service; time for
provision of service; assurances.
(1) A franchising authority may award, in
accordance with the provisions of this title [47 USCS
§§ 521 et seq.], 1 or more franchises within its
jurisdiction; except that a franchising authority may
not grant an exclusive franchise and may not
unreasonably refuse to award an additional
competitive franchise. Any applicant whose
application for a second franchise has been denied by
a final decision of the franchising authority may
appeal such final decision pursuant to the provisions
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of section 635 [47 USCS § 555] for failure to comply
with this subsection.
(2) Any franchise shall be construed to authorize
the construction of a cable system over public rights-
of-way, and through easements, which is within the
area to be served by the cable system and which have
been dedicated for compatible uses, except that in
using such easements the cable operator shall
ensure--
(A) that the safety, functioning, and appearance
of the property and the convenience and safety of
other persons not be adversely affected by the
installation or construction of facilities necessary for
a cable system;
(B) that the cost of the installation, construction,
operation, or removal of such facilities be borne by
the cable operator or subscriber, or a combination of
both; and
(C) that the owner of the property be justly
compensated by the cable operator for any damages
caused by the installation, construction, operation, or
removal of such facilities by the cable operator.
(3) In awarding a franchise or franchises, a
franchising authority shall assure that access to
cable service is not denied to any group of potential
residential cable subscribers because of the income of
the residents of the local area in which such group
resides.
(4) In awarding a franchise, the franchising
authority--
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(A) shall allow the applicant's cable system a
reasonable period of time to become capable of
providing cable service to all households in the
franchise area;
(B) may require adequate assurance that the
cable operator will provide adequate public,
educational, and governmental access channel
capacity, facilities, or financial support; and
(C) may require adequate assurance that the
cable operator has the financial, technical, or legal
qualifications to provide cable service.
(b) No cable service without franchise; exception
under prior law.
(1) Except to the extent provided in paragraph (2)
and subsection (f), a cable operator may not provide
cable service without a franchise.
(2) Paragraph (1) shall not require any person
lawfully providing cable service without a franchise
on July 1, 1984, to obtain a franchise unless the
franchising authority so requires.
(3) (A) If a cable operator or affiliate thereof is
engaged in the provision of telecommunications
services--
(i) such cable operator or affiliate shall not be
required to obtain a franchise under this title [47
USCS §§ 521 et seq.] for the provision of
telecommunications services; and
(ii) the provisions of this title [47 USCS §§ 521
et seq.] shall not apply to such cable operator or
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affiliate for the provision of telecommunications
services.
(B) A franchising authority may not impose any
requirement under this title [47 USCS §§ 521 et seq.]
that has the purpose or effect of prohibiting, limiting,
restricting, or conditioning the provision of a
telecommunications service by a cable operator or an
affiliate thereof.
(C) A franchising authority may not order a cable
operator or affiliate thereof--
(i) to discontinue the provision of a
telecommunications service, or
(ii) to discontinue the operation of a cable
system, to the extent such cable system is used for
the provision of a telecommunications service, by
reason of the failure of such cable operator or
affiliate thereof to obtain a franchise or franchise
renewal under this title [47 USCS §§ 521 et seq.]
with respect to the provision of such
telecommunications service.
(D) Except as otherwise permitted by sections
611 and 612 [47 USCS §§ 531 and 532], a franchising
authority may not require a cable operator to provide
any telecommunications service or facilities, other
than institutional networks, as a condition of the
initial grant of a franchise, a franchise renewal, or a
transfer of a franchise.
(c) Status of cable system as common carrier or
utility. Any cable system shall not be subject to
regulation as a common carrier or utility by reason of
providing any cable service.
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(d) Informational tariffs; regulation by States;
"State" defined.
(1) A State or the Commission may require the
filing of informational tariffs for any intrastate
communications service provided by a cable system,
other than cable service, that would be subject to
regulation by the Commission or any State if offered
by a common carrier subject, in whole or in part, to
title II of this Act [47 USCS §§ 201 et seq.]. Such
informational tariffs shall specify the rates, terms,
and conditions for the provision of such service,
including whether it is made available to all
subscribers generally, and shall take effect on the
date specified therein.
(2) Nothing in this title [47 USCS §§ 521 et seq.]
shall be construed to affect the authority of any State
to regulate any cable operator to the extent that such
operator provides any communication service other
than cable service, whether offered on a common
carrier or private contract basis.
(3) For purposes of this subsection, the term "State"
has the meaning given it in section 3 [47 USCS §
153].
(e) State regulation of facilities serving subscribers
in multiple dwelling units. Nothing in this title [47
USCS §§ 521 et seq.] shall be construed to affect the
authority of any State to license or otherwise
regulate any facility or combination of facilities
which serves only subscribers in one or more
multiple unit dwellings under common ownership,
control, or management and which does not use any
public right-of-way.
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(f) Local or municipal authority as multichannel
video programming distributor. No provision of this
Act shall be construed to--
(1) prohibit a local or municipal authority that is
also, or is affiliated with, a franchising authority
from operating as a multichannel video programming
distributor in the franchise area, notwithstanding
the granting of one or more franchises by such
franchising authority; or
(2) require such local or municipal authority to
secure a franchise to operate as a multichannel video
programming distributor.
Section 704(b) of the Telecommunications Act of
1996, Pub. L. 104-104, 110 Stat. 56
(Feb. 8, 1996)
Facilities Siting; Radio Frequency Emission
Standards.
. . .
(b) Radio Frequency Emissions. Within 180 days
after the enactment of this Act, the Commission
shall complete action in ET Docket 93-62 to
prescribe and make effective rules regarding the
environmental effects of radio frequency
emissions.
H.R. Rep. No. 104-458, at 207-208 (1996)
(Conf. Report)
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
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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.
When utilizing the term “functionally equivalent
services” the conferees are referring only to personal
wireless services as defined in this section that
directly compete against one another. The intent of
the conferees is to ensure that a State or local
government does not in making a decision regarding
the placement, construction and modification of
facilities of personal wireless services described in
this section unreasonably favor one competitor over
another. The conferees also intend that the phrase
“unreasonably discriminate among providers of
functionally equivalent services” will provide
localities with the flexibility to treat facilities that
create different visual, aesthetic, or safety concerns
differently to the extent permitted under generally
applicable zoning requirements even if those
facilities provide functionally equivalent services.
For example, the conferees do not intend that if a
State or local government grants a permit in a
210a
commercial district, it must also grant a permit for a
competitor's 50 foot tower in a residential district.
Actions taken by State or local governments shall not
prohibit or have the effect of prohibiting the
placement, construction or modification of personal
wireless services. It is the intent of this section that
bans or policies that have the effect of banning
personal wireless services or facilities not be allowed
and that decisions be made on a case-by-case basis.
Under subsection (c)(7)(B)(ii), decisions are to be
rendered in a reasonable period of time, taking into
account the nature and scope of each request. If a
request for placement of a personal wireless service
facility involves a zoning variance or a public hearing
or comment process, the time period for rendering a
decision will be the usual period under such
circumstances. It is not the intent of this provision to
give preferential treatment to the personal wireless
service industry in the processing of requests, or to
subject their requests to any but the generally
applicable time frames for zoning decision.
The phrase “substantial evidence contained in a
written record” is the traditional standard used for
judicial review of agency actions.
The conferees intend section 332(c)(7)(B)(iv) to
prevent a State or local government or its
instrumentalities from basing the regulation of the
placement, construction or modification of CMS
facilities directly or indirectly on the environmental
effects of radio frequency emissions if those facilities
comply with the Commission's regulations adopted
211a
pursuant to section 704(b) concerning such
emissions.
The limitations on the role and powers of the
Commission under this subparagraph relate to local
land use regulations and are not intended to limit or
affect the Commission's general authority over radio
telecommunications, including the authority to
regulate the construction, modification and operation
of radio facilities.
The conferees intend that the court to which a party
appeals a decision under section 332(c)(7)(B)(v) may
be the Federal district court in which the facilities
are located or a State court of competent jurisdiction,
at the option of the party making the appeal, and
that the courts act expeditiously in deciding such
cases. The term “final action” of that new
subparagraph means final administrative action at
the State or local government level so that a party
can commence action under the subparagraph rather
than waiting for the exhaustion of any independent
State court remedy otherwise required.
With respect to the availability of Federal property
for the use of wireless telecommunications
infrastructure sites under section 704(c), the
conferees generally adopt the House provisions, but
substitute the President or his designee for the
Commission.
It should be noted that the provisions relating to
telecommunications facilities are not limited to
commercial mobile radio licensees, but also will
include other Commission licensed wireless common
carriers such as point to point microwave in the
212a
extremely high frequency portion of the
electromagnetic spectrum which rely on line of sight
for transmitting communication services.
H.R. Rep. No. 104-204,
1996 U.S.C.C.A.N. 10, 25 (1995)
Facilities Siting; Radio Frequency Emission
Standards.
(a) National Wireless Telecommunications Siting
Policy.—Section 332(c) of the Act (47 U.S.C. 332(c)) is
amended by adding at the end the following new
paragraph:
(7) Facilities siting policies.—(A) Within 180 days
after enactment of this paragraph, the Commission
shall 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.
(B) Pursuant to subchapter III of chapter 5, title 5,
United States Code, the Commission shall establish
a negotiated rulemaking committee to negotiate and
develop a proposed policy to comply with the
requirements of this paragraph. Such committee
shall include representatives from State and local
governments, affected industries, and public safety
agencies. In negotiating and developing such a
policy, the committee shall take into account—
(i) the desirability of enhancing the coverage and
quality of commercial mobile services and fostering
competition in the provision of such services;
213a
(ii) the legitimate interests of State and local
governments in matters of exclusively local concern;
(iii) the effect of State and local regulation of
facilities siting on interstate commerce; and
(iv) the administrative costs to State and local
governments of reviewing requests for authorization
to locate facilities for the provision of commercial
mobile services.
(C) The policy prescribed pursuant to this paragraph
shall ensure that—
(i) regulation of the placement, construction, and
modification of facilities for the provision of
commercial mobile services by any State or local
government or instrumentality thereof—
(I) is reasonable, nondiscriminatory, and limited to
the minimum necessary to accomplish the State or
local government's legitimate purposes; and
(II) does not prohibit or have the effect of precluding
any commercial mobile service; and
(ii) a State or local government or instrumentality
thereof shall act on any request for authorization to
locate, construct, modify, or operate facilities for the
provision of commercial mobile services within a
reasonable period of time after the request is fully
filed with such government or instrumentality; and
(iii) any decision by a State or local government or
instrumentality thereof to deny a request for
authorization to locate, construct, modify, or operate
facilities for the provision of commercial mobile
214a
services shall be in writing and shall be supported by
substantial evidence contained in a written record.
(D) The policy prescribed pursuant to this paragraph
shall provide that no State or local government or
any instrumentality thereof may regulate the
placement, construction, modification, or operation of
such 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.
(E) In accordance with subchapter III of chapter 5,
title 5, United States Code, the Commission shall
periodically establish a negotiated rulemaking
committee to review the policy prescribed by the
Commission under this paragraph and to recommend
revisions to such policy.“.
(b) Radio Frequency Emissions.—Within 180 days
after the enactment of this Act, the Commission shall
complete action in ET Docket 93-62 to prescribe and
make effective rules regarding the environmental
effects of radio frequency emissions.
(c) Availability of Property.—Within 180 days of the
enactment of this Act, the Commission shall
prescribe procedures by which Federal departments
and agencies may make available on a fair,
reasonable, and nondiscriminatory basis, property,
rights-of-way, and easements under their control for
the placement of new telecommunications facilities
by duly licensed providers of telecommunications
services that are dependent, in whole or in part,
upon the utilization of Federal spectrum rights for
the transmission or reception of such services. These
215a
procedures may establish a presumption that
requests for the use of property, rights-of-way, and
easements by duly authorized providers should be
granted absent unavoidable direct conflict with the
department or agency's mission, or the current or
planned use of the property, rights-of-way, and
easements in question. Reasonable cost-based fees
may be charged to providers of such
telecommunications services for use of property,
rights-of-way, and easements. The Commission shall
provide technical support to States to encourage
them to make property, rights-of-way, and easements
under their jurisdiction available for such purposes.