Nos. 11-1545 and 11-1547 
 
  
IN THE 
 
CITY OF ARLINGTON, TEXAS ET AL.,  
Petitioners, 
v. 
FEDERAL COMMUNICATIONS COMMISSION ET AL. 
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY 
COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, 
 Petitioner, 
v. 
FEDERAL COMMUNICATIONS COMMISSION ET AL. 
On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit 
REPLY BRIEF FOR PETITIONERS  
CITY OF ARLINGTON ET AL. 
 
THOMAS C. GOLDSTEIN  
KEVIN K. RUSSELL 
KEVIN R. AMER 
TEJINDER SINGH 
GOLDSTEIN & RUSSELL, P.C.  
5225 Wisconsin Ave., NW 
Suite 404 
Washington, DC 20015 
THOMAS D. BUNTON 
SENIOR DEPUTY 
COUNTY COUNSEL 
COUNTY OF SAN DIEGO 
1600 Pacific Highway 
Room 355 
San Diego, CA 92101 
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 Ave., NW  
Suite 4300 
Washington, DC 20006 
(202) 785-0600 
Joseph.VanEaton@bbklaw.com 
Counsel for Petitioners City of 
Arlington, Texas; City of 
Dallas, Texas; City of Los 
Angeles, California; County of 
Los Angeles, California; City 
of San Antonio, Texas; and 
Texas Coalition of Cities for 
Utility Issues 
 
 
 
TABLE OF CONTENTS 
 
TABLE OF AUTHORITIES ....................................... ii 
REPLY BRIEF FOR PETITIONERS  CITY OF 
ARLINGTON ET AL. ................................................... 1 
I.  The Fifth Circuit Erred In Holding That 
Courts Defer To Agencies’ Assertion Of 
Interpretive Jurisdiction. ...................................... 3 
A.  The Government Errs In Asserting That 
Agency Assertions Of Interpretive 
Jurisdiction Trigger Chevron Deference. ....... 4 
B.   The Government Errs In Claiming That 
An Agency’s General Regulatory 
Authority Empowers It To Determine Its 
Interpretive Jurisdiction Over A 
Statutory Provision Such As Section 
332(C)(7). ......................................................... 6 
II. This Case Illustrates That Interpretive 
Jurisdiction Is Properly Determined De Novo .... 15 
CONCLUSION ........................................................... 26 
 
 
 
 
 
ii 
 
TABLE OF AUTHORITIES 
Cases 
Adams Fruit Co. v. Barrett,  
494 U.S. 638 (1990) .................................2, 9, 10, 20 
Aegerter v. City of Delafield,  
174 F.3d 886 (7th Cir. 1999) ................................ 21 
American Hospital Association v. NLRB,  
499 U.S. 606 (1991) ................................................ 9 
AT&T Corp. v. Iowa Utilities Bd.,  
525 U.S. 366 (1999) ....................................... passim 
Chevron U.S.A., Inc. v. Natural Resources 
Defense Council, Inc.,  
467 U.S. 837 (1984) ....................................... passim 
Comm’r of Internal Revenue v. Clark,  
489 U.S. 726 (1989) .............................................. 17 
Dole v. United Steelworkers of Am.,  
494 U.S. 26 (1990) .................................................. 5 
FDA v. Brown & Williamson Tobacco Corp., 
529 U.S. 120 (2000) .............................................. 14 
Gomez v. United States,  
490 U.S. 858 (1989) .............................................. 13 
Gonzales v. Oregon,  
546 U.S. 243 (2006) .............................................. 14 
Gregory v. Ashcroft,  
501 U.S. 452 (1991) .............................................. 24 
Marbury v. Madison,  
5 U.S. (1 Cranch) 137 (1803) ................................ 12 
Mississippi Power & Light Co. v. Mississippi, 
487 U.S. 354 (1988) ............................................ 5, 7 
 
iii 
 
N.Y. SMSA Ltd. P’shp v. Town of Riverhead 
Town Bd.,  
118 F. Supp. 2d 333 (E.D.N.Y. 2000) ................... 21 
New York v. United States,  
505 U.S. 144 (1992) .............................................. 23 
Rapanos v. United States,  
547 U.S. 715 (2006) .............................................. 14 
Reiter v. Cooper,  
507 U.S. 258 (1993) .............................................. 13 
Skidmore v. Swift & Co.,  
323 U.S. 134 (1944) ................................................ 2 
SNET Cellular, Inc. v. Angell,  
99 F. Supp. 2d 190 (D.R.I. 2000) .......................... 21 
Town of Amherst v. Omnipoint Comm’ns 
Enters.,  
173 F.3d 9 (1st Cir. 1999) ..................................... 19 
Union Pac. R.R. v. Bhd. of Locomotive Eng’rs & 
Trainmen,  
130 S. Ct. 584 (2009) .............................................. 6 
United States v. Mead,  
533 U.S. 218 (2001) .................................8, 9, 10, 14 
Verizon v. FCC,  
No. 11-1355 (D.C. Cir.) ........................................... 2 
Village of Euclid v. Ambler Realty Co.,  
272 U.S. 365 (1926) .............................................. 23 
Statutes 
19 U.S.C. § 1624 ......................................................... 8 
29 U.S.C. § 159(b) ....................................................... 9 
29 U.S.C. § 1861 ................................................... 9, 20 
 
 
iv 
 
Telecommunications Act of 1996, Pub. L. No. 
104-104, 110 Stat. 56 ............................................ 18 
47 U.S.C. § 151 ..................................................... 17 
47 U.S.C. § 154(i) .................................................. 17 
47 U.S.C. § 201(b) ................................................. 17 
47 U.S.C. § 251 ..................................................... 16 
47 U.S.C. § 252 ..................................................... 16 
47 U.S.C. § 303(r) ................................................. 17 
47 U.S.C. § 332(c)(7) ...................................... passim 
47 U.S.C. § 332(c)(7)(A) ........................................ 22 
47 U.S.C. § 332(c)(7)(B) .......................................... 6 
47 U.S.C. § 332(c)(7)(B)(ii) ................................... 22 
47 U.S.C. § 332(c)(7)(B)(iv) ................................... 18 
47 U.S.C. § 332(c)(7)(B)(v) .................................... 20 
Other Authorities 
Black’s Law Dictionary (8th ed. 2004) .................... 17 
H.R. Rep. No. 104-204, 1996 U.S.C.C.A.N. 10 
(1995) .................................................................... 24 
In re Artichoke Broad. Co., 10 FCC Rcd. 12,631 
(1995) .................................................................... 24 
Thomas W. Merrill & Kristin E. Hickman, 
Chevron’s Domain, 89 Geo. L.J. 833 (2001) .......... 2 
 
 
 
 
 
 
REPLY BRIEF FOR PETITIONERS  
CITY OF ARLINGTON ET AL. 
In 47 U.S.C. § 332(c)(7), Congress  enacted outer 
boundaries on “regulation of the placement, 
construction, and modification of personal wireless 
facilities,” but otherwise left state and local 
governments the flexibility to apply their ordinary 
rules governing zoning and construction.  The FCC 
claims that Congress delegated to it the power to 
authoritatively interpret Section 332(c)(7).  On that 
basis, the FCC claims the power to require that local 
zoning processes facilitate national 
telecommunications policy.   
Petitioners challenge the FCC’s threshold 
assertion that it possesses this “interpretive 
jurisdiction” over Section 332(c)(7) – i.e., the final 
authority to resolve ambiguities in the statute’s 
meaning.  This Court granted certiorari to decide 
how a court should evaluate such a dispute.  The 
government argues, and the Fifth Circuit held, that 
courts must defer to an administrative agency with 
respect to every assertion of authority that 
implicates the agency’s “jurisdiction.”   On that view, 
the agency has the power to interpret the statute 
unless Congress enacts an express, jurisdiction-
stripping provision.  U.S. Br. 18-19, 31-32. 
By contrast, petitioners argue that mere 
ambiguity (much less silence) cannot grant an 
agency this sweeping interpretive power.  Rather, a 
court determines de novo, using ordinary tools of 
statutory construction, whether Congress intended 
to grant the agency interpretive authority over the 
 
2 
 
provision in question.  The agency’s view remains 
relevant, but only to the extent of its power to 
persuade.  See Skidmore v. Swift & Co., 323 U.S. 
134, 140 (1944). 
The government and certain other parties and 
amici urge this Court to apply a uniform rule to 
govern the review of all agency assertions of any 
type of “jurisdiction.”  By contrast, we suggest that 
the Court proceed incrementally and address only 
the distinct form of “jurisdiction” actually presented 
by the case:  an agency’s power to interpret a 
statutory provision authoritatively.  Because that 
power is a “precondition” to the two-stage Chevron 
framework, Adams Fruit Co., Inc. v. Barrett, 494 
U.S. 638, 649 (1990), the academic literature often 
labels its determination “Chevron Step 0,” e.g., 
Thomas W. Merrill & Kristin E. Hickman, Chevron’s 
Domain, 89 Geo. L.J. 833, 912-13 (2001).   
The Court can address other forms of agency 
“jurisdiction” in cases in which they are actually 
implicated.  The Court should not let itself be drawn 
into such disputes unnecessarily by the 
government’s broader regulatory agenda, and it is 
unclear that those cases will all be resolved through 
an invariable rule in which the label “jurisdiction” 
ipso facto determines the outcome.  This case instead 
involves the long-established and easily identified 
question of an agency’s “interpretive jurisdiction” – 
here, whether Congress gave the FCC the power to 
interpret Section 332(c)(7) authoritatively.  That 
question plainly is decided de novo.  The judgment of 
 
3 
 
the court of appeals can and should be reversed on 
that basis.1 
I.  The Fifth Circuit Erred In Holding That 
Courts Defer To Agencies’ Assertion Of 
Interpretive Jurisdiction. 
The government defends the Fifth Circuit’s 
categorical holding that courts defer to an 
administrative agency’s interpretation of any 
statutory provisions that “define the agenc[y’s] 
authority to act.”  U.S. Br. 18.  But the government’s 
theory is unclear and inconsistent.  Most of its 
arguments sweepingly assert as an absolute 
principle of administrative law that Congress always 
intends every agency to decide any matter that can 
be called “jurisdictional,” including even an agency’s 
claim that it possesses interpretive authority over a 
statute.  E.g., id. 32 (“But if the statutory text is 
ambiguous – either with respect to the scope of the 
agency’s affirmative powers, or with respect to the 
existence or scope of any carve-out from that 
authority – the appropriate inference under Chevron 
is that Congress intended the agency to resolve that 
ambiguity.”); see also id. 11, 12, 14, 20, 22, 29 
1 Petitioners do not “disclaim[] the circuit split” described 
by the petition for certiorari.  U.S. Br. 26 n.6.  Acknowledging 
the circuit split, the Fifth Circuit resolved this case by applying 
an across-the-board rule that all agency determinations of 
“jurisdiction” receive Chevron deference.  Pet. App. 36a-37a.  In 
deciding the case, this Court could itself adopt a categorical 
rule.  But for the reasons given in the text, petitioners believe 
that the case can and should be decided more narrowly. 
 
                                            
4 
 
(similar).  But at other times – and particularly in 
the headings of its brief – the government suggests 
that its position is limited to cases in which “an 
agency interprets a statute that has been generally 
entrusted to its administration.”  Id. 15; see also id. 
29.   Broadly or narrowly drawn, the argument 
reduces to the erroneous claim that an agency may 
decide its own authority to implement a statute.   
A.  The Government Errs In Asserting 
That Agency Assertions Of Interpretive 
Jurisdiction Trigger Chevron 
Deference. 
1.  The government’s first, broad theory is that 
every agency is entitled to deference with respect to 
every assertion of jurisdiction, including the agency’s 
assertion that Congress granted it interpretive 
authority.  That claim is obviously irreconcilable 
with this Court’s precedents.  It is settled that a 
court determines an agency’s interpretive 
jurisdiction de novo.  See Pet. Br. 19-23 (collecting 
cases).  An agency receives deference only when 
exercising authority delegated by Congress.  Chevron 
U.S.A., Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837, 843-44 (1984).  The Fifth Circuit’s 
contrary holding puts the cart before the horse:  it 
assumes the conclusion that Congress intended 
courts to defer to the agency’s views.  In many cases, 
it will be obvious that Congress did give the agency 
that authority, but the question must first be asked. 
The government’s contrary claim that the 
Court’s “consistent practice” has been to apply 
Chevron deference to all questions of agency 
“jurisdiction,” U.S. Br. 11, is inexplicable.  In at least 
 
5 
 
seventeen cases, this Court has determined an 
agency’s interpretive jurisdiction de novo.  See Pet. 
Br. 19-23.  Faced with our unequivocal 
representation that “this Court has never deferred to 
the agency’s view that Congress intended to delegate 
it authority,” id. 19, the government persists that it 
is “settled” that the Court always defers to every 
agency interpretation of any ambiguous 
jurisdictional provision, U.S. Br. 18.  But it cites no 
majority opinion of this Court.  Instead, it invokes a 
concurrence and a dissent, both more than twenty 
years old.  Id. (citing Mississippi Power & Light Co. 
v. Mississippi, 487 U.S. 354, 381 (1988) (Scalia, J., 
concurring in the judgment); Dole v. United 
Steelworkers of Am., 494 U.S. 26, 54 (1990) (White, 
J., dissenting)).  That imbalance in authority speaks 
for itself, and the reason for it is obvious:  the 
government has no answer to petitioners’ showing 
that those separate opinions address only other 
forms of agency power, not the antecedent 
determination of the agency’s interpretive 
jurisdiction.  See Pet. Br. 24-25 & nn.1 & 2. 
2.  Much of the government’s brief is devoted to 
the proposition that Chevron deference attaches to 
those other, distinct “jurisdictional” assertions by 
agencies.  But the only reason it gives that those 
arguments are relevant to this case is that it would 
be “inadministrable” and “unworkable” to 
distinguish between assertions of agency authority.  
U.S. Br. 11, 22.  That claim is not only mistaken, see, 
e.g., IMLA Open. Br. 33-35, but also depends on 
lumping together very different issues related to 
agencies’ authority under the heading “jurisdiction,” 
which is a word with “many, too many, meanings.”  
 
6 
 
Union Pac. R.R. v. Bhd. of Locomotive Eng’rs & 
Trainmen, 130 S. Ct. 584, 596 (2009).   
In fact, there is an obvious distinction between 
the threshold question of interpretive jurisdiction 
and other issues relating to an agency’s “authority to 
act.”  U.S. Br. 18.  Take this case.  Neither the FCC’s 
declaratory ruling, nor the Fifth Circuit’s decision, 
nor the government’s brief had the slightest trouble 
identifying the agency’s power to interpret Section 
332(c)(7) as a distinct inquiry.  See U.S. Br. 5 (“As a 
threshold matter, the Commission determined that 
it had ‘the authority to interpret Section 332(c)(7).’” 
(quoting Pet. App. 87a)); id. 9 (“Having found the 
Communications Act ambiguous with respect to the 
agency’s authority to construe Section 332(c)(7)(B), 
the court of appeals upheld as reasonable the 
Commission’s decision to exercise that power.” 
(citing Pet. App. 45a-51a)); id. 11, 12, 23, 29, 31-32, 
33-34, 36, 38, 39 (all recognizing the question of an 
agency’s power to interpret a statute as a distinct 
issue). 
B.   The Government Errs In Claiming That 
An Agency’s General Regulatory 
Authority Empowers It To Determine 
Its Interpretive Jurisdiction Over A 
Statutory Provision Such As Section 
332(C)(7). 
1.  This Court’s precedent equally precludes the 
government’s contention that an agency with general 
regulatory authority over a statute is automatically 
entitled to Chevron deference when it asserts 
interpretive jurisdiction over an individual provision 
of that statute.  This Court has decided several cases 
 
7 
 
that fit that precise fact pattern; each addressed the 
agency’s authority de novo.  The government is 
unable to identify any decision supporting its 
contrary view. 
In AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 
366 (1999), the Court considered two distinct 
challenges to FCC regulations implementing the 
local-competition provisions of the 1996 
Telecommunications Act: (i) that Congress did not 
authorize the FCC to interpret those provisions (i.e., 
that the agency lacked interpretive jurisdiction); and 
(ii) that if the FCC did have that interpretive 
authority, its regulations nonetheless conflicted with 
the statute.  The government argued that the 
agency’s general regulatory authority under the Act 
entitled it to Chevron deference with respect to both 
claims, including the FCC’s threshold determination 
that it had interpretive authority over the provisions 
of the 1996 statute.  See U.S. Br. 42 (arguing that 
agency’s assertion of interpretive jurisdiction should 
be sustained because, “[e]ven if there were some 
ambiguity in those provisions, the Commission’s 
interpretation of them would be entitled to 
substantial deference, for ‘it is settled law that the 
rule of deference applies even to an agency’s 
interpretation of its own statutory authority or 
jurisdiction.’” (quoting Mississippi Power, 487 U.S. at 
381 (Scalia, J., concurring in the judgment)); id. 48. 
But this Court did not accept that argument.  
Instead, every member of the Court addressed the 
agency’s authority to implement the local-
competition provisions – which the majority (per 
Scalia, J.) described as “underlying FCC jurisdiction” 
 
8 
 
– de novo.  See 525 U.S. at 377-85; id. at 407-12 
(opinion of Thomas, J., dissenting).  So the 
government’s quotation (Br. 15) of this Court’s 
statement in Iowa Utilities that “Congress is well 
aware that the ambiguities it chooses to produce in a 
statute will be resolved by the implementing 
agency,” 525 U.S. at 397, is misleading.  That 
quotation actually refers to the Court’s resolution of 
the substantive challenge to the FCC’s regulations, 
which the Court reached only after its antecedent, de 
novo determination that Congress delegated to the 
FCC the power to interpret the provisions added by 
the 1996 Act.  See, e.g., id. at 387, 392, 395, 396 
(after addressing agency’s interpretive jurisdiction 
de novo, finding that FCC’s reading of definition of 
“network element” was “eminently reasonable”; that 
rule on separation of network elements was “well 
within the bounds of the reasonable”; and that “pick 
and choose” rule was “not only reasonable, it is the 
most readily apparent”; but FCC had not interpreted 
the statute “in a reasonable fashion” in adopting 
rules on “necessary and impair” standards). 
Likewise, in United States v. Mead, 533 U.S. 218 
(2001), the Court recognized the “general delegation 
to [the Treasury] Secretary to issue rules and 
regulations for the admission of goods.”  Id. at 222 
(citing 19 U.S.C. § 1624).  But notwithstanding that 
“general rulemaking power,” the Court considered de 
novo whether the specific statutory provisions 
relating to classification rulings indicated that 
“Congress meant to delegate authority to Customs” 
to act with the force of law.   Id. at 231-32.  
 
9 
 
And in Adams Fruit Co. v. Barrett, 494 U.S. 638 
(1990), the statute at issue (the Migrant and 
Seasonal Agricultural Worker Protection Act) gave 
the Secretary of Labor broad authority to “issue such 
rules and regulations as are necessary to carry out” 
the Act.   29 U.S.C. § 1861.  The Court nevertheless 
considered de novo the agency’s authority to 
interpret the scope of the statute’s private right of 
action and held that the agency lacked the power “to 
regulate the scope of the judicial power vested by the 
statute.”  Adams Fruit, 494 U.S. at 650.   
The government’s position cannot be reconciled 
with Iowa Utilities, Mead, or Adams Fruit.  It 
nonetheless argues (Br. 30-31) that its theory is 
supported by American Hospital Association v. 
NLRB, 499 U.S. 606 (1991).  But American Hospital 
is a Chevron Step 1, not Step 0, case.  No one 
disputed that the agency (the National Labor 
Relations Board) had the authority to interpret the 
relevant statutory provision, which addressed 
bargaining units.  Instead, the petitioner maintained 
that the Board’s regulation specifying the number of 
bargaining units in acute care hospitals 
substantively conflicted with a provision of the 
statute requiring that the Board make a bargaining 
unit determination “in each case.”  29 U.S.C. 
§ 159(b).  The question was thus not the Board’s 
interpretive jurisdiction (i.e., whether its regulatory 
authority reached the statutory provision addressing 
the number of bargaining units), but whether the 
substance of its regulation was compatible with 
Section 159(b).   
 
10 
 
The government also quotes two statements by 
this Court that a “general” delegation of rulemaking 
authority triggers Chevron deference with respect to 
rules validly promulgated pursuant to that 
authority.  U.S. Br. 29, 33.  That is both 
uncontroversial and irrelevant: the delegation may 
be general or specific, but its meaning is always 
determined de novo.  Neither statement suggests, 
and this Court has never held, that such general 
authority entitles the agency to deference regarding 
whether Congress intended that general authority to 
extend to a particular statutory provision such as 
Section 332(c)(7).  To the contrary, in one of the two 
cases, the Court determined de novo that the 
challenged regulation did not fall within the agency’s 
rulemaking authority.  Mead, 533 U.S. at 231-34. 
2.  The FCC’s argument that its general power 
to interpret the Communications Act implies the 
further authority to decide whether it may 
authoritatively interpret Section 332(c)(7) violates 
the cardinal rule that an agency cannot “bootstrap” 
itself into its own jurisdiction.  Adams Fruit, 494 
U.S. at 650 (citation omitted).  Put another way, the 
FCC’s argument begs the question presented by this 
case:  is Section 332(c)(7) subject to the agency’s 
general interpretive authority?   
The government’s argument also makes no 
sense as a presumption of congressional intent.  
Chevron rests on the sensible understanding that 
when Congress decides to delegate interpretive 
authority to an agency, it then expects the agency to 
apply its expertise to fill in gaps in the relevant 
statutory provisions.  But the government’s 
 
11 
 
argument would erect a radically different 
presumption:  that Congress intends agencies to 
decide whether they or instead the courts have final 
interpretive authority to resolve ambiguities in 
statutes, with the consequence that the agency has 
interpretive authority unless Congress expressly 
withdraws it.  That is an unsound assumption, 
because it does not reflect Congress’s actual practice.  
Indeed, we are unaware of any statute in which 
Congress has expressly given an agency the power to 
determine whether it has interpretive authority over 
a statute.  So there is no reason to believe that 
Congress would do so impliedly, as the government’s 
reliance on the ambiguity of Section 332(c)(7) 
necessarily presumes. 
Nor is this the type of technical question that 
Congress would expect to be decided by an agency 
rather than a court.  To the contrary, as the 
seventeen precedents set forth in our opening brief 
illustrate, reading a statute to determine whether 
Congress delegated interpretive jurisdiction to an 
agency is a quintessential judicial task, calling for an 
ordinary exercise of statutory construction. 
The government’s claim that this case proves 
the opposite is very misleading.  According to the 
government, after receiving hundreds of comments, 
“the FCC concluded that, in the absence of agency 
guidance, ‘unreasonable delays’ in the consideration 
of facility siting requests were ‘impeding the 
deployment of advanced and emergency services.’”  
U.S. Br. 21 (Pet. App. 78a-79a, 96a-97a).  But the 
quoted analysis is not in the relevant part of the 
FCC’s ruling – its parsing of its own “[a]uthority to 
 
12 
 
[i]nterpret [s]ection 332(c)(7)” (see Pet. App. 84a-87a) 
– in which the agency addressed the statute and 
precedents of the agency and courts.  Instead, the 
agency made the policy judgments quoted by the 
Solicitor General only after finding that it had 
interpretive authority over Section 332(c)(7), then 
turned to establishing the substantive “[t]ime for 
[a]cting on [f]acility [s]iting [a]pplications.”  See Pet. 
App. 92a-124a.   
Further, the determination of interpretive 
jurisdiction amounts to the allocation of power 
between the branches of government.  It determines 
whether ambiguities in the statute’s meaning will be 
resolved by courts or by the Executive Branch.  Our 
constitutional structure entrusts those allocative 
decisions to the neutral judiciary, not agencies 
burdened by the self-interest of the opportunity to 
expand their own power.  The government’s startling 
argument that instead permitting the Executive 
Branch to make those decisions “promotes 
separation-of-powers principles by leaving 
permissible policy choices to policy-making bodies,” 
U.S. Br. 32, is nothing less than an assault on 
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 
Indeed, it is not clear that Congress could 
delegate this authority to an administrative agency, 
consistent with the nondelegation principle that only 
Congress may exercise the Article I legislative 
powers.  See Pet. Br. 29.  The government’s position 
permits the Executive Branch to make the 
quintessentially legislative judgment that the 
Executive rather than the courts will be the final 
arbiters of the meaning of ambiguous statutory 
 
13 
 
terms.  But the Solicitor General has not identified 
any historical precedent for such a practice.  
Whatever the ultimate outcome of that 
constitutional question if Congress were ever to 
delegate interpretive authority expressly, here the 
Court should follow its “settled policy” of construing 
statutes to avoid potential constitutional 
invalidation by finding no delegation implicit in 
Section 332(c)(7).  Gomez v. United States, 490 U.S. 
858, 864 (1989). 
The Solicitor General also significantly 
understates the prospect that his fellow members of 
the Executive Branch will use this claimed authority 
to aggrandize power to themselves.  Given the 
choice, an agency would rarely disclaim the 
authority to finally resolve ambiguities in a statute.  
The agency might choose not to exercise that power 
in a particular case, but it rarely would deny its 
existence outright.  In fact, the government does not 
identify any decision of this Court in which an 
agency ever did so.  Its citation to one twenty-year-
old decision, which involved a 1969 ruling of the 
long-since-disbanded Interstate Commerce 
Commission, is inapt.  Br. 26 (citing Reiter v. Cooper, 
507 U.S. 258, 269 (1993)).  In even that one case, the 
Commission did not decide it lacked authority to 
interpret the provision; that issue was not before the 
Court.  Rather, the issue was whether under the 
relevant statute the courts or the ICC had the 
“power to decree reparations relief.”  Reiter, 507 U.S. 
at 269. 
The government finally says that for Congress to 
prevent an agency from seizing the final interpretive 
 
14 
 
authority over a statute, “it need only make that 
intent clear, either by defining the agency’s 
affirmative powers in a way that unambiguously 
excludes the relevant activities, or by enacting a 
specific exception to a grant of regulatory authority.”  
U.S. Br. 31-32.  That is all:  just perfect clarity in 
every instance.  In addition to its other flaws, the 
government’s position certainly does not reflect how 
Congress actually writes laws.  And in turn, the 
government’s theory squarely conflicts with this 
Court’s holding that the determination of whether 
an agency’s position is consistent with a statute is 
made on the basis of “traditional tools of statutory 
construction,” U.S. Br. 17 (quoting Chevron, 467 U.S. 
at 843 n.9), not per se rules.  See Mead, 533 U.S. at 
229-31; see also, e.g., FDA v. Brown & Williamson 
Tobacco Corp., 529 U.S. 120, 134 (2000) (FDA lacked 
the authority to regulate cigarettes despite the 
absence of any express limitation); Gonzales v. 
Oregon, 546 U.S. 243, 259 (2006) (Attorney General 
had limited authority to implement the Controlled 
Substances Act even absent express congressional 
limitation); Rapanos v. United States, 547 U.S. 715, 
751-52 (2006) (although Congress had refused to 
limit the Army Corps of Engineers’ authority under 
the Clean Water Act, a limitation nevertheless 
existed in the terms of the statute). 
The Fifth Circuit accordingly erred in deferring 
to the FCC’s assertion that it possesses the final 
interpretive authority to resolve ambiguities in 
Section 332(c)(7), rather than deciding that question 
de novo. 
 
15 
 
II. This Case Illustrates That Interpretive 
Jurisdiction Is Properly Determined De 
Novo. 
The government asserts that the FCC has 
interpretive jurisdiction over Section 332(c)(7) 
because Congress did not expressly bar the agency 
from invoking its general authority to implement the 
Communications Act.  On that view, the role of 
Section 332(c)(7) is not to grant state and local 
governments the flexibility to account for local 
conditions within the outer bounds specified by 
Congress, but rather to grant the FCC the sweeping 
power to use Section 332(c)(7) as a tool to implement 
the broader policies it believes are embodied 
throughout the Act.  Thus, although the FCC 
characterizes its existing ruling as modest, the 
agency could presumably go much further and 
provide for a mandatory fifteen-day review period for 
wireless siting requests.  Telecommunications 
companies have also urged the FCC to conclude that 
it has jurisdiction to rule that an application will be 
deemed granted if not timely acted upon.  Pet. App. 
108a-09a. 
The FCC’s arguments fail on the merits and 
illustrate why courts must determine the scope of 
agencies’ interpretive jurisdiction de novo, rather 
than deferring to the agencies’ self-interested 
judgments expanding their own power.  Manifestly, 
none of the government’s arguments – which are 
based on the statute, its legislative history, and this 
Court’s decisions – relate to technical matters that 
Congress would expect to be resolved by the FCC, 
not a court.  Although the government’s reading of 
 
16 
 
the statute survived the Fifth Circuit’s deferential 
review because it was not “impermissible,” Pet. App. 
51a, the FCC’s broad assertion of interpretive 
authority is not the statute’s best reading.   
1.  The government asserts that its 
interpretation follows from the holding of Iowa 
Utilities that the FCC’s general regulatory authority 
applies to two provisions added by the 1996 
Telecommunications Act.  But as discussed in Part I, 
supra, the government’s argument fails to 
acknowledge that this Court determined the FCC’s 
authority to implement those provisions de novo, not 
deferentially.  This Court did not accept – and it 
makes no sense to conclude – that Congress left to 
the FCC the decision whether the FCC had that 
interpretive authority. 
Furthermore, Iowa Utilities did not adopt a 
categorical rule that every provision added to the 
Communications Act is subject to the FCC’s general 
regulatory authority absent an express contrary 
statement by Congress.  As the majority 
acknowledged, the FCC’s interpretive jurisdiction 
“assuredly” turns (525 U.S. at 378 n.5) on “what 
th[e] later enacted statute contemplates” (id. at 420 
(Breyer, J., concurring in part and dissenting in 
part)).  The provisions at issue in Iowa Utilities – 47 
U.S.C. §§ 251 and 252 – created a uniform federal 
regulatory regime in which the states could 
participate or not at their discretion.  Recognizing 
that “a federal program administered by 50 
independent state agencies is surpassing strange” 
(525 U.S. at 378 n.6), the Court found no reason to 
“speculat[e]” (id. at 378 n.5) that Congress intended 
 
17 
 
those provisions to not be subject to the FCC’s 
general regulatory authority.   
Section 332(c)(7) is very different.  It preserves 
local authority rather than enacting a federal 
regulatory program.  Section 332(c)(7) provides in its 
very first sentence that “nothing” else in the 
Communications Act “shall limit or affect” state and 
local zoning authority.  That is not a “savings clause” 
that “merely provides that other provisions of the 
Communications Act should not be construed to 
impose separate limitations on local zoning 
authority.”  U.S. Br. 14 (emphasis omitted).  By its 
terms, the exclusion in Section 332(c)(7) reaches the 
FCC’s general regulatory authority – which is set 
forth in Sections 1, 4(i), 201(b), and 303(r) of the Act 
– as well as the agency’s policy in favor of speeding 
the deployment of wireless facilities.  Thus, the 
FCC’s adoption in this proceeding of its “shot clock” 
rule – which mandates expedited decisions on 
wireless siting applications – certainly “affect[s]” 
local authority, as would of course the many other 
rules the agency could presumably enact pursuant to 
its claimed interpretive authority.  See Black’s Law 
Dictionary 92 (8th ed. 2004) (to “affect” is “to produce 
an effect on; to influence in some way”). 
The FCC’s contrary interpretation effectively 
nullifies Section 332(c)(7)’s prohibition on invoking 
other provisions of the act that “affect” state and 
local rulemaking.  That provision must be read “to 
preserve the primary operation of” the exclusion.  
Comm’r of Internal Revenue v. Clark, 489 U.S. 726, 
739 (1989).  The government fails to explain how it 
reads the exclusion, but presumably interprets it 
 
18 
 
merely as a formal prohibition on a court expressly 
invoking other provisions of the Communications Act 
to limit state and local wireless siting authority.  In 
practice, however, the government would render the 
exclusion a dead letter by permitting the FCC by 
rule or order to pursue all the “policies” embodied in 
those otherwise-excluded provisions of the Act.  See, 
e.g., Pet. App. 103a-106a (FCC ruling explaining 
that deadlines were intended to further build-out 
requirements for 700 MHz spectrum, advance 
wireless 911 services, and promote advanced 
services under another statute entirely, the Recovery 
Act). 
The statute’s structure reflects, however, that 
when Congress wanted to subject this area of 
traditional state and local authority to FCC 
rulemaking, it said so expressly.  In the 1996 Act, 
Congress both authorized the FCC to undertake a 
rulemaking on the effects of “radio frequency 
emissions” (110 Stat. 56 § 704(b)) and provided in 
Section 332(c)(7)(B)(iv) that “the Commission’s 
regulations” take precedence over contrary state and 
local regulation. 
The statutory history is equally instructive.  
Congress considered an earlier House alternative 
that would have provided for an FCC rulemaking to 
establish a “policy” to ensure that state and local 
governments acted “within a reasonable period of 
time after the request is fully filed.”  Pet. App. 213a.   
But Congress instead enacted the very different 
provisions of Section 332(c)(7), which forbids the 
FCC from resorting to other provisions of the 
Communications Act.  Yet the FCC reads the statute 
 
19 
 
to impose the mandate from the House bill that 
Congress determined not to adopt. 
The essence of Section 332(c)(7) is thus to 
recognize and embrace a principally state and local 
regulatory regime for wireless siting decisions, in 
contrast to the broader national regime 
contemplated by provisions of the Communications 
Act like those considered in Iowa Utilities.  Congress 
did not intend to allow the FCC to require Arlington, 
Texas to follow the same timetables for zoning 
decisions as Arlington, Virginia.  Rather, the statute 
requires each state and local government to honor its 
own zoning policies, without targeting cell tower 
applications for unique, hostile treatment in the 
form of bans, discrimination, and delays.  Town of 
Amherst v. Omnipoint Comm’ns Enters., 173 F.3d 9, 
17 (1st Cir. 1999) (Congress conceived that this 
“experiment in federalism” would produce “at some 
cost and delay for the carriers” individual solutions 
“best adapted to the needs and desires of particular 
communities”); Pet. App. 210a (Conference Report) 
(“It is not the intent of this provision to give 
preferential treatment to the personal wireless 
service industry in the processing of requests, or to 
subject their requests to any but the generally 
applicable time frames for zoning decision.”).  But 
the government’s reading turns the statute on its 
head, converting it into a tool for national 
policymaking by the FCC. 
The relevant precedent is accordingly not Iowa 
Utilities, but instead Louisiana Public Service 
Commission v. FCC, 476 U.S. 355 (1986), which our 
opening brief cited seven times yet the government 
 
20 
 
completely ignores.  Just as Section 332(c)(7)(A) 
provides that “nothing in this Act shall limit or 
affect” state and local wireless siting authority, the 
provision in that case (Section 152(b)) stated that 
“nothing in this chapter shall be construed to apply 
or to give the Commission jurisdiction with respect 
to” interstate communications services.  Addressing 
the question de novo, this Court held that “this 
provision fences off from FCC reach or regulation 
intrastate matters,” and takes precedence over any 
other “provision declaring a general statutory 
purpose.”  476 U.S. at 370.  Congress notably 
enacted Section 332(c)(7)’s exclusionary “nothing in 
this chapter” provision against the backdrop of this 
Court’s ruling in Louisiana Public Service 
Commission. 
The government’s reliance on Iowa Utilities is 
also flawed because Section 332(c)(7)’s judicial 
review provision makes this case better analogized 
to Adams Fruit.  As discussed, the statute in that 
case gave the Secretary of Labor sweeping authority 
to “issue such rules and regulations as are necessary 
to carry out” the Act.  29 U.S.C. § 1861.  But this 
Court held that power did not include the authority 
to interpret the private right of action under the 
statute, because Congress had not authorized the 
Secretary to “regulate the scope of the judicial power 
vested by the statute.”  Adams Fruit, 494 U.S. at 
650.  Section 332(c)(7) has a parallel structure.  
Congress gave enforcement authority over Section 
332(c)(7) to the courts, and specifically withheld that 
authority from the FCC.  47 U.S.C. § 332(c)(7)(B)(v).   
 
21 
 
Nor can it be seriously argued that the statute 
requires FCC implementation. For the thirteen 
years prior to the FCC’s assertion of interpretive 
jurisdiction in this ruling, the judiciary applied the 
statute without difficulty.  The courts read Section 
332(c)(7) to preserve state and local zoning 
requirements rather than to require a national 
zoning regime.  See, e.g., Aegerter v. City of Delafield, 
174 F.3d 886, 892 (7th Cir. 1999) (“Some may 
disagree with Congress’s decision to leave so much 
authority in the hands of state and local 
governments to affect the placement of the physical 
infrastructure of an important part of the nation’s 
evolving telecommunications network. But that is 
what it did when it passed the Telecommunications 
Act of 1996, and it is not our job to second-guess that 
political decision.”).  No court read the statute to 
impose national administrative standards, much less 
“attempt[ed] to replicate the inquiry that the FCC 
conducted” of calculating national averages.  U.S. Br. 
43; see, e.g., N.Y. SMSA Ltd. P’shp v. Town of 
Riverhead Town Bd., 118 F. Supp. 2d 333, 341 
(E.D.N.Y. 2000); SNET Cellular, Inc. v. Angell, 99 F. 
Supp. 2d 190, 198 (D.R.I. 2000).   The FCC’s ruling 
in this case thus unavoidably overturns many prior 
court decisions.  See, e.g., U.S. Br. 40 n.10.   
2.  The government’s claim that its 
interpretation nonetheless represents the best 
reading of Section 332(c)(7) is unconvincing.  And 
again, none of its arguments addresses a matter 
within the special technical competence of the FCC, 
as opposed to a question of statutory construction for 
which courts rather than agencies are better suited. 
 
22 
 
Principally, the government invokes the FCC’s 
general regulatory authority over the 
Communications Act.  But Congress would not have 
thought those provisions would override Section 
332(c)(7)’s express provision that “nothing” else in 
the Communications Act may “affect the authority of 
a State or local government.”  47 U.S.C. 
§ 332(c)(7)(A) (emphasis added).  Contrary to the 
government’s submission, no principle of statutory 
construction imposes on Congress the burden to 
separately identify and negate each source of 
regulatory authority and policy that the agency 
might someday invoke.   
The government next argues that the FCC’s 
ruling “does not subject state and local officials to 
obligations going beyond those imposed by the 1996 
Act itself.”  U.S. Br. 40 n.10.  But Section 332(c)(7)’s 
express exclusionary language is not limited to 
additional “obligations.”  In broad terms, it forbids 
the FCC from invoking other provisions of the Act 
that would “affect” state and local decisionmaking.  
Unquestionably, the ruling in this case does so, and 
thereby “affects” local governments’ ability to decide 
wireless siting applications in a manner and on a 
schedule that reflect local conditions.  That was the 
very point. 
Section 332(c)(7) thus provides that state and 
local governments must act on applications “within a 
reasonable period of time.”  47 U.S.C. 
§ 332(c)(7)(B)(ii) (emphasis added).  As discussed, 
courts interpreted the phrase “reasonable” to give 
state and local governments the flexibility to account 
for local circumstances.  By contrast, the FCC reads 
 
23 
 
the same term to give the agency the flexibility to 
impose a uniform national zoning standard that 
conforms to its overall policy goals under the 
Communications Act.  Never before was a state 
following its own law presumed to have violated 
federal law.  Several states – and municipalities 
within those states – now are.  Pet. App. 118a (¶ 48); 
Pet. 9.  Never before was a local government 
presumed to have acted unreasonably when it 
followed its own standard zoning public hearing 
procedures.  Now some are.  Pet. App. 115a (¶ 44) 
(noting that new timelines “accommodate reasonable 
processes in most instances”) (emphasis added).  The 
agency recognized that the risks created by new 
federal requirements would in some instances force 
local governments to approve applications that they 
otherwise would not.  Pet. 188a.  There is 
accordingly no serious argument that the FCC’s 
assertion of authority does not “affect” state and 
local decisionmaking. 
For essentially the same reason, the government 
has matters backwards in asserting that the FCC 
has interpretive jurisdiction unless Congress 
expressly revokes it.  The FCC’s ruling represents a 
substantial intrusion on a sphere of classically state 
and local regulation, see, e.g., Village of Euclid v. 
Ambler Realty Co., 272 U.S. 365, 387 (1926), and 
communities across the country enact these powers 
through local political processes.  This case 
accordingly directly implicates the presumption that 
statutes do not change the balance of federal and 
state authority.  See New York v. United States, 505 
U.S. 144, 166 (1992) (“the Framers explicitly chose a 
Constitution that confers upon Congress the power 
 
24 
 
to regulate individuals, not States”); Gregory v. 
Ashcroft, 501 U.S. 452, 460 (1991) (“[I]f Congress 
intends to alter the ‘usual constitutional balance 
between the States and the Federal Government,’ it 
must make its intention to do so ‘unmistakably clear 
in the language of the statute.’” (citations omitted)).   
Accordingly, the better reading is that Congress 
concluded that its decision in Section 332(c)(7) to 
protect local interests would be better effectuated if 
the statute were interpreted by the neutral judiciary 
– which is attentive to concerns of federalism – 
rather than interpreted by the FCC as a means to 
effectuate national telecommunications policy.  
Indeed, at the time Congress enacted the statute, the 
FCC had itself just expressed the view that zoning 
matters are “within the province of, and best 
resolved by, local land use authorities.”  In re 
Artichoke Broad. Co., 10 FCC Rcd. 12,631, 12,633 
(1995). 
The government’s remaining argument is that 
its position is supported by the House Report on the 
legislation.  U.S. Br. 2-3 (H.R. Rep. No. 204, 104th 
Cong., 1st Sess. Pt. 1, at 94 (1995)).  But that Report 
addresses the House legislation – rejected in 
conference – calling for a rulemaking to establish 
policy on wireless siting decisions; it does not 
address Section 332(c)(7) as enacted.  By contrast, 
the Conference Report on the enacted legislation – 
which the government does not cite – does not 
include the language cited by the government, 
including regarding a desire for “uniform, consistent” 
requirements.  H.R. Rep. No. 204 at 94-95.   
 
25 
 
To the contrary, the Conference Report directs 
the Commission to terminate any rulemaking related 
to wireless citing, and explains that the statute 
imposes “limitations on the role and powers of the 
Commission . . . relate[d] to land use regulations.”  
Pet. App. 209a, 211a.  See Pet. Br. 32-33.  It explains 
that local governments have “flexibility to treat 
facilities that create different visual, aesthetic, or 
safety concerns differently to the extent permitted 
under generally applicable zoning requirements.”  
Pet. App. 209a.  It adds that “[i]t is not the intent of 
this provision to give preferential treatment to the 
personal wireless service industry in the processing 
of requests, or to subject their requests to any but 
the generally applicable time frames for zoning 
decision.”  Id. 210a.  And it specifies that “the courts 
shall have exclusive jurisdiction over all . . . disputes 
arising under this section.”  Id. 209a. 
In sum, Section 332(c)(7) illustrates that an 
agency’s interpretive jurisdiction is properly 
determined de novo.   
 
26 
 
CONCLUSION 
The Court should reverse the judgment, or vacate 
that judgment and remand the case. 
Respectfully submitted, 
 
THOMAS C. GOLDSTEIN  
KEVIN K. RUSSELL 
KEVIN R. AMER 
TEJINDER SINGH 
GOLDSTEIN & RUSSELL, 
P.C.  
5225 Wisconsin Ave., 
NW 
Suite 404 
Washington, DC 20015 
THOMAS D. BUNTON 
SENIOR DEPUTY 
COUNTY COUNSEL 
COUNTY OF SAN DIEGO 
1600 Pacific Highway 
Room 355 
San Diego, CA 92101 
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 Ave., NW  
Washington, DC 20006 
(202) 785-0600 
Joseph.VanEaton 
@bbklaw.com 
Counsel for Petitioners 
City of Arlington, Texas; 
City of Dallas, Texas; 
City of Los Angeles, 
California; County of Los 
Angeles, California; 
City of San Antonio, 
Texas; and Texas 
Coalition of Cities for 
Utility Issues2 
 
2 Petitioners acknowledge as well the financial assistance 
provided by the Cities of Austin, Texas and Yuma, Arizona, as 
well as the Michigan Municipal League Defense Fund Board.