CTIA—Wireless Ass'n v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2005 Decided September 26, 2006

No. 05-1008

CTIA - THE WIRELESS ASSOCIATION,

PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

RESPONDENTS

On Petition for Review of an Order of the

Federal Communications Commission

Donald B. Verrilli, Jr. argued the cause for petitioner. With

him on the briefs were Ian H. Gershengorn and Michael F.

Altschul.

C. Grey Pash, Jr., Counsel, Federal Communications

Commission, argued the cause for respondents. With him on the

brief were James C. Kilbourne and Todd S. Kim, Attorneys, U.S.

Department of Justice, and Samuel L. Feder, General Counsel,

Daniel M. Armstrong, Associate General Counsel, and Richard

K. Welch, Counsel, Federal Communications Commission.

Robert B. Nicholson and Robert J. Wiggers, Attorneys, U.S.

Department of Justice, entered appearances.

Before: TATEL, GARLAND and GRIFFITH, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: CTIA–The Wireless Association

(“CTIA”) challenges an order of the Federal Communications

Commission (1) determining that the construction of wireless

communications towers is an “undertaking” subject to section

106 of the National Historic Preservation Act, 16 U.S.C. § 470f,

and (2) deferring to a determination by the Advisory Council on

Historic Preservation (the “Council”) that section 106 protects

not only those properties formally deemed eligible for listing in

the National Register of Historic Places (the “Register”), but also

those that simply meet the criteria for listing. Because we

conclude the FCC did not err, we deny the petition for review.

I.

Congress enacted the National Historic Preservation Act

(“NHPA” or the “Act”) in 1966 to “foster conditions under

which our modern society and our prehistoric and historic

resources can exist in productive harmony.” 16 U.S.C. § 470-

1(1). Section 106 of the Act requires federal agencies to “take

into account” the effects of their “undertaking[s]” on historic

properties “included” or “eligible for inclusion” in the Register.

Id. § 470f.1 In doing so, the Act does “not require [a federal

1

Section 106 of the Act provides in full:

The head of any Federal agency having direct or

indirect jurisdiction over a proposed Federal or

federally assisted undertaking in any State and the

head of any Federal department or independent

agency having authority to license any undertaking

shall, prior to the approval of the expenditure of any

Federal funds on the undertaking or prior to the

issuance of any license, as the case may be, take into

account the effect of the undertaking on any district,

3

agency] to engage in any particular preservation activities;

rather, Section 106 only requires that the [agency] consult the

[State Historic Preservation Office] and the [Advisory Council

on Historic Preservation] and consider the impacts of its

undertaking.” Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir.

2000).

The Council is an independent agency created by the NHPA,

with twenty members drawn from the public and private sectors

and a professional staff trained in historic preservation. See 16

U.S.C. § 470i(a). The NHPA directs the Council “to promulgate

such rules and regulations as it deems necessary to govern the

implementation of [section 106] in its entirety.” Id. § 470s.

Using this authority, the Council created what it calls the

“section 106 process”—a process that provides “how Federal

agencies meet [their] statutory responsibilities” under section

106. 36 C.F.R. § 800.1(a). The section 106 process requires

agencies to identify undertakings that might affect historic

properties, id. § 800.3, identify potentially affected historic

properties, id. § 800.4, assess the potential adverse effects of

their actions on those properties, id. § 800.5, and seek ways to

“avoid, minimize or mitigate” those effects, id. §§ 800.1, 800.6.

Agencies “must complete the section 106 process prior to the

approval of the expenditure of any Federal funds on the

undertaking or prior to the issuance of any license.” Id.

§ 800.1(c) (quotation marks omitted).

site, building, structure, or object that is included in

or eligible for inclusion in the National Register. The

head of any such Federal agency shall afford the

Advisory Council on Historic Preservation . . . a

reasonable opportunity to comment with regard to

such undertaking.

16 U.S.C. § 470f (emphasis added).

4

As an alternative, the Council’s regulations provide that

agencies “may develop procedures to implement section 106 and

substitute them [for the standard section 106 process] . . . if they

are consistent with the Council’s regulations,” id. § 800.14(a), a

determination the Council itself makes, id. § 800.14(a)(2).

Agencies and the Council may also “negotiate a programmatic

agreement to govern the implementation of a particular program

or the resolution of adverse effects from certain complex project

situations or multiple undertakings.” Id. § 800.14(b). Such

programmatic agreements are frequently used for undertakings

whose effects are “similar or repetitive” or “cannot be fully

determined prior to approval” of the undertaking. Id.

§ 800.14(b)(1).

Negotiation of a programmatic agreement requires

“consultation . . . as appropriate” with “[State or Tribal Historic

Preservation Offices (“SHPOs” or “THPOs”)], the National

Conference of State Historic Preservation Officers (“NCSHPO”),

Indian tribes and Native Hawaiian organizations, other Federal

agencies, and members of the public.” Id. § 800.14(b)(2)(I).

Programmatic agreements “take effect when executed by the

Council, the agency official and the appropriate SHPOs/THPOs

when the programmatic agreement concerns a specific region or

the president of NCSHPO when NCSHPO has participated in the

consultation.” Id. § 800.14(b)(2)(iii). A programmatic

agreement binds the agency and “satisfies the agency’s section

106 responsibilities for all individual undertakings of the

program covered by the agreement until it expires or is

terminated by the agency.” Id. After being executed by the

parties, the agreement has no legal force, however, until after the

agency has provided public notice of its terms and allowed for

public comment. Id. § 800.14(b)(2)(iv). Only then may the

agency issue an order that makes the terms of the agreement

binding.

5

This case involves a programmatic agreement negotiated by

the Federal Communications Commission (“FCC” or

“Commission”), the Council, and the NCSHPO regarding

wireless communications towers. Prior to execution of this

agreement, wireless communication tower construction was

subject to the standard section 106 process established by the

Council. In August 2000, the FCC convened a working group to

develop a programmatic agreement for wireless communications

towers. This working group included the FCC, the Council,

representatives of the wireless communications industry

(including CTIA), and individuals and organizations from the

historic preservation community. By June 2003, the working

group had drafted a Nationwide Programmatic Agreement

(“NPA”) regarding tower construction. The NPA

[a]dopt[ed] categories of undertakings that are excluded

from the Section 106 process . . . [;] [o]utline[d]

procedures regarding public participation; [and]

[a]dopt[ed] procedures regarding the identification and

evaluation of historic properties and the assessment of

effects, including: (1) guidelines for establishing the

area of potential effects, (2) streamlined procedures for

identifying potentially eligible properties for purposes

of the Nationwide Agreement, (3) standards governing

the conduct of archeological surveys, (4) a definition of

visual adverse effects, and (5) standards for the use of

qualified experts.

Nationwide Programmatic Agreement Regarding the Section 106

National Historic Preservation Act Review Process, 20 F.C.C.R.

1073, 1075 ¶ 2 (2004) (the “NPA Order”). The NPA also

“[e]stablish[ed] procedures for SHPO/THPO and Commission

review” of proposed tower construction. Id.

After the NPA was drafted, the FCC issued a notice of

6

proposed rulemaking seeking public comment on the proposed

agreement and a draft amendment to its regulations that would

incorporate the NPA into the Commission’s rules. See Notice of

Proposed Rulemaking, Nationwide Programmatic Agreement

Regarding the Section 106 National Historic Preservation Act

Review Process, 18 F.C.C.R. 11664 (2003) (“Notice of Proposed

Rulemaking” or “NPRM”) (proposing to amend 47 C.F.R.

§ 1.1307(a)(4)). On January 4, 2005, following the notice and

comment period, the FCC issued the NPA Order, in which the

FCC adopted its proposed changes. See NPA Order, 20 F.C.C.R.

at 1074 ¶ 1. In the NPA Order, the FCC concluded that

construction of a wireless communications tower constitutes an

“undertaking” subject to section 106 of the NHPA. Id. at 1082-

84 ¶¶ 24-28. In addition, the FCC deferred to the Council’s

interpretation of the term “eligible for inclusion” as including

properties formally determined eligible for listing on the Register

and properties that meet the criteria for listing but have not yet

received a formal determination. Id. at 1117 ¶ 121. CTIA filed

a petition for review challenging those two aspects of the NPA

Order and invoking this Court’s jurisdiction under 47 U.S.C.

§ 402(a) and 28 U.S.C. §§ 2342, 2344.

II.

Even where the “parties assure us that we have jurisdiction

over [a] case, we have an independent obligation to be certain.”

Midwest Indep. Transmission Sys. Operator, Inc. v. FERC, 388

F.3d 903, 908 (D.C. Cir. 2004) (citing Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94-95 (1998)). Section 2344 of Title

28, United States Code, allows “[a]ny party aggrieved by the

[FCC’s] final order . . . within 60 days after its entry” to “file a

petition to review,” with respect to “a final order reviewable

under this chapter.” Id. Although neither CTIA nor the FCC

challenged our jurisdiction in their briefs, we questioned at oral

argument whether CTIA’s petition for review was timely with

7

respect to one of its challenges.

CTIA filed its petition for review within 60 days of the

FCC’s final order implementing the Nationwide Programmatic

Agreement, and seeks to challenge two independent grounds set

forth in the NPA Order in support of the FCC’s conclusion that

tower construction is a federal undertaking subject to the NHPA.

As we discuss more fully in Section III, first, the NPA Order

determined that tower construction constitutes a “federal

undertaking” under section 106 because of the FCC’s registration

process, through which the Commission “may assure, prior to

construction, that towers do not pose a risk to air safety,” 20

F.C.C.R. at 1084 ¶ 27. Second, the NPA Order determined that

tower construction additionally constitutes a “federal

undertaking” because of the FCC’s approval process for

environmental assessments under [the National Environmental

Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347]. 20 F.C.C.R.

at 1083 ¶ 26.

Two earlier Commission orders, however, also address the

duties of tower owners under the NHPA. In 1990, the

Commission “amend[ed] its rules to require environmental

review before any applicant proceeds with [tower] construction.”

Amendment of Environmental Rules, 5 F.C.C.R. 2942, 2942 ¶ 4

(1990) (“1990 Order”). As part of that amendment, the

Commission required tower owners to comply with the NHPA

prior to construction so that the Commission could “address[]

environmental issues early enough in the licensing process to

ensure that it fully meets its obligations under Federal

environmental laws.” Id. at 2943 ¶ 9 & n.16 (citing the NHPA,

16 U.S.C. § 470, et seq.). The 1990 Order never explicitly

addresses whether tower construction is a federal undertaking

under section 106 of the NHPA. Instead, the Order reasons that

“any delay in construction that results from requiring an

applicant to undergo environmental processing prior to

8

construction, rather than at the licensing stage, is more than

offset by the public interest benefits of ensuring, in compliance

with Federal environmental statutes, that no potentially

irreversible harm to the environment occurs.” Id. at 2943 ¶ 11

(emphasis added). Thus, the 1990 Order determines that

requiring compliance with the Commission’s environmental

regulations prior to tower construction is in the public interest.

In 1995, the Commission explicitly concluded that

“registering a structure,” i.e., its tower registration process,

“constitutes a . . . ‘federal undertaking’” under the NHPA.

Streamlining the Commission’s Antenna Structure Clearance

Procedure, 11 F.C.C.R. 4272, 4289 ¶ 41 & n.60 (1995) (“1995

Order”).2 Unlike the order we now review, the 1995 Order

contains no analysis of relevant statutes and regulations in

support of that conclusion. See id.

The parties did not address in their briefs whether CTIA’s

petition is timely in light of these two orders. After questioning

jurisdiction at oral argument, we ordered supplemental briefing.

Both parties now quarrel over application of the “reopening

doctrine.” The reopening doctrine, “well-established in this

circuit,” is “an exception to statutory limits on the time for

seeking review of an agency decision.” Nat’l Ass’n of

Reversionary Property Owners v. Surface Transp. Bd., 158 F.3d

135, 141 (D.C. Cir. 1998) (quoting United Transp. Union-Ill.

Legislative Bd. v. Surface Transp. Bd., 132 F.3d 71, 75-76 (D.C.

2

Although the Commission spoke of “registering a structure”

as “constitut[ing] a . . . federal undertaking,” 1995 Order, 11

F.C.C.R. at 4289 ¶ 41, we have previously noted that “federal

authority to fund or to license a project can render the project an

undertaking, but the decision of the funding or licensing agency is not

itself an undertaking,” Sheridan Kalorama Historical Ass’n v.

Christopher, 49 F.3d 750, 754 (D.C. Cir. 1995) (emphasis added).

9

Cir. 1998)) (alterations and quotation marks omitted). The

doctrine “arise[s] . . . where an agency conducts a rulemaking or

adopts a policy on an issue at one time, and then in a later

rulemaking restates the policy or otherwise addresses the issue

again without altering the original decision.” Id. On one end of

the spectrum, “[w]e have said that when the later proceeding

explicitly or implicitly shows that the agency actually

reconsidered the rule, the matter has been reopened and the time

period for seeking judicial review begins anew.” Id. (citing

Public Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir. 1990)).

“‘The general principle is that if the agency has opened the issue

up anew, even though not explicitly, its renewed adherence is

substantively reviewable.’” Id. (quoting Public Citizen, 901

F.2d at 150 (quoting Assoc. of Am. R.Rs. v. ICC, 846 F.2d 1465,

1473 (D.C. Cir.1988))) (alterations omitted); see PanAmSat

Corp. v. FCC, 198 F.3d 890, 897 (D.C. Cir. 1999) (same).

On the other end of the spectrum, we have concluded that an

agency does not reopen a rulemaking or policy determination

“merely [by] respond[ing] to an unsolicited comment by

reaffirming its prior position.” Kennecott Utah Copper Corp. v.

U.S. Dep’t of Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996)

(citing Massachusetts v. ICC, 893 F.2d 1368, 1372 (D.C. Cir.

1990)). “Nor does an agency reopen an issue by responding to

a comment that addresses a settled aspect of some matter, even

if the agency had solicited comments on unsettled aspects of the

same matter.” Kennecott, 88 F.3d at 1213.

In determining “whether an agency reconsidered a

previously decided matter,” we “‘must look to the entire context

of the rulemaking including all relevant proposals and reactions

of the agency.’” Reversionary Property Owners, 158 F.3d at 141

(quoting Public Citizen, 901 F.2d at 150) (alterations omitted).

We have, through numerous decisions, summarized several

factors that will demonstrate reopening in this Circuit. See id. at

10

142-43; Kennecott, 88 F.3d at 1213-15; Public Citizen, 901 F.2d

at 150; State of Ohio v. EPA, 838 F.2d 1325, 1328 (D.C. Cir.

1988). We need not, and do not, revisit the weight given to

various factors in distinguishing between reopening an issue and

“mere[ly] . . . repeating old reasons for an old policy in response

to unsolicited comments.” Reversionary Property Owners, 158

F.3d at 145. For in this case, the FCC’s treatment in the NPA

Order of whether tower construction is a federal undertaking

falls comfortably on the reopening side of the spectrum.

As noted, the 1990 Order determined that requiring tower

owners to comply with the NHPA prior to construction would

produce “public interest benefits” by “ensuring, in compliance

with Federal environmental statutes, that no potentially

irreversible harm to the environment occurs,” 5 F.C.C.R. at 2943

¶ 11, and the 1995 Order concluded that the tower registration

process “constitutes a . . . ‘federal undertaking’” under the

NHPA. 11 F.C.C.R. at 4289 ¶ 41 & n.60. The Commission’s

Notice of Proposed Rulemaking for the NPA Order did not

explicitly state that the Commission would not reconsider these

conclusions. Instead, after identifying several specific issues for

review, including whether the NPA should provide for

“exclusion of certain Undertakings from routine Section 106

review,” the NPRM requested comments on “any other issues

related to the draft Nationwide Agreement.” 18 F.C.C.R. at

11665 ¶ 2 (emphasis added).

This paragraph comes after a previous footnote indicating

that the NPA contained an “illustrative list of Commission

activities in relation to which Undertakings covered by the draft

[NPA] may occur,” which was attached to the NPRM. Id. at n.6.

That “illustrative list” proposed that tower construction, to the

extent covered by the FCC’s registration process, would

constitute an undertaking under the NPA, id. at 11724, as the

1995 Order previously concluded with respect to the general

11

section 106 process. The draft NPA further noted that applicants

“are required to prepare, and the Commission is required to

independently review and approve, a pre-construction

Environmental Assessment (“EA”) in cases where a proposed

tower or antenna may significantly affect the environment.” Id.

at 11671.

Although a general invitation to comment, by itself, may not

“thr[o]w the rulemaking open to any possible changes that any

member of the public might conjure up with the result that

summary denial of such changes becomes reviewable by the

courts,” Reversionary Property Owners, 158 F.3d at 145,

“[a]mbiguity in an NPRM may . . . tilt toward a finding that the

issue has been reopened,” id. at 142. “[C]onsider[ing] the cited

language in the NPRM in the ‘entire context of the rulemaking,’”

id. at 144 (quoting Public Citizen, 901 F.2d at 150), the

Commission’s proceedings are fairly read as reopening the issue

of why tower constructions constitute federal undertakings

subject to the NHPA and the new NPA.

The NPA Order began its discussion of this issue by stating

that the Commission “decline[d] to revisit, as beyond the scope

of this proceeding, the Commission’s existing interpretation that

the construction of antennas and support facilities is a federal

undertaking under the NHPA.” 20 F.C.C.R. at 1079 ¶ 16; see

also id. at 1075 ¶ 2. The Commission then went on to clarify

that its “Notice [of Proposed Rulemaking] did not seek comment

on the question whether the Commission should, assuming that

it possesses statutory authority to do so, continue our current

treatment of tower construction as an ‘undertaking’ for purposes

of the NHPA” and that “[t]herefore, [the Commission] decline[d]

to revisit that public-interest question in this docket.” Id. at 1083

¶ 24. This clarification appears to suggest that the Commission

declined to revisit the question whether it is in the public interest

to require historic properties to be taken into consideration prior

12

to tower construction—the subject of the 1990 Order. The

Commission made no statement that it declined to reconsider

whether it had statutory authority to treat tower construction as

an undertaking, and in fact proceeded to address this issue. See

NPA Order, 20 F.C.C.R. at 1083 ¶ 26 (explaining that the

Commission “expressly retained a limited approval authority for

all tower construction to the extent necessary to ensure

compliance with federal environmental statutes”); id. at 1084

¶ 27 (addressing why tower registration “constitut[es] an

approval process within the Commission’s [47 U.S.C. §] 303(q)

authority”). Even assuming arguendo the Commission could

foreclose judicial review of a new reason given for an old

conclusion by stating that it is not reopening an issue, the

Commission did not explicitly do so here.

Finally, the NPA Order indisputably offers two new

justifications not found in the 1990 Order or 1995 Order. In

fact, these two justifications offer the Commission’s first explicit

rationales for concluding that tower construction is an

undertaking, explaining that the FCC’s tower registration process

and its approval authority under NEPA constitute undertakings.

Looking to “‘the entire context of the rulemaking,’”

Reversionary Property Owners, 158 F.3d at 141 (quoting Public

Citizen, 901 F.2d at 150), the FCC reopened the undertaking

issue CTIA challenges where the Commission’s NPRM was

ambiguous, its order did not foreclose reopening the precise

matters at issue, and those matters constituted the Commission’s

first legal rationales for its action to date. Thus, we have

jurisdiction to hear CTIA’s challenge.

III.

CTIA urges that the NPA Order was “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). CTIA contends that the FCC erred in

13

concluding that (1) tower construction constitutes a federal

undertaking and (2) properties “eligible for inclusion” under

section 106, 16 U.S.C. § 470f, include not only proprieties

formally designated as such by the Secretary of the Interior, but

also properties that meet the criteria outlined in the statute and

implementing regulations. We find no error.

A. The FCC’s conclusion that tower construction

constitutes an “undertaking.”

Section 106 of the NHPA requires federal agencies to “take

into account the effect of the undertaking.” Id. § 470f (emphasis

added). Thus, whether the protections of section 106 are

triggered turns on whether there has been an “undertaking.” Id.

The Act defines an undertaking as:

a project, activity, or program funded in whole or in part

under the direct or indirect jurisdiction of a Federal

agency, including—

(A) those carried out by or on behalf of the agency;

(B) those carried out with Federal financial assistance;

(C) those requiring a Federal permit[,] license, or

approval; and

(D) those subject to State or local regulation

administered pursuant to a delegation or approval by a

Federal agency.

16 U.S.C. § 470w(7) (emphasis added).

In Sheridan Kalorama Historical Ass’n v. Christopher, we

noted that “[u]pon a first reading, the . . . definition seems

14

actually to confine the notion of an ‘undertaking’ to a project

‘funded in whole or in part under the direct or indirect

jurisdiction of a federal agency,’ and thus by omission to exclude

a federally licensed project from the coverage of the statute.” 49

F.3d 750, 755 (D.C. Cir. 1995) (emphasis added). We rejected

that reading, however, because it “would deprive the references

to licensing in § 106 of any practical effect.” Id. We thus held

that “Congress intended to expand the definition of an

‘undertaking’—formerly limited to federally funded or licensed

projects—to include projects requiring a federal ‘permit’ or

merely federal ‘approval.’” Id. Thus, under Sheridan Kalorama,

a “project, activity, or program,” 16 U.S.C. § 470w(7), does not

require federal funding to be an “undertaking” under section 106

of the NHPA. See id. Instead, only a “Federal permit, license or

approval” is required. Id. § 470w(7)(C). Because the NPA

Order only focuses on whether “Federal . . . approval,” id.

§ 470w(7)(C) (emphasis added), is required for tower

construction, NPA Order, 20 F.C.C.R. at 1082-84 ¶¶ 24-28, our

task is relatively straightforward.3 We must determine whether

the FCC acted arbitrarily or capriciously in concluding that tower

construction requires “Federal . . . approval.” 16 U.S.C.

§ 470w(7)(C).

In the NPA Order, as we have noted, the FCC concluded

3

CTIA also argues that “the FCC cannot justify its imposition

of NHPA obligations on the ground that the requisite federal licensing

occurs when the FCC issues the initial license that allows carriers to

provide wireless services.” Petitioner’s Br. at 30. The FCC does not

rely upon this justification in the NPA Order. 20 F.C.C.R. at 1082-84

¶¶ 24-28. Because “we may uphold agency orders based only on

reasoning that is fairly stated by the agency in the order under review,”

we do not address this contention. Williams Gas Processing-Gulf

Coast Co. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (quotation

marks and citation omitted).

15

that tower construction requires federal approval because (1) the

Commission’s tower registration process “may be viewed as

effectively constituting an approval process within the

Commission’s section 303(q) authority,” 20 F.C.C.R. at 1084

¶ 27, and (2) a “limited approval authority” retained by the FCC

with respect to NEPA additionally constitutes federal approval,

id. at 1083-84 ¶ 26.

With respect to the first ground, discussing its tower

registration regulations implemented pursuant to section 303(q)

of the Communications Act of 1934, see NPA Order, 20

F.C.C.R. at 1084 ¶ 27 n.53 (citing 47 U.S.C. § 303(q); 47 C.F.R.

§§ 17.4, 17.7), the FCC concluded that its tower “registration

process provides a permissible means by which the Commission

may assure, prior to construction, that towers do not pose a risk

to air safety,” id. at 1084 ¶ 27. Section 17.7 of the Commission’s

regulations requires a party seeking to build a tower to consult

with the Federal Aviation Administration (“FAA”) if the

proposed tower meets certain height and location criteria. 47

C.F.R. § 17.7. An owner of such a proposed tower must then

“register the structure with the Commission.” 47 C.F.R.

§ 17.4(a). Subject to certain exceptions, an owner “must submit

a valid FAA determination of ‘no hazard’” as part of the

registration request. Id. § 17.4(b). If the owner does not or

cannot submit a “no hazard” determination, “processing of the

registration may be delayed or disapproved.” Id. § 17.4(d).

The NPA Order concluded that the FCC’s having

conditioned its approval in the regulations upon receiving “the

requisite FAA clearance” amounts to “an approval process.”

NPA Order, 20 F.C.C.R. at 1084 ¶ 27. This conclusion built

upon an earlier statement in the 1995 Order, albeit addressing

the Commission’s tower registration process generally and not

speaking to the NHPA. There, the FCC noted that “[p]roposal

[sic] antenna structures that are determined by the FAA to

16

present a potential hazard to air navigation must be lighted

during construction” and that the Commission’s “registration

process [is] the federal government’s only method of requiring

such safety lighting, as the FAA does not have statutory

authority to mandate the painting or lighting of antenna

structures.” 11 F.C.C.R. at 4281 ¶ 20.

CTIA argues this registration process is “wholly ministerial”

and thus “do[es] not create federal undertakings.” Petitioner’s

Br. at 26-27. CTIA directs us to a portion of the 1995 Order

indicating that “upon receipt of the FAA determination for the

structure, the electronic filing capability will enable the owner

to register the structure with the Commission and receive a

registration number within minutes.” 11 F.C.C.R. at 4281-82

¶ 20 (emphasis added). CTIA argues that because the

Commission can make this determination “within minutes,” id.,

it must be a ministerial determination and not truly a process

amounting to “Federal . . . approval,” 16 U.S.C. § 470w(7)(C),

that would make tower construction a federal undertaking, see 16

U.S.C. § 470f. CTIA omits from its brief, however, the portion

of the 1995 Order set out with emphasis above: “upon receipt of

the FAA determination for the structure.” Petitioner’s Br. at 27

(discussing 11 F.C.C.R. at 4281-82 ¶ 20). The FCC has chosen,

through its registration regulations, to grant approval of a

registration if it receives a “no hazard” determination from the

FAA. See 47 C.F.R. § 17.4(d). If it does not, as we have noted,

the FCC’s regulations allow the Commission in its discretion to

“delay[] or disapprove[]” a registration. Id. CTIA never

addresses § 17.4(d), but we fail to see how the Commission’s

approval under that section—“the federal government’s only

method of requiring . . . safety lighting,” 1995 Order, 11

F.C.C.R. at 4281 ¶ 20—cannot constitute “Federal . . . approval,”

16 U.S.C. § 470w(7)(C). Thus, the NPA Order was neither

arbitrary nor capricious, see 5 U.S.C. § 706(2)(A), in

determining that tower construction, to the extent covered by the

17

FCC’s registration process, constitutes a federal undertaking

subject to section 106 of the NHPA.4

As a second ground for concluding that tower construction

requires “Federal . . approval,” 16 U.S.C. § 470w(7), the NPA

Order concluded that the FCC has “expressly retained a limited

approval authority for all tower construction to the extent

necessary to ensure compliance with federal environmental

statutes.” 20 F.C.C.R. at 1083-84 ¶ 26. Specifically, among

other things, the FCC requires that owners submit for its

approval, prior to tower construction, environmental assessments

called for by NEPA. See NPA Order, 20 F.C.C.R. at 1083-84

¶ 26. Where a facility “may have a significant environmental

impact,” the FCC’s regulations require that an environmental

assessment “shall be submitted by the [owner] and ruled on by

the Commission . . . prior to the initiation of construction of the

facility.” 47 C.F.R. § 1.1312(b) (emphasis added); see NPA

Order, 20 F.C.C.R. at 1083 n.52.

The environmental assessment “is a document [that]

explain[s] the environmental consequences of the proposal and

set[s] forth sufficient analysis for . . . the Commission to reach

4

Both parties appear to agree that this ground only applies to

a subset of towers subject to the Commission’s tower registration

process. CTIA argues these registration requirements “do[] not . . .

apply to the vast majority of towers” because they only apply to

towers meeting certain requirements. Petitioner’s Br. at 26. The NPA

Order appears to recognize as much: “the Commission has chosen to

implement rules requiring that towers meeting certain height and

location criteria be registered with the Commission prior to

construction.” NPA Order, 20 F.C.C.R. at 1084 ¶ 27 (emphasis

added). Before us, the Commission does not appear to dispute that

tower construction constitutes a federal undertaking “at least,” i.e.,

only, “as to the towers for which registration is required.”

Respondent’s Br. at 30-31.

18

a determination that the proposal will or will not have a

significant environmental effect.” 47 C.F.R. § 1.1308(b). Where

a proposal, such as a proposed wireless communications tower,

has a “significant environmental effect,” id., the FCC is required

by NEPA to consult with expert Federal agencies and, following

such consultation, to prepare a detailed environmental impact

statement (“EIS”). See 42 U.S.C. § 4332(2)(c); 47 C.F.R.

§§ 1.1308, 1.1315, 1.1317.

By requiring a ruling on each environmental assessment

prior to tower construction, the FCC has retained authority over

tower construction in order to ensure that it complies with

NEPA. Whatever else “approval” may mean, we see no basis for

CTIA’s suggestion that the FCC’s retention of authority to

“rule[] on,” 47 C.F.R. § 1.1312(b), a party’s submission under

NEPA cannot constitute “approval,” 16 U.S.C. § 470w(7)(C).

We conclude that the NPA Order was neither arbitrary nor

capricious, see 5 U.S.C. § 706(2)(A), in determining that the

FCC’s approval authority under NEPA makes tower construction

an undertaking.

B. The FCC’s deference to the Council’s interpretation of

“eligible for inclusion.”

Section 106 requires agencies to consider the potential

impacts of their undertakings on properties that are “included in

or eligible for inclusion in the National Register.” 16 U.S.C.

§ 470f (emphasis added). Both CTIA and the FCC agree that

properties included in the Register must be considered in

applying section 106. At issue here is what properties must be

considered because they are “eligible for inclusion.” Id. In its

regulations, the Council has interpreted “eligible for inclusion,”

id., to include “both properties formally determined as such in

accordance with regulations of the Secretary of the Interior and

all other properties that meet the National Register criteria.” 36

19

C.F.R. § 800.16(1)(2). In other words, some properties have

been “formally determined” as eligible, and others may, in fact,

meet the criteria for eligibility, but have not yet been “formally

determined” eligible. In the NPA Order, the FCC deferred to the

Council’s “clearly stated interpretation of its own governing

statute,” NPA Order, 20 F.C.C.R. at 1117 ¶ 121. Although not

explicitly invoking a standard of review under which we might

reverse the FCC’s decision to defer to the Council, CTIA

contends that “deference to the [Council] cannot save the

Commission’s order.” Petitioner’s Br. at 39.

Congress has granted the Council authority “to promulgate

such rules and regulations as it deems necessary to govern the

implementation of section 470f of this title[, section 106 of the

Act,] in its entirety.” 16 U.S.C. § 470s. In Andrus v. Sierra

Club, 442 U.S. 347, 358 (1979), the Supreme Court determined

that regulations promulgated by the Council on Environmental

Quality interpreting NEPA were entitled to “substantial

deference” because the “Council [on Environmental Quality]

was created by NEPA, and charged in that statute with the

responsibility ‘to review and appraise the various programs and

activities of the Federal Government in the light of the policy set

forth in . . . this Act . . . , and to make recommendations to the

President with respect thereto.’” Id. at 358 (citation omitted).

We applied that holding to the National Historic Preservation

Act and the Advisory Council on Historic Preservation in

McMillan Park Commission v. National Capital Planning

Commission, 968 F.2d 1283, 1287-88 (D.C. Cir. 1992).

In McMillan Park, we explained that, as in Andrus with

respect to the Council on Environmental Quality, the Advisory

Council on Historic Preservation

was created by the NHPA, 16 U.S.C. § 470i, and

charged in that Act with the responsibility to “advise

20

the President and the Congress on matters relating to

historic preservation,” and to “review the policies and

programs of Federal agencies and recommend to such

agencies methods to improve the effectiveness,

coordination, and consistency of those policies and

programs with the policies and programs carried out

under this subchapter.” Id. § 470j(a)(1) & (6). Given

the Supreme Court’s reasoning in Andrus, we see no

basis for extending the Advisory Council’s NHPA

regulations any less deference than is traditionally

afforded the NEPA regulations of the Council on

Environmental Quality.

968 F.2d at 1288. Thus, we concluded in McMillan Park, “the

Advisory Council regulations command substantial judicial

deference.” Id.

CTIA makes four arguments in attempting to show that the

FCC’s deference to the Council was unlawful. First, CTIA

argues that “it appears that the FCC misconstrued its own

authority to adopt in the NPA a definition of [“eligible for

inclusion”] that differed from that adopted by the [Council].”

Petitioner’s Br. at 39.5 Having reviewed the NPA Order in its

entirety, we cannot agree with CTIA, however, that the FCC

misunderstood—or, as CTIA puts it, “appears” to have

misunderstood— its authority in determining whether to defer to

the Council’s definition of the statutory term “eligible for

inclusion,” 16 U.S.C. § 470f. The NPA Order repeatedly

5

This argument is predicated upon a single statement in the

NPA Order: “We also note that Section 800.14 of the Council’s rules,

which authorizes programmatic agreements, discusses alternative

procedures to Subpart B of the Council’s rules, but the definition of

Historic Property is in Subpart C.” NPA Order, 20 F.C.C.R. at 1117

¶ 121.

21

indicates that the Commission saw no ground for departing from

the Council’s interpretation of a statute it is charged by Congress

with implementing. See NPA Order, 20 F.C.C.R. at 1116-20

¶¶ 118-27.

Second, CTIA argues in a sentence that the phrase “eligible

for inclusion” in section 106 is “unambiguous,” Petitioner’s Br.

at 41, although it provides no argument in support of that

assertion. See City of Waukesha v. EPA, 320 F.3d 228, 251 n.22

(D.C. Cir. 2003) (“argument[s] . . . raised in the opening brief

only summarily, without explanation or reasoning, . . . [are]

waived”). But as the parties’ competing arguments show, the

phrase “eligible for inclusion” is susceptible to at least the two

different readings offered by CTIA and the Council: properties

that merely meet eligibility criteria and properties that have been

formally designated as such.

Third, CTIA argues that the Council’s interpretation of the

term “eligible for inclusion” is not entitled to deference because

it “appears in multiple provisions of the NHPA, including, most

prominently, Section 101,” which is subject to interpretation by

the Secretary of the Interior. Petitioner’s Br. at 41. Although it

is generally true that deference may not apply to an agency’s

interpretation of a statute if Congress has entrusted more than

one agency with administering the statute, see, e.g., Ass’n of Am.

Phys. and Surgeons, Inc. v. Clinton, 997 F.2d 898, 913 (D.C. Cir.

1993) (“we do not defer to an agency’s construction of a statute

interpreted by more than one agency”), that is not this case.

Congress has entrusted one agency with interpreting and

administering section 106 of the NHPA: the Council. See 16

U.S.C. § 470s (authorizing the Council “to promulgate such rules

and regulations as it deems necessary to govern the

implementation of [section 106 of the Act] in its entirety”)

(emphasis added). Although the term “eligible for inclusion”

may appear in other provisions, Congress has authorized the

22

Council to administer the provision at issue here: section 106.

Finally, CTIA argues that the Council’s interpretation

“cannot be squared with the text and structure of the Act, or with

the legislative history of Section 106.” Petitioner’s Br. at 34. In

CTIA’s view, a property can only be “eligible for inclusion”

under the Act, 16 U.S.C. § 470f, if it has been “formally”

determined to be eligible by the Secretary of the Interior.

Petitioner’s Br. at 34. Specifically, CTIA makes several

arguments about “the text and structure of the statute,” which, in

its view, demonstrate that the Council’s regulation cannot be

reconciled with the Act. Id. at 34-39. CTIA then discusses

legislative history that it believes to be at odds with the Council’s

reading. Id. at 38.

Although CTIA has not directed us to any of its own

comments in which it makes its present arguments to the FCC,

several parties raised statutory and legislative history arguments

before the Commission. “Courts have long required a party

seeking review of agency action to exhaust its administrative

remedies before seeking judicial review.” Natural Resources

Defense Council, Inc. v. EPA, 824 F.2d 1146, 1150-51 (D.C. Cir.

1987) (en banc). “This court,” however, “has excused the

exhaustion requirements for a particular issue when . . . the

agency has had an opportunity to consider the identical issues

presented to the court but which were raised by other parties.”

Id. at 1151 (quotation marks, citations, and alterations omitted).

The FCC summarized those arguments, see NPA Order, 20

F.C.C.R. at 1116 ¶ 119, but never took a position on them

because it chose “not [to] alter the definition of Historic Property

used in . . . the Council’s rules,” id. at 1117 ¶ 121 (discussing 36

C.F.R. § 800.16(l), which defines “historic property” and the

related term “eligible for inclusion”). Because the FCC

“defer[red] to the Council’s clearly stated interpretation of its

own governing statute,” it “concluded that questions regarding

23

the definition of historic properties are outside the scope of this

proceeding and should be addressed, if at all, by the Council.”

Id.

CTIA acknowledges as much in its brief, indicating in a

footnote that “[i]n adopting the [Council’s] definition of ‘eligible

for inclusion in the National Register,’ the FCC did not

independently interpret the statute . . . .” Petitioner’s Br. at 40

n.14. CTIA never explains why, in requiring regulated parties to

follow the Council’s interpretation of section 106, the FCC was

required to revisit the Council’s interpretation. The FCC did not

reach the statutory and legislative arguments pressed by CTIA

here because there was no need to do so, in light of its reasonable

choice to defer to the Council’s interpretation.

Given that we must defer under Andrus and McMillan Park

to the Council’s reasonable interpretation of the meaning of

section 106, we cannot see how it was arbitrary and capricious,

see 5 U.S.C. § 706(2)(A), for the FCC to choose to do so as well.

Giving the Council’s reading of section 106 the “substantial . . .

deference” it is owed, McMillan Park, 968 F.2d at 1288; see

Andrus, 442 U.S. at 358, the Council’s interpretation was

reasonable. As noted, the Council concluded that “eligible”

properties under section 106 include “both properties formally

determined as such in accordance with regulations of the

Secretary of the Interior and all other properties that meet the

National Register criteria.” 36 C.F.R. § 800.16(1)(2) (emphasis

added). CTIA argues that the latter of these two regulatory

definitions of eligible was unreasonable, but it fits comfortably

within the common meaning of eligible.

“Eligible” has been defined as “fitted or qualified to be

chosen or used.” Webster’s Third New International Dictionary

of the English Language Unabridged 736 (1981). Although

“fitted or qualified to be chosen or used,” i.e., “meet[ing] . . .

24

criteria,” may not be the only possible reading of the statutory

term “eligible,” it is one possible, reasonable interpretation of

that term. We cannot say that the Council’s interpretation of

“eligible” was unreasonable merely because it was not limited,

as CTIA would prefer, to properties formally designated as

eligible. CTIA argues that references in other parts of the Act to

properties that “may be” eligible, see, e.g., 16 U.S.C. § 470h-

2(a)(2)(B), means that Congress could have directed that section

106 look to properties that “may be eligible” instead of

properties that are “eligible for inclusion in the National

Register,” 16 U.S.C. § 470f. Nonetheless, we do not find these

other references clear up the ambiguity the parties have

identified, and it is the Council, see 16 U.S.C. § 470s (charging

the Council with “promulgat[ing] such rules and regulations as

it deems necessary to govern the implementation of [section 106]

in its entirety”), and not CTIA that is charged with interpreting

it in the first instance. Thus, CTIA has failed to explain how the

FCC acted contrary to law in following the Council’s reasonable

interpretation of a statute the Council is charged with

implementing.

IV.

For the foregoing reasons, the petition for review is denied.

So ordered.