Amicus Curiae Brief — City of Arlington v. Federal Communications Commission

U.S.

FOR ARGUMENT ta

RECOF” DEC 26 2012

ANT

ia OFFICE OF THE CLERK

BRIE ns Nos. 11-1545 & 11-1547

IN THE

Supreme Court of the Anited States

CITY OF ARLINGTON, TEXAS, et al,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR PCIA—THE WIRELESS

INFRASTRUCTURE ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

JONATHAN M. CAMPBELL CATHERINE E. STETSON

D. ZACHARY CHAMP DANIEL L. BRENNER

ALEXANDER BLAKE DOMINIC F. PERELLA

REYNOLDS HOGAN LOVELLS US LLP

PCIA—THE WIRELESS 555 Thirteenth Street, N.W.

INFRASTRUCTURE Washington, D.C. 20004

ASSOCIATION (202) 637-5600

901 N. Washington Street cate.stetson@hoganlovells.com

Suite 600

Alexandria, VA 22314

(703) 739-0300

Counsel for Amicus Curiae

“Counsel of Record

WiILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WasnincTon, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIEG...............0...cceccceeeeceeeeeeeees ii

STATEMENT OF INTEREST .....................--.....000-000s 1

SUMMARY OF ARGUMENT. ...................-.---ccccceeeeeees 2

fT Te eT EON 3

I. THE FEDERAL COMMUNICATIONS

COMMISSION’S ORDER IN THIS

CASE HELPED SOLVE A PROBLEM

OF NATIONAL SIGNIFICANCE....................... 3

A. Wireless Siting Delays —_

The Broadband Rollout And us

TED See BD cecececocescsescscceccessesccccsccscese 3

B. Section 332(c)(7)(B)’s Silence On

Timi Issues Was Allowing Sit-

ing Delays To Persist ............................265. 13

C. The Commission’s Action Alleviat-

ed Siting Delays By Implementing

| TERA TAL TARA LL TIT TOA AO 15

Il. THE COMMISSION CLEARLY HAD

AUTHORITY TO ISSUE THE

RULING UNDER REVIEW.......................ccc0e000s 17

A. The Commission Has Authority To

Interpret The Communications

Act, And Nothing In Section

332(c(7) Withdrew That Au-

TIT iitiitas ch pcciceestdenieniarianiaticeiantat taeda eneiuents 18

B. When Co ss Intends To With-

draw The Commission’s Authority,

It Does So Clearly...................0ecc0eeeceeeeeeene 20

SEIT ceeccussusccsenenesnenssnmnnenenserenmenenessanennesneets 22

TABLE OF AUTHORITIES

Page

Cases:

ATC Realty, LLC v. Town of Kingston,

303 F.3d 91 (1st Cir. 2002) ....................22.0002- 10

AT&T Corp. v. Iowa Utilities Bd.,

525 U.S. 366 (1999)................-..... 18, 19, 20, 21

Barnhart v. Sigmon Coal Co.,

I a 21

City of Rancho Palos Verdes v. Abrams,

SET en aa 14

Global Crossing Telecommce’ns, Inc.

v. Metrophones Telecommce'ns, Inc.,

ES ee 18

Hardt v. Reliance Standard Life Ins. Co.,

ieee 20

Price Waterhouse v. Hopkins,

ee iciiettianictnsenincedcndncentiwsesnaniaccinn 2

United States v. Haggar Apparel Co.,

BBB UF. BID Cio nn cecccccccccceccccccoccccccccccsses 3, 17

United States v. Mead Corp.,

I 19

Statutes:

I a 20

| IER RRS aa neo moar eon 17

I I , nicicicthieieliiicicditiciih ieee cntace 2,17

Oe is 3, 17, 18

OF ee a iccentanitesiccisinsatacndinntinsasiiiiiisnniacitionniae 17

iv

TABLE OF AUTHORITIES—Continued

47 U.S.C. § 3826cK7) ...........002200-. 13, 15, 17, 18, 19

47 U.B.C. § SBBTAITIA) ....0..00cccnesccccesesscceces 3, 19, 20

GE TEE, © Be ierkctcttccciccciccnsiccsssins passim

47 U.S.C. § SOB TIDG) ..........20000000sccccccesesesecs: 13

a, Be ciitaitteciintsinsicitiis 13

47 U.S.C. § 332(c)(7)(B)Giv) ...............seeeeeeeees 13, 16

47 U.S.C. § 332(c)(7)(B)(v) .......0.0 2... eee 13, 14, 16

I aii iccciaaleialdinacihiconianieitl 5

il el 5

3 ETS aeons 3

ee I icctersiiniscereirnncsensistisecseoannitenainia 5

Pub. L. No. 112-96, § GOO03(a) ................ecceceeeeeeee 21

as Ta BR, SI, recites 21

Legislative History:

H.R. Rep. No. 104-204 (1995) ..................00cceeeeeee 14

Administrative & Executive Materials:

Amendment of the Commission’s Rules

to Establish Part 27, the Wireless

Communications Service, 12 FCC

a cccmninlion 13

Acceleration of Broadband Deployment:

Expanding the Reach and Reducing

the Cost of Broadband Deployment,

Notice of Inquiry, 26 FCC Red 5384

Se asctscstteiastiesnsesiepesinsennsnetcainnniininduistipneensceienendonn 9

TABLE OF AUTHORITIES—Continued

Comments of PCIA—The Wireless Infra-

structure Association & The DAS Fo-

rum, WC Docket No. 11-59 (FCC July

a Se ahiseeiciblceesibinsiiiietielcasietaneibiisiliniteiaeeiios

FCC, Connecting America — The Nation-

al Broadband Plan (2010)......................--

Inquiry Concerning the Deployment of

Advanced Telecommunications Ca-

pability to All Americans, Seventh

Broadband Progress Report & Order

on Recon., 26 FCC Red 8008 (2011)........

Inquiry Concerning the Deployment of

Advanced Telecommunications Ca-

pability to All Americans, Eighth

Broadband Progress Report & Order

on Recon., 27 FCC Red 10342 (2012).......

Petition for Declaratory Ruling, WT

Docket No. 08-165 (FCC July 11,

Saranac cedars dale pieiaiiinieaibenionten

Prepared Remarks of Chairman Julius

Genachowski, Federal Communica-

tions Commission, Broadband Accel-

eration Conference, Washington, D.C.

RS ERAS A ce SSN cole eo

Prepared Remarks of Chairman Julius

Genachowski, Federal Communica-

tions Commission, “The Global Inter-

net at a Crossroads,” at the Council

on Foreign Relations, Washington,

D.C., 2012 WL 5879188 (Nov. 20,

vi

TABLE OF AUTHORITIES—Continued

The White House, Presidential Memo-

randum: Unleashing the Wireless

Broadband Revolution (June 28,

Other Authorities:

S. Andes & D. Castro, Opportunities &

Innovations in the Mobile Broadband

Economy (Sept. 14, 2010) ..............2..-...2200++-

S. Blumberg et al., Wireless Substitu-

tion: State-level Estimates From the

National Health Interview Survey,

2010—2011, Nat’) Health Statistics

Reports No. 61 (Oct. 12, 2012) ....................

Cisco Visual Networking Index: Global

Mobile Data Traffic Forecast Update,

2011-2016 (Feb. 14, 2012)............2.::cceeeeeee

CNN, Survey: U.S. Mobile Web Access

Growing Fast (July 8, 2010)....................0...

CTIA, Wireless Quick Facts (2012)..................

C. Dingwall, Rural Broadband: Miles to

Go Before We Sleep, WirelessWeek,

GR Tey Ce recscnvescvencanssnessensemrmemeneneneesenseren

C. Moy, Cell tower rejected at Trixi’s

Antler Saloon; no service for Ovando,

The Missoulian, Mar. 13, 2010....................

B. Sandrick, Parma officials uncertain

about future of cell phone antennae

placement, Parma Sun Post, Apr. 7,

TABLE OF AUTHORITIES—Continued

R. Shapiro & K. Hassett, The Employ-

ment Effects of Advances in Internet

& Wireless Technology: Evaluating

the Transitions from 2G to 3G & from

3G to 4G (Jan. 2012)

IN THE

Supreme Court of the Anited States

Nos. 11-1545 & 11-1547

CITY OF ARLINGTON, TEXAS, et al.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR PCIA—-THE WIRELESS

INFRASTRUCTURE ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST"

PCIA—The Wireless Infrastructure Association

respectfully submits this brief as amicus curiae.

PCIA is the trade association representing the

wireless telecommunications infrastructure industry.

PCIA’s members include the nation’s leading wire-

less carriers and infrastructure providers. Those

members develop, own, manage, and operate more

1 No party or counsel for a party authored this brief in whole or

in part. No party, counsel for a party, or person other than

amicus curiae, its members, or counsel made any monetary

contribution intended to fund the preparation or submission of

this brief. All parties have consented to the filing of this brief.

than 125,000 telecommunications towers and anten-

na structures used as sites for wireless service.

Through advocacy and educational initiatives, PCIA

seeks to facilitate the widespread deployment of

communications networks across the country. It

thus seeks to advance the Federal Communications

Commission’s key mission under the Telecommuni-

cations Act of 1996: “encouragling] the deployment

on a reasonable and timely basis of advanced tele-

communications capability to all Americans” by

“removling] barriers to infrastructure investment.”

47 U.S.C. § 157 nt.

PCIA and its members have an abiding interest in

this case because the Commission’s order below was

a major step forward for wireless broadband. It

helped remove a roadblock—siting delay—that is

preventing broadband service and reliable wireless

voice service from reaching all Americans. The

Commission’s order was a paradigmatic, and proper,

use of its delegated authority.

SUMMARY OF ARGUMENT

This Court does not “leave [its] common sense at

the doorstep when [it] interpret[s] a statute.” Price

Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989).

That is why it is important to recognize that the

Commission’s order in this case solved a communica-

tions-infrastructure problem of national importance,

in exactly the fashion Congress would have expected.

The Commission found that access to wireless

broadband Internet and phone service is crucial for

all Americans. It found that local siting-approval

delays were blocking wireless providers from expand-

ing their infrastructure, thus keeping reliable wire-

less service out of reach for many. And it found that

while Congress had tried to solve that problem by

enacting 47 U.S.C. § 332(c)(7), the statute’s silence

on timing issues was rendering it ineffective; wire-

less providers could not tell when localities had

“failled] to act” under Section 332(c)(7)(B), and thus

could not make use of the statutory provisions allow-

ing providers to turn to courts and the Commission

for relief. The Commission accordingly “useld] its

discretion to determine how best to implement

[Congress’s] policy|.]” United States v. Haggar

Apparel Co., 526 U.S. 380, 393 (1999).

That sort of implementation is just what Congress

authorized when it instructed the Commission to

“prescribe such rules and regulations as may be

necessary in the public interest” to carry out the

Act’s provisions, 47 U.S.C. § 201(b), and to “take

immediate action to accelerate deployment of [broad-

band] capability by removing barriers to infrastruc-

ture investment,” id. § 1302(b). The Commission

plainly had delegated authority to do what it did.

And nothing in Section 332(c)(7)(A) stripped that

authority away. The Court can, and should, affirm

the decision below on the ground that the Commis-

sion’s authority to act was clear and unambiguous.

ARGUMENT

I. THE FEDERAL COMMUNICATIONS COMMISS-

ION’S ORDER IN THIS CASE HELPED SOLVE A

PROBLEM OF NATIONAL SIGNIFICANCE.

A. Wireless Siting Delays Hamper The Broadband

Rollout And Thus The U.S. Economy.

1. “Broadband,” or high-speed, Internet service is

not a luxury. It is vital for “economic * * * competi-

tiveness and a better way of life.” FCC, Connecting

America — The National Broadband Plan xi (2010)

(“Broadband Plan”).2 Broadband Internet service

“can expand access to jobs and training [and] support

entrepreneurship and small business growth.” Id. at

xiv. It “help[s] businesses improve internal produc-

tivity and reach customers.” Jd. at 16. It opens

doors “to jobs in information and communications

technology,” which “is growing 50% faster than * * *

other sectors.” Jd. at 3. It spurs educational im-

provements by giving educators and students—

especially those with fewer financial resources—

access to a vastly expanded array of learning tools.

Id. at 223-227. And the buildout of the broadband

network itself is a major job creator. One study

demonstrated that “the investments and innovation

entailed in the transition from 2G to 3G wireless

technologies and Internet infrastructure spurred the

creation of some 1,585,000 new jobs from April 2007

to June 2011.” R. Shapiro & K. Hassett, The Em-

ployment Effects of Advances in Internet & Wireless

Technology: Evaluating the Transitions from 2G to

3G & from 3G to 4G at 1 (Jan. 2012).3

The bottom line: Broadband deployment “is critical

for economic development, growth, jobs, education,

telemedicine and other data-centric services, and for

the United States to remain competitive with other

countries.” C. Dingwall, Rural Broadband: Miles to

Go Before We Sleep, WirelessWeek, July 16, 2010.4

Congress has recognized as much. It found in 2008

that broadband “has resulted in enhanced economic

2 Available at http¥//download.broadband gov/plan/national-

broadband-plan. pdf

8 Available at http//www.sonecon.com/doca/studies/Wireless_

Technology_and_Jobe-Shapiro_Hassett-January_2012.pdf

4 Available at http://www.wirelessaweek.com/News/Feeds/2010/

07/wireless-rural-broadband-miles-to-go-before-we-sleep

development and public safety for communities

across the Nation, improved health care and educa-

tional opportunities, and a better quality of life for

all Americans.” 47 U.S.C. § 1301(1). It further found

that “[clontinued progress in the deployment and

adoption of broadband technology is vital to ensuring

that our Nation remains competitive and continues

to create business and job growth.” Jd. § 1301(2).

And it has placed responsibility squarely on the

Commission to spur that progress. The Commission

is directed by statute to “ensure that all people of the

United States have access to broadband capability.”

Id. § 13050k)(2). Moreover, Congress has mandated

that if the Commission finds that broadband is not

being deployed to all Americans in a timely fashion,

it “shall take immediate action to accelerate deploy-

ment of such capability by removing barriers to

infrastructure investment and by promoting compe-

tition in the telecommunications market.” Id.

§ 1302(b) (emphases added).

The nation has made great strides in recent years

in making broadband available to all citizens. Yet

millions of Americans still lack access to this tech-

nology. In 2011 the Commission found that as many

as 26 million Americans live in areas unserved by

broadband. Inquiry Concerning the Deployment of

Advanced Telecommunications Capability to All

Americans, Seventh Broadband Progress Report &

Order on Recon., 26 FCC Red 8008, 4 1 (2011).

Those millions of people lack reasonable access to

everything from banking services to educational

opportunities to the capacity to apply for jobs. IJn-

quiry Concerning the Deployment of Advanced

Telecommunications Capability to All Americans,

Eighth Broadband Progress Report & Order on

Recon., 27 FCC Red 10342, ¥ 120 & n.280 (2012)

(“Eighth Broadband Report’).

2. Wireless networks have a central role to play in

solving this problem. The Commission in 2010

announced, as one of its primary goals, that “the

United States should lead the world in mobile inno-

vation, with the fastest and most extensive wireless

networks of any nation.” Broadband Plan at xiv.

The agency made that a centerpiece of its push

toward universal broadband because “{mlJobile

broadband”—that is, high-speed Internet provided to

smartphones and other devices without the need for

wireline connections—‘is growing at unprecedented

rates. From smartphones to app stores to e-book

readers to remote patient monitoring * * * , mobile

services and technologies are driving innovation and

playing an increasingly important role in our lives

and our economy.” Id. at 9. As President Obama

recently observed:

Few technological developments hold as much

potential to enhance America’s economic compet-

itiveness, create jobs, and improve the quality of

our lives as wireless high-speed access to the In-

ternet. Innovative new mobile technologies hold

the promise for a virtuous cycle—=millions of con-

sumers gain faster access to more services at less

cost, spurring innovation, and then a new round

of consumers benefit from new services.

The White House, Presidential Memorandum:

Unleashing the Wireless Broadband Revolution, at 1

(June 28, 2010).5 The technology is particularly

5 Available at http://www.whitehouse.gov/the-preas-office/

presidentialmemorandum-unleashing- wireless-broadband-

revolution

important as a tool to close the “digital divide”—the

gap in Internet access and adoption rates between

higher-income and lower-income Americans. Studies

show that “use of wireless Internet has grown fastest

amongst lower income households,” in part because

of the lower cost of mobile devices compared to PCs

and laptops. S. Andes & D. Castro, Opportunities &

Innovations in the Mobile Broadband Economy

(Sept. 14, 2010).6 Wireless broadband thus is “reduc-

ing the digital divide and expanding access to tech-

nology to all segments of the population.” Id.

Of course, the importance of wireless devices goes

well beyond Internet access. As of December 2011,

there were 331.6 million wireless subscriber connec-

tions in the United States—an increase of nearly 100

million during the previous five years alone. CTIA,

Wireless Quick Facts (2012).7 The majority of those

users rely on mobile phones. CNN, Survey: U.S.

Mobile Web Access Growing Fast (July 8, 2010).®

Indeed, “[a]s of the second half of 2011, one in three

U.S. households (34%) had only wireless telephones.”

S. Blumberg et al., Wireless Substitution: State-level

Estimates From the National Health Interview

Survey, 2010—2011, Nat’ Health Statistics Reports

No. 61 (Oct. 12, 2012). That makes reliable wireless

service especially important. “[CJarriers need to be

able to provide a strong, high-quality signal in resi-

6 Available at http://www. itif.org/publications/opportunities-

and-innovations-mobile-broadband-economy

7 Available at http://www.ctia.org/media/industry_info/index.

cfm/AID/10323

8 Available at http-//articles.cnn.com/2010-07-08/tech/mobile.

internet.access.pew_1_cell-phone-users-feature-phones-mobile-

internet?_s=PM:TECH

® Available at http://www.cdc.gov/nchs/data/nhsr/nhsr06 1.pdf

dential areas so that wireless users can be protected

in case of an emergency.” Jd. Without a strong

signal, users may not be able to dial 911. And with-

out a strong signal, “E911” service—an innovation

that allows first responders to identify a caller's

precise location when he or she dials 911—cannot

operate. For these reasons a comprehensive wireless

network is more than an economic boon; it is “a

crucial public safety necessity.” Id.

3. As with any communications technology, the

wireless network requires infrastructure. Wireless

providers use radio transmitters and other electronic

equipment to convey signals from phone to phone

and from wireless devices to the Internet. To allow

for clear signals over a broad coverage area, that

equipment often must be placed high in the air.

Sometimes that means attaching the equipment to a

support structure for cellular facilities. See Com-

ments of PCIA—-The Wireless Infrastructure Associ-

ation & The DAS Forum, WC Docket No. 11-59 at 11

(FCC July 18, 2011) “PCIA Broadband Comments’).

Other times it means “collocating” equipment, i.e.,

placing it on an existing structure. Id. Providers

sometimes collocate by adding equipment to an

existing communications support structure that

already hosts several other providers’ equipment. Id.

Other times, providers obtain permission to place

equipment on another type of tall structure, such as

a roof or water tank.

Wireless industry participants continuously explore

these options (and more) in localities across the

country because the need for infrastructure is vast

and growing. “Both new construction of wireless

antenna structures and the availability of existing

structures for purposes of collocating additional

antennas have been, and will continue to be, integral

to wireless buildout.” Acceleration of Broadband

Deployment: Expanding the Reach and Reducing the

Cost of Broadband Deployment, Notice of Inquiry, 26

FCC Red 5384 (2011). Indeed, an estimated 40,000

towers are needed to expand mobile broadband to

virtually all Americans. See Prepared Remarks of

Chairman Julius Genachowski, Federal Communica-

tions Commission, Broadband Acceleration Confer-

ence, Washington, D.C. (Feb. 9, 2011).!° And that is

only one facet of a much broader industry investment

in new infrastructure. “Industry analysts anticipate

the U.S. wireless industry as a whole will invest * * *

$23 billion to $53 billion in 4G network deployment

between 2012 and 2016.” Eighth Broadband Report

q 33.

These sorts of infrastructure investments are, of

course, necessary for wireless service to reach new

markets. But they are no less critical in areas that

already have service. That is so for two reasons.

First, overall wireless traffic has exploded in recent

years—global mobile data traffic grew 133 percent in

2011 alone—and the growth rate shows no signs of

slowing. See Cisco Visual Networking Index: Global

Mobile Data Traffic Forecast Update, 2011—2016 at i

(Feb. 14, 2012).11 The only way for providers to keep

up with that growth, and continue offering reliable

service and high speeds, is to deploy additional

infrastructure in high-use areas. Second, the indus-

try constantly must upgrade and replace infrastruc-

ture as wireless technology advances. To offer just

10 Available at http-//www.fcc.gov/Daily_Releases/Daily_

Business/20 1 1/db0209/DOC-304571A1.pdf

11 Available at http-//www.cisco.com/en/US/solutiona/collateral/

ns34 1/ns525/ns637/ns705/ns827/white_paper_c11-620862.pdf

10

one example: Wireless carriers have been upgrading

their networks to use “LTE,” the shorthand name for

a wireless communication standard that offers

substantially increased capacity and speed. See

Prepared Remarks of Chairman Julius Genachowski,

Federal Communications Commission, “The Global

Internet at a Crossroads,” at the Council on Foreign

Relations, Washington, D.C., 2012 WL 5879188, at

*2 (Nov. 20, 2012) (LTE “will allow us to enjoy

broadband speeds on the go comparable to what

we’re used to from our Wi-Fi connections at home”).

But LTE uses a different radio interface and differ-

ent core network components than previous technol-

ogies. The LTE rollout thus requires infrastructure

upgrades. Residents in a given community cannot

take advantage of this exciting new technology

unless and until the wireless industry can put the

necessary hardware in place.

4. In short, consumers want expanded wireless

access, public safety agencies need it, and providers

stand ready to offer it. But there is a logjam in this

otherwise robust market: localities’ sometimes

lengthy delays in granting siting approvals.

Wireless providers seeking to upgrade existing

facilities, build new tower-mounted facilities, or

collocate their facilities on existing structures typi-

cally must obtain zoning approvals, use permits, or

other siting authorizations from the relevant locality.

See, e.g., PCIA Broadband Comments 18-19; ATC

Realty, LLC v. Town of Kingston, 303 F.3d 91, 93

(Ist Cir. 2002). Some localities process those re-

quests efficiently. Others, however, do not. As a

result, “personal wireless service providers have

often faced lengthy and unreasonable delays in the

consideration of their facility siting applications”—

11

delays that the Commission found were “impeding

the deployment of advanced and emergency ser-

vices.” Pet. App. 97a.

These delays are sometimes egregious. Evidence

before the Commission indicated that at the time the

proceeding began, there were “more than 3,300

pending personal wireless service facility siting

applications before local jurisdictions. Of those,

approximately 760 [were] pending final action for

more than one year. More than 180 such applica-

tions [were] awaiting final action for more than 3

years.” Pet. App. 98a (emphasis in original).

That is an extraordinary delay for any approval.

But the evidence also demonstrated that “almost 350

of the 760 applications that were pending for more

than one year were requests to collocate on existing

towers, and 135 of those collocation applications

were pending for more than three years.” Pet. App.

98a. That is particularly unreasonable because

“collocation involves simply sharing an existing

facility rather than building a new one. * * * There is

no legitimate local interest in taking a year—much

less three—to decide a collocation application.” CTIA

Br. in Opposition 6 n.5. Indeed, the evidence before

the agency indicated that efficient localities process

collocation applications in as little as a week. Peti-

tion for Declaratory Ruling 16, WT Docket No. 08-

165 (FCC July 11, 2008). That means some wireless

providers wait more than 150 times longer than

others for approval simply to modify an existing

facility, or to place additional radio equipment at a

location where other facilities are already installed.

The Commission received evidence that delays

were widespread. One provider reported that “the

12

typical processing times for personal wireless service

facility siting applications range from 28 to 36

months in several California communities.” Pet.

App. 98a. Another reported that “in Southern Cali-

fornia, 25 applications took more than two years to

be approved, with 52 taking more than a year, and

93 taking more than 6 months.” Jd. 99a. A third

showed that it was experiencing “delays of 10 to 25

months for its proposals to place facilities in public

rights-of-way’—even when all it wanted to do was

replace old equipment. Id.

For localities with existing wireless coverage, siting

delays can mean inability to take advantage of new

high-speed technologies like LTE. Delays can also

mean persistent gaps in coverage and dropped

calls—including emergency calls. But for localities

without existing coverage, those same delays keep

residents in the dark altogether. In Montana, for

example, a cell tower company sought approval to

build a tower along a highway so a provider could

offer service to the town of Ovando. C. Moy, Cell

tower rejected at Trixi’s Antler Saloon; no service for

Ovando, The Missoulian, Mar. 13, 2010.2 £4But

“[dlebate over the proposed tower * * * rfaln nonstop

. for over two years.” Id. With no end in sight, a

company representative suggested he was giving up:

“It’s been going on for so long now that there’s not

the feeling of urgency that there was two years agol.]

*** People have started * * * pursuing other oppor-

tunities.” Id. Meanwhile, the town remained with-

out any wireless broadband—or even cell phone—

coverage. One resident said she had “no doubt that

\2 Available at http-//missoulian.com/newsa/local/article_

8 lebbGce-2e6d- 1 1df-8093-00 1cc4c002e0. html

13

cell phone service in the Ovando area is inevitable.”

Id. The question was when.

Nor are these sorts of problems new. The Commis-

sion observed in rules issued to implement the

Telecommunications Act that “zoning approval for

new wireless facilities is * * * a major delay factor in

deploying wireless systems.” Amendment of the

Commission’s Rules to Establish Part 27, the Wire-

less Communications Service, 12 FCC Red 10,785,

10,833 4 90 (1997). That observation is now nearly

16 years old. And yet the Commission’s findings in

this proceeding make clear that not much had

changed.

B. Section 332(c)(7)(B)’s Silence On Timing Issues

Was Allowing Siting Delays To Persist.

Localities do not have free rein to sit on wireless

siting applications indefinitely or to arbitrarily deny

permit requests. Section 332(c)(7) forbids any state

or local government from “prohibitling] or ***

effectlively] * * * prohibiting the provision of person-

al wireless services.” 47 U.S.C. § 332(c)(7)(B)GXD-

(ID. It requires localities to respond to wireless

siting requests “within a reasonable period of time

*** taking into account the nature and scope of

such request.” Jd. § 332(c)(7)(B)Gi). It limits their

discretion to deny requests, providing that a locality

may not issue a denial “on the basis of the environ-

mental effects of radio frequency emissions” so long

as the provider is complying with Commission regu-

lations on that subject. Jd. § 332(c)(7)(B)Giv). And it

gives these new safeguards teeth by making them

enforceable in federal court: “Any person adversely

affected by any final action or failure to act by a

State or local government or any instrumentality

14

thereof that is inconsistent with this subparagraph

may, within 30 days after such action or failure to

act, commence an action in any court of competent

jurisdiction.” Id. § 332(c)(7)(B)(v).

Congress added these provisions to the Telecom-

munications Act of 1996 to spur competition and

kick-start the nation’s wireless buildout. See City of

Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115

(2005). Section 332(c)(7)’s legislative history demon-

strates that Congress was concerned about the

“inconsistent and, at times, conflicting patchwork” of

state and local zoning requirements, believing that

this patchwork threatened “the deployment” of

wireless communications. H.R. Rep. No. 104-204, pt.

1 at 94 (1995). Congress thus created a statutory

framework that would “speed deployment and the

availability of competitive wireless telecommunica-

tions services which ultimately wlould] provide

consumers with lower costs as well as with a greater

range and options for such services.” Jd. As this

Court has observed, Section 332(c)(7)(B)’s primary

purpose was to “reducle] *** the impediments

imposed by local governments upon the installation

of facilities for wireless communications, such as

antenna towers.” City of Rancho Palos Verdes, 544

U.S. at 128.

The safeguards, however, proved insufficient to

ward off delay. The petition that launched the

proceeding now on review identified one reason why:

The statute lacked specifics regarding what consti-

tuted a “reasonable time” for action on an applica-

tion, 47 U.S.C. § 332(cX7)(B)Gi), and what constitut-

ed a locality’s “failure to act,” id. § 332(c)(7)(B)(v).

See Pet. App. 93a. Absent details on what those

terms mean, localities could spend months or even

15

years shuttling a siting application through various

application and hearing processes, and providers

would be hard-pressed to obtain relief. They had no

way to know when a “reasonable time” had elapsed

and when the locality had failed to act. And con-

versely, “an aggrieved party wishing to challenge a

State or local government’s failure to act could miss

the 30-day statute of limitations through no fault of

its own.” Pet. App. 93a. Indeed, even where a locali-

ty was holding up a siting application for obviously

unlawful (and preempted) reasons such as debunked

emissions concerns—a not uncommon occurrence !3*—

wireless providers could have trouble remedying the

delay. After all, Section 332(c)(7) provided no guid-

ance on when the locality’s intransigence ripened

into a “failure to act.” 47 U.S.C. § 332(c)(7)(B)(v).

And without action or a failure to act, the statute’s

remedies were not triggered.

C. The Commission’s Action Alleviated Siting De-

lays By Implementing The Act.

1. Alerted to the adverse effects this statutory

silence was producing, the Commission took action.

It requested public comments in 2008 and received

hundreds of them, with “lilndustry commenters

generally supportling] the Petition in all respects.”

Pet. App. 79a. It found that “[wlireless services are

central to the economic, civic, and social lives of over

270 million Americans” and that “[wlithout access to

mobile wireless networks *** consumers cannot

13 See, e.g., B. Sandrick, Parma officials uncertain about future

of cell phone antennae placement, Parma Sun Post, Apr. 7,

2010 (Ohio locality “tabled” a provider's plan to collocate radio

antennae on a roof, expressing concern about ‘radiation coming

from the antennae”). Available at http-//blog.cleveland.com/

parmasunpost/2010/04/parma_officials_uncertain_abou. html

16

receive voice and broadband services from provid-

ers.” Jd. 7la. It found “that the record shows that

unreasonable delays” in local processing of siting

requests “are occurring in a significant number of

cases.” Jd. 98a. And it found that “[dJelays in the

processing of personal wireless service facility siting

applications are particularly problematic as consum-

ers await the deployment of advanced wireless

communications services, including broadband

services, in all geographic areas in a timely fashion.”

Id. 102a.

In a carefully constrained decision, the Commission

determined to “lend clarity” to the statutory terms by

“interpreting the limits Congress already imposed on

State and local governments.” Id. llla, 90a. The

Commission decided that delays longer than 90 days

to process collocation requests and i50 days to

process other siting requests were presumptively

“unreasonable” under Section 332(c)(7)(B)Gi, and

that when a locality did not act within those times

frames it had “failed to act” under Section

332(7)(B)(v). Id. 115a. Those determinations gave

the wireless industry clarity, for the first time, about

what Section 332(c)(7)(B) means. The Commission

recognized as much. It observed that “because an

‘action or failure to act’ is the statutory trigger for

seeking judicial relief, our clarification of these terms

will give personal wireless service providers certain-

ty as to when they may seek redress for inaction on

an application.” Jd. 106a. And yet by establishing

presumptive as opposed to hard-and-fast deadlines,

the Commission left the courts wide latitude in

determining whether delays beyond the presumptive

deadlines are reasonable under the facts of a specific

case.

17

2. The Commission’s action helped solve a problem

of national significance. And it did so by doing

precisely what agencies are supposed to do: It

“usel[d] its discretion to determine how best to im-

plement [Congress’s] policy in those cases not cov-

ered by the statute’s specific terms.” Haggar Appar-

el, 526 U.S. at 393. That is what Congress had in

mind when it broadly authorized the Commission to

“execute and enforce the provisions” of the Commu-

nications Act, 47 U.S.C. § 151, to “prescribe such

rules and regulations as may be necessary in the

public interest to carry out the provisions of thle}

Act,” id. § 201(b); accord §§ 1546), 303(r), and to

“encouragle] the deployment on a reasonable and

timely basis of advanced telecommunications capa-

bility to all Americans” by “removling] barriers to

infrastructure investment,” id. § 157 nt. The Com-

mission acted consistently with the goals Congress

set for it in 47 U.S.C. § 157 nt. when it invoked its

general authority under other provisions to interpret

and give effect to Section 332(c)(7)(B).

Il. THE COMMISSION CLEARLY HAD AUTHORITY

TO ISSUE THE RULING UNDER REVIEW.

For the reasons above, the Commission acted well

within its delegated authority in issuing its ruling in

this case. The only question is whether something in

Section 332(c)(7) stripped away that delegated au-

thority. The answer is no. There was no jurisdic-

tional ambiguity for the Commission to resolve. The

Court can and should affirm the decision below

without resolving the Chevron question at the heart

of Petitioners’ argument.

18

A. The Commission Has Authority To Interpret

The Communications Act, And Nothing In Sec-

tion 332(c)(7) Withdrew That Authority.

1. Congress delegated to the Commission the au-

thority to “execute and enforce” the Communications

Act, 47 U.S.C. § 151, and to “prescribe such rules and

regulations as may be necessary in the public inter

est to carry out the provisions” of the Act, id.

§ 201(b). In AT&T Corp. v. Iowa Utilities Board, 525

U.S. 366 (1999), this Court addressed the reach of

Section 201(b). It explained that that provision gives

the Commission jurisdiction over all matters that are

within the “substantive reach” of the Communica-

tions Act. Jd. at 380. Thus any “expansion of the

substantive scope of the [Communications] Act”

necessarily means a “pari passu expansion of Com-

mission jurisdiction”; whatever Congress adds to the

Communications Act, the Commission may imple-

ment. Jd. That includes the provisions of the Tele-

communications Act of 1996, the Court explained,

because “Congress expressly directed that the 1996

Act * * * be inserted into the Communications Act of

1934.” Id. at 377.

Section 332(c)(7) was enacted as part of the Tele-

communications Act of 1996. That means Section

332(c)(7) is now part and parcel of the Communica-

tions Act. And that in turn means, under Jowa

Utilities Board, that Section 332(c)(7) is within the

Commission’s jurisdiction. As with all Communica-

tions Act provisions within the Commission’s juris-

diction, “ ‘Congress would expect the agency to be

able to speak with the force of law when it * * * fills a

space in the enacted law.’” Global Crossing Tele-

comme’ns, Inc. v. Metrophones Telecommce’ns, Inc.,

550 U.S. 45, 57 (2007) (quoting United States

19

v. Mead Corp., 533 U.S. 218, 229 (2001)). That is

just what the Commission did. The agency’s inter-

pretative exercise was within its authority unless

something else in the Act withdrew that authority

from it.

2. Petitioners say that that “something else” is

Section 332(c)(7)(A). They overread the provision.

Subsection 332(c)(7)(A) is part of the same para-

graph as the provisions discussed above—those

mandating that localities process siting applications

in a reasonable time. It states that “[elxcept as

provided in this paragraph, nothing in this [Act]

shall limit or affect the authority of a State or local

government * * * over decisions regarding the place-

ment, construction, and modification of personal

wireless service facilities.” 47 U.S.C. § 332(c)(7)(A).

There is nothing ambiguous about that language.

The “except as provided in this paragraph” clause

means by necessary implication that the provisions

of Section 332(c)(7), including the “reasonable time”

limitation, can limit localities’ siting authority, and it

says nothing to limit the Commission’s administra-

tive authority. Absent more, the Commission would

be able to interpret and enforce Section 332(c)(7).

Petitioners’ argument therefore must rest on the

“nothing in this Act” clause. But that clause speaks

only to the rest of the Act outside of Section 332(c)(7).

It says nothing at all about, and imposes no limits

on, what the Commission may do under the auspices

of Section 332(c)(7) itself.

The Commission’s usual authority to interpret the

Communications Act thus stands unimpeded; it may

implement Section 332(c)(7)(B)’s new restrictions on

local siting authority. The import of Section

20

332(c)(7)(A), as the court below correctly recognized,

is merely that the Commission would not have been

able to “imposle] restrictions or limitations that

cannot be tied to the language of [Section]

332(c)(7)(B).” Pet. App. 41a (emphasis added). The

Commission made no attempt to do so. Section

332(c)(7)(A) is not triggered.

B. When Congress Intends To Withdraw The

Commission’s Authority, It Does So Clearly.

The Commission’s authority to issue its ruling in

this proceeding is clear on the face of Section

332(c)(7). But if further confirmation were needed, a

comparison to Section 2(b) of the Communications

Act provides it. That provision states that, with

certain exceptions, “nothing in this [Act] shall be

construed to apply or to give the Commission juris-

diction with respect to” certain matters that are

reserved to the states. 47 U.S.C. § 152(b) (emphasis

added). The italicized language restricts both the

reach of the Act and the Commission’s jurisdiction.

In other words, it does exactly what Petitioners want

Section 332(c)(7)(A) to do. And yet the difference in

the statutory language is striking: Section 2(b)

limits the Commission’s jurisdiction expressly, while

Section 332(c)(7) says nothing about the Commission

at all.

“The contrast between these two paragraphs makes

clear that Congress knows how to impose express

limits” on the Commission’s authority to implement

the Communications Act when it wants to do so.

Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct.

2149, 2156 (2010). Congress’s failure to impose those

same limits in Section 332(c)(7)(A) is fatal to Peti-

tioners’ case. After all, “when Congress includes

21

particular language in one section of a statute but

omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclu-

sion.” Barnhart v. Sigmon Coal Co., 534 U.S. 438,

452 (2002) Ginternal quotation marks omitted). The

Court should reject Petitioners’ effort to import

jurisdiction-stripping language into a provision that

clearly lacks it.!4

14 Other congressional enactments similarly suggest that

Congress did not intend to divest the Commission of authority

to interpret Section 332(c)(7)(B). For example, Congress

recently provided that localities must approve requests for

collocation and infrastructure replacement “that do[] not

substantially change the physical dimensions” of the struc-

ture—and Congress gave the Commission authority to enforce

that provision. Pub. L. No. 112-96, §§ 6003(a), 6409. As the

government points out in its merits brief (at 43 n.13), it is

difficult to imagine why Congress would have wanted the

Commission to have this authority and yet to be completely

excluded from authority over the closely related requirements

of Section 332(c)(7)(B).

22

CONCLUSION

For the foregoing reasons, the decision below

should be affirmed.

JONATHAN M. CAMPBELL

D. ZACHARY CHAMP

ALEXANDER BLAKE

REYNOLDS

PCLA—THE WIRELESS

INFRASTRUCTURE

ASSOCIATION

901 N. Washington Street

Suite 600

Alexandria, VA 22314

(703) 739-0300

December 26, 2012

Respectfully submitted,

CATHERINE E. STETSON’

DANIEL L. BRENNER

DOMINIC F. PERELLA

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Amicus Curiae

“Counsel of Record