Arlington v. FCC - 11-1545 (2013)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 11–1545 and 11–1547
CITY OF ARLINGTON, TEXAS, et al., PETITIONERS
FEDERAL COMMUNICATIONS COMMISSION et al.
CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER
FEDERAL COMMUNICATIONS COMMISSION et al.
on writs of certiorari to the united states court of appeals for the fifth circuit
[May 20, 2013]
Justice Scalia delivered the opinion of the Court.
We consider whether an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) .
Wireless telecommunications networks require towers and antennas; proposed sites for those towers and antennas must be approved by local zoning authorities. In the Telecommunications Act of 1996, Congress “impose[d] specific limitations on the traditional authority of state and local governments to regulate the location, construction, and modification of such facilities,” Rancho Palos Verdes v. Abrams, 544 U. S. 113, 115 (2005) , and incorporated those limitations into the Communications Act of 1934, see 110Stat. 56, 151. Section 201(b) of that Act empowers the Federal Communications Commission to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.” Ch. 296, 52Stat. 588, codified at 47 U. S. C. §201(b). Of course, that rulemaking authority extends to the subsequently added portions of the Act. See AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 –378 (1999).
The Act imposes five substantive limitations, which are codified in 47 U. S. C. §332(c)(7)(B); only one of them, §332(c)(7)(B)(ii), is at issue here. That provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after the request is duly filed.” Two other features of §332(c)(7) are relevant. First, subparagraph (A), known as the “saving clause,” provides that nothing in the Act, except those limitations provided in §332(c)(7)(B), “shall limit or affect the authority of a State or local government” over siting decisions. Second, §332(c)(7)(B)(v) authorizes a person who believes a state or local government’s wireless-siting decision to be inconsistent with any of the limitations in §332(c)(7)(B) to “commence an action in any court of competent jurisdiction.”
In theory, §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities. But in practice, wireless providers often faced long delays. In July 2008, CTIA—The Wireless Association, [ 1 ] which represents wireless service providers, petitioned the FCC to clarify the meaning of §332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests “within a reasonable period of time.” In November 2009, the Commission, relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14001. The Commission found that the “record evidence demonstrates that unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services” and that such delays “impede the promotion of ad- vanced services and competition that Congress deemed critical in the Telecommunications Act of 1996.” Id., at 14006, 14008. A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005.
Some state and local governments opposed adoption of the Declaratory Ruling on the ground that the Commission lacked “authority to interpret ambiguous provisions of Section 332(c)(7).” Id., at 14000. Specifically, they argued that the saving clause, §332(c)(7)(A), and the judicial review provision, §337(c)(7)(B)(v), together display a congressional intent to withhold from the Commission authority to interpret the limitations in §332(c)(7)(B). Asserting that ground of objection, the cities of Arlington and San Antonio, Texas, petitioned for review of the Declaratory Ruling in the Court of Appeals for the Fifth Circuit.
Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt the 90- and 150-day timeframes. 668 F. 3d 229, 248 (CA5 2012) (citing Texas v. United States, 497 F. 3d 491, 501 (CA5 2007)). Applying Chevron, the Court of Appeals found “§332(c)(7)(A)’s effect on the FCC’s author- ity to administer §332(c)(7)(B)’s limitations ambiguous,” 668 F. 3d, at 250, and held that “the FCC’s interpretation of its statutory authority” was a permissible construction of the statute. Id., at 254. On the merits, the court upheld the presumptive 90- and 150-day deadlines as a “permissible construction of §332(c)(7)(B)(ii) and (v) . . . entitled to Chevron deference.” Id., at 256.
We granted certiorari, 568 U. S. ___ (2012), limited to the first question presented: “Whether . . . a court should apply Chevron to . . . an agency’s determination of its own jurisdiction.” Pet. for Cert. in No. 11–1545, p. i.
As this case turns on the scope of the doctrine enshrined in Chevron, we begin with a description of that case’s now-canonical formulation. “When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.” 467 U. S., at 842. First, applying the ordinary tools of statutory construction, the court must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id., at 842–843. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id., at 843.
Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 –741 (1996). Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. See Iowa Utilities Bd., 525 U. S., at 397. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.
The question here is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction). The argument against deference rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations—the big, important ones, presumably—define the agency’s “jurisdiction.” Others—humdrum, run-of-the-mill stuff—are simply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between “jurisdictional” and “nonjurisdictional” interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s inter- pretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.
The misconception that there are, for Chevron purposes, separate “jurisdictional” questions on which no deference is due derives, perhaps, from a reflexive extension to agen- cies of the very real division between the jurisdictional and nonjurisdictional that is applicable to courts. In the judicial context, there is a meaningful line: Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all. Congress has the power (within limits) to tell the courts what classes of cases they may decide, see Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50 –64 (1944); Lauf v. E. G. Shinner & Co., 303 U. S. 323, 330 (1938) , but not to prescribe or superintend how they decide those cases, see Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 –219 (1995). A court’s power to decide a case is independent of whether its decision is correct, which is why even an erroneous judgment is entitled to res judicata effect. Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires.
That is not so for agencies charged with administering congressional statutes. Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question—whether framed as an incorrect application of agency authority or an assertion of author- ity not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.”
An example will illustrate just how illusory the pro- posed line between “jurisdictional” and “nonjurisdictional” agency interpretations is. Imagine the following validly-enacted statute:
Common Carrier Act
Section 1. The Agency shall have jurisdiction to prohibit any common carrier from imposing an unreasonable condition upon access to its facilities.
There is no question that this provision—including the terms “common carrier” and “unreasonable condition”—defines the Agency’s jurisdiction. Surely, the argument goes, a court must determine de novo the scope of that jurisdiction.
Consider, however, this alternative formulation of the statute:
Common Carrier Act
Section 1. No common carrier shall impose an unreasonable condition upon access to its facilities.
Section 2. The Agency may prescribe rules and regulations necessary in the public interest to effectuate Section 1 of this Act.
Now imagine that the Agency, invoking its Section 2 authority, promulgates this Rule: “(1) The term ‘common carrier’ in Section 1 includes Internet Service Providers. (2) The term ‘unreasonable condition’ in Section 1 includes unreasonably high prices. (3) A monthly fee greater than $25 is an unreasonable condition on access to Internet service.” By this Rule, the Agency has claimed for itself jurisdiction that is doubly questionable: Does its authority extend to Internet Service Providers? And does it extend to setting prices? Yet Section 2 makes clear that Congress, in petitioners’ words, “conferred interpretive power on the agency” with respect to Section 1. Brief for Petitioners in No. 1545, p. 14. Even under petitioners’ theory, then, a court should defer to the Agency’s interpretation of the terms “common carrier” and “unreasonable condition”—that is to say, its assertion that its “jurisdiction” extends to regulating Internet Service Providers and setting prices.
In the first case, by contrast, petitioners’ theory would accord the agency no deference. The trouble with this is that in both cases, the underlying question is exactly the same: Does the statute give the agency authority to regulate Internet Service Providers and cap prices, or not? [ 2 ] The reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its “jurisdiction”) and its exceeding authorized application of authority that it unquestionably has. “To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending on how generally one wishes to describe the ‘authority.’ ” Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 381 (1988) (Scalia, J., concurring in judgment); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm.”).
This point is nicely illustrated by our decision in National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U. S. 327 (2002) . That case considered whether the FCC’s “jurisdiction” to regulate the rents utility-pole owners charge for “pole attachments” (defined as attachments by a cable television system or provider of telecommunications service) extended to attachments that provided both cable television and high-speed Internet access (attachments for so-called “commingled services”). Id., at 331–336. We held, sensibly, that Chevron applied. 534 U. S., at 333, 339. Whether framed as going to the scope of the FCC’s delegated authority or the FCC’s application of its delegated authority, the underlying question was the same: Did the FCC exceed the bounds of its statutory authority to regulate rents for “pole attachments” when it sought to regulate rents for pole attachments providing commingled services?
The label is an empty distraction because every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction. One of the briefs in support of petitioners explains, helpfully, that “[j]urisdictional questions concern the who, what, where, and when of regulatory power: which subject matters may an agency regulate and under what conditions.” Brief for IMLA Respondents 18–19. But an agency’s application of its authority pursuant to statutory text answers the same questions. Who is an “outside salesman”? What is a “pole attachment”? Where do the “waters of the United States” end? When must a Medicare provider challenge a reimbursement determination in order to be entitled to an administrative appeal? These can all be reframed as questions about the scope of agencies’ regulatory jurisdiction— and they are all questions to which the Chevron framework applies. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___, ___ (2012) (slip op., at 2, 8); National Cable & Telecommunications Assn., supra, at 331, 333; United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 123, 131 (1985) ; Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___, ___ (2013) (slip op., at 1, 11).
In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold inquiry.”). The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking.
Fortunately, then, we have consistently held “that Chevron applies to cases in which an agency adopts a con- struction of a jurisdictional provision of a statute it administers.” 1 R. Pierce, Administrative Law Treatise §3.5, p. 187 (2010). One of our opinions explicitly says that no “exception exists to the normal [deferential] standard of review” for “ ‘jurisdictional or legal question[s] concerning the coverage’ ” of an Act. NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 830, n. 7 (1984) . A prime example of deferential review for questions of jurisdiction is Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986) . That case involved a CFTC interpretation of 7 U. S. C. §18(c), which provides that before the Commission takes action on a complaint, the complainant must file a bond to cover “any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent.” (Emphasis added.) The CFTC, pursuant to its broad rulemaking authority, see §12a(5), interpreted that oblique reference to counterclaims as granting it “the power to take jurisdiction over” not just federal-law counterclaims, but state-law counterclaims as well. Schor, supra, at 844. We not only deferred under Chevron to the Commission’s “eminently reasonable . . . interpretation of the statute it is entrusted to administer,” but also chided the Court of Appeals for declining to afford def- erence because of the putatively “ ‘statutory interpretation-jurisdictional’ nature of the question at issue.” 478 U. S., at 844–845.
Similar examples abound. We have afforded Chevron deference to the Commerce Department’s determination that its authority to seek antidumping duties extended to uranium imported under contracts for enrichment services, United States v. Eurodif S. A., 555 U. S. 305, 316 (2009) ; to the Interstate Commerce Commission’s view that courts, not the Commission, possessed “initial jurisdiction with respect to the award of reparations” for unreasonable shipping charges, Reiter v. Cooper, 507 U. S. 258, 269 (1993) (internal quotation marks and ellipsis omitted); and to the Army Corps of Engineers’ assertion that its permitting authority over discharges into “waters of the United States” extended to “freshwater wetlands” adjacent to covered waters, Riverside Bayview Homes, supra, at 123–124, 131. We have even deferred to the FCC’s assertion that its broad regulatory authority extends to pre-empting conflicting state rules. City of New York v. FCC, 486 U. S. 57, 64 (1988) ; Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 700 (1984) . [ 3 ]
Our cases hold that Chevron applies equally to statutes designed to curtail the scope of agency discretion. For instance, in Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 123 (1985) , we considered a statute prohibiting the Environmental Protection Agency from “modify[ing] any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list.” The EPA construed the statute as not precluding it from granting variances with respect to certain toxic pollutants. Finding no “clear congressional intent to forbid EPA’s sensible variance mechanism,” id., at 134, we deferred to the EPA’s construction of this express limitation on its own regulatory authority, id., at 125 (citing Chevron, 467 U. S. 837 ); see also, e.g., Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 –234 (1986).
The U. S. Reports are shot through with applications of Chevron to agencies’ constructions of the scope of their own jurisdiction. And we have applied Chevron where concerns about agency self-aggrandizement are at their apogee: in cases where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regulatory scheme. In FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000) , the threshold question was the “appropriate framework for analyzing” the FDA’s assertion of “jurisdiction to regulate tobacco products,” id., at 126, 132—a question of vast “economic and political magnitude,” id., at 133. “Because this case involves an administrative agency’s construction of a statute that it administers,” we held, Chevron applied. 529 U. S., at 132. Similarly, in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 224, 229, 231 (1994) , we applied the Chevron framework to the FCC’s assertion that the statutory phrase “modify any requirement” gave it authority to eliminate rate-filing requirements, “the essential characteristic of a rate-regulated industry,” for long-distance telephone carriers.
The false dichotomy between “jurisdictional” and “non- jurisdictional” agency interpretations may be no more than a bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake—the ultimate target here is Chevron itself. Savvy challengers of agency action would play the “jurisdictional” card in every case. See, e.g., Cellco Partnership v. FCC, 700 F. 3d 534, 541 (CADC 2012). Some judges would be deceived by the specious, but scary-sounding, “jurisdictional”-“nonjurisdictional” line; others tempted by the prospect of making public policy by prescribing the meaning of ambiguous statutory commands. The effect would be to transfer any number of interpretive decisions—archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy interests—from the agencies that administer the statutes to federal courts. [ 4 ] We have cautioned that “judges ought to refrain from substituting their own interstitial lawmaking” for that of an agency. Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568 (1980) . That is precisely what Chevron prevents.
One group of respondents contends that Chevron deference is inappropriate here because the FCC has “assert[ed] jurisdiction over matters of traditional state and local concern.” Brief for IMLA Respondents 35. But this case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’ debate over that detail.” Ibid.
A few words in response to the dissent. The question on which we granted certiorari was whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction.” Pet. for Cert. i. [ 5 ] Perhaps sensing the incoherence of the “jurisdictional-nonjurisdictional” line, the dissent does not even attempt to defend it, see post, at 5, but proposes a much broader scope for de novo judicial review: Jurisdictional or not, and even where a rule is at issue and the statute contains a broad grant of rulemaking authority, the dissent would have a court search provision-by-provision to determine “whether [that] delegation covers the ‘specific provision’ and ‘particular question’ before the court.” Post, at 11–12.
The dissent is correct that United States v. Mead Corp., 533 U. S. 218 (2001) , requires that, for Chevron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. No one disputes that. But Mead denied Chevron deference to action, by an agency with rulemaking authority, that was not rulemaking. What the dissent needs, and fails to produce, is a single case in which a general conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field. There is no such case, and what the dissent proposes is a massive revision of our Chevron jurisprudence.
Where we differ from the dissent is in its apparent rejection of the theorem that the whole includes all of its parts—its view that a general conferral of rulemaking authority does not validate rules for all the matters the agency is charged with administering. Rather, the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determination of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the conferral of general rulemaking author- ity). It would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos. There is no need to wade into these murky waters. It suffices to decide this case that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.
* * *
Those who assert that applying Chevron to “jurisdictional” interpretations “leaves the fox in charge of the henhouse” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox-in-the-henhouse syndrome is to be avoided not by estab- lishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter. Chevron, 467 U. S., at 842.
The judgment of the Court of Appeals is affirmed.
It is so ordered.