Arlington v. Fed. Commc'n Comm'n,
569 U.S. ___ (2013)

Annotate this Case
  • Syllabus  | 
  • Opinion (Antonin Scalia)  | 
  • Concurrence (Stephen G. Breyer)  | 
  • Dissent (Anthony M. Kennedy)



Nos. 11–1545 and 11–1547



11–1545      v.



11–1547      v.


on writs of certiorari to the united states court of appeals for the fifth circuit

[May 20, 2013]

     Justice Breyer, concurring in part and concurring in the judgment.

     I agree with the Court that normally “the question a court faces when confronted with an agency’s interpretation of a statute it administers” is, “simply, whether the agency has stayed within the bounds of its statutory authority.” Ante, at 5–6. In this context, “the distinction between ‘jurisdictional’ and ‘non-jurisdictional’ interpretations is a mirage.” Ante, at 5.

     Deciding just what those statutory bounds are, however, is not always an easy matter, and the Court’s case law abounds with discussion of the subject. A reviewing judge, for example, will have to decide independently whether Congress delegated authority to the agency to provide interpretations of, or to enact rules pursuant to, the statute at issue—interpretations or rules that carry with them “the force of law.” United States v. Mead Corp., 533 U. S. 218, 229 (2001) . If so, the reviewing court must give special leeway or “deference” to the agency’s interpretation. See id., at 227–228.

     We have added that, if “[e]mploying traditional tools of statutory construction,” INS v. Cardoza-Fonseca, 480 U. S. 421, 446 (1987) , the court determines that Congress has spoken clearly on the disputed question, then “that is the end of the matter,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984) . The agency is due no deference, for Congress has left no gap for the agency to fill. Id., at 842–844. If, on the other hand, Congress has not spoken clearly, if, for example it has written ambiguously, then that ambiguity is a sign—but not always a conclusive sign—that Congress intends a reviewing court to pay particular attention to (i.e., to give a degree of deference to) the agency’s interpretation. See Gonzales v. Oregon, 546 U. S. 243 –269 (2006); Mead, supra, at 229.

     I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill be- cause our cases make clear that other, sometimes context-specific, factors will on occasion prove relevant. (And, given the vast number of government statutes, regulatory programs, and underlying circumstances, that variety is hardly surprising.) In Mead, for example, we looked to several factors other than simple ambiguity to help determine whether Congress left a statutory gap, thus delegating to the agency the authority to fill that gap with an interpretation that would carry “the force of law.” 533 U. S., at 229–231. Elsewhere, we have assessed

“the interstitial nature of the legal question, the re- lated expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time.” Barnhart v. Walton, 535 U. S. 212, 222 (2002) .

The subject matter of the relevant provision—for instance, its distance from the agency’s ordinary statutory duties or its falling within the scope of another agency’s authority—has also proved relevant. See Gonzalez, supra, at 265–266. See also Gellhorn & Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989, 1007–1010 (1999).

     Moreover, the statute’s text, its context, the structure of the statutory scheme, and canons of textual construction are relevant in determining whether the statute is ambiguous and can be equally helpful in determining whether such ambiguity comes accompanied with agency authority to fill a gap with an interpretation that carries the force of law. See Household Credit Services, Inc. v. Pfennig, 541 U. S. 232 –242 (2004); Zuni Public School Dist. No. 89 v. Department of Education, 550 U. S. 81 –99 (2007); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) ; Dole v. Steelworkers, 494 U. S. 26, 36 (1990) . Statutory purposes, including those revealed in part by legislative and regulatory history, can be similarly relevant. See Brown & Williamson Tobacco Corp., supra, at 143–147; Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 649 (1990) ; Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. 45 –49 (2007). See also AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 –413 (1999) (Breyer, J., concurring in part and dissenting in part).

     Although seemingly complex in abstract description, in practice this framework has proved a workable way to approximate how Congress would likely have meant to allocate interpretive law-determining authority between reviewing court and agency. The question whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer independently. The judge, considering “traditional tools of statutory construction,” Cardoza-Fonseca, supra, at 446, will ask whether Congress has spoken unambiguously. If so, the text controls. If not, the judge will ask whether Congress would have intended the agency to resolve the resulting ambiguity. If so, deference is warranted. See Mead, supra, at 229. Even if not, however, sometimes an agency interpretation, in light of the agency’s special expertise, will still have the “power to persuade, if lacking power to control,” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) .

     The case before us offers an example. The relevant statutory provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after” a wireless service provider files such a request. 47 U. S. C. §332(c)(7)(B)(ii). The Federal Com- munications Commission (FCC) argued that this pro- vision granted it a degree of leeway in determining the amount of time that is reasonable. Many factors favor the agency’s view: (1) the language of the Telecommunications Act grants the FCC broad authority (including rulemaking authority) to administer the Act; (2) the words are open-ended—i.e. “ambiguous”; (3) the provision concerns an interstitial administrative matter, in respect to which the agency’s expertise could have an important role to play; and (4) the matter, in context, is complex, likely making the agency’s expertise useful in helping to answer the “rea- sonableness” question that the statute poses. See §151 (creating the FCC); §201(b) (providing rulemaking auth- ority); National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 –981 (2005) (acknowledging the FCC’s authority to administer the Act).

     On the other side of the coin, petitioners point to two statutory provisions which, they believe, require a different conclusion—namely, that the FCC lacked authority altogether to interpret §332(c)(7)(B)(ii). First, a nearby saving clause says: “Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” §332(c)(7)(A). Second, a judicial review provision, says: “Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.” §332(c)(7)(B)(v).

     In my view, however, these two provisions cannot provide good reason for reaching the conclusion advocated by petitioners. The first provision begins with an exception, stating that it does not apply to (among other things) the “reasonableness” provision here at issue. The second sim- ply sets forth a procedure for judicial review, a review that applies to most government actions. Both are consistent with a statutory scheme that gives States, localities, the FCC, and reviewing courts each some role to play in the location of wireless service facilities. And neither “expressly describ[es] an exception” to the FCC’s plenary authority to interpret the Act. American Hospital Assn. v. NLRB, 499 U. S. 606, 613 (1991) .

     For these reasons, I would reject petitioners’ argument and conclude that §332(c)(7)(B)(ii)—the “reasonableness” statute—leaves a gap for the FCC to fill. I would hold that the FCC’s lawful efforts to do so carry “the force of law.” Mead, 533 U. S., at 229. The Court of Appeals ultimately reached the same conclusion (though for somewhat dif- ferent reasons), and the majority affirms the lower court. I consequently join the majority’s judgment and such por- tions of its opinion as are consistent with what I have written here.

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