AMICUS BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION IN SUPPORT OF NEITHER PARTY IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NO. 11-1060 T-MOBILE NORTHEAST LLC, Appellant, v. FAIRFAX COUNTY BOARD OF SUPERVISORS, Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AUSTIN C. SCHLICK GENERAL COUNSEL PETER KARANJIA DEPUTY GENERAL COUNSEL RICHARD K. WELCH ACTING ASSOCIATE GENERAL COUNSEL JAMES M. CARR COUNSEL FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 (202) 418-1740 TABLE OF CONTENTS Page i STATEMENT OF INTEREST...................................................................................1 STATEMENT OF FACTS .........................................................................................2 A. Section 332(c)(7) of the Communications Act...............................................................................................2 B. The FCC’s Declaratory Ruling...................................................5 C. The Present Appeal .....................................................................7 ARGUMENT .............................................................................................................9 I. THE FCC HAS REJECTED THIS COURT’S “BLANKET BAN” INTERPRETATION OF SECTION 332(c)(7)(B)(i)(II). ............................................................10 II. THE FCC’S INTERPRETATION OF SECTION 332(c)(7)(B)(i)(II) IS ENTITLED TO DEFERENCE......................................................................................13 CONCLUSION........................................................................................................15 TABLE OF AUTHORITIES Page ii Cases AT&T Corp. v. Iowa Util. Bd., 525 U.S. 366 (1999) .......................................9 AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423 (4th Cir. 1998) .................................................... 5, 12, 13 Chevron USA v. Natural Resources Def. Council, 467 U.S. 837 (1984) .............................................................................. 9, 10 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) ....................................................................................................4 Clear Wireless, LLC v. City of Wilmington, No. 10-218- MPT, 2010 WL 3463729 (D. Del. Aug. 30, 2010)................................2 Elm Grove Coal Co. v. Director, Office of Workers’ Comp. Programs, 480 F.3d 278 (4th Cir. 2007)..................................13 Fernandez v. Keisler, 502 F.3d 337 (4th Cir. 2007) ............................... 10, 13 Liberty Towers, LLC v. Zoning Hearing Bd. of Lower Makefield, No. 10-1666, 2010 WL 3769102 (E.D. Pa. Sept. 28, 2010).................................................................................2 Morton v. Ruiz, 415 U.S. 199 (1974)...............................................................9 National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).................................... 5, 9, 10, 13 Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005) ........................................4 Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002)................................................................11 Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51 (1st Cir. 2001)........................................................................................4 Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of Paramus, No. 09-4940, 2010 WL 4868218 (D.N.J. Nov. 22, 2010) .......................................................................................2 Page iii Town of Amherst v. Omnipoint Commc’ns Enters., 173 F.3d 9 (1st Cir. 1999).............................................................................3 USCOC of Virginia RSA # 3, Inc. v. Montgomery Co. Bd. of Supervisors, 343 F.3d 262 (4th Cir. 2003) ........................................6 Administrative Decisions Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service, 12 FCC Rcd 10785 (1997)..................................................................................3 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC Rcd 13994 (2009), petitions for review pending, City of Arlington and City of San Antonio v. FCC, 5th Cir. Nos. 10- 60039 & 10-60805............................................ 2, 5, 6, 7, 10, 11, 12, 14 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 25 FCC Rcd 1215 (Wireless Bur. 2010)..............................................................................................2 Statutes and Regulations 47 U.S.C. § 151................................................................................................9 47 U.S.C. § 151 et seq. ....................................................................................1 47 U.S.C. § 332(c)(7)(A).................................................................................4 47 U.S.C. § 332(c)(7)(B) .................................................................................8 47 U.S.C. § 332(c)(7)(B)(i)(I) .........................................................................9 47 U.S.C. § 332(c)(7)(B)(i)(II)....................... 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 47 U.S.C. § 332(c)(7)(B)(v) ............................................................................7 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 ............................................................................................3 Page iv Others S. Conf. Rep. No. 104-230, at 1 (1996)...........................................................3 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NO. 11-1060 T-MOBILE NORTHEAST LLC, Appellant, v. FAIRFAX COUNTY BOARD OF SUPERVISORS, Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AMICUS BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION IN SUPPORT OF NEITHER PARTY STATEMENT OF INTEREST Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, the Federal Communications Commission respectfully submits this brief as amicus curiae. The FCC has primary responsibility for implementing and enforcing the Communications Act of 1934, 47 U.S.C. § 151 et seq. This case involves review of a district court’s application of section 332(c)(7)(B)(i)(II) of the Act and the FCC’s construction of that provision in a recent declaratory ruling. See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC Rcd 2 13994, 14015-19 ¶¶ 54-65 (2009) (“Declaratory Ruling”), petitions for review pending, City of Arlington and City of San Antonio v. FCC, 5th Cir. Nos. 10-60039 & 10-60805. 1 The FCC has an interest in ensuring that the Act and the agency’s precedents are correctly interpreted, but otherwise takes no position on the merits of this appeal. STATEMENT OF FACTS A. Section 332(c)(7) of the Communications Act Wireless telecommunications services play a prominent and pervasive role in “the economic, civic, and social lives of over 270 million Americans.” Declaratory Ruling, 24 FCC Rcd at 13995 ¶ 3. Increasingly, Americans have come to rely “on their mobile devices for broadband services” (such as high-speed Internet access) as well as voice services. Id. “Without access to mobile wireless networks, however, consumers cannot receive voice and broadband services from providers.” Id. 1 Although two municipalities have petitioned for review of the Declaratory Ruling in the Fifth Circuit, no party asked that court to stay the Declaratory Ruling. And the FCC’s Wireless Telecommunications Bureau denied a request for a stay in January 2010. Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 25 FCC Rcd 1215 (Wireless Bur. 2010). Therefore, the Declaratory Ruling is currently in effect. Indeed, several district courts in the Third Circuit have ruled that the FCC’s statutory construction in the Declaratory Ruling supersedes the Third Circuit’s contrary reading of the statute. See Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of Paramus, No. 09-4940, 2010 WL 4868218 (D.N.J. Nov. 22, 2010); Liberty Towers, LLC v. Zoning Hearing Bd. of Lower Makefield, No. 10-1666, 2010 WL 3769102 (E.D. Pa. Sept. 28, 2010); Clear Wireless, LLC v. City of Wilmington, No 10-218-MPT, 2010 WL 3463729 (D. Del. Aug. 30, 2010). 3 An effective national wireless telecommunications network depends on the periodic construction and modification of cellular phone towers and antenna sites. Local residents, though, sometimes resist the erection of such facilities in their communities for aesthetic and other reasons. As a result, “zoning approval for new [wireless] facilities is both a major cost component and a major delay factor in deploying wireless systems.” Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service, 12 FCC Rcd 10785, 10833 ¶ 90 (1997). Congress balanced these competing federal and local concerns when it adopted the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (“1996 Act”). The 1996 Act, which substantially amended the Communications Act, established “a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications … services to all Americans by opening all telecommunications markets to competition.” S. Conf. Rep. No. 104-230, at 1 (1996). As part of the 1996 Act, Congress added section 332(c)(7) to the Communications Act. That provision reflects “a deliberate compromise between two competing aims – to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over [the] siting of [cellular phone] towers” and other wireless telecommunications infrastructure. Town of Amherst v. Omnipoint Commc’ns Enters., 173 F.3d 9, 13 (1st Cir. 1999). Section 332(c)(7) “attempts to strike a balance between the states’ interests in regulating 4 land use and the federal government’s interest in facilitating the development of wireless telephone service.” Pinney v. Nokia, Inc., 402 F.3d 430, 455 (4th Cir. 2005). Reflecting this balance, section 332(c)(7), entitled “Preservation of local zoning authority,” contains two parts. In the first part, entitled “General authority,” section 332(c)(7)(A) preserves the residual zoning authority of State and local governments “over decisions regarding the placement, construction, and modification of personal wireless service facilities” (such as cell towers and transmitters). 47 U.S.C. § 332(c)(7)(A). In the second part, entitled “Limitations,” section 332(c)(7)(B) “imposes specific limitations on the traditional authority of [S]tate and local governments to regulate the location, construction, and modification of such facilities.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005). These “substantive and procedural limitations … subject [State and local governments] to an outer limit upon their ability to regulate … land use” in the wireless communications context. Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001) (internal quotation marks omitted). Congress adopted these restrictions on local zoning authority to “reduc[e] … the impediments imposed by local governments upon the installation of facilities for wireless communications.” Rancho Palos Verdes, 544 U.S. at 115. As relevant here, one of the statute’s limitations on local zoning authority is set forth in section 332(c)(7)(B)(i)(II), which provides that State or local regulation of the siting of wireless service facilities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. 5 § 332(c)(7)(B)(i)(II). The Act does not define what constitutes an actual or an “effective” prohibition of wireless services for purposes of section 332(c)(7)(B)(i)(II). That task is left to the FCC as the administrative agency charged with interpreting and implementing the Communications Act. See National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005) (“Brand X”). B. The FCC’s Declaratory Ruling On July 11, 2008, CTIA – The Wireless Association, a national trade association of wireless telephone service providers, filed a petition for declaratory ruling with the FCC. Among other things, it sought clarification of the meaning of section 332(c)(7)(B)(i)(II)’s prohibition provision. Noting that various courts of appeals had disagreed over the meaning of that provision, CTIA contended that some courts had misconstrued the provision to permit the denial of a wireless facility siting application “so long as a single wireless provider serves the area.” Declaratory Ruling, 24 FCC Rcd at 14015 ¶ 54. In particular, CTIA noted that in 1998, a panel of this Court had concluded that section 332(c)(7)(B)(i)(II) only applies when a State or local authority has adopted a blanket ban on wireless service facilities. Id. at 14016 n.175 (citing AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 428-29 (4th Cir. 1998) (“Virginia Beach”)). Under that reading of the statute, the deployment of wireless facilities could be 6 thwarted simply because another wireless provider already serves the same area. 2 CTIA asked the Commission to clarify that State or local regulation of wireless facility siting violates section 332(c)(7)(B)(i)(II) if it “effectively prohibits one carrier from providing service because service is available from one or more other carriers.” Id. at 14015 ¶ 54. In a declaratory ruling issued in November 2009, the FCC agreed with CTIA that section 332(c)(7)(B)(i)(II) is not as narrow as the Court in Virginia Beach understood. Focusing on the statutory language and the congressional objective of fostering the deployment of wireless services, the agency concluded that if a State or local government denies a wireless facility siting application “solely because one or more carriers serve a given geographic market,” it “has engaged in unlawful regulation that prohibits or ha[s] the effect of prohibiting the provision of personal wireless services, within the meaning of Section 332(c)(7)(B)(i)(II).” Declaratory Ruling, 24 FCC Rcd at 14016 ¶ 56 (internal quotation marks omitted). The Commission found that this reading was supported by both the text of the statute, id. at 14017 ¶ 58, and the pro-competitive “goals of the Communications Act,” id. at 14017 ¶ 61. 2 The Court later recognized “the theoretical possibility that the denial of an individual permit could amount to a prohibition of service if the service could only be provided from a particular site,” but it observed that “such a scenario seems unlikely in the real world.” USCOC of Virginia RSA # 3, Inc. v. Montgomery Co. Bd. of Supervisors, 343 F.3d 262, 268 (4th Cir. 2003) (internal quotation marks omitted). 7 In reaching this conclusion, the Commission expressly rejected the Virginia Beach panel’s “interpretation that the statute only limits localities from prohibiting all personal wireless services (i.e., a blanket ban or ‘one-provider’ approach).” Declaratory Ruling, 24 FCC Rcd at 14017 ¶ 60 (emphasis added). Noting that “Congress sought ultimately to improve [wireless] service quality and lower prices for consumers,” the Commission explained that its construction of the statute “promotes these statutory objectives more effectively” than the narrow reading adopted in Virginia Beach, “which could perpetuate significant coverage gaps within any individual wireless provider’s service area and, in turn, diminish the service provided to [its] customers.” Id. at 14017-18 ¶ 61. “In addition,” the Commission explained, under the blanket ban approach, “competing providers may find themselves barred from entering markets to which they would have access under our interpretation of the statute, thus depriving consumers of the competitive benefits the Act seeks to foster.” Id. at 14018 ¶ 61. C. The Present Appeal To expand the scope of its wireless telecommunications service in Fairfax County, Virginia, T-Mobile Northeast LLC (“T-Mobile”) applied to the County Board of Supervisors (“the Board”) for permission “to extend an existing 100-foot transmission pole … by 10 feet and to install a wireless telecommunications facility on the extension.” JA783. After a public hearing, the Board denied T- Mobile’s applications in early 2010. Pursuant to 47 U.S.C. § 332(c)(7)(B)(v), T-Mobile filed suit against the Board in the United States District Court for the Eastern District of Virginia. It 8 claimed that the Board, by denying T-Mobile’s applications, violated several provisions of 47 U.S.C. § 332(c)(7)(B). Among other things, T-Mobile alleged that the Board’s decision “prohibited, or had the effect of prohibiting, the provision of personal wireless services in violation of § 332(c)(7)(B)(i)(II).” JA791. T-Mobile and the Board filed cross-motions for summary judgment. On December 17, 2010, the district court granted the Board’s motion and denied T- Mobile’s motion. JA816. In rejecting T-Mobile’s “effective prohibition” claim under 47 U.S.C. § 332(c)(7)(B)(i)(II), the district court stated that it was “not persuaded by T- Mobile’s suggestion” that the FCC’s Declaratory Ruling “rejects the effective prohibition standard of the Fourth Circuit.” JA810. The court construed the Declaratory Ruling to prohibit only what the court described as “the one-provider rule,” under which zoning authorities may deny a siting application “based solely on the presence of other wireless service providers in the area.” JA810-11. In the district court’s view, the “one-provider rule” is distinct from the blanket ban approach adopted by the Court in Virginia Beach, and the FCC’s rejection of the former did not necessarily entail the rejection of the latter. Thus, the district court understood that “the FCC’s criticism of the Fourth Circuit’s ‘blanket ban requirement’ as set forth in Virginia Beach is limited in context to the one-provider rule and does not reject the holding [of Virginia Beach] in its entirety.” JA811. The district court went on to conclude that “the one-provider rule is not implicated” in this case because “the Board’s decision was based on traditional zoning principles and not on the presence of other service providers.” JA811. 9 In its appeal from the district court’s ruling, T-Mobile argues that the district court erred in finding that the Board did not violate section 332(c)(7)(B)(i)(II). Specifically, T-Mobile contends that the Board’s denial of T-Mobile’s applications effectively prohibited the provision of wireless service in violation of section 332(c)(7)(B)(i)(II). 3 ARGUMENT “Congress has delegated to the [FCC] the authority to ‘execute and enforce’ the Communications Act.” Brand X, 545 U.S. at 980 (quoting 47 U.S.C. § 151). Accordingly, “the ambiguities” that Congress incorporated into the statute “will be resolved by [the FCC as] the implementing agency.” AT&T Corp. v. Iowa Util. Bd., 525 U.S. 366, 397 (1999). The FCC’s power to administer the Communications Act therefore “necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Chevron USA v. Natural Resources Def. Council, 467 U.S. 837, 843 (1984) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). The Commission cannot effectively implement the Communications Act – and avoid inconsistent judicial interpretations of the same statutory provision – unless the courts apply the agency’s reasonable interpretation of the statute’s ambiguities. Consequently, the FCC has a strong interest in ensuring that when a court adjudicates a dispute involving an ambiguous provision of the Act, the court honors the agency’s 3 T-Mobile also asserts that the Board violated 47 U.S.C. § 332(c)(7)(B)(i)(I) by unreasonably discriminating against T-Mobile. This brief does not address any aspect of that claim. 10 reasonable reading of the statute. As the Supreme Court has explained, “[i]n such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the [FCC].” Id. at 844. The FCC takes no position here on the ultimate merits of T-Mobile’s claims against the Board. The sole purpose of this amicus brief is to call to the Court’s attention the authoritative interpretation of section 332(c)(7)(B)(i)(II) that the Commission adopted in its November 2009 Declaratory Ruling. The agency’s statutory interpretation is controlling, even if the Court adopted a different reading of the statute in previous cases. See Brand X, 545 U.S. at 982-86; see also Fernandez v. Keisler, 502 F.3d 337, 347-51 (4th Cir. 2007) (deferring to an agency’s statutory interpretation that conflicted with prior Fourth Circuit precedent). I. THE FCC HAS REJECTED THIS COURT’S “BLANKET BAN” INTERPRETATION OF SECTION 332(c)(7)(B)(i)(II). In the Declaratory Ruling, the Commission concluded that if a local zoning authority denies a wireless siting application “solely because one or more carriers serve a given geographic market,” it “has engaged in unlawful regulation that prohibits or ha[s] the effect of prohibiting the provision of personal wireless services, within the meaning of Section 332(c)(7)(B)(i)(II).” Declaratory Ruling, 24 FCC Rcd at 14016 ¶ 56. The agency acknowledged that “this provision could be interpreted in the manner endorsed by several courts” – including this Court in Virginia Beach – “as a safeguard against a complete ban on all personal wireless service within the State or local jurisdiction.” Id. at 14017 ¶ 57. But the 11 Commission reasoned that “under the better reading of the statute,” the restriction on zoning authority imposed by section 332(c)(7)(B)(i)(II) should apply “not just to” land use applications by “the first [wireless] carrier to enter into the market, but also to” siting requests by “all subsequent entrants.” Id. The Commission adopted this reading for several reasons. First, it found that this interpretation is “consistent with the statutory language referring to the prohibition of ‘the provision of personal wireless services’ rather than the singular term ‘service.’” Declaratory Ruling, 24 FCC Rcd at 14017 ¶ 58. The Commission explained that Congress’s use of the plural term “services” suggests that Congress “contemplated that there be multiple carriers competing to provide services to consumers.” Id. (quoting Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 634 (1st Cir. 2002)). Second, the Commission noted that if the presence of a single wireless service provider in a locality automatically precluded a finding of prohibition of service under section 332(c)(7)(B)(i)(II), the statute would fail to reach some State and local regulation that in fact prohibits the provision of wireless service. In particular, when the first carrier serving an area does not provide service to the entire locality, “a zoning approach that subsequently prohibits or effectively prohibits additional carriers … may leave segments of the population unserved or underserved…. Such action on the part of the [State or local government] would contradict the clear intent of the statute.” Declaratory Ruling, 24 FCC Rcd at 14017 ¶ 59. 12 Finally, the Commission determined that its reading of section 332(c)(7)(B)(i)(II) is “most consistent” with the statute’s purposes. Declaratory Ruling, 24 FCC Rcd at 14017 ¶ 61. “In promoting the construction of nationwide wireless networks by multiple carriers, Congress sought ultimately to improve service quality and lower prices for consumers.” Id. The Commission concluded that its statutory interpretation “promotes these statutory objectives more effectively than the alternative” approach adopted in the Virginia Beach case. Id. That narrow construction of the statute, the agency explained, “could perpetuate significant coverage gaps within any individual wireless provider’s service area” and could bar “competing providers … from entering markets to which they would have access under [the FCC’s] interpretation of the statute, thus depriving consumers of the competitive benefits the Act seeks to foster.” Id. at 14017-18 ¶ 61. 4 4 The panel that decided Virginia Beach in 1998 did not have the benefit of the FCC’s views regarding the meaning of section 332(c)(7)(B)(i)(II). In justifying its “blanket ban” reading of the provision, the Court in Virginia Beach stated that any alternative reading of section 332(c)(7)(B)(i)(II) that allowed the statute “to apply to individual decisions would effectively nullify local authority by mandating approval of all (or nearly all) applications.” Virginia Beach, 155 F.3d at 428. But the FCC rejected that premise in its Declaratory Ruling. It explained that its reading of the statute did not mandate approval of any siting applications: “[W]e construe the statute to bar State and local authorities from prohibiting the provision of services of individual carriers solely on the basis of the presence of another carrier in the jurisdiction; State and local authority to base zoning regulation on other grounds is left intact by this ruling.” Declaratory Ruling, 24 FCC Rcd at 14017 ¶ 60 (emphasis added). 13 II. THE FCC’S INTERPRETATION OF SECTION 332(c)(7)(B)(i)(II) IS ENTITLED TO DEFERENCE. As this Court has recognized, the Supreme Court’s 2005 Brand X decision “explained the proper interplay between a prior judicial decision” interpreting a statute “and an agency construction of the same statutory provision.” Elm Grove Coal Co. v. Director, Office of Workers’ Comp. Programs, 480 F.3d 278, 291 (4th Cir. 2007). In Brand X, the Supreme Court held that a “prior judicial construction of a statute trumps” the implementing agency’s construction of the same statute “only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982. When a statutory provision is ambiguous, however, the implementing agency’s reasonable construction of the statute supersedes any prior judicial interpretation of the statute that conflicts with the agency’s reading. Id. at 982-86. Under these circumstances, a federal court must “accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Elm Grove, 480 F.3d at 292 (quoting Brand X, 545 U.S. at 980); see also Fernandez, 502 F.3d at 347-51 (rejecting Fourth Circuit precedent in favor of superseding authoritative agency interpretation). When this Court interpreted section 332(c)(7)(B)(i)(II) in Virginia Beach, it did not suggest that its interpretation was compelled by unambiguous statutory language. See Virginia Beach, 155 F.3d at 428-29. Nor can there be any serious dispute that section 332(c)(7)(B)(i)(II) is ambiguous. Indeed, the terms “prohibit 14 or have the effect of prohibiting” are not defined in the statute. And, as the Commission noted in the Declaratory Ruling, several courts of appeals have disagreed about how to construe that language. See Declaratory Ruling, 24 FCC Rcd at 14016 ¶ 56 & n.175. Because the FCC reasonably construed that ambiguous language, its interpretation is controlling. Accordingly, the Commission’s Declaratory Ruling precludes the Court from applying a “blanket ban” or “one-provider” interpretation of section 332(c)(7)(B)(i)(II) in this case. To the extent that the district court understood that the Declaratory Ruling did not reject Virginia Beach’s “blanket ban” reading of section 332(c)(7)(B)(i)(II), the district court erred, and this Court should clarify that Virginia Beach is no longer good law on that issue. 5 5 The district court seemed to assume that the “blanket ban” approach is meaningfully different from the “one-provider” interpretation of the statute. See JA811 (“the FCC’s criticism of the Fourth Circuit’s ‘blanket ban requirement’ as set forth in Virginia Beach is limited in context to the one-provider rule and does not reject the holding in its entirety”). In the Declaratory Ruling, however, the FCC explained that a “blanket ban” requirement and a “one-provider” rule have the same practical effect. See Declaratory Ruling, 24 FCC Rcd at 14017 ¶ 60 (rejecting “the interpretation that the statute only limits localities from prohibiting all personal wireless services (i.e., a blanket ban or ‘one-provider’ approach)”). Just like a “one-provider” rule, a “blanket ban” interpretation of the statute would permit a zoning authority to deny a wireless siting application solely because another carrier already serves the area. In the Commission’s judgment, such an outcome is at odds with both the text and the fundamental purpose of the statute. See id. at 14016-18 ¶¶ 56-61. 15 CONCLUSION This Court should apply the FCC’s authoritative interpretation of 47 U.S.C. § 332(c)(7)(B)(i)(II), as set forth in the Declaratory Ruling, and reject any contrary Circuit precedent. Respectfully submitted, AUSTIN C. SCHLICK GENERAL COUNSEL PETER KARANJIA DEPUTY GENERAL COUNSEL RICHARD K. WELCH ACTING ASSOCIATE GENERAL COUNSEL /s/JAMES M. CARR JAMES M. CARR COUNSEL FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 (202) 418-1740 (TELEPHONE) (202) 418-2819 (FAX) March 18, 2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT T-MOBILE NORTHEAST LLC, APPELLANT, V. FAIRFAX COUNTY BOARD OF SUPERVISORS, APPELLEE. ) ) ) ) ) ) ) ) ) ) NO. 11-1060 CERTIFICATE OF COMPLIANCE Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby certify that the accompanying “Amicus Brief for the Federal Communications Commission” in the captioned case contains 3476 words. /S/James M. Carr James M. Carr Counsel FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 (202) 418-1740 (TELEPHONE) (202) 418-2819 (FAX) March 18, 2011 11-1060 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT T-Mobile Northeast, LLC, Appellant, v. Fairfax County Board of Supervisors, Appellee. CERTIFICATE OF SERVICE I, James M. Carr, hereby certify that on March 18, 2011, I electronically filed the foregoing Amicus Curiae Brief with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Some of the participants in the case, denoted with asterisks below, are not CM/ECF users. I certify further that I have directed that copies of the foregoing document be mailed by First-Class Mail to those persons, unless another attorney at the same mailing address is receiving electronic service. T.Scott Thompson, Esq. Leslie Moylan, Esq. Daniel Reing, Esq. Davis Wright Tremaine LLP 1919 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Attorneys for T-Mobile Northeast, LLC Elizabeth D. Teare Virginia State Bar Number 31809 Office of the County Attorney 12000 Government Center Parkway Suite 549 Fairfax, Virginia 22035-0064 Attorney for the Fairfax County Board of Supervisors /s/ James M. Carr