CTIA—Wireless Ass'n v. Federal Communications Commission , 466 F.3d 105 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2005 Decided September 26, 2006
No. 05-1008
CTIA - THE WIRELESS ASSOCIATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of the
Federal Communications Commission
Donald B. Verrilli, Jr. argued the cause for petitioner. With
him on the briefs were Ian H. Gershengorn and Michael F.
Altschul.
C. Grey Pash, Jr., Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were James C. Kilbourne and Todd S. Kim, Attorneys, U.S.
Department of Justice, and Samuel L. Feder, General Counsel,
Daniel M. Armstrong, Associate General Counsel, and Richard
K. Welch, Counsel, Federal Communications Commission.
Robert B. Nicholson and Robert J. Wiggers, Attorneys, U.S.
Department of Justice, entered appearances.
Before: TATEL, GARLAND and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: CTIA–The Wireless Association
(“CTIA”) challenges an order of the Federal Communications
Commission (1) determining that the construction of wireless
communications towers is an “undertaking” subject to section
106 of the National Historic Preservation Act, 16 U.S.C. § 470f,
and (2) deferring to a determination by the Advisory Council on
Historic Preservation (the “Council”) that section 106 protects
not only those properties formally deemed eligible for listing in
the National Register of Historic Places (the “Register”), but also
those that simply meet the criteria for listing. Because we
conclude the FCC did not err, we deny the petition for review.
I.
Congress enacted the National Historic Preservation Act
(“NHPA” or the “Act”) in 1966 to “foster conditions under
which our modern society and our prehistoric and historic
resources can exist in productive harmony.” 16 U.S.C. § 470-
1(1). Section 106 of the Act requires federal agencies to “take
into account” the effects of their “undertaking[s]” on historic
properties “included” or “eligible for inclusion” in the Register.
Id. § 470f.1 In doing so, the Act does “not require [a federal
1
Section 106 of the Act provides in full:
The head of any Federal agency having direct or
indirect jurisdiction over a proposed Federal or
federally assisted undertaking in any State and the
head of any Federal department or independent
agency having authority to license any undertaking
shall, prior to the approval of the expenditure of any
Federal funds on the undertaking or prior to the
issuance of any license, as the case may be, take into
account the effect of the undertaking on any district,
3
agency] to engage in any particular preservation activities;
rather, Section 106 only requires that the [agency] consult the
[State Historic Preservation Office] and the [Advisory Council
on Historic Preservation] and consider the impacts of its
undertaking.” Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir.
2000).
The Council is an independent agency created by the NHPA,
with twenty members drawn from the public and private sectors
and a professional staff trained in historic preservation. See 16
U.S.C. § 470i(a). The NHPA directs the Council “to promulgate
such rules and regulations as it deems necessary to govern the
implementation of [section 106] in its entirety.” Id. § 470s.
Using this authority, the Council created what it calls the
“section 106 process”—a process that provides “how Federal
agencies meet [their] statutory responsibilities” under section
106. 36 C.F.R. § 800.1(a). The section 106 process requires
agencies to identify undertakings that might affect historic
properties, id. § 800.3, identify potentially affected historic
properties, id. § 800.4, assess the potential adverse effects of
their actions on those properties, id. § 800.5, and seek ways to
“avoid, minimize or mitigate” those effects, id. §§ 800.1, 800.6.
Agencies “must complete the section 106 process prior to the
approval of the expenditure of any Federal funds on the
undertaking or prior to the issuance of any license.” Id.
§ 800.1(c) (quotation marks omitted).
site, building, structure, or object that is included in
or eligible for inclusion in the National Register. The
head of any such Federal agency shall afford the
Advisory Council on Historic Preservation . . . a
reasonable opportunity to comment with regard to
such undertaking.
16 U.S.C. § 470f (emphasis added).
4
As an alternative, the Council’s regulations provide that
agencies “may develop procedures to implement section 106 and
substitute them [for the standard section 106 process] . . . if they
are consistent with the Council’s regulations,” id. § 800.14(a), a
determination the Council itself makes, id. § 800.14(a)(2).
Agencies and the Council may also “negotiate a programmatic
agreement to govern the implementation of a particular program
or the resolution of adverse effects from certain complex project
situations or multiple undertakings.” Id. § 800.14(b). Such
programmatic agreements are frequently used for undertakings
whose effects are “similar or repetitive” or “cannot be fully
determined prior to approval” of the undertaking. Id.
§ 800.14(b)(1).
Negotiation of a programmatic agreement requires
“consultation . . . as appropriate” with “[State or Tribal Historic
Preservation Offices (“SHPOs” or “THPOs”)], the National
Conference of State Historic Preservation Officers (“NCSHPO”),
Indian tribes and Native Hawaiian organizations, other Federal
agencies, and members of the public.” Id. § 800.14(b)(2)(I).
Programmatic agreements “take effect when executed by the
Council, the agency official and the appropriate SHPOs/THPOs
when the programmatic agreement concerns a specific region or
the president of NCSHPO when NCSHPO has participated in the
consultation.” Id. § 800.14(b)(2)(iii). A programmatic
agreement binds the agency and “satisfies the agency’s section
106 responsibilities for all individual undertakings of the
program covered by the agreement until it expires or is
terminated by the agency.” Id. After being executed by the
parties, the agreement has no legal force, however, until after the
agency has provided public notice of its terms and allowed for
public comment. Id. § 800.14(b)(2)(iv). Only then may the
agency issue an order that makes the terms of the agreement
binding.
5
This case involves a programmatic agreement negotiated by
the Federal Communications Commission (“FCC” or
“Commission”), the Council, and the NCSHPO regarding
wireless communications towers. Prior to execution of this
agreement, wireless communication tower construction was
subject to the standard section 106 process established by the
Council. In August 2000, the FCC convened a working group to
develop a programmatic agreement for wireless communications
towers. This working group included the FCC, the Council,
representatives of the wireless communications industry
(including CTIA), and individuals and organizations from the
historic preservation community. By June 2003, the working
group had drafted a Nationwide Programmatic Agreement
(“NPA”) regarding tower construction. The NPA
[a]dopt[ed] categories of undertakings that are excluded
from the Section 106 process . . . [;] [o]utline[d]
procedures regarding public participation; [and]
[a]dopt[ed] procedures regarding the identification and
evaluation of historic properties and the assessment of
effects, including: (1) guidelines for establishing the
area of potential effects, (2) streamlined procedures for
identifying potentially eligible properties for purposes
of the Nationwide Agreement, (3) standards governing
the conduct of archeological surveys, (4) a definition of
visual adverse effects, and (5) standards for the use of
qualified experts.
Nationwide Programmatic Agreement Regarding the Section 106
National Historic Preservation Act Review Process, 20 F.C.C.R.
1073, 1075 ¶ 2 (2004) (the “NPA Order”). The NPA also
“[e]stablish[ed] procedures for SHPO/THPO and Commission
review” of proposed tower construction. Id.
After the NPA was drafted, the FCC issued a notice of
6
proposed rulemaking seeking public comment on the proposed
agreement and a draft amendment to its regulations that would
incorporate the NPA into the Commission’s rules. See Notice of
Proposed Rulemaking, Nationwide Programmatic Agreement
Regarding the Section 106 National Historic Preservation Act
Review Process, 18 F.C.C.R. 11664 (2003) (“Notice of Proposed
Rulemaking” or “NPRM”) (proposing to amend 47 C.F.R.
§ 1.1307(a)(4)). On January 4, 2005, following the notice and
comment period, the FCC issued the NPA Order, in which the
FCC adopted its proposed changes. See NPA Order, 20 F.C.C.R.
at 1074 ¶ 1. In the NPA Order, the FCC concluded that
construction of a wireless communications tower constitutes an
“undertaking” subject to section 106 of the NHPA. Id. at 1082-
84 ¶¶ 24-28. In addition, the FCC deferred to the Council’s
interpretation of the term “eligible for inclusion” as including
properties formally determined eligible for listing on the Register
and properties that meet the criteria for listing but have not yet
received a formal determination. Id. at 1117 ¶ 121. CTIA filed
a petition for review challenging those two aspects of the NPA
Order and invoking this Court’s jurisdiction under 47 U.S.C.
§ 402(a) and 28 U.S.C. §§ 2342, 2344.
II.
Even where the “parties assure us that we have jurisdiction
over [a] case, we have an independent obligation to be certain.”
Midwest Indep. Transmission Sys. Operator, Inc. v. FERC, 388
F.3d 903, 908 (D.C. Cir. 2004) (citing Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94-95 (1998)). Section 2344 of Title
28, United States Code, allows “[a]ny party aggrieved by the
[FCC’s] final order . . . within 60 days after its entry” to “file a
petition to review,” with respect to “a final order reviewable
under this chapter.” Id. Although neither CTIA nor the FCC
challenged our jurisdiction in their briefs, we questioned at oral
argument whether CTIA’s petition for review was timely with
7
respect to one of its challenges.
CTIA filed its petition for review within 60 days of the
FCC’s final order implementing the Nationwide Programmatic
Agreement, and seeks to challenge two independent grounds set
forth in the NPA Order in support of the FCC’s conclusion that
tower construction is a federal undertaking subject to the NHPA.
As we discuss more fully in Section III, first, the NPA Order
determined that tower construction constitutes a “federal
undertaking” under section 106 because of the FCC’s registration
process, through which the Commission “may assure, prior to
construction, that towers do not pose a risk to air safety,” 20
F.C.C.R. at 1084 ¶ 27. Second, the NPA Order determined that
tower construction additionally constitutes a “federal
undertaking” because of the FCC’s approval process for
environmental assessments under [the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347]. 20 F.C.C.R.
at 1083 ¶ 26.
Two earlier Commission orders, however, also address the
duties of tower owners under the NHPA. In 1990, the
Commission “amend[ed] its rules to require environmental
review before any applicant proceeds with [tower] construction.”
Amendment of Environmental Rules, 5 F.C.C.R. 2942, 2942 ¶ 4
(1990) (“1990 Order”). As part of that amendment, the
Commission required tower owners to comply with the NHPA
prior to construction so that the Commission could “address[]
environmental issues early enough in the licensing process to
ensure that it fully meets its obligations under Federal
environmental laws.” Id. at 2943 ¶ 9 & n.16 (citing the NHPA,
16 U.S.C. § 470, et seq.). The 1990 Order never explicitly
addresses whether tower construction is a federal undertaking
under section 106 of the NHPA. Instead, the Order reasons that
“any delay in construction that results from requiring an
applicant to undergo environmental processing prior to
8
construction, rather than at the licensing stage, is more than
offset by the public interest benefits of ensuring, in compliance
with Federal environmental statutes, that no potentially
irreversible harm to the environment occurs.” Id. at 2943 ¶ 11
(emphasis added). Thus, the 1990 Order determines that
requiring compliance with the Commission’s environmental
regulations prior to tower construction is in the public interest.
In 1995, the Commission explicitly concluded that
“registering a structure,” i.e., its tower registration process,
“constitutes a . . . ‘federal undertaking’” under the NHPA.
Streamlining the Commission’s Antenna Structure Clearance
Procedure, 11 F.C.C.R. 4272, 4289 ¶ 41 & n.60 (1995) (“1995
Order”).2 Unlike the order we now review, the 1995 Order
contains no analysis of relevant statutes and regulations in
support of that conclusion. See id.The parties did not address in their briefs whether CTIA’s
petition is timely in light of these two orders. After questioning
jurisdiction at oral argument, we ordered supplemental briefing.
Both parties now quarrel over application of the “reopening
doctrine.” The reopening doctrine, “well-established in this
circuit,” is “an exception to statutory limits on the time for
seeking review of an agency decision.” Nat’l Ass’n of
Reversionary Property Owners v. Surface Transp. Bd., 158 F.3d
135, 141 (D.C. Cir. 1998) (quoting United Transp. Union-Ill.
Legislative Bd. v. Surface Transp. Bd., 132 F.3d 71, 75-76 (D.C.
2
Although the Commission spoke of “registering a structure”
as “constitut[ing] a . . . federal undertaking,” 1995 Order, 11
F.C.C.R. at 4289 ¶ 41, we have previously noted that “federal
authority to fund or to license a project can render the project an
undertaking, but the decision of the funding or licensing agency is not
itself an undertaking,” Sheridan Kalorama Historical Ass’n v.
Christopher, 49 F.3d 750, 754 (D.C. Cir. 1995) (emphasis added).
9
Cir. 1998)) (alterations and quotation marks omitted). The
doctrine “arise[s] . . . where an agency conducts a rulemaking or
adopts a policy on an issue at one time, and then in a later
rulemaking restates the policy or otherwise addresses the issue
again without altering the original decision.” Id. On one end of
the spectrum, “[w]e have said that when the later proceeding
explicitly or implicitly shows that the agency actually
reconsidered the rule, the matter has been reopened and the time
period for seeking judicial review begins anew.” Id. (citing
Public Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir. 1990)).
“‘The general principle is that if the agency has opened the issue
up anew, even though not explicitly, its renewed adherence is
substantively reviewable.’” Id. (quoting Public Citizen, 901
F.2d at 150 (quoting Assoc. of Am. R.Rs. v. ICC, 846 F.2d 1465,
1473 (D.C. Cir.1988))) (alterations omitted); see PanAmSat
Corp. v. FCC, 198 F.3d 890, 897 (D.C. Cir. 1999) (same).
On the other end of the spectrum, we have concluded that an
agency does not reopen a rulemaking or policy determination
“merely [by] respond[ing] to an unsolicited comment by
reaffirming its prior position.” Kennecott Utah Copper Corp. v.
U.S. Dep’t of Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996)
(citing Massachusetts v. ICC, 893 F.2d 1368, 1372 (D.C. Cir.
1990)). “Nor does an agency reopen an issue by responding to
a comment that addresses a settled aspect of some matter, even
if the agency had solicited comments on unsettled aspects of the
same matter.” Kennecott, 88 F.3d at 1213.
In determining “whether an agency reconsidered a
previously decided matter,” we “‘must look to the entire context
of the rulemaking including all relevant proposals and reactions
of the agency.’” Reversionary Property Owners, 158 F.3d at 141(quoting Public Citizen, 901 F.2d at 150) (alterations omitted).
We have, through numerous decisions, summarized several
factors that will demonstrate reopening in this Circuit. See id. at
10
142-43; Kennecott, 88 F.3d at 1213-15; Public Citizen, 901 F.2d
at 150; State of Ohio v. EPA, 838 F.2d 1325, 1328 (D.C. Cir.
1988). We need not, and do not, revisit the weight given to
various factors in distinguishing between reopening an issue and
“mere[ly] . . . repeating old reasons for an old policy in response
to unsolicited comments.” Reversionary Property Owners, 158
F.3d at 145. For in this case, the FCC’s treatment in the NPA
Order of whether tower construction is a federal undertaking
falls comfortably on the reopening side of the spectrum.
As noted, the 1990 Order determined that requiring tower
owners to comply with the NHPA prior to construction would
produce “public interest benefits” by “ensuring, in compliance
with Federal environmental statutes, that no potentially
irreversible harm to the environment occurs,” 5 F.C.C.R. at 2943
¶ 11, and the 1995 Order concluded that the tower registration
process “constitutes a . . . ‘federal undertaking’” under the
NHPA. 11 F.C.C.R. at 4289 ¶ 41 & n.60. The Commission’s
Notice of Proposed Rulemaking for the NPA Order did not
explicitly state that the Commission would not reconsider these
conclusions. Instead, after identifying several specific issues for
review, including whether the NPA should provide for
“exclusion of certain Undertakings from routine Section 106
review,” the NPRM requested comments on “any other issues
related to the draft Nationwide Agreement.” 18 F.C.C.R. at
11665 ¶ 2 (emphasis added).
This paragraph comes after a previous footnote indicating
that the NPA contained an “illustrative list of Commission
activities in relation to which Undertakings covered by the draft
[NPA] may occur,” which was attached to the NPRM. Id. at n.6.
That “illustrative list” proposed that tower construction, to the
extent covered by the FCC’s registration process, would
constitute an undertaking under the NPA, id. at 11724, as the
1995 Order previously concluded with respect to the general
11
section 106 process. The draft NPA further noted that applicants
“are required to prepare, and the Commission is required to
independently review and approve, a pre-construction
Environmental Assessment (“EA”) in cases where a proposed
tower or antenna may significantly affect the environment.” Id.
at 11671.
Although a general invitation to comment, by itself, may not
“thr[o]w the rulemaking open to any possible changes that any
member of the public might conjure up with the result that
summary denial of such changes becomes reviewable by the
courts,” Reversionary Property Owners, 158 F.3d at 145,
“[a]mbiguity in an NPRM may . . . tilt toward a finding that the
issue has been reopened,” id. at 142. “[C]onsider[ing] the cited
language in the NPRM in the ‘entire context of the rulemaking,’”
id. at 144 (quoting Public Citizen, 901 F.2d at 150), the
Commission’s proceedings are fairly read as reopening the issue
of why tower constructions constitute federal undertakings
subject to the NHPA and the new NPA.
The NPA Order began its discussion of this issue by stating
that the Commission “decline[d] to revisit, as beyond the scope
of this proceeding, the Commission’s existing interpretation that
the construction of antennas and support facilities is a federal
undertaking under the NHPA.” 20 F.C.C.R. at 1079 ¶ 16; see
also id. at 1075 ¶ 2. The Commission then went on to clarify
that its “Notice [of Proposed Rulemaking] did not seek comment
on the question whether the Commission should, assuming that
it possesses statutory authority to do so, continue our current
treatment of tower construction as an ‘undertaking’ for purposes
of the NHPA” and that “[t]herefore, [the Commission] decline[d]
to revisit that public-interest question in this docket.” Id. at 1083
¶ 24. This clarification appears to suggest that the Commission
declined to revisit the question whether it is in the public interest
to require historic properties to be taken into consideration prior
12
to tower construction—the subject of the 1990 Order. The
Commission made no statement that it declined to reconsider
whether it had statutory authority to treat tower construction as
an undertaking, and in fact proceeded to address this issue. See
NPA Order, 20 F.C.C.R. at 1083 ¶ 26 (explaining that the
Commission “expressly retained a limited approval authority for
all tower construction to the extent necessary to ensure
compliance with federal environmental statutes”); id. at 1084
¶ 27 (addressing why tower registration “constitut[es] an
approval process within the Commission’s [47 U.S.C. §] 303(q)
authority”). Even assuming arguendo the Commission could
foreclose judicial review of a new reason given for an old
conclusion by stating that it is not reopening an issue, the
Commission did not explicitly do so here.
Finally, the NPA Order indisputably offers two new
justifications not found in the 1990 Order or 1995 Order. In
fact, these two justifications offer the Commission’s first explicit
rationales for concluding that tower construction is an
undertaking, explaining that the FCC’s tower registration process
and its approval authority under NEPA constitute undertakings.
Looking to “‘the entire context of the rulemaking,’”
Reversionary Property Owners, 158 F.3d at 141 (quoting Public
Citizen, 901 F.2d at 150), the FCC reopened the undertaking
issue CTIA challenges where the Commission’s NPRM was
ambiguous, its order did not foreclose reopening the precise
matters at issue, and those matters constituted the Commission’s
first legal rationales for its action to date. Thus, we have
jurisdiction to hear CTIA’s challenge.
III.
CTIA urges that the NPA Order was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). CTIA contends that the FCC erred in
13
concluding that (1) tower construction constitutes a federal
undertaking and (2) properties “eligible for inclusion” under
section 106, 16 U.S.C. § 470f, include not only proprieties
formally designated as such by the Secretary of the Interior, but
also properties that meet the criteria outlined in the statute and
implementing regulations. We find no error.
A. The FCC’s conclusion that tower construction
constitutes an “undertaking.”
Section 106 of the NHPA requires federal agencies to “take
into account the effect of the undertaking.” Id. § 470f (emphasis
added). Thus, whether the protections of section 106 are
triggered turns on whether there has been an “undertaking.” Id.
The Act defines an undertaking as:
a project, activity, or program funded in whole or in part
under the direct or indirect jurisdiction of a Federal
agency, including—
(A) those carried out by or on behalf of the agency;
(B) those carried out with Federal financial assistance;
(C) those requiring a Federal permit[,] license, or
approval; and
(D) those subject to State or local regulation
administered pursuant to a delegation or approval by a
Federal agency.
16 U.S.C. § 470w(7) (emphasis added).
In Sheridan Kalorama Historical Ass’n v. Christopher, we
noted that “[u]pon a first reading, the . . . definition seems
14
actually to confine the notion of an ‘undertaking’ to a project
‘funded in whole or in part under the direct or indirect
jurisdiction of a federal agency,’ and thus by omission to exclude
a federally licensed project from the coverage of the statute.” 49
F.3d 750, 755 (D.C. Cir. 1995) (emphasis added). We rejected
that reading, however, because it “would deprive the references
to licensing in § 106 of any practical effect.” Id. We thus held
that “Congress intended to expand the definition of an
‘undertaking’—formerly limited to federally funded or licensed
projects—to include projects requiring a federal ‘permit’ or
merely federal ‘approval.’” Id. Thus, under Sheridan Kalorama,
a “project, activity, or program,” 16 U.S.C. § 470w(7), does not
require federal funding to be an “undertaking” under section 106
of the NHPA. See id. Instead, only a “Federal permit, license or
approval” is required. Id. § 470w(7)(C). Because the NPA
Order only focuses on whether “Federal . . . approval,” id.
§ 470w(7)(C) (emphasis added), is required for tower
construction, NPA Order, 20 F.C.C.R. at 1082-84 ¶¶ 24-28, our
task is relatively straightforward.3 We must determine whether
the FCC acted arbitrarily or capriciously in concluding that tower
construction requires “Federal . . . approval.” 16 U.S.C.
§ 470w(7)(C).
In the NPA Order, as we have noted, the FCC concluded
3
CTIA also argues that “the FCC cannot justify its imposition
of NHPA obligations on the ground that the requisite federal licensing
occurs when the FCC issues the initial license that allows carriers to
provide wireless services.” Petitioner’s Br. at 30. The FCC does not
rely upon this justification in the NPA Order. 20 F.C.C.R. at 1082-84
¶¶ 24-28. Because “we may uphold agency orders based only on
reasoning that is fairly stated by the agency in the order under review,”
we do not address this contention. Williams Gas Processing-Gulf
Coast Co. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (quotation
marks and citation omitted).
15
that tower construction requires federal approval because (1) the
Commission’s tower registration process “may be viewed as
effectively constituting an approval process within the
Commission’s section 303(q) authority,” 20 F.C.C.R. at 1084
¶ 27, and (2) a “limited approval authority” retained by the FCC
with respect to NEPA additionally constitutes federal approval,
id. at 1083-84 ¶ 26.
With respect to the first ground, discussing its tower
registration regulations implemented pursuant to section 303(q)
of the Communications Act of 1934, see NPA Order, 20
F.C.C.R. at 1084 ¶ 27 n.53 (citing 47 U.S.C. § 303(q); 47 C.F.R.
§§ 17.4, 17.7), the FCC concluded that its tower “registration
process provides a permissible means by which the Commission
may assure, prior to construction, that towers do not pose a risk
to air safety,” id. at 1084 ¶ 27. Section 17.7 of the Commission’s
regulations requires a party seeking to build a tower to consult
with the Federal Aviation Administration (“FAA”) if the
proposed tower meets certain height and location criteria. 47
C.F.R. § 17.7. An owner of such a proposed tower must then
“register the structure with the Commission.” 47 C.F.R.
§ 17.4(a). Subject to certain exceptions, an owner “must submit
a valid FAA determination of ‘no hazard’” as part of the
registration request. Id. § 17.4(b). If the owner does not or
cannot submit a “no hazard” determination, “processing of the
registration may be delayed or disapproved.” Id. § 17.4(d).
The NPA Order concluded that the FCC’s having
conditioned its approval in the regulations upon receiving “the
requisite FAA clearance” amounts to “an approval process.”
NPA Order, 20 F.C.C.R. at 1084 ¶ 27. This conclusion built
upon an earlier statement in the 1995 Order, albeit addressing
the Commission’s tower registration process generally and not
speaking to the NHPA. There, the FCC noted that “[p]roposal
[sic] antenna structures that are determined by the FAA to
16
present a potential hazard to air navigation must be lighted
during construction” and that the Commission’s “registration
process [is] the federal government’s only method of requiring
such safety lighting, as the FAA does not have statutory
authority to mandate the painting or lighting of antenna
structures.” 11 F.C.C.R. at 4281 ¶ 20.
CTIA argues this registration process is “wholly ministerial”
and thus “do[es] not create federal undertakings.” Petitioner’s
Br. at 26-27. CTIA directs us to a portion of the 1995 Order
indicating that “upon receipt of the FAA determination for the
structure, the electronic filing capability will enable the owner
to register the structure with the Commission and receive a
registration number within minutes.” 11 F.C.C.R. at 4281-82
¶ 20 (emphasis added). CTIA argues that because the
Commission can make this determination “within minutes,” id.,
it must be a ministerial determination and not truly a process
amounting to “Federal . . . approval,” 16 U.S.C. § 470w(7)(C),
that would make tower construction a federal undertaking, see 16
U.S.C. § 470f. CTIA omits from its brief, however, the portion
of the 1995 Order set out with emphasis above: “upon receipt of
the FAA determination for the structure.” Petitioner’s Br. at 27
(discussing 11 F.C.C.R. at 4281-82 ¶ 20). The FCC has chosen,
through its registration regulations, to grant approval of a
registration if it receives a “no hazard” determination from the
FAA. See 47 C.F.R. § 17.4(d). If it does not, as we have noted,
the FCC’s regulations allow the Commission in its discretion to
“delay[] or disapprove[]” a registration. Id. CTIA never
addresses § 17.4(d), but we fail to see how the Commission’s
approval under that section—“the federal government’s only
method of requiring . . . safety lighting,” 1995 Order, 11
F.C.C.R. at 4281 ¶ 20—cannot constitute “Federal . . . approval,”
16 U.S.C. § 470w(7)(C). Thus, the NPA Order was neither
arbitrary nor capricious, see 5 U.S.C. § 706(2)(A), in
determining that tower construction, to the extent covered by the
17
FCC’s registration process, constitutes a federal undertaking
subject to section 106 of the NHPA.4
As a second ground for concluding that tower construction
requires “Federal . . approval,” 16 U.S.C. § 470w(7), the NPA
Order concluded that the FCC has “expressly retained a limited
approval authority for all tower construction to the extent
necessary to ensure compliance with federal environmental
statutes.” 20 F.C.C.R. at 1083-84 ¶ 26. Specifically, among
other things, the FCC requires that owners submit for its
approval, prior to tower construction, environmental assessments
called for by NEPA. See NPA Order, 20 F.C.C.R. at 1083-84
¶ 26. Where a facility “may have a significant environmental
impact,” the FCC’s regulations require that an environmental
assessment “shall be submitted by the [owner] and ruled on by
the Commission . . . prior to the initiation of construction of the
facility.” 47 C.F.R. § 1.1312(b) (emphasis added); see NPA
Order, 20 F.C.C.R. at 1083 n.52.
The environmental assessment “is a document [that]
explain[s] the environmental consequences of the proposal and
set[s] forth sufficient analysis for . . . the Commission to reach
4
Both parties appear to agree that this ground only applies to
a subset of towers subject to the Commission’s tower registration
process. CTIA argues these registration requirements “do[] not . . .
apply to the vast majority of towers” because they only apply to
towers meeting certain requirements. Petitioner’s Br. at 26. The NPA
Order appears to recognize as much: “the Commission has chosen to
implement rules requiring that towers meeting certain height and
location criteria be registered with the Commission prior to
construction.” NPA Order, 20 F.C.C.R. at 1084 ¶ 27 (emphasis
added). Before us, the Commission does not appear to dispute that
tower construction constitutes a federal undertaking “at least,” i.e.,
only, “as to the towers for which registration is required.”
Respondent’s Br. at 30-31.
18
a determination that the proposal will or will not have a
significant environmental effect.” 47 C.F.R. § 1.1308(b). Where
a proposal, such as a proposed wireless communications tower,
has a “significant environmental effect,” id., the FCC is required
by NEPA to consult with expert Federal agencies and, following
such consultation, to prepare a detailed environmental impact
statement (“EIS”). See 42 U.S.C. § 4332(2)(c); 47 C.F.R.
§§ 1.1308, 1.1315, 1.1317.
By requiring a ruling on each environmental assessment
prior to tower construction, the FCC has retained authority over
tower construction in order to ensure that it complies with
NEPA. Whatever else “approval” may mean, we see no basis for
CTIA’s suggestion that the FCC’s retention of authority to
“rule[] on,” 47 C.F.R. § 1.1312(b), a party’s submission under
NEPA cannot constitute “approval,” 16 U.S.C. § 470w(7)(C).
We conclude that the NPA Order was neither arbitrary nor
capricious, see 5 U.S.C. § 706(2)(A), in determining that the
FCC’s approval authority under NEPA makes tower construction
an undertaking.
B. The FCC’s deference to the Council’s interpretation of
“eligible for inclusion.”
Section 106 requires agencies to consider the potential
impacts of their undertakings on properties that are “included in
or eligible for inclusion in the National Register.” 16 U.S.C.
§ 470f (emphasis added). Both CTIA and the FCC agree that
properties included in the Register must be considered in
applying section 106. At issue here is what properties must be
considered because they are “eligible for inclusion.” Id. In its
regulations, the Council has interpreted “eligible for inclusion,”
id., to include “both properties formally determined as such in
accordance with regulations of the Secretary of the Interior and
all other properties that meet the National Register criteria.” 36
19
C.F.R. § 800.16(1)(2). In other words, some properties have
been “formally determined” as eligible, and others may, in fact,
meet the criteria for eligibility, but have not yet been “formally
determined” eligible. In the NPA Order, the FCC deferred to the
Council’s “clearly stated interpretation of its own governing
statute,” NPA Order, 20 F.C.C.R. at 1117 ¶ 121. Although not
explicitly invoking a standard of review under which we might
reverse the FCC’s decision to defer to the Council, CTIA
contends that “deference to the [Council] cannot save the
Commission’s order.” Petitioner’s Br. at 39.
Congress has granted the Council authority “to promulgate
such rules and regulations as it deems necessary to govern the
implementation of section 470f of this title[, section 106 of the
Act,] in its entirety.” 16 U.S.C. § 470s. In Andrus v. Sierra
Club, 442 U.S. 347, 358 (1979), the Supreme Court determined
that regulations promulgated by the Council on Environmental
Quality interpreting NEPA were entitled to “substantial
deference” because the “Council [on Environmental Quality]
was created by NEPA, and charged in that statute with the
responsibility ‘to review and appraise the various programs and
activities of the Federal Government in the light of the policy set
forth in . . . this Act . . . , and to make recommendations to the
President with respect thereto.’” Id. at 358 (citation omitted).
We applied that holding to the National Historic Preservation
Act and the Advisory Council on Historic Preservation in
McMillan Park Commission v. National Capital Planning
Commission, 968 F.2d 1283, 1287-88 (D.C. Cir. 1992).
In McMillan Park, we explained that, as in Andrus with
respect to the Council on Environmental Quality, the Advisory
Council on Historic Preservation
was created by the NHPA, 16 U.S.C. § 470i, and
charged in that Act with the responsibility to “advise
20
the President and the Congress on matters relating to
historic preservation,” and to “review the policies and
programs of Federal agencies and recommend to such
agencies methods to improve the effectiveness,
coordination, and consistency of those policies and
programs with the policies and programs carried out
under this subchapter.” Id. § 470j(a)(1) & (6). Given
the Supreme Court’s reasoning in Andrus, we see no
basis for extending the Advisory Council’s NHPA
regulations any less deference than is traditionally
afforded the NEPA regulations of the Council on
Environmental Quality.
968 F.2d at 1288. Thus, we concluded in McMillan Park, “the
Advisory Council regulations command substantial judicial
deference.” Id.CTIA makes four arguments in attempting to show that the
FCC’s deference to the Council was unlawful. First, CTIA
argues that “it appears that the FCC misconstrued its own
authority to adopt in the NPA a definition of [“eligible for
inclusion”] that differed from that adopted by the [Council].”
Petitioner’s Br. at 39.5 Having reviewed the NPA Order in its
entirety, we cannot agree with CTIA, however, that the FCC
misunderstood—or, as CTIA puts it, “appears” to have
misunderstood— its authority in determining whether to defer to
the Council’s definition of the statutory term “eligible for
inclusion,” 16 U.S.C. § 470f. The NPA Order repeatedly
5
This argument is predicated upon a single statement in the
NPA Order: “We also note that Section 800.14 of the Council’s rules,
which authorizes programmatic agreements, discusses alternative
procedures to Subpart B of the Council’s rules, but the definition of
Historic Property is in Subpart C.” NPA Order, 20 F.C.C.R. at 1117
¶ 121.
21
indicates that the Commission saw no ground for departing from
the Council’s interpretation of a statute it is charged by Congress
with implementing. See NPA Order, 20 F.C.C.R. at 1116-20
¶¶ 118-27.
Second, CTIA argues in a sentence that the phrase “eligible
for inclusion” in section 106 is “unambiguous,” Petitioner’s Br.
at 41, although it provides no argument in support of that
assertion. See City of Waukesha v. EPA, 320 F.3d 228, 251 n.22
(D.C. Cir. 2003) (“argument[s] . . . raised in the opening brief
only summarily, without explanation or reasoning, . . . [are]
waived”). But as the parties’ competing arguments show, the
phrase “eligible for inclusion” is susceptible to at least the two
different readings offered by CTIA and the Council: properties
that merely meet eligibility criteria and properties that have been
formally designated as such.
Third, CTIA argues that the Council’s interpretation of the
term “eligible for inclusion” is not entitled to deference because
it “appears in multiple provisions of the NHPA, including, most
prominently, Section 101,” which is subject to interpretation by
the Secretary of the Interior. Petitioner’s Br. at 41. Although it
is generally true that deference may not apply to an agency’s
interpretation of a statute if Congress has entrusted more than
one agency with administering the statute, see, e.g., Ass’n of Am.
Phys. and Surgeons, Inc. v. Clinton, 997 F.2d 898, 913 (D.C. Cir.
1993) (“we do not defer to an agency’s construction of a statute
interpreted by more than one agency”), that is not this case.
Congress has entrusted one agency with interpreting and
administering section 106 of the NHPA: the Council. See 16
U.S.C. § 470s (authorizing the Council “to promulgate such rules
and regulations as it deems necessary to govern the
implementation of [section 106 of the Act] in its entirety”)
(emphasis added). Although the term “eligible for inclusion”
may appear in other provisions, Congress has authorized the
22
Council to administer the provision at issue here: section 106.
Finally, CTIA argues that the Council’s interpretation
“cannot be squared with the text and structure of the Act, or with
the legislative history of Section 106.” Petitioner’s Br. at 34. In
CTIA’s view, a property can only be “eligible for inclusion”
under the Act, 16 U.S.C. § 470f, if it has been “formally”
determined to be eligible by the Secretary of the Interior.
Petitioner’s Br. at 34. Specifically, CTIA makes several
arguments about “the text and structure of the statute,” which, in
its view, demonstrate that the Council’s regulation cannot be
reconciled with the Act. Id. at 34-39. CTIA then discusses
legislative history that it believes to be at odds with the Council’s
reading. Id. at 38.
Although CTIA has not directed us to any of its own
comments in which it makes its present arguments to the FCC,
several parties raised statutory and legislative history arguments
before the Commission. “Courts have long required a party
seeking review of agency action to exhaust its administrative
remedies before seeking judicial review.” Natural Resources
Defense Council, Inc. v. EPA, 824 F.2d 1146, 1150-51 (D.C. Cir.
1987) (en banc). “This court,” however, “has excused the
exhaustion requirements for a particular issue when . . . the
agency has had an opportunity to consider the identical issues
presented to the court but which were raised by other parties.”
Id. at 1151 (quotation marks, citations, and alterations omitted).
The FCC summarized those arguments, see NPA Order, 20
F.C.C.R. at 1116 ¶ 119, but never took a position on them
because it chose “not [to] alter the definition of Historic Property
used in . . . the Council’s rules,” id. at 1117 ¶ 121 (discussing 36
C.F.R. § 800.16(l), which defines “historic property” and the
related term “eligible for inclusion”). Because the FCC
“defer[red] to the Council’s clearly stated interpretation of its
own governing statute,” it “concluded that questions regarding
23
the definition of historic properties are outside the scope of this
proceeding and should be addressed, if at all, by the Council.”
Id.CTIA acknowledges as much in its brief, indicating in a
footnote that “[i]n adopting the [Council’s] definition of ‘eligible
for inclusion in the National Register,’ the FCC did not
independently interpret the statute . . . .” Petitioner’s Br. at 40
n.14. CTIA never explains why, in requiring regulated parties to
follow the Council’s interpretation of section 106, the FCC was
required to revisit the Council’s interpretation. The FCC did not
reach the statutory and legislative arguments pressed by CTIA
here because there was no need to do so, in light of its reasonable
choice to defer to the Council’s interpretation.
Given that we must defer under Andrus and McMillan Park
to the Council’s reasonable interpretation of the meaning of
section 106, we cannot see how it was arbitrary and capricious,
see 5 U.S.C. § 706(2)(A), for the FCC to choose to do so as well.
Giving the Council’s reading of section 106 the “substantial . . .
deference” it is owed, McMillan Park, 968 F.2d at 1288; see
Andrus, 442 U.S. at 358, the Council’s interpretation was
reasonable. As noted, the Council concluded that “eligible”
properties under section 106 include “both properties formally
determined as such in accordance with regulations of the
Secretary of the Interior and all other properties that meet the
National Register criteria.” 36 C.F.R. § 800.16(1)(2) (emphasis
added). CTIA argues that the latter of these two regulatory
definitions of eligible was unreasonable, but it fits comfortably
within the common meaning of eligible.
“Eligible” has been defined as “fitted or qualified to be
chosen or used.” Webster’s Third New International Dictionary
of the English Language Unabridged 736 (1981). Although
“fitted or qualified to be chosen or used,” i.e., “meet[ing] . . .
24
criteria,” may not be the only possible reading of the statutory
term “eligible,” it is one possible, reasonable interpretation of
that term. We cannot say that the Council’s interpretation of
“eligible” was unreasonable merely because it was not limited,
as CTIA would prefer, to properties formally designated as
eligible. CTIA argues that references in other parts of the Act to
properties that “may be” eligible, see, e.g., 16 U.S.C. § 470h-
2(a)(2)(B), means that Congress could have directed that section
106 look to properties that “may be eligible” instead of
properties that are “eligible for inclusion in the National
Register,” 16 U.S.C. § 470f. Nonetheless, we do not find these
other references clear up the ambiguity the parties have
identified, and it is the Council, see 16 U.S.C. § 470s (charging
the Council with “promulgat[ing] such rules and regulations as
it deems necessary to govern the implementation of [section 106]
in its entirety”), and not CTIA that is charged with interpreting
it in the first instance. Thus, CTIA has failed to explain how the
FCC acted contrary to law in following the Council’s reasonable
interpretation of a statute the Council is charged with
implementing.
IV.
For the foregoing reasons, the petition for review is denied.
So ordered.