CTIA—THE WIRELESS ASSOCIATION, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
No. 05-1008.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 8, 2005. Decided Sept. 26, 2006.
466 F.3d 105
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.
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,
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.”
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
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,”
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.”
[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 WL 2248768 (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 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 WL 21308908 (2003) (“Notice of Proposed Rulemaking” or “NPRM“) (proposing to amend
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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)).
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“),
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,
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 question-
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 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
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 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 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.
III.
CTIA urges that the NPA Order was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
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.”
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.
In Sheridan Kalorama Historical Ass‘n v. Christopher, we noted that “[u]pon a first reading, the ... definition seems 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,”
In the NPA Order, as we have noted, the FCC concluded 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
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 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 ministe-
As a second ground for concluding that tower construction requires “Federal ... approval,”
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 a determination that the proposal will or will not have a significant environmental effect.”
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
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.”
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.”
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 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
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,”
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
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,
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 1116-1119, 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
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
“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] ... 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.,
For the foregoing reasons, the petition for review is denied.
So ordered.
Notes
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, 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.