FCC vs. local governments
Cities defend permit requirements, say ISPs aren’t building networks fast enough.
Credit: Getty Images | Andrey Denisyuk
Cities and counties around the US are angry at the Trump administration over a proposal to override local rules that govern the deployment of wired broadband networks.
The Federal Communications Commission has been taking public comments on a Notice of Proposed Rulemaking that proposes to preempt state and local permitting rules. The FCC argues that too many local governments “excessively delay approvals and seek to extract exorbitant sums from providers, resulting in costs that render some deployments infeasible.”
The FCC plan is supported by broadband providers, but local governments told the FCC that it would override rules that protect public safety. Local governments say the plan is illegal and that the FCC should instead focus on how Internet providers thwart competition with permit-hoarding and other tactics that prevent competitors from deploying networks.
The FCC docket has drawn many comments from leaders of individual municipalities, and from groups representing local governments nationwide. They object to FCC plans to impose a 120-day deadline for processing permits and to proposed limits on fees and compensation that local governments can require from providers.
“Local permitting is not a barrier to broadband deployment—it is an essential public safety function protecting residents, taxpayers, and all users of finite, multi-tenant public rights-of-way. The complex coordination required to safely deploy wireline telecommunications infrastructure in, above, and below public roadways cannot be reduced to an arbitrary federal deadline,” said a September 21 filing by the United States Conference of Mayors, National Association of Counties, National League of Cities, and National Association of Telecommunications Officers and Advisors.
Cities say ISPs drag feet in deployment
While the FCC says it is trying to speed up broadband deployment, local governments say ISPs themselves are often to blame for delays. The groups representing local governments urged the FCC to issue new rules that apply to the providers and suggested a requirement that ISPs deploy networks within 180 days of local authorization.
“We ask the commission to address provider delays, failures to deploy, and permit-hoarding,” the groups told the FCC. They wrote that ISPs often fail to promptly deploy networks after obtaining approvals from local governments:
Local governments’ efforts to attract telecommunications infrastructure investment to their communities often lead to frustration due to applicants’ permit-hoarding and other bad-faith actions by providers intended to crowd out competition in sought-after locations and routes, regardless of the provider’s actual intent to deploy and provide service or upgrades. Providers are aware that local governments have limited resources and existing legal obligations to review and process complete permits in a timely manner, and will generally do so in the order they are received. When a provider stakes “claimed” space on a pole or structure through permits, requests for make-ready work, or other actions—regardless of actual intent or ability to deploy in a timely fashion—this limits the ability of other providers to deploy in those same locations, particularly if a city must make decisions and recommendations based on elements such as the physical capacity of a structure given the assumption that the provider that has completed the permitting process will deploy soon.
Another filing submitted by the League of California Cities said the FCC has no authority to adopt the proposal. “Federal preemption of traditional state and local authority over public property, construction, public safety, permitting, and rights-of-way management should rest on clear congressional authorization,” the filing said. “The commission should not infer broad preemptive authority where Congress did not expressly provide it.”
The FCC claimed authority to preempt local rules under Section 253 of the Communications Act, which says that no state or local requirement “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The FCC argues that certain permitting rules have the effect of prohibiting broadband deployment.
FCC claims authority under Title II
Section 253 is part of Title II, which gives the FCC authority to regulate telecommunications companies as common carriers. While Democratic FCC leaders in previous administrations used Title II to regulate broadband providers and impose net neutrality rules, a 2025 appeals court decision determined that broadband is an “information service” and can’t be regulated as a telecommunications service.
FCC Chairman Brendan Carr has consistently opposed Title II regulation of broadband providers, maintaining that broadband is not a telecommunications service. With Carr now relying on Title II to preempt local broadband rules, his FCC plan argues that the infrastructure deployed by broadband providers is used for “both telecommunications and non-telecommunications services.”
A filing by Minnesota cities said the current FCC is making the same mistake it made during the first Trump administration, when its attempt to preempt state net neutrality laws was blocked in court. Without Title II regulation of broadband providers, the FCC can’t convert “a federal policy of nonregulation into independent preemptive authority,” the Minnesota cities’ filing said.
If the FCC finalizes its new preemption plan, city and state governments could sue and ask a court to rule that the agency exceeded its authority.
Preemption plan
The FCC said its preemption plan would “establish a rebuttable presumption that state and local governments have effectively prohibited the provision of wireline telecommunications services if they fail to process all authorizations for use of public rights-of-way to provide wireline telecommunications services or to deploy wireline telecommunications infrastructure within 120 days.”
The FCC intends to limit fees charged by state and local governments “to a reasonable approximation of the government’s actual, direct costs of managing the rights-of-way.” The FCC is proposing to establish “safe harbor fee levels that presumptively comply” with the standard but hasn’t settled on specific amounts yet.
The FCC plan would also limit the value of in-kind compensation demanded by state and local governments and prohibit localities from imposing additional requirements or fees “on the basis that the wireline telecommunications infrastructure may be used to provide other services.”
The filing by the United States Conference of Mayors and other groups pointed out that federal agencies, such as the Bureau of Land Management and US Forest Service, have a 270-day deadline for processing permits related to wireless and fiber deployments on federal property. There is no consequence if the agencies don’t meet those deadlines, and there are many delays due to staffing shortages, the groups’ filing said.
The federal standard of 270 days shows that the FCC’s “120-day proposal is arbitrary and bears no connection to the realities of permitting processes and procedures,” the filing said. Meanwhile, the proposed limits on fees would override local governments’ ability to obtain reasonable compensation for private, commercial use of public property, the filing said. The groups said the plan “raises significant federalism concerns” and doesn’t fully account “for the actual costs and burdens of right-of-way deployment borne by local governments.”
ISPs want even shorter deadlines
Cable providers support the FCC proposal. “Unreasonable delays in issuing authorizations for access and use of public right-of-way and infrastructure materially inhibit the provision of telecommunications services,” wrote America’s Communications Association, which represents small and medium-size cable companies.
The cable lobby group said 120 days should be an “outer bound” and that some kinds of “simple” right-of-way permits should have a 45-day deadline. Telco lobby group USTelecom urged the FCC to limit fees and said that 60- and 90-day deadlines would provide cities and towns with enough time to review applications.
The deadline for the first round of comments passed yesterday, and the FCC will accept reply comments until November 5. The FCC would finalize new rules sometime after that, assuming it doesn’t drop the proposal entirely.
Carr appears intent on approving some form of the plan. “There are some jurisdictions where providers continue to face lengthy delays, excessive fees, and unpredictable permitting processes that can postpone projects for months or even years,” Carr said in June, when the FCC issued the Notice of Proposed Rulemaking.
Carr acknowledged that cities and towns may be frustrated by provider delays. But he proposed that ISPs be given “incentives” to build networks faster, rather than face new legal requirements. Carr said the FCC call for comments asks for input on “how we can incentivize providers to act quickly on any granted authorizations so that state and local governments have more certainty that deployments will be completed and that their resources are being correctly applied.”
Democratic Commissioner Anna Gomez approved the step of asking the public for input but signaled she would vote against the final proposal. “I am dubious about the commission’s authority under Section 253 to use rulemaking to preempt states and localities when it comes to their management of rights of way and fees charged to providers,” she said. Gomez also noted that “states and localities face large volumes of requests that they may or may not have the resources to respond to as rapidly as providers would like.”
Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.
