Cities and counties across the US are expressing strong opposition to a Trump administration proposal that would preempt local regulations governing the deployment of wired broadband networks.
The Federal Communications Commission (FCC) is currently accepting public comments on a Notice of Proposed Rulemaking that suggests overriding state and local permitting rules. The FCC contends that many local governments "excessively delay approvals and seek to extract exorbitant sums from providers, resulting in costs that render some deployments infeasible."
Broadband providers back the FCC's plan, but local governments argue it would undermine rules crucial for public safety. They assert the plan is illegal and that the FCC should instead address how Internet providers hinder competition through tactics like permit-hoarding, which obstructs competitors from deploying their own networks.
The FCC's docket has seen numerous comments from municipal leaders and representatives of local government groups nationwide. They are objecting to the FCC's proposed 120-day deadline for permit processing and the suggested limits on fees and compensation that local governments can charge 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," stated 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 claims its aim is to accelerate broadband deployment, local governments argue that Internet Service Providers (ISPs) are frequently the cause of delays. The local government groups urged the FCC to implement new rules targeting providers and proposed a requirement for ISPs to deploy networks within 180 days of receiving local authorization.
"We ask the commission to address provider delays, failures to deploy, and permit-hoarding," the groups informed the FCC. They elaborated that ISPs often fail to deploy networks promptly after securing 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, asserted that the FCC lacks the authority to enact this 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 stated. "The commission should not infer broad preemptive authority where Congress did not expressly provide it."
The FCC cited Section 253 of the Communications Act as its basis for preempting local rules, which stipulates 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's position is that certain permitting rules effectively prohibit broadband deployment.
FCC claims authority under Title II
Section 253 is part of Title II, which grants the FCC the authority to regulate telecommunications companies as common carriers. While Democratic FCC leaders in past administrations utilized Title II to regulate broadband providers and enforce net neutrality rules, a 2025 appeals court decision determined that broadband is an "information service" and cannot be regulated as a telecommunications service.
FCC Chairman Brendan Carr has consistently opposed Title II regulation for broadband providers, maintaining that broadband is not a telecommunications service. Despite this, Carr's current FCC plan relies on Title II, arguing that the infrastructure deployed by broadband providers is used for "both telecommunications and non-telecommunications services."
A filing by Minnesota cities pointed out that the current FCC is repeating a mistake made during the first Trump administration when its attempt to preempt state net neutrality laws was blocked in court. The Minnesota cities' filing argued that without Title II regulation of broadband providers, the FCC cannot transform "a federal policy of nonregulation into independent preemptive authority."
Should the FCC finalize its preemption plan, city and state governments could pursue legal action to challenge the agency's asserted authority.
Preemption plan
The FCC stated that 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 this standard but has not yet determined specific amounts.
The FCC plan would also restrict the value of in-kind compensation requested 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 highlighted that federal agencies, such as the Bureau of Land Management and US Forest Service, have a 270-day deadline for processing permits for wireless and fiber deployments on federal property. These agencies face no consequences for missing these deadlines, and delays are common due to staffing shortages, according to the groups' filing.
The federal standard of 270 days suggests that the FCC's "120-day proposal is arbitrary and bears no connection to the realities of permitting processes and procedures," the filing argued. Furthermore, the proposed fee limits would prevent local governments from obtaining fair compensation for the private, commercial use of public property. The groups stated that the plan "raises significant federalism concerns" and does not adequately account for "the actual costs and burdens of right-of-way deployment borne by local governments."
ISPs want even shorter deadlines
Cable providers have expressed support for 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-sized cable companies.
The cable lobby group suggested that 120 days should be an "outer bound" and that certain "simple" right-of-way permits should have a 45-day deadline. The telco lobby group USTelecom urged the FCC to limit fees, stating that 60- and 90-day deadlines would provide cities and towns sufficient time to review applications.
The deadline for the initial round of comments has passed, and the FCC will accept reply comments until November 5. The FCC is expected to finalize new rules after this period, provided the proposal is not withdrawn.
Carr appears determined to approve some version 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 stated in June, when the FCC released the Notice of Proposed Rulemaking.
Carr acknowledged that cities and towns might be frustrated by provider delays. However, he proposed that ISPs be given "incentives" to expedite network construction rather than face new legal mandates. Carr indicated that the FCC's call for comments seeks 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 request for public input but signaled her intention to 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 stated. 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."
