Call to Action: Impending Threat to Communities’ Property Rights, Revenues and Police Powers Demands Planning and Response from new Telecommunications Legislation and Rules

Local governments must prepare now for renewed efforts in Washington, D.C. to restrict, and in some cases, eliminate a community’s ability to manage their property, receive fair compensation for the private use of public assets, exercise core land management functions and police powers over wireless tower siting, public right-of-way (PROW) management, cable franchising and more. 

Efforts to preempt local governments in favor of the telecommunications, cable and wireless industry have occurred in Republican and Democratic Administrations regardless of which political party governs Congress. The new power brokers in Washington have made clear they intend to empower communications companies by preempting local governments.

Congress

Congress will again consider omnibus preemption legislation that mirrors last Congress’ H.R. 3557, which was voted to the floor, along party lines, last year. H.R. 3557 preempted local coordination of infrastructure deployments in local PROW, prevented the recovery of fair rent for the use of public property, and waived historic preservation and environmental rules for broadband providers. In exchange for these benefits, the legislation imposed no obligations on broadband companies to deploy infrastructure or provide services to unserved or underserved Americans. Single-party control of Congress and the Presidency means legislation has the opportunity to move quicker with less time for public input and debate. 

Federal Communications Commission

The new FCC Chair, Brendan Carr, is a long-time critic of local PROW management, PROW compensation, and land-use authority. Chair Carr authored the Project 2025 chapter on telecommunications policy, which advocated for additional limitations on local PROW permitting and compensation authority. This builds on the 2018 and 2019 FCC rules Chair Carr championed that have already limited local governments’ autonomy and revenue. The Carr-led FCC is likely to expand existing rules from wireless siting to all telecommunications siting, limiting compensation to taxpayers for private commercial use of public property and imposing additional restrictive shot clocks, including “deemed granted” relief and other remedies.

To ensure the voice of local governments is heard, it is essential that there be robust local government participation: with the Congress,  in FCC dockets, and where necessary, before the courts to protect local rights and interests.

What steps should local governments take now?

• Make sure your code and practices are up to date. Court review of some FCC tower siting rules was completed last year: take this opportunity to be sure your community is in compliance with new rules and recent changes. Look for a series of BBK webinars to assist you with this coming soon.
• Stay connected with BBK, your state league, and national associations like the National Association of Telecommunications Officers and Advisors (NATOA), National League of Cities (NLC), National Association of Counties (NACo), and United States Conference of Mayors (USCM) working on telecommunications issues. At a time when policy in Washington is moving quickly, you will want to ensure you are aware of what is happening and alert upcoming issues. 
• Make sure your elected leaders are up to speed. If you did not send an updated memo to the leadership in your community at the end of 2024 on forthcoming communications policy matters, the time is now. BBK would be glad to assist with an update.
• Identify if your members of Congress serve on key committees, such as the Senate Commerce, Science & Transportation Committee and the House Energy & Commerce Committee. Make your community’s interests known to your Congressional delegation.
• Gather facts showing successful deployments in your community and any barriers your community identified and eliminated. Local government leaders typically champion and facilitate communications deployment—be prepared to counter the incorrect claims that local governments impede successful broadband deployment.  
• Set aside a budget to defend your local authority. Countering the well-financed industry interests in Congress and participating in FCC proceedings and other legal actions, will require funding. It is critical to protect all options. To do so, local governments need to establish a strong record of law and facts before the FCC and be prepared to proceed to court if forthcoming rules violate the administrative process, the law or ignore the facts.

For more information, please connect with the authors and members of BBK’s Telecommunications practice group. To receive legal updates and practical insights that impact you and your organization, please subscribe here to be added to our mailing list.

Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation, or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.