Local Governments Must Prepare to Respond to FCC Inquiry Seeking Support for Further Federal Preemption of Local Authority over Wireline Broadband Deployments
On September 30, 2025, the eve of the federal government shutdown, the Federal Communications Commission (FCC) adopted a Notice of Inquiry (NOI) aimed at gathering information from the industry to support imposing broad limits on state and local authority over wireline broadband infrastructure deployments. In February 2025, BBK’s Telecommunications attorneys flagged that local governments should prepare for this forthcoming FCC effort. Industry comments will be voluminous but will give only one side of the story. Hence, a vigorous response from local governments will be crucial for a complete and accurate record.
The NOI describes reports by providers claiming “access to state and local public rights-of-way is a significant impediment to [the providers’] ability to deploy facilities...particularly state and local requirements that impose excessive delays and fees that derail both private and public investments in infrastructure.” The FCC seeks information to support its consideration of whether to exercise its authority under Section 253 of the federal Communications Act, which bars state or local laws, regulations and legal requirements that prohibit or have the effect of prohibiting the provision of telecommunications service. The NOI strongly indicates that the FCC plans to use the information to justify imposing various new restrictions on local authority, including new time limits on local governments to act on public rights-of-way applications, new limits local right-of-way fees and other compensation and more.
The FCC seeks comment on the following areas for information that could lead to federal action:
Permitting and Approval Processes and Shot Clocks – Whether state and local permitting processes create unnecessary delays or costs, and whether to set time limits for state and local governments to act on requests to access and use public rights-of-way for wireline services.
Fees and Compensation for Right-of-Way Access and Use – Whether costs, fees, or in-kind compensation for use of public rights-of-way impose significant financial burdens on providers and act as barriers to deployment that should be limited.
Other Categories of State and Local Requirements – Whether any other types or categories of state and local requirements (even if not expressly tied to deployments in public rights-of-way such as laws governing AI) are prohibiting or effectively prohibiting wireline telecommunications service provision and are in need federal preemption.
Commingled Facilities – Whether state and local requirements imposed on providers whose infrastructure carries both telecommunications and other services create additional permitting, fee, or procedural burdens that could impede provision of wireline telecommunications service.
Alternative Solutions – Other ways to reduce permitting delays for wireline deployments such as standardized forms and checklists.
Opening comments are due by November 17, 2025, and reply comments are due by December 17, 2025. An NOI is the first step in the FCC process and may be followed by a Declaratory Ruling or by the issuance of one or more Notices of Proposed Rulemaking if the FCC wishes to take specific actions based on information gathered in this inquiry.
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.
