The Federal Communications Commission (FCC) is currently seeking comment on whether it should enact rules to promote broadband infrastructure by preempting state and local laws that inhibit deployment. 
As set forth in the FCC’s Notice of Inquiry, Section 253 of the Federal Telecommunications Act (FTA) provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” While the FTA preserves the authority of a state or local government to regulate telecommunications services to protect the public safety and welfare, provide universal service, and to manage public rights-of-way on a non-discriminatory basis, it also authorizes the FCC to preempt state or local laws that it believes interfere with the ability of a telecommunications company to provide its services.
The FCC’s actions are designed to accelerate the deployment of next-generation networks and services. To that end, the FCC is seeking comments on its authority under Section 253 to adopt rules that prospectively prohibit the enforcement of local laws that would otherwise prevent or hinder the provision of telecommunications service. As set forth in the Notice of Inquiry, the FCC has adopted the position that “the Commission has the authority to engage in a rulemaking to adopt rules that further define when a state or local legal requirement or practice constitutes an effective barrier to the provision of telecommunications service under Section 253(a).”
The FCC is also seeking comment on several specific areas where the agency could utilize its authority under Section 253 to enact rules to prevent states and localities from enforcing laws that ‘‘may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.’’ They include:
- State and local moratoria on market entry or the deployment of telecommunications facilities
- Excessive delays in negotiations and approvals for rights-of- way agreements and permitting for telecommunications services
- Excessive state and local fees that may have the effect of prohibiting the provision of telecommunications services
- Unreasonable conditions or requirements in the context of granting access to rights-of-way
- Permitting, construction, or licensure related to the provision of telecommunications services
- Bad faith conduct in the context of deployment, rights-of-way, permitting, construction, or licensing negotiations
For municipalities that are interested in voicing their concerns to the FCC, comments must be received by June 12, 2017. Comments may be submitted online.
For more information about the FCC’s Notice of Inquiry or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.