In the June 28, 2026 edition of the ICORE Blog, we reported that the FCC had adopted a Notice of Proposed Rulemaking (NPRM) that proposes rules that would prevent state and local statutes from having the effect of prohibiting the provision of wireline telecommunications services in violation of Section 253 of the Communications Act (Act). The NPRM proposed establishing a rebuttable presumption that state and local governments have effectively prohibited the provision of telecommunications services if they fail to process applications for access and use of public rights-of-way within 120 days. In addition, the NPRM proposes limiting fees that state and local governments may charge to a reasonable approximation of the government’s actual direct costs and proposed establishing safe harbor safe harbor fee levels. Further the NPRM proposes requiring that the value of in-kind compensation required by state and local governments count toward any safe harbor levels established by the Commission. Finally, the NPRM would prohibit state and local governments from imposing additional requirements on wireline telecommunications infrastructure deployments on the grounds that the infrastructure may be used to provide other services. Comments in this proceeding are due no later than September 21, 2026 and Reply Comments are due no later than November 5, 2026.
In a related matter, comments have now been filed regarding two Petitions for Preemption and Declaratory Ruling pursuant to Section 253 filed by Lumos Fiber of Ohio and Gateway Infrastructure regarding fees and rights of way requirements imposed by state and local governments. These petitions seek FCC preemption under Section 253(d).
Lumos filed its Petition pursuant to Section 253 (d) to remove unlawful barriers that have prevented it from serving customers in Stark and Mahoning Counties in Ohio and have forced Lumos to cancel planned fiber deployments after years of engineering, planning, and coordination. Lumos further asserts that it has faced exactly the kind of local barriers Section 253 was designed to prevent: excessive right-of-way fees, unreasonable and uncapped inspection charges, and sweeping non-fee requirements. Lumos highlights exorbitant per-foot fees and inspection fees that bore no relationship to actual costs and draconian professional survey obligations that would have shifted local governmental responsibilities onto Lumos. Lumos maintains that compliance with these requirements would have significantly increased Lumos’ total project costs and these cost increases and timeline delays forced Lumos to cancel both County right-of-way projects. As a result, approximately 200,000 Ohio households will not have access to Lumos fiber service. Lumos urges the Commission to expeditiously grant its Petition.
NTCA filed comments in support of the Lumos Petition. NTCA urges the Commission to grant Lumos’ requested relief stating that per-foot fees and survey and inspection requirements that act as per-foot fees divert resources away from connecting local communities and, as in the case of Lumos, can cause providers to abandon their deployment plans. NTCA cautions that should the Commission fail to act, it will send a signal to state and local government entities that such requirements are permissible under the law. USTelecom also filed comments in support of the Lumos Petition siting the fact that the local requirements described in the Lumos Petition resulted in the cancellation of the relevant fiber deployments stranding more than $1.4 million in engineering costs and leaving approximately 200,000 Ohio households and businesses without access to competitive telecommunications services. USTelecom asserts that Congress enacted Section 253 of the Act to prevent this type of result.
In its petition, Gateway Infrastructure seeks a declaratory ruling preempting the City of Maple Grove, Minnesota (the City) from imposing and requiring a cable communications system franchise agreement as a predicate to issue public right-of-way permits. Gateway asserts that the cable franchise requirement is an unlawful barrier to entry in violation Section 253. Gateway describes itself as a provider of broadband internet access service (BIAS) authorized by the Minnesota Public Utilities Commission (PUC) to provide local niche services. Gateway has obtained a certificate of authority from the PUC to provide regulated telecommunications services and has filed a tariff with the PUC under which it offers those services. Gateway currently provides BIAS to consumers in approximately ten Minnesota cities over its own fiber network. Gateway’s petition describes its interactions with the City regarding right-of-way permit applications prior to March ,2026 and this discussion appears to indicate that these interactions were not problematic. In March, 2026, however, the City enacted an ordinance requiring broadband service providers to enter into a cable franchise agreement. The City informed Gateway that it would defer action on right-of-way permit applications until the franchising process has been completed and as a result the City has not issued any right-of way permits to Gateway pending its obtaining a cable franchise agreement. Gateway has informed the City that it is not seeking to provide “cable service” over a “cable system” as those terms are defined in the Act and that requiring a cable franchise agreement violated the Act. Gateway’s Petition maintains that the City’s refusal to act on right-of-way permits pending the establishment of a cable franchise agreement is barred by Section 253 because it prohibits Gateway from operating its network to provide telecommunications services and its ability to build out fiber in new geographic areas. For these reasons Gateway seeks preemption of the City’s cable franchise requirement.
USTelecom filed comments in support of Gateway’s Petition. USTelecom urges the Commission to grant Gateway’s Petition and preempt the City’s cable franchise requirement to the extent that it conditions or delays access to public rights-of-way for facilities to provide telecommunications services. In addition, USTelecom asks the Commission to reaffirm that local governments may administer neutral, non-discriminatory permitting requirements, but may not use unrelated cable franchising obligations as a barrier to fiber deployment.
The issue of state and local government permitting rules and requirements and their effects on broadband deployment is ripe for action by the FCC. We will continue to follow the issues discussed above and any related matters and will provide updates accordingly.
