Earlier today a coalition of Minnesota Cities, including the League of Minnesota Cities, filed comments in the FCC’s Notice of Inquiry (NOI) in its Build America: Eliminating Barriers to Wireline Deployments proceeding. In the comments, the Minnesota Cities supported deployment of robust communications services for its residents, but opposed the FCC from exercising any preemption of local governments in the manner suggested in the NOI, including asserting any authority over broadband. These comments are important in the support of the continuing authority of Minnesota cities to franchise cable communications systems (i.e. broadband systems).

The coalition participants are: the League of Minnesota Cities; Minnesota Association of Telecommunications Administrators; Northwest Suburbs Cable Communications Commission; North Metro Telecommunications Commission; South Washington County Telecommunications Commission; North Suburban Communications Commission; Ramsey/Washington Counties Suburban Cable Communications Commission II; City of Coon Rapids; and City of Northfield.

FCC Lacks Title II Authority Over Broadband

The comments begin by noting what courts have already made clear: the FCC has no authority over broadband. The 2018 Restoring Internet Freedom attempt to preempt local government failed. Earlier this year, in Ohio Telecom v. FCC, the U.S. Court of Appeals rejected the FCC’s attempt to classify broadband as a Title II service was struck down, leaving the FCC with no authority over broadband. The comments highlight the legal reality that the Commission “has no authority over broadband as a telecommunications service.”

Despite this, the NOI repeatedly blurs the distinction between broadband infrastructure and telecommunications services, hinting at federal preemption based on fiber deployments, conduit installations, or facilities that “may be used” to support telecom services. The LFAs warn that this approach misreads the statute, ignores binding precedent, and would exceed the FCC express statutory authority.

Congress Preserved Local Control

The Communications Act is built on a long-standing dual-federalism structure. Under Section 253(c), Congress explicitly preserved local authority to manage public rights-of-way and require fair and reasonable compensation from telecommunications providers. The comments underscore that Congress intended to “maintain the balance of authority” between local governments and the FCC, not erase it.

FCC Preemption Under Section 253(d) Is Narrow and Case-Specific

The Minnesota Cities highlight a critical statutory limitation: the FCC has no inherent preemption authority. Section 253(d) supplies the only preemptive tool—and it is narrow. To preempt any local requirement, the Commission must:

1. Identify a specific ordinance or legal requirement
2. Provide notice to the affected local government
3. Show that the requirement actually prohibits the ability to provide a telecommunications service
4. Preempt only what is necessary

The comments warn that “the Commission may not use ancillary authority to create preemption authority out of thin air.” Blanket or nationwide preemptive rules of the type described in the NOI have no basis in Section 253.

Speculation About What Infrastructure ‘May Be Used’ For Is Not a Basis for Federal Action

Throughout the NOI, the FCC suggests that any facility capable of supporting telecommunications services could trigger preemption. The Minnesota Cities reject this approach as legally unsound. Section 253 applies only when a local requirement actually prohibits an actual telecommunications service—not when fiber or conduit might someday (if ever) be used for telecom.

The filing is explicit on this point: Commission action must be grounded in “reality—bolts and nuts, not ifs and buts.”

This principle is particularly important in Minnesota, where most new deployments involve broadband cable communications systems, not telecommunications networks. Speculation about potential telecom use does not expand FCC jurisdiction.

“Commingled” Networks Do Not Expand FCC Authority

While some providers may deploy fiber or conduit used for both broadband and limited telephone services. The FCC appears to suggest that such “commingled” systems justify broader preemption.

The Minnesota Cities rejected that position. Operational overlap “does not expand the Commission’s statutory authority.” The FCC may regulate only the telecommunications component; broadband infrastructure remains outside its reach. Any federal action must therefore be “narrowly tailored to apply only to the provision of telecommunications services.”

Concern About Unverified Industry Claims

The comments again raise concerns about the FCC’s reliance on anonymous or unverified industry allegations about local practices. MACTA’s earlier filings documented the Commission’s history of accepting “undocumented, unnamed, unsubstantiated and unverified” claims. Section 253(d) exists precisely to prevent such rulemaking by rumor. A Local government must receive notice and an opportunity to respond before any federal preemption can occur.

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Bradley Werner, LLC

Michael Bradley and Nancy Werner are nationally recognized and respected local government attorneys. Our firm is dedicated to representing local governments on broadband, cable, telecommunications, utilities, and right-of-way management issues. We have decades of experience representing municipalities on communications and utilities matters.