Minnesota cities and commissions told the FCC that its proposed nationwide rules on wireline permitting, fees, and “commingled” fiber would exceed the Commission’s authority. Section 253 protects telecommunications service. It does not authorize federal preemption of local regulation of broadband Internet access merely because fiber is capable of carrying telecommunications.
A coalition of Minnesota local governments and local government associations filed Comments with the Federal Communications Commission on September 21, 2026, opposing a proposed expansion of federal preemption over state and local regulation of wireline and broadband infrastructure.
The filing was submitted on behalf of the League of Minnesota Cities, the Minnesota Association of Community Telecommunications Administrators, the City of Saint Paul, the Northwest Suburbs Cable Communications Commission, North Metro Telecommunications Commission, South Washington County Telecommunications Commission, North Suburban Communications Commission, Quad Cities Cable Communications Commission, Ramsey/Washington Counties Suburban Cable Communications Commission II, the City of Coon Rapids, and the City of Northfield.
The proceeding is important because the FCC is considering nationwide rules that could substantially alter how cities manage public rights-of-way and regulate the deployment of fiber infrastructure.
The Wireline NPRM and the Local Government Response
This is the same docket in which Minnesota local governments filed Comments and Reply Comments in response to a Notice of Inquiry last year. Those comments explained that the FCC lacks general authority over broadband and that the factual record did not justify sweeping federal intervention. The NPRM that followed confirmed why the jurisdictional line still matters. The Commission now proposes nationwide permitting deadlines, fee standards, in-kind compensation rules, and a presumption of illegality for local requirements imposed because the same infrastructure “may” be used to provide other services.
While the NPRM is couched as an interpretation of Section 253 of the Communications Act, its substance is a broadband-deployment preemption proceeding. Commissioner statements and the NPRM itself speak in terms of broadband, fiber-to-the-premises networks, and “modern high-speed wireline infrastructure.” The proposed rules would apply those federal standards to facilities used for mass-market broadband Internet access service (“BIAS”) based on the facilities’ technical capability to carry telecommunications.
If adopted, the rules would place federal limits on how cities manage public streets and rights-of-way for fiber construction. They would also treat shared or “capable” fiber as if it were federally protected telecommunications plant, even where the project on the ground is a residential broadband build.
The Comments identify four threshold defects. Each one is independent. Together they explain why the NPRM cannot be adopted as proposed.
Telecommunications Services vs. Information Services
First, Section 253 is a telecommunications-service statute. By its terms, it applies where a state or local legal requirement prohibits or has the effect of prohibiting the ability to provide an interstate or intrastate telecommunications service. It does not confer general federal authority over BIAS, other Title I information services, or the fiber used to provide them merely because those facilities are capable of, or also used for, telecommunications. After Ohio Telecom Ass’n v. FCC, 124 F.4th 993 (6th Cir. 2025), BIAS is an information service, not a telecommunications service. The Commission may not evade that holding by shifting the inquiry from the service Congress classified to the physical facilities over which the service is provided.
Capability is Not Service
Second, the Commission already recognized these limits. In the 2024 Open Internet Order, it acknowledged that without Title II reclassification, BIAS-only providers could not invoke Section 253, and that even a provider offering commingled services could not use Section 253 against a requirement that solely affects BIAS. The Sixth Circuit then set the reclassification aside. The Commission cannot now obtain, through a facility-based “capability” theory, the jurisdiction it previously said depended on reclassifying broadband. Mozilla Corp. v. FCC struck down a prior attempt by the FCC to preempt local government authority to regulate broadband information services.
Authorizations Do Not Prove Service
Third, capability, certificates, and unused fiber are not the statutory trigger. Section 253 follows the identified telecommunications service and the requirement affecting that service. It does not follow the provider, its certificate, or its fiber wherever they may lead. An identified telecommunications service actually offered or provided, or a concrete project demonstrably being constructed to provide that service, may implicate Section 253. A state certificate, a tariff, corporate status, unused capacity, or the mere technical ability of fiber to carry telecommunications does not convert BIAS into a telecommunications service or bring BIAS-specific requirements within Section 253.
The Comments use current Minnesota deployments to make that distinction concrete. Gateway Fiber has described itself to the Commission as a BIAS provider while relying on a Minnesota PUC Local Niche Service certificate and tariff to claim Section 253 protection for residential fiber-to-the-premises construction. Forged Fiber’s Minnesota record describes a wholesale broadband transport platform serving residential connections, with AT&T identified as the retail provider, in a transaction that excluded Lumen’s regulated telecommunications business. Those facts illustrate why regulatory status and facility capability cannot substitute for proof of an identified telecommunications service connected to the challenged local requirement. Controlling Eighth Circuit precedent in Level 3 Communications v. City of St. Louis requires an actual or effective prohibition of that identified service, not the mere possibility of one.
No Authority For Rulemaking
Fourth, Section 253(d) is a case-specific remedy, not a license for nationwide rules. The Bluebird line of agency proceedings adjudicated identified requirements affecting actual telecommunications services. They did not rest on unused technical capability, did not regulate BIAS as such, and did not promulgate nationwide shot clocks or fee standards. After Loper Bright and McLaughlin, those agency interpretations cannot substitute for a court’s independent reading of the statute. Congress also omitted subsection (c) from the Commission’s preemption authority and assigned independent disputes over right-of-way management and compensation to the courts. General implementation authority under Sections 201(b), 4(i), and 303 cannot convert that case-specific remedy into legislative authority to establish nationwide permitting deadlines, compensation standards, or presumptions of illegality.
Local Authority Over Broadband
Section 253 is not a broadband-deployment statute. The Commission should decline to adopt the proposed rules. If an identified state or local requirement actually prohibits or effectively prohibits an identified telecommunications service, Section 253 already supplies the remedy Congress enacted. The Commission may not use that remedy to regulate BIAS, to substitute facility capability for telecommunications service, or to displace state and local authority through generally applicable rules that Congress did not authorize.
Cities should review permit applications and franchise claims against what the provider offers over the facilities at issue—not against a certificate, a tariff, or what the fiber might carry later. That is the inquiry Section 253 requires. It is also the inquiry Minnesota local governments asked the Commission to respect.
Since Ohio Telecom provided judicial clarity that broadband is an information service and not a telecommunications service, many Minnesota cites have asserted Broadband-only systems are subject to local franchising and rights-of-way authority under state law. See “First Broadband Franchise Ushers in a New Era in Franchising” and “How T-Mobile’s USI Deal Affects Local Broadband Policies”. As the Comments show, the FCC does not have authority to preempt local governments related to information services like broadband.
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.