Michael Bradley filed Reply Comments for a coalition of Minnesota cities and cable commissions opposing the FCC’s proposed nationwide Section 253 preemption rules for wireline deployment.
On November 5, 2026, Michael Bradley filed Reply Comments with the Federal Communications Commission on behalf of a coalition of Minnesota local franchising authorities. The filing is in the FCC’s Build America: Eliminating Barriers to Wireline Deployments proceeding, WC Docket No. 25-253. It responds to comments on the Commission’s June 2026 Notice of Proposed Rulemaking. That NPRM proposed nationwide rules on local permitting deadlines, right-of-way fees, and presumptions favoring Section 253 preemption of local requirements under the Communications Act.
The coalition includes the League of Minnesota Cities, the Minnesota Association of Community Telecommunications Administrators, the City of Saint Paul, five municipal cable and telecommunications commissions, and the Cities of Coon Rapids, Northfield, Blaine, and Woodbury. The League of Minnesota Cities and Eckberg Lammers joined as co-counsel. All of the filings are available on ECFS.
The filing shows section 253 protects telecommunications service, not broadband
Section 253 bars state and local requirements that prohibit, or effectively prohibit, “the ability of any entity to provide any interstate or intrastate telecommunications service.” It also preserves local authority to manage the public rights-of-way and to require fair and reasonable compensation for their use.
The coalition’s September 2026 Comments explained that this is a telecommunications-service statute. It is not a broadband-deployment statute. In Ohio Telecom, the Sixth Circuit held that broadband Internet access is an information service. Industry commenters nonetheless urged the FCC to protect any fiber “capable” of carrying telecommunications, whether or not it ever does. The Reply Comments showed that this is the “mere possibility” standard the Eighth Circuit rejected in Level 3 v. City of St. Louis, a decision that binds federal courts in Minnesota. The en banc Ninth Circuit reached the same result in Sprint v. County of San Diego.
Section 253 preemption is a case-specific remedy, not a rulemaking power
Section 253(d) authorizes the FCC to preempt a specific state or local requirement after notice and comment, and only “to the extent necessary” to correct the violation. Congress deliberately left subsection (c), the right-of-way and compensation provision, out of that authority. The Reply Comments argued that the proposed nationwide presumptions, shot clocks, fee limits, and “deemed granted” remedies go beyond what section 253(d) allows.
The filing also cited Nixon v. Missouri Municipal League. Under Nixon, federal law does not override a State’s arrangements for its own subdivisions without a plain statement from Congress. Minnesota has entrusted right-of-way management to its cities, and section 253 contains no such statement. Earlier FCC orders and court decisions that industry relied on rested on agency deference, which the Supreme Court ended in Loper Bright.
Carriers tell a different story in their copper-retirement filings
The Reply Comments drew on carriers’ own filings in the FCC’s network-modernization proceedings showing an inconsistent flip flopping of positions depending on the result they want. When seeking to discontinue legacy copper services, AT&T told the Commission that business landline customers in 34 states, including Minnesota, “have many alternatives to choose from for voice service.” Lumen, the incumbent in most of Minnesota, told the Commission that its customers have “a plethora of alternative options.” Lumen’s Minnesota copper-retirement notices also state that it “has not deployed facilities to replace the copper facilities being retired.”
The coalition argued that carriers cannot tell the Commission in one docket that customers have abundant alternatives, then ask it in another to presume that local permitting effectively prohibits service. Carriers also read the Act by service when they seek to shed Title II obligations, but by facility when they seek to preempt local law. As the Reply Comments put it, industry “flip-flops between those readings, choosing whichever one sheds an obligation or expands preemption. Both readings cannot be correct.”
The Minnesota complaints do not show a section 253 violation
The Reply Comments answered all commenters naming Minnesota jurisdictions. Most of the named disputes concern whether a residential fiber broadband network is a “cable communications system” or a “telecommunications right-of-way user” under Minnesota law. Those are state-law questions now before Minnesota courts or before the FCC in a separate section 253(d) proceeding, where any Section 253 preemption claim will be decided on an actual record. The remaining complaints name no jurisdiction, or name one and nothing more.
Minnesota cities, by contrast, put specific and verifiable facts in the record. At least sixteen cities and two professional associations filed their own accounts, signed by identified officials. Bloomington reported that one year of fiber deployment quadrupled its permit volume. The Rosemount Fire Department responded to 13 natural gas line strikes in 2025, taking more than 257 hours of first-responder time. Several cities reported that delays usually trace to incomplete or revised applications, not to city review.
What comes next
The coalition asked the Commission to decline to adopt the proposed Section 253 preemption rules. Where a specific local requirement actually prohibits a specific telecommunications service, section 253(d) and the courts already provide the remedies Congress enacted. We will continue to monitor the docket for our Minnesota clients.
For questions about this proceeding or about right-of-way and franchising matters, contact Mike Bradley at (651) 379-0900 or mike@bradleywerner.com.
This post is for general information only and is not legal advice.