HomeMy WebLinkAboutENTRUST_FCC Preemption of local ROW authority_FCC Comments_12.11.25
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POLICY MEMORANDUM
FCC Proposed Preemption of
Local Right of Way Authority
To: ENTRUST Clients and Any Other Municipality Tasked to Provide Public Services
From: ENTRUST Solutions Group
Jory Wolf, VP Digital Innovation and Project Executive
Will Morat, Senior Broadband Consultant
David Brevitz, Senior Broadband Consultant
Date: December 10, 2025
The Issue
The Federal Communications Commission (FCC) adopted a Notice of Inquiry1 in September
2025 based on complaints from telecommunications companies. Those complaints included that
local authorities “red tape” for authorizing access to public rights of way is “the most significant
impediment” to broadband fiber deployment, that local requirements involve “extremely high
compensation requirements,” and that local public rights of way practices are “shifting and
unpredictable,” However, the FCC only has the telecommunications companies’ side of the
story, and real facts on practices and policy of public rights of way – particularly those practices
unique to California – are missing from the FCC record.
The FCC is poised to preempt local authority over public rights of way management which could
impose limits/caps on one-time and monthly fees, impose “shot clock” requirements (60- and
90-day limits on application processing), and limit local authority and discretion on aesthetics .
There is a real threat that the FCC may take action at a federal level with unreasonably
broad impacts on local management of a scarce public resource: the public rights of
way.
It is important for municipalities to preserve their rightful prerogative to manage public rights of
way in the public interest by engaging with this FCC rulemaking and providing comments to
ensure that the FCC understands the reality, especially around the fact that states have
1 Notice of Inquiry, In the Matter of Build America: Eliminating Barriers to Wireline Deployments, WC Docket No. 25-
253, by the Federal Communications Commission, dated September 30, 2025. There are many paragraphs of FCC
questions about public right of way practices based on negative presumptions from the industry lobbying effort.
docs.fcc.gov/public/attachments/DOC-414410A1.pdf
FCC Notice of Inquiry Policy Memo Page 2
ENTRUST Solutions Group December 10, 2025
different rules and regulations, and that California has already addressed this issue to
remove barriers to broadband through a statewide telecommunications franchise . Reply
comments to the FCC are due December 17, 2025.
Potential Comments
Each municipality should consider responding with facts on its current practices for
management of public rights of way (PROW). The League of Cities, Association of Counties,
and Rural County Representatives of California (RCRC) provided joint initial comments in this
proceeding – municipalities could consider providing individual comments for inclusion in the
Reply Comments that will be submitted by those parties. The following menu of points could be
considered as appropriate for comments, and others may be added at the City’s discretion:
1. Public rights of way are an increasingly scarce resource that must be managed by
local authorities in the public interest and for public convenience and safety.
Public rights of way are becoming increasingly crowded, in significant part due to state
and federal policies encouraging broadband access and competition. This is currently a
the most active period of telecommunications private investment since the late 1990s after
the adopt of the 1996 Telecommunications Act. Local authorities are efficiently and
equitably managing intense public rights of way activity with detailed local knowledge of
and use of electronic permitting systems and publicly available guidelines, standards and
specifications. Local municipal knowledge facilitates effective and efficient management
of public rights of way to balance many priorities, projects, functions and interests including
existing occupants of the PROW, such as:
Planned public and private projects of all types impacting the PROW including
curbs, gutters, drains and sewers for water management and flood control
Accurate recordkeeping and surveying/engineering review needed for efficient
management of PROW and avoidance of conflicts
Code compliance, traffic engineering and control plans for road/lane closures for
public convenience and safety
Management of road moratoria on PROW excavations to preserve and protect
public investment in roadways
Joint trenching to minimize excavations for the public convenience and safety,
Management of publicly owned utility poles occupied by multiple utilities
2. California’s Digital Infrastructure and Video Competition Act of 2006 (DIVCA)
already provides for statewide franchise rights to the PROW.
The 2006 Act ensured that cable providers can access the PROW for construction,
installation and maintenance of facilities “under the same time, place, and manner as the
provisions governing telephone corporations”.2 DIVCA also provides time limits for local
authorities acting upon an encroachment permit application: “A local entity shall either
approve or deny an application from a holder of a state franchise for an encroachment
2 California Public Utilities Code Section 5885(a).
FCC Notice of Inquiry Policy Memo Page 3
ENTRUST Solutions Group December 10, 2025
permit within 60 days of receiving a completed application.”3 The Public Utilities Code
Section 7901 pertaining to telecommunications companies provides that “municipalities
shall have the right to exercise reasonable control as to the time, place, and manner in
which roads, highways, and waterways are accessed” and that “control, to be reasonable,
shall, at a minimum, be applied to all entities in an equivalent manner”.4 Cities may not
and do not use the PROW encroachment or local franchise process (because franchising
is statewide) to exact any fees to replace previous franchise revenues. Typically cable and
telecommunications companies benefit from use of Master Encroachment Agreements
with individual local authorities, which can further streamline the permitting and application
process. Batch permitting processes are also used.
3. The process in City of [INSERT CITY NAME] is not onerous.
a. Outline City process and timeline for encroachment and excavation permits.
b. Identify average time to complete, stated target time for approval. Compare your
City to the Comcast citation in the FCC hearing of “San Jose and Sacramento
average wait time of less than thirty days, but other jurisdictions average delays of
two months or more, some six to ten months.”
c. State the reasonableness and justification for local encroachment and excavation
permit fees, and how they are set. Emphasize there are no unreasonable
compensation requirements and they apply the same to all telecom carriers.
d. Refute the claim that permit processes are “shifting and unstable.” Note that the
process is published (and provide the link).
e. If there are no substantial complaints from carriers specific to your City, say so.
Federal Communications Commission preemption of local authority prerogatives for
management of the scarce resource of public rights of way is unnecessary, inappropriate and
unwarranted particularly due to the statutory framework in California.
Filing of Comments
Comments are due December 17, 2025. The Notice of Inquiry5 specifies these filing procedures
for comments.
1. Electronic filing through the FCC’s ECFS system, “Submit a Standard Filing”:
https://www.fcc.gov/ecfs/filings/standard
2. Paper letter filing via US Mail, address to:
Secretary, Federal Communications Commission
45 L Street NE
Washington DC 20554
3 California Public Utilities Code Section 5885(c)(2).
4 California Public Utilities Code Section 7901.1 (a) and (b).
5 Notice of Inquiry, In the Matter of Build America: Eliminating Barriers to Wireline Deployments, WC Docket No. 25-
253, by the Federal Communications Commission, dated September 30, 2025, at paragraph 60.
docs.fcc.gov/public/attachments/DOC-414410A1.pdf