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HomeMy WebLinkAboutENTRUST_FCC Preemption of local ROW authority_FCC Comments_12.11.25 Page 1 of 3 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