LOC News
Congress May Preempt Local Right-of-Way Authority as FCC Seeks to Preempt 1996 Telecommunications Act, Federal District Courts
The tension between municipalities and the telecommunication industry has been growing on the national stage. The issue: local permitting of broadband and cable infrastructure projects stemming from the Broadband Equity, Access and Deployment Act (BEAD), a $47 billion investment in broadband infrastructure across America. Oregon’s final BEAD proposal to the National Telecommunications and Information Administration has been approved, providing $689 million to fund 313 projects across all 36 Oregon counties.
The conversation around right-of-way (ROW) permitting started in Congress as a simple easy-to-digest concept that exempted broadband deployment projects from some federal review processes. What has now transpired is an all-out assault on state and local permitting and franchising.
On September 18, 2025, national telecom associations spoke about preempting local jurisdictions from exercising authority in their ROW in the Congressional House Energy and Commerce Subcommittee on Communications and Technology (“EC Subcommittee”), spending hours lamenting about allegedly slow local permitting processes stifling competition. On November 18, 2025, the EC Subcommittee moved seven measures, on a party line vote, to the full Energy and Commerce Committee for further consideration. It is important to note the National League of Cities has opposed these measures every step of the way and is actively working with the Congressional Budget Office (CBO) to start modeling the financial impact of unfunded mandates contained in the resolution.
Congressional HR 2289
The package moved out of the full Energy and Commerce Committee on December 3 and is in line for a full vote of the House of Representatives, although it has not been calendared, and the signals the NLC is getting from the CBO do not indicate there is an urgency to move HR 2289.
The impacts cities will feel from HR 2289, if passed, are broad, including the implementation of “shot clocks” that mandate, among other things, permits to be granted if not acted upon withing 60 days even if incomplete, complimented by carve outs for an applicant’s incomplete application. HR 2289 would also impact local franchise agreements in multiple ways that are largely in favor of applicants. The most impactful provision in the resolution limits franchise agreements to “actual and direct costs” and eliminates the “fair and reasonable” compensation standard for ROW use. Finally, the resolution overrides local zoning to allow antennas in any neighborhood where providers want to put them, without regard to aesthetic and stealth requirements.
Concurrent FCC Actions
The Federal Communications Commission (FCC) opened a Notice of Inquiry (NOI) and Notice of Proposed Rule Making (NPRM) late in 2025 seeking to heist ROW authority from local jurisdictions and to preempt federal courts. Because the FCC NOI contained a poison pill affecting individual city’s ability to weigh in, the LOC contracted with outside counsel to provide comments to the FCC on behalf of all Oregon cities. The focus of the NOI comments is state and local ROW management, and compensation requirements in Oregon have been fair and fruitful for more than 100 years. The FCC argues current permitting practices may have the effect of “prohibiting the provision of telecommunications services” in violation of Section 253(a) of the Telecommunications Act of 1996. The LOC disagrees, as the FCC’s express preemption authority in Section 253(d) of the Telecommunications Act of 1996 does not authorize the commission to preempt local rights-of-way management regulations and compensation requirements that are protected by Section 253(c). The FCC lacks preemptive authority to do an end-run around Congress’s clear intent that courts, not the FCC, decide issues related managing a local ROW.
Contact Your Congressional Delegation, Ask Them to OPPOSE HR 2289
If you are unsure who your Congressional leaders are, use this link to Find Your Legislator. Please reach out to your Congressional Representative and Senator and express your concerns/opposition to HR 2289, a gross overreach of government power. Oregon has a history of more than 100 years effectively managing local ROW in safe and conforming manner. Oregon also maintains a robust roster of telecommunications providers seeking to provide services to Oregonians, indicating that local control and franchising are not impeding competition.
Contact: Greg Miller, Lobbyist – gmiller@orcities.org
Last Updated 3/6/26