House Committee Advances Communications Infrastructure Preemption Bill

By:

Angelina Panettieri

June 8, 2023 - (5 min read)

Update as of October 4, 2023: NLC continues to oppose the bill and sent a letter to Congress outlining the bill’s problems for local officials. The bill could be brought to the House floor for a vote at any time. City leaders should call their members of Congress as soon as possible and urge them to oppose H.R. 3557.

Local governments are just as eager for their residents to have access to high-quality broadband service as broadband and cable providers are to deploy it. Cities must call on Congress to treat local governments as partners in the effort to close the digital divide, not enemies. Congress and federal agencies must respect local processes, which are best managed at the level of government closest and most responsive to the people. Click here to access talking points and your representative’s office phone number.

On May 24, the House Energy and Commerce Committee marked up 19 bills. One bill, H.R. 3557, the American Broadband Deployment Act of 2023, is of particular interest to local governments. This legislation would codify in statute recent actions taken by the Federal Communications Commission to preempt local authority over wireless telecommunications facility siting and cable franchises and impose several new preemptions. The bill advanced along partisan lines as amended, with Ranking Member Pallone and Reps. Ruiz, Dingell, Matsui, and Tonko offering their own amendments to eliminate or reduce these preemptions. Those representatives also noted the outspoken objections of local and tribal government to the bill.

When the committee held an initial hearing on broadband permitting streamlining, including a draft of the American Broadband Deployment Act, no state or local government was invited to testify. NLC and other local stakeholders highlighted the lack of local input, as well as the harms of communications infrastructure preemption for local governments. In particular, NLC flagged the “deemed granted” provisions included in the passed version of H.R. 3557, which go beyond existing regulatory preemption and would automatically grant requests to construct communications equipment if the local government has not made a determination within as few as 60 days, depending on the request type.

This bill is part of a larger trend in state and federal preemption in recent years impacting local governments on a wide range of issues, from housing and ridesharing to minimum wage and telecommunications. With the passage of the Bipartisan Infrastructure Law, permitting streamlining has developed renewed interest as a policy focus for lawmakers from both parties and an opportunity for further preemption. Members of Congress have raised concerns that local government oversight will slow or increase the cost of infrastructure deployment and have introduced legislation to preempt that oversight.

Local officials must proactively communicate the value of local decision-making to their representatives in the House. Most Members of Congress have not served in municipal government, and do not understand why telecommunications permitting and franchising are important functions for local governments. Through permitting oversight, collection of fees and the negotiation of franchises and license agreements with broadband and cable providers, local governments can protect their residents and valuable public resources.

Local permitting and cable franchising processes are intended to make sure that communications infrastructure is deployed equitably and in the public interest, that work is done safely and in a way that protects valuable public resources, including the rights of way. Local governments are the stewards of these finite public resources. There is no evidence that heavy-handed preemptive mandates, such as harsh permitting shot clocks, deemed granted policies, or restrictions on permitting fee arrangements or cable franchises, have expedited the deployment of broadband infrastructure.

It is unclear when, if at all, H.R. 3557 will be scheduled for a floor vote by the full House. However, another bill that passed the markup with bipartisan support, H.R. 3565, the Spectrum Auction Reauthorization Act of 2023, will likely become a vehicle for other communications legislation. H.R. 3565 would reauthorize the Federal Communications Commission’s authority to auction spectrum, which has been lapsed for most of this year, and authorize using the auction proceeds to support grants to remove banned Chinese network equipment and to support the rollout of Next Generation 911. While these actions would at best help, and at worst have no major effect on local governments, the linking of the two bills could be catastrophic.

City leaders should call their members of Congress and urge them to oppose H.R. 3557. Local governments are just as eager for their residents to have access to high-quality broadband service as broadband and cable providers are to deploy it. Cities must call on Congress to treat local governments as partners in the effort to close the digital divide, not enemies. Congress and federal agencies must respect local processes, which are best managed at the level of government closest and most responsive to the people. Click here to access talking points and your representative’s office phone number.