Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act
Congressional research reportMay 12, 2025
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Stepping In: The FCC’s Authority to Preempt
State Laws Under the Communications Act
Updated May 12, 2025
Congressional Research Service
https://crsreports.congress.gov
R46736
SUMMARY
Stepping In: The FCC’s Authority to Preempt
State Laws Under the Communications Act
The line between federal and state authority plays a central role in modern communications law.
Rather than fully displacing state law, the Communications Act of 1934 (Communications Act)
sets up a dual system of federal and state regulation. At the federal level, the Communications
Act gives the Federal Communications Commission (FCC or Commission) broad authority to
regulate wired and wireless telephony, radio transmissions, cable services, and matters that are
ancillary to these areas. At the same time, the Communications Act expressly preserves some
state regulatory authority over these technologies. Consequently, the boundary between the
FCC’s authority and that of the states has been a source of dispute.
R46736
May 12, 2025
Chris D. Linebaugh
Legislative Attorney
Eric N. Holmes
Attorney-Adviser
(Constitution Annotated)
The FCC has the upper hand in such conflicts. The Communications Act gives the FCC broad regulatory authority and, along
with it, the ability to preempt state laws that conflict with or frustrate its regulatory actions. When the FCC is acting within its
proper statutory authority, the U.S. Constitution’s Supremacy Clause ensures that its actions prevail. Nevertheless, the FCC’s
statutory preemption authority is not boundless. The extent to which the FCC may displace state and local laws is limited by
the scope of its regulatory jurisdiction, express statutory provisions preserving or defining the scope of state laws, and
interpretive presumptions that courts have applied to preserve the usual constitutional balance between the federal and state
governments.
Far from being an abstract debate, the FCC’s ability to preempt state laws lies at the heart of many of its regulatory initiatives
in recent years. In particular, preemption is at the forefront of the Commission’s efforts to (1) establish a deregulatory
environment for broadband internet; (2) promote the provision of cable television services; (3) facilitate municipal (or
“community”) broadband; (4) maintain a lightly regulated approach to Voice over Internet Protocol (VoIP); and (5)
accelerate deployment of fifth-generation wireless (5G) infrastructure. State and local governments have challenged these
initiatives in court. In some cases, courts have held that the FCC overstepped its statutory bounds. In other cases, courts have
upheld, or largely upheld, the FCC’s actions.
This Report discusses these issues in more detail. It begins with an overview of the legal framework governing the FCC’s
preemption actions, first discussing general federal preemption principles and then explaining the FCC’s preemption
authority under the Communications Act. The Report then reviews recent FCC initiatives in which FCC preemption plays a
key role. Specifically, it explains how the FCC has exercised its preemption authority—and the extent to which such
authority has been challenged or is uncertain—in the areas of broadband, state and local regulation of cable operators,
community broadband, VoIP, and 5G infrastructure deployment.
Congressional Research Service
Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act
Contents
General Federal Preemption Principles ........................................................................................... 5
Overview of the FCC’s Preemption Authority Under the Communications Act ............................. 6
The FCC’s Jurisdictional Authority........................................................................................... 7
Specific Statutory Provisions Addressing Preemption .............................................................. 9
Clear Statement Rule............................................................................................................... 10
Current Issues (2025) ..................................................................................................................... 11
Broadband Regulation .............................................................................................................. 11
FCC’s Authority to Preempt State Broadband Regulations .............................................. 12
Next Steps ......................................................................................................................... 13
Cable Operators....................................................................................................................... 14
Title VI .............................................................................................................................. 14
FCC Actions ...................................................................................................................... 15
Community Broadband ........................................................................................................... 18
Background ....................................................................................................................... 18
FCC Action and Statutory Authority................................................................................. 19
Constitutional Issues ......................................................................................................... 21
Voice over Internet Protocol (VoIP) ........................................................................................ 22
Background ....................................................................................................................... 22
State Action and Legal Challenges ................................................................................... 23
Wireless Facility Siting for Fifth Generation (5G) Networks ................................................. 24
Technical Background ...................................................................................................... 25
State and Local Authority ................................................................................................. 25
FCC Statutory Authority and Procedure ........................................................................... 26
The FCC’s Orders ............................................................................................................. 27
Legal Challenges............................................................................................................... 31
Legislative Activity ........................................................................................................... 33
Conclusion ..................................................................................................................................... 33
Contacts
Author Information........................................................................................................................ 34
Congressional Research Service
Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act
he line between federal and state authority plays a central role in modern communications
law. Rather than fully displacing state law, the Communications Act of 1934
(Communications Act), as amended, set forth a dual system of federal and state
regulation.1 At the federal level, the Communications Act gives the Federal Communications
Commission (FCC or Commission) broad authority to regulate the development and operation of
the nation’s wireless and wired communications services. Different titles of the Communications
Act give the FCC “express and expansive”2 authority to regulate (1) “telecommunications
services,” such as landline telephone services (Title II);3 (2) radio transmissions, such as
broadcast television, radio, and cellular telephony (Title III);4 and (3) cable services, including
cable television (under Title VI).5 The Communications Act, as interpreted by the U.S. Supreme
Court, also gives the FCC “ancillary jurisdiction” to regulate communications services closely
related to the areas under its primary jurisdiction.6 At the same time, the Communications Act
expressly preserves some state authority to act in these areas.7 Consequently, the boundary
between the FCC’s authority and that of the states becomes critical when the two regulatory
regimes clash. The FCC’s preemption authority gives it the upper hand in such conflicts. Under
the U.S. Constitution’s Supremacy Clause and the Communications Act, the FCC has broad
authority to preempt state laws that conflict with or frustrate its actions.8
T
Nevertheless, the FCC’s preemption authority is not boundless. Courts have said that, as a general
matter, the FCC may only preempt state laws governing a communications service if the FCC has
regulatory jurisdiction over that service.9 For instance, section 2(b) of the Communications Act,10
as interpreted by the Supreme Court, prohibits the FCC from regulating purely intrastate services
under its ancillary jurisdiction.11 Even if the Commission has regulatory authority, it must comply
1 47 U.S.C. §§ 151–624.
2 Comcast Corp. v. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010).
3 47 U.S.C. §§ 201–276.
4 Id. §§ 301–399b.
5 Id. §§ 521–573.
6 United States v. Sw. Cable Co., 392 U.S. 157, 178 (1968) ([T]he authority which we recognize today under § 152(a)
is restricted to that reasonably ancillary to the effective performance of the Commission’s various responsibilities for
the regulation of television broadcasting.”); United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972) (“We
therefore concluded . . . that the Commission does have jurisdiction over CATV ‘reasonably ancillary to the effective
performance of (its) various responsibilities for the regulation of television broadcasting . . . (and) may, for these
purposes, issue ‘such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,’ as
‘public convenience, interest, or necessity requires.’”) (quoting Sw. Cable Co., 392 U.S. at 178).
7 See, e.g., 47 U.S.C. § 152(b) (“ . . . nothing in this chapter shall be construed to apply or to give the Commission
jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection
with intrastate communication service by wire or radio of any carrier . . .”).
8 See infra “Overview of the FCC’s Preemption Authority Under the Communications Act” for an overview of the
FCC’s preemption authority.
9 See, e.g., La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A] federal agency may pre-empt state law only
when and if it is acting within the scope of its congressionally delegated authority.”); Mozilla Corp. v. FCC, 940 F.3d
1, 75 (D.C. Cir. 2019) (“[I]n any area where the Commission lacks the authority to regulate, it equally lacks the power
to preempt state law.”); Pub. Serv. Comm’n of Md. v. FCC, 909 F.2d 1510, 1515 n.6 (D.C. Cir. 1990) (“The FCC
cannot regulate (let alone preempt state regulation of) any service that does not fall within its Title II jurisdiction over
common carrier services or its Title I jurisdiction over matters ‘incidental’ to communication by wire.”).
10 47 U.S.C. § 152(b) (providing that, except for certain specified exceptions, “nothing [in the Communications Act]
shall be construed to apply or to give the Commission jurisdiction with respect to . . . charges, classifications, practices,
services, facilities, or regulations for or in connection with intrastate communication service”).
11 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379–82 n.8 (1999) (rejecting the argument that 47 U.S.C. § 152(b)
prevents the FCC from issuing rules implementing Title II’s local competition provisions on the ground that section
(continued...)
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Stepping In: The FCC’s Authority to Preempt State Laws Under the Communications Act
with specific provisions that either expressly preempt or expressly preserve state laws in a given
area. For example, section 332(c)(7) of the Communications Act provides that state laws
governing the placement, construction, and modification of “personal wireless service facilities”
are only preempted to the extent the laws “prohibit or have the effect of prohibiting the provision
of personal wireless services” or unreasonably discriminate among providers of services.12 Since
this provision defines preemption in this area, the FCC may not preempt more broadly than what
the provision allows.13 The FCC’s preemption authority also is limited, in some cases, by a “clear
statement” rule informed by federalism principles. In particular, courts have held that the
Commission may not preempt state law in a manner that upsets the “usual constitutional balance”
between states and the federal government, absent a clear statement from Congress authorizing
the preemption.14
The FCC’s ability to preempt state laws lies at the heart of many of its regulatory initiatives in
recent years, leading to conflict with state and local governments. In particular, preemption is at
the forefront of the Commission’s efforts to (1) establish a deregulatory environment for
broadband internet; (2) promote the provision of cable television; (3) facilitate municipal (or
“community”) broadband, (4) maintain a deregulatory approach to Voice over Internet Protocol
(VoIP) services; and (5) accelerate deployment of fifth-generation wireless (5G) infrastructure.
Preemption has played a notable role in the Commission’s deregulatory approach to broadband
internet and net neutrality (i.e., the concept that internet service providers should “treat internet
traffic the same regardless of source”).15 In 2018, the FCC reversed a prior rule that had imposed
a number of net neutrality requirements on broadband internet access service (BIAS) providers.16
In so doing, the Commission reclassified BIAS from a Title II “telecommunications service” to a
Title I “information service.”17 While the FCC has extensive regulatory authority over Title II
telecommunications services, it has much more limited regulatory authority over information
service providers.18 To preserve its new deregulatory policy, the Commission also preempted any
state laws that would impose the net neutrality requirements.19 The U.S. Court of Appeals for the
201(b) gives the FCC authority to “prescribe such rules and regulations as may be necessary in the public interest to
carry out the provisions of the [Communications] Act,” but noting that, “[i]nsofar as Congress has remained silent . . . ,
§ 152(b) continues to function” and the FCC could not “regulate any aspect of intrastate communication . . . on the
theory that it had an ancillary effect on matters within the Commission’s primary jurisdiction.”).
12 47 U.S.C. § 332(c)(7)(B)(i).
13 See, e.g., City of Arlington v. FCC, 668 F.3d 229, 250 (5th Cir. 2012), aff’d 569 U.S. 290 (2013) (stating that section
332(c)(7)(A) “certainly prohibits the FCC from imposing restrictions or limitations that cannot be tied to the language
of § 332(c)(7)(B)”).
14 See, e.g., Nixon v. Mo. Mun. League, 541 U.S. 125, 140–41 (2004) (“[F]ederal legislation threatening to trench on
the States’ arrangements for conducting their own governments should be treated with great skepticism, and read in a
way that preserves a State’s chosen disposition of its own power, in the absence of the plain statement Gregory
requires. . . . The want of any ‘unmistakably clear’ statement to that effect would be fatal to respondents’ reading.”)
(citations omitted).
15 U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016).
16 In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd. 311
(2018) [hereinafter 2018 Internet Order].
17 Id. at 312–13, ¶¶ 2–4; see also 47 U.S.C. § 153(24) (defining “information service), (53) (defining
“telecommunications service”).
18 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 975 (2005) (explaining that “the
[Communications] Act regulates telecommunications carriers, but not information-service providers, as common
carriers”).
19 2018 Internet Order, supra note 16, at 426–27, ¶¶ 194, 195.
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D.C. Circuit (D.C. Circuit)20 invalidated the FCC’s blanket preemption, however.21 The court
reasoned that because BIAS was now an information service not subject to its regulatory
jurisdiction, the Commission no longer had affirmative regulatory authority to support the
preemption.22 Following the D.C. Circuit’s decision, the Ninth Circuit and Second Circuit
rejected preemption challenges to state broadband laws, applying similar reasoning as the D.C.
Circuit.23 These decisions—coupled with a 2025 decision by the Sixth Circuit holding that the
FCC must treat BIAS as an information service under the Communications Act24—suggest that
states are largely free to regulate BIAS as they see fit.
The FCC has preempted state and local laws regulating cable television operators in a manner the
Commission deems inconsistent with Title VI of the Communications Act. Title VI expressly
preserves state and local authority to regulate cable operators by requiring them to obtain an
operating franchise from a state or local franchising authority.25 Title VI places some limitations
on this franchising authority, however. For instance, it caps allowable franchise fees and prohibits
state and local authorities from unreasonably refusing to award a franchise.26 In a number of
orders, the FCC has laid out its view of these limitations and has preempted state laws
inconsistent with its interpretations.27 The FCC’s orders go beyond telling states the way in which
they may use the franchising process to regulate cable service. In a 2019 order, the FCC
preempted any state or local fee or requirement in connection with cable operators’ access to
public rights of way unless expressly allowed under Title VI, even if the fee or requirement
relates to non-cable services.28 This scope includes, the Commission explained, state or local fees
or other requirements for cable operators’ provision of broadband internet or other non-cable
television services over public rights of way.29 In May 2021, the Sixth Circuit largely upheld this
order in City of Eugene v. FCC.30
The FCC also has sought, unsuccessfully, to preempt state laws that limit municipalities’ ability to
provide broadband service. The Commission’s approach to state laws restricting community
broadband has varied depending on the nature of the laws and has been the subject of several
court decisions. In a 2001 order, the FCC rejected petitions from cities asking it to preempt state
laws imposing complete bans on municipally provided telecommunications services, concluding
that it did not have authority to constrain states’ control over their own governments without
express authority from Congress.31 The Supreme Court upheld the Commission’s position in
Nixon v. Missouri Municipal League, in which the Court agreed the agency could not preempt
20 References in this report to a particular circuit (e.g., the D.C. Circuit) refer to the U.S. Court of Appeals for that
circuit.
21 Mozilla Corp. v. FCC, 940 F.3d 1, 74 (D.C. Cir. 2019).
22 Id. at 74–76.
23 ACA Connects v. Bonta, 24 F.4th 1233 (9th Cir. 2022); N.Y. State Telecomms. Ass’n v. James, 101 F.4th 135 (2d
Cir. 2024).
24
In re MCP No. 185, 124 F.4th 993 (6th Cir. 2025).
25 47 U.S.C. § 541.
26 Id. §§ 541, 542.
27 For an in-depth discussion of these orders, see CRS Report R46147, The Cable Franchising Authority of State and
Local Governments and the Communications Act, by Chris D. Linebaugh and Eric N. Holmes (2020).
28 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 34 FCC Rcd. 6844, 6892,
¶ 88 (2019) [hereinafter Third Order].
29 Id. at 6900, ¶ 105.
30 998 F.3d 701 (6th Cir. 2021).
31 In the Matter of Missouri Municipal League, Mem. Op. and Order, 16 FCC Rcd. 1162, 1169 (2002).
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without a clear statutory statement.32 In 2015, however, the FCC preempted state laws in North
Carolina and Tennessee that restricted the geographical area in which municipalities could offer
broadband.33 The Commission distinguished these laws from those at issue in Nixon by arguing
the North Carolina and Tennessee laws dealt with the manner in which interstate commerce is
conducted, rather than whether municipalities may be able to participate in such commerce in the
first place.34 In Tennessee v. FCC, the Sixth Circuit vacated the Commission’s order.35 The court
reasoned that even though these laws regulate interstate communications, they still “implicat[ed]
core attributes of state sovereignty” and, under the reasoning of Nixon, the FCC could not
preempt them.36
The Commission has preempted states’ regulation of VoIP services—i.e., services that enable
users to make voice calls via the internet—when the services interface with the public switched
telephone network. Unlike for net neutrality, the FCC has not made a determination on whether
VoIP is a telecommunications service or an information service.37 Nevertheless, it has relied on its
ancillary authority to impose some requirements on these services, and it has sought to preempt
state laws that impose more stringent common-carrier regulations on VoIP services.38 Courts thus
far have upheld the FCC’s preemption of such state laws.39
Lastly, the Commission has used preemption in an effort to facilitate the rapid deployment of 5G
service. In two orders issued in 2018, the Commission preempted state and local moratoria on
deploying telecommunications facilities40 and preempted certain requirements on deployment of
small wireless facilities (e.g., 5G small cell sites, components of 5G infrastructure typically
installed in large numbers and close together in densified areas to propagate high-frequency radio
waves).41 Specifically, the second of these orders preempted the charging of excessive fees and
the imposition of unreasonable non-fee requirements, such as rules mandating that the small cell
sites meet unreasonable aesthetic requirements.42 This order also implemented “shot clocks”
governing how long state and local governments can take to review and respond to installation
and construction applications.43 In August 2020, the Ninth Circuit largely upheld these 2018
orders, vacating only the FCC’s standards on permissible aesthetic requirements.44 The FCC also
issued a declaratory ruling in June 2020; the ruling sought to “clarify the meaning” of its rules
governing when state and local governments must approve requests to modify existing wireless
32 541 U.S. 125, 140–41 (2004).
33 City of Wilson, N.C. Petition for Preemption of N.C. Gen. Stat. Sections 160A-340 et seq., 30 FCC Rcd. 2408
(2015).
34 Id. at 2412, 2472–74, ¶¶ 12, 154–58.
35 832 F.3d 597 (6th Cir. 2016).
36 Id. at 611–13.
37
See infra “Voice over Internet Protocol (VoIP).”
38 Id.
39 Id.
40 Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd.
7705 (2018) [hereinafter Moratorium Order].
41 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd.
9088 (2018) [hereinafter Small Cell Order].
42 Id. at 9091, ¶¶ 11–12.
43 Id. at 9093, ¶ 13.
44 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).
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towers or base stations.45 In a 2024 decision, the Ninth Circuit largely upheld the declaratory
ruling (invalidating only a portion for being inconsistent with a prior FCC order).46
This Report discusses each of these issues in more detail below. It begins with an overview of the
legal framework governing the FCC’s preemption actions, first discussing general federal
preemption principles and then explaining the FCC’s preemption authority under the
Communications Act. The Report next reviews recent FCC initiatives in which preemption plays
a key role, explaining how the FCC has exercised its preemption authority and the extent to
which such authority has been challenged or is uncertain.
General Federal Preemption Principles
The federal government’s preemption of state law derives from the U.S. Constitution’s
Supremacy Clause.47 The Supremacy Clause states that the “Constitution, and the Laws of the
United States which shall be made in Pursuance thereof,” shall be the “supreme Law of the Land”
and that the “Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.”48 Under the Supremacy Clause, Congress has the
power to displace state law when it is acting pursuant to its enumerated constitutional powers.49
As the Supreme Court has explained, federal law may preempt state law in one of three ways.50
First, federal law may expressly preempt state law by stating which state laws are preempted.51
Second, federal law preempts any conflicting state law. Such conflict preemption occurs when
either (1) “compliance with both federal and state regulations is a physical impossibility” or (2)
the “challenged state law ‘stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’”52 Lastly, federal law may preempt an entire field of state
regulation by occupying that field “so comprehensively that it has left no room for supplementary
state legislation.”53
45 Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification
Requests, 35 FCC Rcd. 5977, 5978 (2020) [hereinafter June 2020 Declaratory Ruling].
46 League of Cal. Cities v. FCC, 118 F.4th 995 (9th Cir. 2024) (per curiam).
47 Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 341 (3d Cir. 2014) (“The doctrine of federal preemption, in turn, is rooted in the Supremacy Clause of the Constitution . . . .”).
48 U.S. CONST. art. VI, cl. 2; see also Cong. Rsch. Serv., Overview of Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395/ (last visited May 9, 2025).
49 City of New York v. FCC, 486 U.S. 57, 63 (1988) (“When the Federal Government acts within the authority it
possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is
necessary to achieve its purposes.”); Chicago and N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317
(1981) (“But when Congress has chosen to legislate pursuant to its constitutional powers, then a court must find local
law pre-empted by federal regulation whenever the ‘challenged state statute “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”’”) (quoting Perez v. Campbell, 402
U.S. 637, 649 (1971)); Oxygenated Fuels Ass’n Inc. v. Davis, 331 F.3d 665, 667 (9th Cir. 2003) (“Congress has the
authority, when acting pursuant to its enumerated powers, to preempt state and local laws.”).
50 Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 477 (2018) (“Our cases have identified three different
types of preemption—‘conflict,’ ‘express,’ and ‘field’ . . . .”).
51 See, e.g., Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (2011) (“When a federal law contains
an express preemption clause, we ‘focus on the plain wording of the clause, which necessarily contains the best
evidence of Congress’ preemptive intent.’”) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).
52 Arizona v. United States, 567 U.S. 387, 399 (2012) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
53 Murphy, 584 U.S. at 479 (quoting R.J. Reynolds Tobacco Co. v. Durham Cty., 479 U.S. 130, 140 (1986)).
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The Supreme Court has also explained that regulations adopted by federal agencies “have no less
pre-emptive effect” than statutes themselves.54 While the “purpose of Congress” is the “ultimate
touchstone” in any preemption analysis, whether by statute or regulation,55 agencies generally do
not need “express congressional authorization” to preempt state law.56 Rather, the Supreme Court
has said that when an agency promulgates regulations intending to preempt state law, the Court
will uphold the preemption unless the agency “exceeded [its] statutory authority or acted
arbitrarily.”57 Nevertheless, in some circumstances, the Court has required a plain statement from
Congress authorizing the preemption. In particular, the Court has said that Congress must be
“unmistakably clear in the language of the statute” if it intends to preempt state law in a way that
would upset the “usual constitutional balance” between states and the federal government.58 The
Court has applied this clear statement rule, for instance, to preemption that would infringe on
states’ management of their own officers and subdivisions.59
Overview of the FCC’s Preemption Authority Under
the Communications Act
As with other federal agencies, the FCC generally may enact regulations that preempt state law as
long as it does not “exceed[] its statutory authority” under the Communications Act or act
arbitrarily. While straightforward in principle, determining whether a preemptive action exceeds
the FCC’s statutory authority is a complex question that generally depends on two factors:
(1) whether the Commission has jurisdictional authority over the area of law it seeks to preempt,
and (2) whether any specific provisions in the Communications Act limit or define its preemptive
authority over that area. If the Commission has jurisdiction over an area, it may generally
preempt state laws as long as it does not run afoul of any specific provisions that limit or define
its preemption authority.60 There are some exceptions to this general rule, however. For instance,
Courts have required a plain statement from Congress before allowing the FCC to preempt in a
manner that upsets the “usual constitutional balance” between states and the federal government.
These issues are discussed further below.
54 Fidelity Fed. Sav. and Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153 (1982).
55 Wyeth v. Levine, 555 U.S. 555, 565 (2009).
56 De la Cuesta, 458 U.S. at 154; see also City of New York v. FCC, 486 U.S. 57, 64 (1988).
57 De la Cuesta, 458 U.S. at 154; see also City of New York, 486 U.S. at 64 (“[I]n a situation where state law is claimed
to be pre-empted by federal regulation, a ‘narrow focus on Congress’ intent to supersede state law [is] misdirected, for
‘[a] pre-emptive regulation’s force does not depend on express congressional authorization to displace state law.’
Instead, the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful
authority to undertake such action.”) (quoting De la Cuesta, 458 U.S. at 154).
58 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242
(1985)).
59 Id. (“Congressional interference with this decision of the people of Missouri, defining their constitutional officers,
would upset the usual constitutional balance of federal and state powers. For this reason, ‘it is incumbent upon the
federal courts to be certain of Congress’ intent before finding that federal law overrides’ this balance.”) (quoting
Atascadero State Hosp., 473 U.S. at 243); Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (“[T]he liberating
preemption would come only by interposing federal authority between a State and its municipal subdivisions . . . .
Hence the need to invoke our working assumption that federal legislation threatening to trench on the States’
arrangements for conducting their own governments should be treated with great skepticism, and read in a way that
preserves a State’s chosen disposition of its own power, in the absence of the plain statement Gregory requires.”).
60 See United States v. Shimer, 367 U.S. 374, 383 (1961) (declining to disturb an agency’s preemption decision “unless
it appears from the statute or its legislative history that the accommodation is not one that Congress would have
sanctioned.”).
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The FCC’s Jurisdictional Authority
The Supreme Court and lower federal courts have recognized that, as a general matter, the FCC
may only preempt state laws in areas where it has statutory authority to regulate.61 The Supreme
Court has explained that the FCC’s regulatory jurisdiction takes two forms: its “primary
jurisdiction” and its “ancillary jurisdiction.”62 Understanding the scope of the FCC’s regulatory
jurisdiction is critical to understanding its preemption power.
The FCC’s primary jurisdiction involves the “express and expansive authority” that the
Communications Act expressly grants the FCC over “certain technologies.”63 In particular,
different titles of the Communications Act give the FCC “express and expansive authority” to
regulate: (1) “telecommunications services,” such as landline telephone services, as common
carriers (Title II);64 (2) “radio transmissions, including broadcast television, radio, and cellular
telephony” (Title III);65 and (3) “cable services, including cable television” (Title VI).66 These
titles contain detailed provisions expressly setting forth the nature and scope of the FCC’s
authority. Title II, for instance, contains a host of requirements that apply to common carriers—
such as requiring that they charge “just and reasonable rates,” refrain from unreasonable
discrimination, and allow other carriers to interconnect with their networks—while giving the
FCC discretion to “forbear” from applying Title II requirements consistent with the public
interest.67 Title III, as another example, provides that, among other things, the Commission may
classify radio and television stations, prescribe the services rendered by such stations, regulate the
apparatus used in radio communications, and issue licenses to operators of radio and television
stations.68
61 See City of New York, 486 U.S. at 63–64, 66; La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A] federal
agency may pre-empt state law only when and if it is acting within the scope of its congressionally delegated
authority.”); Mozilla Corp. v. FCC, 940 F.3d 1, 75 (D.C. Cir. 2019) (“[I]n any area where the Commission lacks the
authority to regulate, it equally lacks the power to preempt state law.”); Pub. Serv. Comm’n v. FCC, 909 F.2d 1510,
1515 n.6 (D.C. Cir. 1990) (“The FCC cannot regulate (let alone preempt state regulation of) any service that does not
fall within its Title II jurisdiction over common carrier services or its Title I jurisdiction over matters ‘incidental’ to
communication by wire.”). As the D.C. Circuit explained in Mozilla Corp. v. FCC, Congress may give the Commission
preemption authority even in an area where it has no regulatory authority. Mozilla Corp., 940 F.3d at 75 (“Of course, if
a federal law expressly confers upon the agency the authority to preempt, that legislative delegation creates and defines
the agency’s power to displace state laws.”). While the majority maintained that Congress had to grant express
preemption authority beyond the Commission’s regulatory authority, the dissent in this case argued that such a grant of
preemption authority could be implicit. See id. at 101 (Williams, J., dissenting) (“The same principle undergirds a
congressional choice (express or implied) to grant an agency equivalent preemptive authority without any parallel
federal regulation (by Congress or a federal agency).”).
62 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 380–81 (1999) (“For even though ‘Commission jurisdiction’ always
follows where the [Communications] Act ‘applies,’ Commission jurisdiction (so-called ‘ancillary’ jurisdiction) could
exist even where the [Communications] Act does not ‘apply.’ The term ‘apply’ limits the substantive reach of the
statute (and the concomitant scope of primary FCC jurisdiction), and the phrase ‘or to give the Commission
jurisdiction’ limits, in addition, the FCC’s ancillary jurisdiction.”).
63 Mozilla Corp., 940 F.3d at 75.
64 47 U.S.C. §§ 153, 301–399b; Comcast Corp. v. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010) (“Congress has given the
Commission express and expansive authority to regulate common carrier services, including landline telephony [under
Title II].”).
65 47 U.S.C. §§ 301–399b; Comcast, 600 F.3d at 645.
66 47 U.S.C. §§ 521–573; Comcast, 600 F.3d at 645.
67 47 U.S.C. §§ 160(a), 201(b), 202(a), 251(a).
68 Id. §§ 303, 307; Nat’l Ass’n for Better Broad. v. FCC, 849 F.2d 665, 666 (D.C. Cir. 1988) (“Title III of the
[Communications] Act establishes a broad grant of authority to the Commission to regulate radio (and television)
communications including classification of stations, prescription of the nature of services to be rendered, regulation of
(continued...)
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The Supreme Court has also recognized that the FCC may regulate under its “ancillary
jurisdiction.”69 For the FCC to use its ancillary jurisdiction, “two conditions must be met”: (1)
“the subject of the regulation” must fall under the Commission’s “general grant of jurisdiction”
under Title I of the Communications Act,70 which covers “all interstate and foreign
communication by wire or radio”; and (2) the subject of the regulation must be “reasonably
ancillary” to the “effective performance” of its primary jurisdictional responsibilities.71 Where its
primary or ancillary jurisdiction applies, the FCC has authority to “prescribe such rules and
regulations” that “may be necessary in the execution of its functions” and are not “inconsistent
with [the Communications Act].”72
The Commission’s ancillary jurisdiction is limited, however, by section 2(b) of the
Communications Act. Section 2(b) says that, except for several specific exceptions, “nothing [in
the Communications Act] shall be construed to apply or to give the Commission jurisdiction with
respect to . . . charges, classifications, practices, services, facilities, or regulations for or in
connection with intrastate communication service.”73 The Supreme Court has explained that,
while this section does not limit the FCC’s regulatory authority where the Communications Act
expressly applies (i.e., its primary jurisdiction), it does carve out intrastate matters from the
Commission’s ancillary jurisdiction.74 The Court has also suggested (without expressly deciding)
that section 2(b)’s limitation does not apply when it is “not possible to separate the interstate and
the intrastate components of the asserted FCC regulation.”75 Lower courts have fleshed out this
“impossibility exception” further. These cases generally hold that section 2(b) does not prevent
the Commission from preempting state law where (1) “the matter to be regulated has both
interstate and intrastate aspects”; (2) “preemption is necessary to protect a valid federal regulatory
the apparatus used, study of new uses and encouragement of more and effective uses of radio, and ultimately the
issuance of licenses to operate stations when it finds that the public interest will be served thereby.”).
69 See, e.g., United States v. Sw. Cable Co., 392 U.S. 157, 178 (1968); United States v. Midwest Video Corp., 406 U.S.
649, 650 (1972).
70 See 47 U.S.C. § 152(a) (“The provisions of this chapter shall apply to all interstate and foreign communication by
wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within
the United States, and to all persons engaged within the United States in such communication or such transmission of
energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided . . . .”).
71 Am. Libr. Ass’n v. FCC, 406 F.3d 689, 693 (D.C. Cir. 2005); see also S.W. Cable Co., 392 U.S. at 178 (“[T]he
authority which we recognize today under § 152(a) is restricted to that reasonably ancillary to the effective
performance of the Commission’s various responsibilities for the regulation of television broadcasting. The
Commission may, for these purposes, issue ‘such rules and regulations and prescribe such restrictions and conditions,
not inconsistent with law,’ as ‘public convenience, interest, or necessity requires.’”); Midwest Video Corp., 406 U.S. at
650) (“In [Southwestern Cable], . . . we sustained the jurisdiction of the Federal Communications Commission to
regulate the new industry, at least to the extent ‘reasonably ancillary to the effective performance of the Commission’s
various responsibilities for the regulation of television broadcasting’ . . . .”).
72 47 U.S.C. § 154(i) (“The Commission may perform any and all acts, make such rules and regulations, and issue such
orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”); see also EchoStar
Satellite L.L.C. v. FCC, 704 F.3d 992, 998 (D.C. Cir. 2013) (applying section 4(i) of the Communications Act to the
FCC’s ancillary jurisdiction).
73 47 U.S.C. § 152(b).
74 AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379–82 n.8 (1999) (rejecting the argument that section 2(b) prevents
the FCC from issuing rules implementing Title II’s local competition provisions on the ground that section 201(b) gives
the FCC authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out the
provisions of the [Communications] Act,” but noting that “[i]nsofar as Congress has remained silent, . . . , § 152(b)
continues to function” and the FCC could not “regulate any aspect of intrastate communication . . . on the theory that it
had an ancillary effect on matters within the Commission’s primary jurisdiction.”).
75 La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 375 n.4 (1986) (distinguishing cases where lower courts held it was
“not possible to separate the interstate and the intrastate components of the asserted FCC regulation”) (emphasis in the
original).
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objective”; and (3) “state regulation would negate the exercise by the [Commission] of its own
lawful authority because regulation of the interstate aspects of the matter cannot be ‘unbundled’
from regulation of the intrastate aspects.”76
Specific Statutory Provisions Addressing Preemption
Even when the FCC has jurisdictional authority, its preemption must be consistent with any
express preemption provisions in the Communications Act. In a number of areas, the
Communications Act explicitly spells out the extent to which states’ regulatory authority over a
particular technology or service is displaced or preserved. Where such provisions apply, the
Commission may not preempt state laws beyond what the statute allows.77
For example, section 253 of the Communications Act (under Title II) defines the FCC’s
preemption authority over state laws regulating telecommunication services. It provides that “no
State or local statute or regulation, or other State or local legal requirement, may prohibit or have
the effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service.”78 Section 253 further states that if the FCC determines that any
state or local requirement violates this provision, it “shall,” after notice and an opportunity for
public comment, “preempt the enforcement of such statute, regulation, or legal requirement to the
extent necessary to correct such violation or inconsistency.”79 Section 253 also preserves a sphere
of state and local authority, providing that “[n]othing in this section affects the authority of a State
or local government to manage the public rights-of-way or to require fair and reasonable
compensation from telecommunications providers, on a competitively neutral and
nondiscriminatory basis.”80
Similarly, section 332(c)(7) of the Communications Act (under Title III) defines the extent of
states’ regulatory authority over “personal wireless services.” In particular, section 332(c)(7)(B)
provides that state or local regulations governing the “placement, construction, and modification
of personal wireless services facilities . . . (I) shall not unreasonably discriminate among
providers of functionally equivalent services; and (II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless services.”81 Section 332(c)(7)(B) further allows
persons to seek expedited judicial review if they have been adversely affected by a state or local
government action inconsistent with the provision’s limitations.82 At the same time, section
332(c)(7)(A) preserves state and local authority by providing that, other than section
332(c)(7)(B)’s express limitations, nothing “shall limit or affect the authority of a State or local
76 Mozilla Corp. v. FCC, 940 F.3d 1, 77–78 (D.C. Cir. 2019); California v. FCC, 905 F.2d 1217, 1243 (9th Cir. 1990)
(“The impossibility exception, however, is a limited one. The FCC may not justify a preemption order merely by
showing that some of the preempted state regulation would, if not preempted, frustrate FCC regulatory goals. Rather,
the FCC bears the burden of justifying its entire preemption order by demonstrating that the order is narrowly tailored
to preempt only such state regulations as would negate valid FCC regulatory goals.”); Minn. Pub. Utils. Comm’n v.
FCC, 483 F.3d 570, 578 (8th Cir. 2007) (“[T]he “impossibility exception” of 47 U.S.C. § 152(b) allows the FCC to
preempt state regulation of a service if (1) it is not possible to separate the interstate and intrastate aspects of the
service, and (2) federal regulation is necessary to further a valid federal regulatory objective, i.e., state regulation would
conflict with federal regulatory policies.”) (citing Qwest Corp. v. Scott, 380 F.3d 367, 372 (8th Cir. 2004)).
77 See, e.g., Mozilla, 940 F.3d at 75 (“Of course, if a federal law expressly confers upon the agency the authority to
preempt, that legislative delegation creates and defines the agency’s power to displace state laws.”).
78 47 U.S.C. § 253(a).
79 Id. § 253(a), (d).
80 Id. § 253(c).
81 47 U.S.C. § 332(c)(7)(B).
82 Id.
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government or instrumentality thereof over decisions regarding the placement, construction, and
modification of personal wireless service facilities.”83 While section 332(c)(7) does not expressly
address the FCC’s ability to implement section 332(c)(7)(B)’s limitations, federal courts of
appeals have held that the FCC may use its general rulemaking authority under the
Communications Act to clarify the extent to which state laws are preempted by this section;
however, in doing so, the Commission may not impose restrictions or limitations that “cannot be
tied to the language of § 332(c)(7)(B).”84 These cases, however, were based on the Chevron
doctrine of agency deference, which has since been overturned by the Supreme Court.85 As a
result, the FCC’s authority to implement this section may be in doubt.
Other parts of the Communications Act define in even greater detail the bounds of state authority
over particular areas. For instance, Title VI in large part deals with state and local governments’
ability to award franchises to cable operators.86 While this title requires cable operators to obtain a
franchise from a state or local franchising authority before providing cable service, it also
prohibits franchising authorities from, among other things, (1) “unreasonably refus[ing]” to award
franchises, (2) establishing requirements for “video programming or other information services,”
or (3) imposing franchise fees exceeding 5% of the cable operator’s gross annual revenue.87 Title
VI further “preempt[s] and supersede[s]” “any provision of law of any State, political
subdivision, or agency thereof . . . which is inconsistent with this chapter.”88
Later sections of this report discuss the FCC’s implementation of these various preemption
provisions and recent disputes surrounding that implementation.
Clear Statement Rule
Even if the FCC has regulatory jurisdiction over the area it seeks to preempt and its preemption
accords with any specific statutory provisions, its ability to preempt may still be limited by a
“clear statement” rule. In particular, as previously discussed, the Supreme Court has said that
Congress must be “unmistakably clear in the language of the statute” if it intends to preempt state
law in a way that would upset the “usual constitutional balance” between states and the federal
government.89 The Supreme Court has relied on this rule to vacate the FCC’s preemption of state
laws governing a state’s municipalities. Most relevantly, and as discussed later in this report, the
Supreme Court and the Sixth Circuit have held that the FCC does not have authority to preempt
83 Id. § 332(c)(7)(A).
84 City of Arlington, 668 F.3d at 250–54 (stating that section 332(c)(7)(A) “certainly prohibits the FCC from imposing
restrictions or limitations that cannot be tied to the language of § 332(c)(7)(B),” but also holding that the FCC is
“entitled to deference with respect to its exercise of authority to implement § 332(c)(7)(B)(ii) and (v)”); see also Up
State Tower Co., LLC v. Town of Kiantone, 718 F. App’x 29, 31 n.1 (2d Cir. 2017) (“We agree with the 5th Circuit
that because the two FCC Orders cited herein are reasonable constructions of § 332(c)(7)(B), they ‘are thus entitled to
Chevron deference.’”) (citing City of Arlington, 668 F.3d at 256).
85 See CRS Report R48320, Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law, by
Benjamin M. Barczewski (2024) for a further discussion of the Supreme Court’s decision overruling the Chevron
doctrine.
86 In the context of cable television, a “franchise” refers to the right to operate a cable system in a given area. For more
information, see CRS Report R46147, The Cable Franchising Authority of State and Local Governments and the
Communications Act, by Chris D. Linebaugh and Eric N. Holmes (2020).
87 47 U.S.C. §§ 541(a)(1), 542(b), 544(b).
88 Id. § 556(c).
89 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanion, 473 U.S. 234, 242
(1985)).
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state laws prohibiting or restricting municipalities from providing broadband service because, in
part, Congress had not provided a “plain statement” of its intent to preempt such laws.90
Current Issues (2025)
The FCC’s ability to preempt state laws has been at the heart of many of its regulatory initiatives
in recent years. In particular, preemption has been at the forefront of the Commission’s stated
efforts to (1) establish a deregulatory environment for broadband internet; (2) promote the
provision of cable services; (3) facilitate municipal (or “community”) broadband; (4) maintain a
lightly regulated approach to VoIP services; and (4) accelerate deployment of fifth-generation
wireless (5G) infrastructure. State and local governments have challenged these initiatives in
court, arguing that the FCC has exceeded its preemption authority. In some cases, courts have
agreed that the FCC overstepped its statutory bounds.91 In other cases, courts have upheld, or
largely upheld, the FCC’s actions.92
This section discusses the FCC’s preemption efforts in each of these areas, including the legal
challenges and issues arising from them.
Broadband Regulation
For many years, the FCC’s approach to broadband regulation was in flux. The FCC toggled back
and forth between classifying BIAS as either (1) a “telecommunications service,” subjecting
providers to regulation as common carriers under Title II of the Communications Act, or (2) an
“information service,” as defined in Title I of the Communications Act.93 The choice had
significant implications for the FCC’s regulatory goals.94 The FCC has only limited authority over
information services, and it cannot adopt certain regulatory approaches, such as net neutrality
rules, unless BIAS is classified as a Title II telecommunications service.95 Because of its limited
authority over information services, the past two times the FCC has adopted net neutrality rules—
in 2015 and 2024—it also reclassified BIAS as a telecommunications service.96
The FCC, however, may no longer have the ability to choose the appropriate classification for
BIAS. As discussed in a CRS Legal Sidebar,97 the FCC previously exercised its discretion to
90 Nixon v. Mo. Mun. League, 541 U.S. 125, 140–41 (2004); Tennessee v. FCC, 832 F.3d 597 (6th Cir. 2016).
91 See, e.g., Mozilla Corp. v. FCC, 940 F.3d 1, 74 (D.C. Cir. 2019).
92 See, e.g., City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020); City of Eugene v. FCC, 998 F.3d 701 (6th
Cir. 2021).
93 47 U.S.C. §§ 153(24), (50)–(51), (53); see also Mozilla Corp., 940 F.3d at 17 (“[T]he 1996 Telecommunications Act
[amended the Communications Act to create] two potential classifications for broadband Internet: ‘telecommunications
services’ under Title II of the [Communications] Act and ‘information services’ under Title I.”).
94 Mozilla, 940 F.3d at 17 (“These similar-sounding terms carry considerable significance: Title II entails common
carrier status, see 47 U.S.C. § 153(51) (defining ‘telecommunications carrier’), and triggers an array of statutory
restrictions and requirements (subject to forbearance at the Commission’s election)”).
95 Verizon v. FCC, 740 F.3d 623, 650–56 (D.C. Cir. 2014) (holding that the FCC’s net neutrality rules were per se
common carrier rules and that the FCC could not impose common carrier rules on BIAS providers unless they were
classified as telecommunications service providers under the Communications Act).
96 In the Matter of Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and
Order, 30 FCC Rcd. 5601 (2015) [hereinafter 2015 Open Internet Order]; In the Matter of Safeguarding and Securing
the Open Internet, Declaratory Ruling, Order, Report and Order, and Order on Reconsideration, 89 Fed. Reg. 45404
(2024).
97 CRS Legal Sidebar LSB11264, No More Deference: Sixth Circuit Relies on Loper Bright to Strike Down Net
Neutrality Rules, by Chris D. Linebaugh (2025).
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make this decision based on the Chevron doctrine of agency deference,98 which the U.S. Supreme
Court overturned in 2024 in the case Loper Bright Enterprises v. Raimondo.99 In the wake of
Loper Bright, the Sixth Circuit held that BIAS must be treated as an information service under the
Communications Act, and it struck down the FCC’s 2024 net neutrality rules.100 As a result,
unless the Supreme Court steps in to overturn the Sixth Circuit’s decision, the FCC’s authority
over BIAS is minimal.
FCC’s Authority to Preempt State Broadband Regulations
Courts have held that, as long as the FCC lacks regulatory authority over BIAS, it also lacks
authority to preempt state laws regulating BIAS. In 2019, in the case Mozilla Corp. v. FCC, the
D.C. Circuit struck down the FCC’s “sweeping” preemption of state broadband laws because, at
the time, the FCC had renounced its regulatory authority over BIAS.101 In that case, the FCC had
issued an order in 2018 (2018 Order) that reclassified BIAS as an information service and
removed previously existing net neutrality rules.102 The FCC’s order preempted “any state or local
requirements” that were “inconsistent with [its] deregulatory approach.”103 The D.C. Circuit,
however, vacated this preemption. It reasoned that the FCC no longer had affirmative regulatory
authority over BIAS, now that it was classified as an information service, and it could not
preempt state law in an area over which it does not have regulatory authority without an express
authorization from Congress.104
Applying the same reasoning as Mozilla, other courts have rejected preemption challenges to state
broadband regulations. In ACA Connects v. Bonta,105 the Ninth Circuit upheld California’s net
neutrality law, the Internet Consumer Protection and Net Neutrality Act of 2018, or SB-822.106
California enacted SB-822 following the FCC’s 2018 Order, and “essentially codifie[d]” the 2015
net neutrality rules that the 2018 Order rescinded.107 Plaintiffs in ACA Connects argued, among
other things, that the 2018 Order preempted SB-822 because SB-822 conflicted with the Order’s
deregulatory policy.108 The court characterized the plaintiffs’ argument as “essentially
contend[ing]” that SB-822 conflicts with the “absence of federal regulation.”109 The court
recognized that an agency’s decision not to regulate may have preemptive effect in some
circumstances, but such preemption occurs only when the agency has regulatory authority that it
has chosen not to exercise.110 An agency may not, however, preempt state regulation when it does
98 In a 2005 decision, National Cable & Telecommunications Association v. Brand X Internet Services, the Supreme
Court had applied Chevron to uphold a prior FCC order classifying BIAS as an information service. 545 U.S. 967
(2005). Following Brand X, the D.C. Circuit, on several occasions, applied the Chevron doctrine to uphold the FCC’s
reclassifications of BIAS. See U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016); Mozilla, 940 F.3d at 1.
99 603 U.S. 369 (2024).
100 In re MCP No. 185, 124 F.4th 993 (6th Cir. 2025).
101 Mozilla, 940 F.3d at 74.
102 In the Matter of Restoring Internet Freedom, Report an Order, and Order, 33 FCC Rcd. 331 (2018) [hereinafter 2018
Order].
103 Id. at 427.
104 Mozilla, 940 F.3d at 75–76.
105 24 F.4th 1233 (9th Cir. 2022).
106 California Internet Consumer Protection and Net Neutrality Act of 2018, 2018 Cal. Stats. ch. 976 (codified at CAL.
CIV. CODE §§ 3100–3104 (West 2025)).
107 ACA Connects v. Bonta, 24 F.4th 1233, 1240 (9th Cir. 2022).
108 Id. at 1241.
109 Id.
110 Id.
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not have regulatory authority. The court held that, in the 2018 Order, the FCC had “surrendered
its authority to regulate” net neutrality by classifying BIAS as an information service, thereby
surrendering as well its power to preempt state regulations.111
Similarly, in New York State Telecommunications Ass’n v. James, the Second Circuit rejected
preemption challenges to a New York law regulating broadband rates charged to low-income
consumers.112 As in Mozilla and ACA Connects, the Second Circuit held that the law was not
preempted by the FCC’s 2018 Order.113 The court explained that since the FCC lacked authority
to regulate broadband rates, having classified BIAS an information service, it also lacked the
power to preempt state laws regulating broadband rates.114 The Second Circuit further dismissed
the argument that the Communications Act itself preempts states from regulating broadband
rates.115 Plaintiffs argued that the Communications Act preempts “the entire field of rate
regulations for interstate communications services,” as it gave the FCC jurisdiction over “all
interstate and foreign communication by wire or radio.”116 The court disagreed. It explained that
nothing in the text, structure, history, or case law of the Communications Act suggested that
Congress intended to preempt the field of rate regulation of interstate communications services.117
The court pointed out, for example, that the Communications Act has no framework to regulate
the rates of information services, let alone a pervasive one.118
Next Steps
The Sixth Circuit’s conclusion that the FCC’s regulatory authority over BIAS is limited means
that the FCC’s preemption authority over BIAS is also limited. At least in the foreseeable future,
broadband regulation will likely revert to the states.119 A number of states, including California,120
Washington,121 and New York,122 have already adopted net neutrality laws through legislation or
executive orders. New York, as already mentioned, has further adopted a law regulating
broadband rates for low-income consumers.123 All of these state broadband laws were adopted
before the FCC’s 2024 net neutrality rules, when the FCC had still classified BIAS as an
information service. Now that the Sixth Circuit has held that BIAS must be treated as an
111 Id. at 1242.
112 101 F.4th 135 (2d Cir. 2024).
113 Id. at 154.
114 Id. at 155–56.
115 Id. at 147–54.
116 Id. at 147–50.
117 Id.
118 Id. at 151.
119 It is possible that the FCC could adopt a new order in the future, again reclassifying BIAS as a Title II
telecommunications service. Should such an order be challenged in a different federal appeals court than the Sixth
Circuit, it is possible that this other court of appeals might disagree with the Sixth Circuit’s decision. The current FCC
chair, however, has voiced agreement with the Sixth Circuit’s decision, thus making it unlikely the FCC will attempt to
reclassify BIAS in the near future. See Press Release, Brendan Carr, Office of Commissioner, Carr Welcomes Court
Order Invalidating President Biden’s Plan to Expand Government Control of the Internet Through Title II Regulation
(Jan. 2, 2025), https://docs.fcc.gov/public/attachments/DOC-408580A1.pdf.
120 California Internet Consumer Protection and Net Neutrality Act of 2018, 2018 Cal. Stats. ch. 976 (codified at CAL.
CIV. CODE §§ 3100–3104 (West 2025)).
121 WASH. REV. CODE § 19.385.020 (2024).
122 N.Y. COMP. CODES R. & REGS. tit. 9, § 8.175 (2025).
123 N.Y. Gen. Bus. LAW § 399-zzzzz (McKinney 2025).
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information service and has rejected the FCC’s recent attempt to regulate it, more states may take
steps to fill the regulatory gap by adopting their own broadband laws.
Congress could still intervene by amending the Communications Act to address BIAS and to
preempt or preserve state broadband laws. Bills introduced in prior Congresses could provide a
reference point for possible action in the 119th Congress. A number of bills introduced in the
116th Congress, such as H.R. 1006, H.R. 1101, H.R. 1096, and H.R. 2136, would have amended
Title I of the Communications Act to include baseline net neutrality requirements.124 These bills
would have given the FCC limited regulatory and enforcement authority over these requirements,
but not the authority to treat BIAS as a telecommunications service. On the other hand, bills
introduced in both the 116th and 117th Congresses would have empowered the FCC to regulate
BIAS as a telecommunications service under Title II of the Communications Act. The Net
Neutrality and Broadband Justice Act of 2022, for example, would have amended the definition
of a telecommunications service to explicitly include BIAS.125 Regardless of the regulatory
approach Congress might choose, it could decide to preempt state net neutrality laws or leave
them intact to the extent they are consistent with federal law.
Cable Operators
The Commission has preempted state and local laws regulating cable operators in a manner it
deems inconsistent with Title VI, which is the portion of the Communications Act governing the
distribution of video services by cable operators.126 In particular, the Commission has (1) banned
state and local governments from taking actions it deems an “unreasonable refusal” to award a
cable franchise, (2) required state and local governments to count certain costs toward a statutory
cap on cable franchise fees, and (3) limited state and local governments from regulating noncable services provided by cable operators.127
Title VI
Title VI codifies a “deliberately structured dualism” in the regulation of cable.128 On the one
hand, Title VI gives the FCC authority over various operational aspects of cable such as technical
standards governing signal quality,129 ownership restrictions,130 and requirements for carrying
local broadcast stations.131 On the other hand, it preserves state authority by requiring cable
operators to obtain a “franchise” from the relevant state or local authority in the region in which it
wishes to provide service.132 It further allows state and local governments to place conditions on
124 H.R. 1006, 116th Cong. (2019); H.R. 1101, 116th Cong. (2019); H.R. 1096, 116th Cong. (2019); H.R. 2136, 116th
Cong. (2019).
125
S. 4676, 117th Cong. (2022); H.R. 8573, 117th Cong. (2022).
126 47 U.S.C. §§ 521–573.
127 CRS Report R46147, The Cable Franchising Authority of State and Local Governments and the Communications
Act, by Chris D. Linebaugh and Eric N. Holmes (2020), discusses FCC preemption under Title VI and the legal issues
raised by such preemption in more detail. Consequently, this section only provides a brief overview of this topic.
128 All. for Cmty. Media v. FCC, 529 F.3d 763, 767 (6th Cir. 2008).
129 47 U.S.C. § 544(e); 47 C.F.R. §§ 76.601–76.640.
130 47 U.S.C. § 533; 47 C.F.R. §§ 76.501–76.502.
131 47 U.S.C. § 534; 47 C.F.R. § 76.56.
132 47 U.S.C. §§ 541(a)–(b), 522(10).
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the award of franchises, such as requiring cable operators to designate “channel capacity” for
public, educational, and government (PEG) video programming.133
Title VI, nevertheless, places important limitations on state and local authority. Section 621 of the
Communications Act prohibits franchising authorities (i.e., state and local governments
responsible for regulating cable operators) from “unreasonably refus[ing] to award an additional
competitive franchise.”134 Section 622 caps the “franchise fees” charged to cable operators at 5%
of the operator’s gross annual revenue derived from cable services.135 Section 624 restricts
franchise authorities from regulating “video programming or other information services.136
FCC Actions
In a series of orders, the FCC has interpreted Title VI’s restrictions. These orders have built on
one another and have responded to, and been shaped by, court decisions reviewing their legality.
This subsection discusses the orders and court decisions together in chronological order.
2007: First and Second Cable Orders
The FCC issued its first order on this issue in 2007 (First Cable Order).137 In the First Cable
Order, the Commission sought to remove what it viewed as “unreasonable barriers” to new
entrants into the cable market. It did this largely by clarifying when practices by franchising
authorities amount to an “unreasonabl[e] refus[al]” to award a franchise.138 The First Cable Order
explained that such practices include, among other things, failing to make a final decision on
franchise applications within timeframes specified in the order or requiring cable operators to
“build out” their cable systems to provide service to certain areas or customers as a condition of
granting the franchise.139
The First Order also provided guidance on which costs count toward the 5% franchise fee cap.
Among other things, it explained that in-kind expenses unrelated to provision of cable service—
such as requests that the cable operator provide traffic light control systems—count toward the
5% cap.140
Lastly, the FCC clarified the limits of franchising authority jurisdiction over “mixed-use”
networks providing both cable and non-cable services. It maintained that, under Title VI,
franchise authorities only have jurisdiction over cable services.141 Consequently, the FCC said
that franchising authorities may not withhold franchises based on issues related to non-cable
services or facilities (the “mixed-use” rule).142 Although state and local franchising authorities
and their representative organizations challenged the legality of the First Cable Order, the Sixth
Circuit denied those challenges.143 In Alliance for Community Media v. FCC, the Sixth Circuit
133 Id. §§ 531, 541(a)(4)(B).
134 Id. § 541 (section 621 of the Communications Act).
135 Id. § 542 (section 622 of the Communications Act).
136 Id. § 544 (section 624 of the Communications Act).
137 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 22 FCC Rcd. 5101 (2007)
[hereinafter First Order].
138 Id. at 5103.
139 Id. at 5134–37, 5142–43, ¶¶ 66–73, 87–91.
140 Id. at 5149–50, ¶¶ 105–108.
141 Id. at 5155, ¶ 121.
142 Id.
143 All. for Community Media v. FCC, 529 F.3d 763 (6th Cir. 2008).
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upheld both the FCC’s authority to issue rules construing Title VI and the specific rules in the
First Cable Order itself.144
The First Cable Order applied only to new entrants to the cable market. The FCC shortly
thereafter adopted another order (Second Cable Order) extending many of the First Cable Order’s
rulings to incumbent cable television service providers.145
2015–2017: Reconsideration Order and Legal Challenge
Following the release of the Second Cable Order, the Commission received three petitions for
reconsideration, to which it responded with a further order in 2015 (Reconsideration Order).146 In
the Reconsideration Order, the FCC affirmed the Second Cable Order’s extension of the First
Cable Order’s rulings to incumbent cable operators.147 Most notably, the Reconsideration Order
also stated that “in-kind” (i.e., noncash) payments exacted by franchising authorities, even if
related to the provision of cable service, may count toward the maximum 5% franchise fee
allowable under section 622.148
In 2017, in the case Montgomery County v. FCC, the Sixth Circuit vacated the FCC’s
determinations in the Second Cable Order and Reconsideration Order on both the issue of
incumbent providers and cable-related in-kind expenses.149 Regarding incumbent providers, the
court held that the FCC’s extension of its mixed-use network rule to incumbent cable providers
was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA).150 To
support its mixed-use rule, the FCC had relied on the statutory definition of “cable system,”
which explicitly excludes common carrier facilities except to the extent they are “used in the
transmission of video programming directly to subscribers.”151 The court explained that, unlike
most new entrants, incumbent cable providers are generally not common carriers.152
Consequently, the Commission needed to identify a statutory provision that supported applying
the mixed-use rule to non-common carrier entities, which it failed to do.153 The court also held
that the Commission’s inclusion of cable-related in-kind expenses in the 5% franchise fee cap was
arbitrary and capricious.154 The court reasoned that the FCC gave “scarcely any explanation at
all” for its decision to expand its interpretation of “franchise fee” to include cable-related
exactions.155
144 Id. at 772–87.
145 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 22 FCC Rcd. 19633 (2007)
[hereinafter Second Cable Order].
146 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 30 FCC Rcd. 810 (2015)
[hereinafter Reconsideration Order].
147 Id. at 816, ¶¶ 14–15.
148 Id. at 814–16, ¶¶ 11–13.
149 863 F.3d 485 (6th Cir. 2017).
150 Id. at 493.
151 Second Cable Order, 22 FCC Rcd. 19633, 19640, ¶ 17 (2007).
152 Id. at 492–93.
153 Id.
154 Id. at 491–92
155 Id.
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2019–2021: Third Cable Order and Legal Challenge
In response to Montgomery County, the FCC adopted a new order on August 1, 2019 (Third
Cable Order), which clarified its interpretations of the Cable Act.156 Among other things, the order
reiterated the FCC’s position that in-kind (i.e., non-monetary) expenses, even if related to cable
service, may count toward the 5% franchise fee cap.157 Per the Sixth Circuit’s admonition, the
FCC provided additional justification for this decision, reasoning that, among other things, the
statutory definition of franchise fee is broad enough to encompass such expenses and none of the
specific statutory exceptions to this definition excludes them entirely.158 The Third Cable Order
also reiterated the mixed-use rule’s application to incumbents, relying this time on the Title VI
provision prohibiting franchising authorities from “establish[ing] requirements for video
programming or other information services.”159
Beyond clarifying that franchising authorities cannot use their Title VI authority to regulate the
non-cable aspects of a mixed-use cable system, the Third Cable Order explicitly preempted state
and local laws that “impose[] fees or restrictions” on cable operators for the “provision of noncable services in connection with access to [public] rights-of-way, except as expressly authorized
in [Title VI].”160 The Commission responded specifically to an Oregon Supreme Court case, City
of Eugene v. Comcast. In that case, the court upheld the City of Eugene's imposition of a 7%
fee—pursuant to a city ordinance, rather than the franchising process—on the revenue a cable
operator generated from its provision of broadband internet services.161 The Third Cable Order
rejected City of Eugene’s conclusion, however, and preempted the type of state regulation that
case upheld.162 The FCC reasoned that Title VI establishes the “basic terms of a bargain” by
which a cable operator may “access and operate facilities in the local rights-of-way.”163 It
explained that, although Congress was “well aware” that cable systems would carry non-cable
services as well as cable, it nevertheless “sharply circumscribed” the authority of state and local
governments to “regulate the terms of this exchange.”164
Several cities, franchising authorities, and advocacy organizations filed petitions for review of the
Third Cable Order in various courts of appeals.165 These petitions were consolidated and
transferred to the Sixth Circuit.166 The Sixth Circuit largely upheld the Third Cable Order in City
of Eugene v. FCC.167 In its decision, the Sixth Circuit determined that the FCC’s inclusion of
156 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984, 34 FCC Rcd. 6844 (2019).
[hereinafter Third Cable Order].
157 Id. at 6850–52, ¶ 12.
158 Id. at 6849–58, ¶¶ 11–22.
159 Id. at 6883, ¶ 122 (citing 47 U.S.C. § 544(b)(1)).
160 Id. at 6892–93, ¶ 88.
161 375 P.3d 446, 450–51, 463 (Or. 2016).
162 Third Cable Order, 34 FCC Rcd. at 6889, ¶ 80.
163 Id. at 6891, ¶ 84.
164 Id. at 6892, ¶ 88.
165 See Petition for Review, City of Pittsburgh v. FCC, No. 19-3478 (3d Cir. Oct. 28, 2019); Petition for Review,
Hawaii v. United States, No. 19-72699 (9th Cir. Oct. 24, 2019); Petition for Review, Anne Arundel Cty. v. FCC, No.
72760 (D.C. Cir. Oct. 24, 2019); Petition for Review, All. for Commc’ns Democracy v. FCC, No. 19-72736 (D.C. Cir.
Oct. 23, 2019); Petition for Review, City of Portland v. United States, No. 19-72391 (9th Cir. Sept. 19, 2019); Petition
for Review, City of Eugene v. FCC, No. 19-72219 (9th Cir. Aug. 30, 2019).
166 Order, City of Portland v. FCC, No. 19-72391 (9th Cir. Nov. 26, 2019) (order granting motion to consolidate
petitions and transfer petitions to the Sixth Circuit); Order, City of Eugene v. FCC, No. 19-4161 (6th Cir. Dec. 2, 2019)
(docketing case in the Sixth Circuit).
167 998 F.3d 701 (6th Cir. 2021).
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cable-related in-kind expenses in the 5% franchise fee cap was not arbitrary and capricious.168
Addressing the FCC’s “mixed-use” rule, and specifically the FCC’s repudiation of City of Eugene
v. Comcast of Oregon, the Sixth Circuit opined that whether a franchising authority has
overstepped its power depends on “whether state or local action is ‘inconsistent with’ a specific
provision of the [Communications] Act.”169 The court held that the imposition of broadband
service fees on a cable operator would be inconsistent with the Title VI provision prohibiting
franchising authorities from “establish[ing] requirements for video programming or other
information services.”170 Accordingly, the Sixth Circuit held that the FCC may preempt the City
of Eugene’s imposition of a broadband service fee on cable operators.171 The court rejected the
FCC’s proposed standard for calculating the monetary value of in-kind exactions, holding that the
value of these exactions should be calculated based on a cable operator’s cost, rather than their
“market value.”172
Community Broadband
A number of local governments throughout the United States offer consumers an option to receive
broadband service from a public entity (known as “community broadband” or “municipal
broadband”). Several states currently place restrictions on local government ability to provide
community broadband services. The FCC has attempted to preempt state restrictions on
community broadband when such restrictions are inconsistent with FCC regulations; however, a
recent Sixth Circuit decision held that the FCC could not preempt state regulation of community
broadband without an express statutory grant of preemption authority from Congress. Even if
Congress expressly grants the FCC authority to preempt state restrictions on community
broadband, such a delegation of authority is likely to face constitutional challenges. The FCC’s
approach to community broadband, particularly as it implicates the authority of states, involves
issues under Gregory v. Ashcroft’s “plain statement” rule and, in some cases, the Tenth
Amendment.173
Background
Municipal broadband or community broadband refers generally to any arrangement in which a
local government participates in the provision of high-speed internet service to members of its
community.174 Government participation can range from public-private partnerships to broadband
cooperatives or publicly owned networks. The Institute for Local Self-Reliance identifies more
than 560 communities in the United States served by some form of municipal broadband.175
168 Id. at 708–09.
169 Id. at 711.
170 Id. at 715; see 47 U.S.C. § 544(c).
171 City of Eugene v. FCC, 998 F.3d at 715. Though the Sixth Circuit focused on the mixed-use rule as applied to the
City of Eugene, the court’s reasoning suggests that it may uphold similar FCC attempts to preempt state and local
“mixed-use” requirements based on the FCC’s theory that these requirements are inconsistent with Title VI.
172 Id. at 710.
173 See Gregory, 501 U.S. at 460 (articulating the “plain statement” rule); U.S. CONST. amend. X (reserving to the states
“[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States”).
174 For more background on community broadband generally, see CRS Report R44080, Municipal Broadband:
Background and Policy Debate, by Lennard G. Kruger and Angele A. Gilroy (2017).
175 Community Network Map, CMTY. BROADBAND NETWORKS, https://muninetworks.org/communitymap (last visited
Apr. 25, 2025).
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The FCC has historically been supportive of community broadband. In its 2010 National
Broadband Plan, the Commission noted that restricting deployment of community broadband “in
some cases restricts the country’s ability to close the broadband availability gap.”176 As early as
2000, the Commission favorably acknowledged direct public investment in broadband
infrastructure by municipalities.177
FCC Action and Statutory Authority
A number of states currently restrict municipal participation in the provision of broadband
service. Some states, such as Nebraska, directly prohibit local governments from participating in
the provision of broadband service.178 Other states require municipalities to obtain a certain
amount of local support in a referendum before offering broadband service.179 Some states, such
as Utah, require municipalities to undergo a series of steps before they may provide broadband
service.180
Nixon v. Missouri Municipal League
In several instances, municipalities have petitioned the FCC to preempt state laws that restrict
municipal participation in broadband or telecommunications. One of the earliest of these petitions
involved a Missouri law, passed in 1997, that prohibited municipalities from providing
“telecommunications service.”181 Municipalities petitioned the FCC to preempt this law under
section 253, which, as mentioned, enables the FCC to preempt state or local requirements that
“may prohibit or have the effect of prohibiting the ability of any entity to provide” a
telecommunications service.182 The FCC, however, declined to preempt the Missouri law based
on its understanding that section 253’s reference to “any entity” does not extend to political
subdivisions of a state.183 The FCC relied on the “clear statement” rule of Gregory v. Ashcroft in
reaching this conclusion, determining that an intent to apply section 253 to political subdivisions
was not sufficiently clear from the statute’s text to support abrogating the state’s power.184 The
case reached the Supreme Court, which affirmed the FCC’s decision in the Nixon v. Missouri
Municipal League.185 Writing for the majority, Justice Souter invoked the Court’s “working
assumption that federal legislation threatening to trench on the States’ arrangements for
conducting their own governments should be treated with great skepticism” in the absence of the
176 FCC, CONNECTING AMERICA: THE NAT’L BROADBAND PLAN 169 (2010), https://transition.fcc.gov/national-
broadband-plan/national-broadband-plan.pdf.
177 FCC, DEPLOYMENT OF ADVANCED TELECOMMUNICATIONS CAPABILITY: SECOND REPORT 61, 63-64, 72–73, ¶¶ 140,
150, 181-82 (2000), https://transition.fcc.gov/Bureaus/Common_Carrier/Orders/2000/fcc00290.pdf.
178 NEB. REV. STAT. § 86-594 (2025).
179 E.g., MINN. STAT. § 237.19 (2025).
180 UTAH CODE ANN. § 10-18-202 (West 2025).
181 MO. ANN. STAT. § 392.410 (West 2024). The law explicitly carves out “internet-type services” from its application.
Id.
182 See 47 U.S.C. § 253; see supra “FCC Statutory Authority and Procedure.”
183 Mo. Mun. League, 16 FCC Rcd. 1157, 1162, ¶ 9 (2001). Three of the five commissioners, including then-Chairman
William Kennard, urged Congress to clarify its intention in section 253 with respect to prohibitions on entry by
municipal utilities. Id. at 1172–73.
184 Id. at 1169, ¶ 19.
185 541 U.S. 125 (2004).
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plain statement required under Gregory.186 Justice Souter observed that section 253’s reference to
“any entity” is susceptible to multiple readings and therefore insufficiently clear.187
Tennessee v. FCC
The cities of Wilson, North Carolina and Chattanooga, Tennessee later brought petitions to
preempt state laws restricting the development of municipal broadband in their respective states.
Tennessee permits any municipality operating an electric plant to offer cable, video, and internet
services only “within its service area.”188 North Carolina similarly restricts city-owned
communications providers to providing service “within the corporate limits of the city providing
the communications service.”189 Both Wilson and Chattanooga sought to expand coverage of their
broadband networks beyond what state law would permit and asked the FCC to preempt their
respective state’s law to allow expansion.
The Commission granted the cities’ petitions, relying on section 706 of the Telecommunications
Act of 1996.190 Section 706 provides, in relevant part:
The Commission . . . shall encourage the deployment on a reasonable and timely basis of
advanced telecommunications capability to all Americans . . . by utilizing, in a manner
consistent with the public interest, convenience, and necessity, price cap regulation,
regulatory forbearance, measures that promote competition in the local
telecommunications market, or other regulating methods that remove barriers to
infrastructure investment.191
Though section 706 does not explicitly mention preemption of state law, the FCC interpreted
“regulating methods that remove barriers to infrastructure investment” to “undoubtedly” include
preemption.192 The Commission squared this interpretation with the Supreme Court’s decisions in
Gregory and Nixon by determining that the “clear statement” rule did not apply to issues of
“federal oversight of interstate commerce,” rather than direct limitations on state government.193
In the Commission’s view, “the question . . . is not whether the municipal systems can provide
broadband at all, but rather whether the states may dictate the manner in which interstate
commerce is conducted and the nature of competition that should exist for interstate
communications.”194 The FCC therefore preempted the Tennessee and North Carolina laws, but
emphasized that it would only preempt state laws in instances where a state chooses to permit
municipalities to provide broadband and limits the municipalities’ exercise of that authority.195
Following a petition for review from Tennessee and North Carolina, the Sixth Circuit overturned
the Commission in Tennessee v. FCC.196 Contrary to the Commission’s determinations, the court
determined that the clear statement rule applied to the FCC’s exercise of preemption authority
186 Id. at 140.
187 Id.
188 TENN. CODE. ANN. § 7-52-601 (West 2025).
189
N.C. GEN. STAT. ANN. § 160A-340.1(a)(3) (West 2024).
190 30 FCC Rcd. 2408 (2015).
191 47 U.S.C. § 1302.
192 30 FCC Rcd. at 2411–12, 2468–69, ¶¶ 9, 145.
193 Id. at 2412, 2472–74, ¶¶ 12, 154–58; see United States v. Locke, 529 U.S. 89, 107–08 (2000) (“an ‘assumption’ of
nonpre-emption [sic] is not triggered when the State regulates in an area where there has been a history of significant
federal presence”).
194 30 FCC Rcd. at 2412, ¶ 12.
195 Id., ¶ 11.
196 832 F.3d 597 (6th Cir. 2016).
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under section 706. The court noted that, as in Nixon, Tennessee and North Carolina had “made
discretionary determinations for their political subdivisions” by passing the laws at issue.197 The
FCC’s distinction between preempting state authority over political subdivisions and preempting
regulation in a traditionally federal space was, the Sixth Circuit determined, a false one: the court
noted that the Tennessee and North Carolina laws “implicate core attributes of state sovereignty
and regulate interstate communications,” rather than one or the other.198 Having determined that
the clear statement rule applied, the court held that section 706 does not include a clear statement
authorizing preemption of Tennessee and North Carolina’s laws.199 The court maintained,
however, that its holding did not address whether section 706 provides any preemptive authority
at all or whether Congress could, consistent with the Constitution, provide the FCC with the
power to preempt state laws regulating municipal broadband.200
Constitutional Issues
The courts in Nixon and Tennessee both relied on the “clear statement” rule to determine that
Congress had not delegated to the FCC the power to preempt state restrictions on municipally
owned broadband or communications networks. Consequently, neither court reached the issue of
whether such a delegation would be constitutional.
The United States operates as “a system of dual sovereignty between the States and the Federal
Government.”201 Within this system, states “retain substantial sovereign authority” over those
aspects not delegated to the federal government by the Constitution.202 Among the reserved rights
under this state sovereign authority is the right to manage state government through the creation
of political subdivisions.203 Relatedly, the Supreme Court has observed that a municipal
government “has no privileges or immunities under the Federal Constitution which it may invoke
in opposition to the will of its creator.”204 Political subdivisions, in other words, are arms of a
state without any sovereign authority of their own, absent a delegation of such power from a
state.205
Because the Nixon and Tennessee courts determined the FCC lacked a “plain statement” of
authority to preempt state restrictions on municipal broadband and telecommunications services,
neither court discussed whether such a grant of authority—if made plainly—would be
constitutionally permissible. Federal courts have upheld federal legislation that permits
municipalities to take actions contrary to state law in other contexts.206 The Nixon court indirectly
197 Id. at 611.
198 Id. at 612.
199 Id. at 613.
200 Id.
201 Gregory, 501 U.S. at 457.
202 Id.; see U.S. CONST. amend. X.
U.S. CONST. amend. X; see Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 607–08 (1991) (“The principle is
well settled that local ‘governmental units are created as convenient agencies for exercising such of the governmental
powers of the State as may be entrusted to them . . . in [its] absolute discretion.’” (quoting Sailors v. Bd. of Ed. of Kent
Cty., 387 U.S. 105, 108 (1967) (alteration in original))); City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536
U.S. 424, 437 (2002) (“Whether and how to [allocate municipal authority] is a question central to state selfgovernment.”).
204 Williams v. Mayor of Balt., 289 U.S. 36, 40 (1933).
205 See Hunter v. Pittsburgh, 207 U.S. 161, 178–79 (1907) (“The number, nature, and duration of the powers conferred
upon [municipal corporations] rests in the absolute discretion of the state.”)
206 See, e.g., Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257–61 (1985) (holding that a
(continued...)
203
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suggested that a clear statement might be sufficient to support such preemption.207 Because these
constitutional issues remain unaddressed, any legislative action taken to preempt state restrictions
on community broadband may be subject to constitutional scrutiny.
Voice over Internet Protocol (VoIP)
Similar to its approach to internet access itself, the FCC has taken a hands-off approach to
regulating internet enabled communications—most notably VoIP, which enables users to make
voice calls using the internet. As discussed further below, the FCC has not clearly taken a position
on whether VoIP is a telecommunications service or an information service. The Commission has
nonetheless used its ancillary authority to impose some requirements on VoIP services, and it has
preempted state laws that would impose more regulations.208 Courts have, thus far, upheld the
FCC’s preemption of such state laws.209
Background
The FCC first addressed the rise of “IP-enabled services” in a Notice of Proposed Rulemaking
issued on March 10, 2004.210 In this notice, the Commission observed that services and
applications provided over the internet were becoming competitive with, and potentially
replacing, services traditionally provided by incumbent telecommunications carriers.211 Since
issuing its Notice of Proposed Rulemaking, the Commission has relied on its ancillary authority
to extend several Title II requirements to VoIP service providers when the service interfaces with
the public switched telephone network.212 Most recently, on December 13, 2019, the FCC issued a
notice seeking comment on whether truth-in-billing requirements should extend to VoIP
providers.213 Since issuing its first notice, the FCC has not affirmatively classified VoIP as either a
“telecommunications service” or an “information service,” instead relying on VoIP’s interstate
nature and the Commission’s various statutory responsibilities to regulate VoIP through its
ancillary authority.214
federal statute authorizing local government to spend payments “for any governmental purpose” preempts state statute
requiring such funds to be spent in a particular manner); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 324–
26, 341 (1958) (permitting city’s exercise of eminent domain over state-owned lands to construct federally authorized
dam).
207 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004) (observing that “in some instances,” preemption of a state
restriction on municipal activity might “operate straightforwardly to provide local choice”).
208 Vonage Holdings Corp., 19 FCC Rcd. 22404, 22411, ¶ 14 (2004) (relying on “impossibility” preemption to preempt
a state regulatory order).
209 See Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir. 2009); Charter Advanced
Servs. (MN) LLC v. Lange, 903 F.3d 715, 719 (8th Cir. 2018).
210 IP-Enabled Services, 19 FCC Rcd. 4863 (2004).
211
See id. at 4865–67.
212 E.g., IP-Enabled Services, E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245 (2005)
(requiring VoIP providers to supply 911 emergency calling capabilities); Universal Service Contribution Methodology,
21 FCC Rcd. 7518 (establishing universal service contribution obligations for VoIP providers); Implementation of the
Telecommunications Act of 1996, 22 FCC Rcd. 6927 (2007) (extending consumer privacy requirements to VoIP
providers); IP-Enabled Services, 22 FCC Rcd. 11275 (2007) (extending Telecommunications Relay Service
requirements to VoIP providers).
213 FCC, Public Notice on Proposed Rule That Consumer and Governmental Affairs Bureau Seeks to Refresh the
Record on Truth-in-Billing Rules To Ensure Protections for All Consumers of Voice Services (Dec. 13, 2019),
https://docs.fcc.gov/public/attachments/DA-19-1271A1.pdf.
214 See infra “State Action and Legal Challenges.”
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State Action and Legal Challenges
As discussed, the Communications Act creates a model of “dual federalism” over the nation’s
communications networks. To the extent the FCC relies on its ancillary authority, it may not
regulate purely intrastate communications, which remain the province of the states.215 Under the
FCC’s “impossibility exception,” however, the FCC may use its ancillary authority to displace
state regulation when state regulation affects both intrastate and interstate communications and
distinguishing between intrastate and interstate effects is impossible or impractical.216
Some states have addressed VoIP through regulation. In 2005, Florida became the first state to
deregulate VoIP.217 In 2003, conversely, the Minnesota Public Utilities Commission issued an
order requiring Vonage, a VoIP provider, to comply with state common carrier regulations.218
Vonage petitioned the FCC for review of Minnesota’s order, and the FCC issued an order (Vonage
Order) on November 12, 2004 concluding that Vonage was not subject to Minnesota’s common
carrier regulations.219 The FCC reached this conclusion under its theory of “impossibility”
preemption, stating that intrastate communications made over VoIP were practically
indistinguishable from interstate communications.220 The FCC further noted that state regulation
of VoIP directly conflicted with the FCC’s “pro-competitive deregulatory rules and policies.”221
The FCC also stated that this would be true regardless of whether VoIP were classified as an
“information service” or a “telecommunications service.”222 Minnesota challenged the FCC’s
order in federal court, where the Eighth Circuit upheld the order on the grounds that the FCC’s
exercise of “impossibility” preemption was not arbitrary or capricious.223
Because the FCC has declined to classify VoIP as either a telecommunications service or an
information service, and has instead relied on its ancillary authority and “impossibility”
preemption to displace state action, states have continually explored the boundaries of
permissible state regulation. For example, Nebraska attempted to require VoIP providers to collect
state Universal Service Fund fees, arguing that the Vonage Order preempted only “traditional
telephone company” regulations.224 Federal courts, however, routinely affirm the FCC’s power to
preempt these regulations using “impossibility” preemption.225 By contrast, at least one federal
court has taken a different approach. In Charter Advanced Services (MN) LLC v. Lange, the
Eighth Circuit held that VoIP is an “information service” under the Communications Act and is
therefore not subject to Title II regulation.226 The court then restated an earlier conclusion of the
Eighth Circuit—that “any state regulation of an information service conflicts with the federal
215 See supra “The FCC’s Jurisdictional Authority” for more discussion of “impossibility” preemption.
216 Id.
217 FLA. STAT. ANN. § 364.01(3) (West 2024); id. § 364.011(3).
218 In re Complaint of the Minn. Dep’t of Commerce Against Vonage Holding Corp. Regarding Lack of Authority to
Operate in Minn., No. P-6214/C-03-108, 2003 WL 22336092 (Minn. P.U.C. Sept. 11, 2003), enjoined by Vonage
Holdings Corp. v. Minn. Pub. Utils. Comm’n, 290 F. Supp. 2d 993 (D. Minn. 2003).
219
Vonage Holdings Corp., 19 FCC Rcd. 22404 (2004).
220 See id. at 22412, ¶ 15.
221 Id. at 22415, ¶ 20.
222 Id. at 22415–17, ¶¶ 20–22.
223 Minn. Pub. Utils. Comm’n v. FCC, 483 F.3d 570, 578–79 (8th Cir. 2007).
224 Vonage Holdings Corp. v. Neb. Pub. Serv. Comm’n, 564 F.3d 900, 904 (8th Cir. 2009) (preempting state
regulation).
225 See, e.g., id.; N.M. Pub. Regul. Comm’n v. Vonage Holdings Corp., 640 F. Supp. 2d 1359, 1370 (D.N.M. 2009)
(dismissing declaratory judgment action by state requiring Vonage to pay into New Mexico Universal Service Fund).
226 903 F.3d 715, 719 (8th Cir. 2018).
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policy of nonregulation”—in holding that because VoIP is an information service, no state
regulation would stand.227
As discussed supra, the FCC attempted in 2018 to preempt state regulation of BIAS—another
“information service”—to no avail.228 The FCC’s bases for preemption invalidated in Mozilla v.
FCC closely track those articulated in the VoIP context: the “federal policy of deregulation for
information services” and “impossibility” preemption.229 When the Supreme Court denied review
in Charter Advanced Services, Justice Clarence Thomas authored a concurrence to express his
doubt that a federal policy of nonregulation could preempt state regulation.230 Justice Thomas
explained that the constitutional source of preemption authority, the Supremacy Clause, “requires
that pre-emptive [sic] effect be given only to those federal standards and policies that are set forth
in, or necessarily flow from, the statutory text that was produced through the constitutionally
required bicameral and presentment procedures.”231 Consequently, allowing an agency policy of
nonregulation to have preemptive effect “authorizes the Executive to make ‘Law’ by declining to
act, and it authorizes the courts to conduct ‘a freewheeling judicial inquiry’ into the facts of
federal nonregulation.”232
VoIP differs from BIAS, however, in that VoIP services frequently use telephone numbers and
connect users to traditional telecommunications networks. On this basis, the FCC has relied on its
ancillary authority to affirmatively regulate VoIP providers, in contrast to its approach to BIAS.233
Whereas the Mozilla court did not find BIAS to fall under any FCC jurisdictional authority absent
a classification as a Title II “telecommunications service,” the FCC has repeatedly relied on its
ancillary jurisdiction to regulate VoIP without facing legal challenges for doing so.234
Wireless Facility Siting for Fifth Generation (5G) Networks
Lastly, preemption has also played a leading part in the FCC’s stated efforts to speed the
deployment of 5G wireless infrastructure. The infrastructure necessary to support 5G wireless
networks involves, in part, the placement of “small cell” wireless equipment on new monopoles
or existing structures, including municipally owned property. In 2018, the FCC acted to preempt
state and local regulations regarding the placement of small cells when such regulations
“materially inhibit” the deployment of 5G infrastructure. The Commission also set “shot clocks”
that control the timeframe in which local governments must review applications for small cell
siting.
In 2020, the FCC clarified its rules requiring state and local governments to approve requests to
modify existing wireless facilities when the modification “does not substantially change the
227 Id. (quoting Minn. Pub. Utils. Comm’n, 483 F.3d at 580).
228 See supra “Broadband Regulation.”
229 Compare Mozilla v. FCC, 904 F.3d 1, 76–80 (D.C. Cir. 2019) with Charter Adv. Servs., 903 F.3d at 719; see also
Minn. Pub. Utils. Comm’n, 483 F.3d at 576.
230 Lipschultz v. Charter Adv. Servs. (MN), LLC, 140 S. Ct. 6 (2019) (Mem.) (Thomas, J., concurring).
231 Id. at 7 (quoting Wyeth v. Levine, 555 U.S. 555, 586 (2009) (Thomas, J., concurring).
232 Id. at 7–8 (quoting Wyeth, 555 U.S. at 588 (Thomas, J., concurring). Justice Thomas nonetheless concurred in the
denial of certiorari because the petition did not raise the basis of preemption. Id.
233 See, e.g., 47 C.F.R. § 9.11 (2025) (requiring interconnected VoIP service providers to provide 911 service); 47
C.F.R. § 54.706 (requiring interconnected VoIP providers to contribute to federal universal service support
mechanisms); 47 C.F.R. § 64.604 (requiring VoIP contributions to Telecommunications Relay Service fund).
234 E.g., IP-Enabled Services E911 Requirements for IP-Enabled Service Providers, 20 FCC Rcd. 10245, 10261–66,
¶¶ 26–35 (2005).
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physical dimensions” of the facility. The Ninth Circuit has largely (but not entirely) upheld these
actions, as discussed further below.
Technical Background
Mobile wireless services function by transmitting information between devices over radio waves
through a network of antennae and similar equipment. Each node in these networks is a cell site: a
collection of communications equipment capable of receiving and transmitting wireless signals
over a given area (a cell).
In legacy networks (e.g., 3G, 4G), telecommunication providers use macro cell sites (e.g., tall
towers, antennas, radio equipment) to provide coverage over wide areas. 5G networks leverage
4G macro cell sites but also rely on “small cells” with coverage areas of hundreds of feet.235
Because the coverage area is small, an effective 5G network requires placement of a large number
of cell sites in close proximity to each other. These small cell sites are much smaller than those
that support extant wireless networks and may therefore be attached to monopole masts or
existing structures, rather than requiring construction of freestanding macro cell towers.236
State and Local Authority
Constructing wireless facilities or attaching wireless equipment to existing structures generally
requires some sort of government approval depending on who controls the site of construction.
With the exception of federal lands, state or local authorities manage construction projects. For
cell site projects, typical state and local concerns include historical preservation, environmental
protection, public safety, accessibility requirements, and aesthetics.237
To date, a number of states have passed or proposed legislation to speed up the permitting process
for small cell deployment.238 These laws generally address this objective by placing time limits
(or “shot clocks”) on application processing and limiting or capping fees charged by local
authorities for small cell site applications.239 On the other hand, other states and localities have
sought to halt or slow 5G deployment, citing health, environmental, or aesthetic concerns.240
Some localities have further criticized the FCC’s actions preempting state and local authority over
the deployment of wireless infrastructure.241
235 For further technical background, see CRS Report R45485, Fifth-Generation (5G) Telecommunications
Technologies: Issues for Congress, by Jill C. Gallagher and Michael E. DeVine (2018).
236 Small Cell Order, 33 FCC Rcd. 9088, 9089, ¶ 3 (2018); see also 47 C.F.R. § 1.6002(l) (defining “small wireless
facilities”).
237 See generally NAT’L LEAGUE OF CITIES, MUNICIPAL ACTION GUIDE: SMALL CELL WIRELESS TECHNOLOGY IN CITIES 5
(2018), https://www.nlc.org/wp-content/uploads/2018/08/CS_SmallCell_MAG_FINAL.pdf (outlining potential issues
faced by municipalities in managing small cell sites).
238 See Michael T.N. Fitch, Legislation Streamlining Wireless Small Cell Deployment Enacted in 25 States, NAT’L L.
REV. (July 8, 2019), https://www.natlawreview.com/article/legislation-streamlining-wireless-small-cell-deploymentenacted-25-states.
239 E.g., COLO. REV. STAT. §§ 29-27-403, 38-5.5-108 (2025); DEL. CODE ANN. tit. 17, §§ 1605, 1609 (2024).
240 See, e.g., U.S. Policy Action on 5G & 4G Small Cells, Environmental Health Trust, Environmental Health Trust,
https://ehtrust.org/usa-city-ordinances-to-limit-and-control-wireless-facilities-small-cells-in-rights-of-ways/ (collecting
examples of state and local actions to restrict 5G wireless facilities or investigate negative health effects) (last visited
Apr. 17, 2025).
241 See, e.g., Press Release, Nat’l Ass’n of Cntys., Counties, Cities Voice Concern over FCC’s Small Cell Ruling (Sept.
26, 2018), https://www.naco.org/resources/counties-cities-voice-concern-over-fcc-small-cell-ruling.
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FCC Statutory Authority and Procedure
Two provisions of the Communications Act—sections 253 and 332(c)(7)—address how FCC
authority over interstate communications intersects with local land use authority. First, section
253 permits the FCC to preempt enforcement of any act of state or local government that
“prohibit[s] or ha[s] the effect of prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service.”242 It contains two exceptions, however. First, section
253(b) provides that:
[n]othing in this section shall affect the ability of a State to impose, on a competitively
neutral basis . . . requirements necessary to preserve and advance universal service, protect
the public safety and welfare, ensure the continued quality of telecommunications services,
and safeguard the rights of consumers.243
Further, section 253(c) reserves to state and local governments “the authority . . . to manage
public rights-of-way or to require fair and reasonable compensation from telecommunications
providers, on a competitively neutral and nondiscriminatory basis” for use of such rights of
way.244
Similar to section 253, section 332(c)(7) prohibits state and local governments from using local
zoning authority in a manner that “prohibit[s] or ha[s] the effect of prohibiting the provision of
wireless services.”245 It further prohibits state and local governments from “unreasonably
discriminat[ing] among providers of functionally equivalent services,” and it requires them to
“act on any request for authorization to place, construct, or modify personal wireless service
facilities within a reasonable period of time.”246 It also prohibits them from unreasonably
discriminating against providers of functionally equivalent services and from regulating the
placement, construction, and modification of wireless service facilities based on the
environmental effects of radio emissions.247 Apart from these requirements, section 332(c)(7)
preserves state and local authority over decisions regarding the “placement, construction, and
modification of personal wireless service facilities.”248
Both of these statutes provide mechanisms through which a party subject to a state or local
regulation (e.g., a wireless service provider) may challenge the requirement. Section 253 permits
parties to file a petition with the FCC to preempt enforcement of a state or local requirement that
allegedly violates the section.249 Section 332 allows such a party to bring an action in federal
court seeking preemption of a state or local regulation.250
Section 332(c)(7) does not, however, expressly empower the FCC to preempt state and local
requirements that conflict with section 332(c)(7)’s limitations (except for the limitation on
regulating based on environmental effects).251 In the past, courts have rejected arguments that the
242 47 U.S.C. § 253(a), (d); see supra “Overview of the FCC’s Preemption Authority Under the Communications Act.”
243 Id. § 253(b).
244
Id. § 253(c).
245 Id. § 332(c)(7)(B); see supra “Overview of the FCC’s Preemption Authority Under the Communications Act.”
246 Id. §§ 332(c)(7)(B)(i)(II), 332(c)(7)(B)(ii).
247 Id. §§ 332(c)(7)(B)(i)(I), 332(c)(7)(B)(iv).
248 Id. § 332(c)(7)(A).
249 Id. § 253(d); see also 47 C.F.R. § 1.1.
250 47 U.S.C. § 332(c)(7)(B)(v).
251 Id. § 332(c)(7)(B)(v) (“Any person adversely affected by an act or failure to act by a State or local government or
any instrumentality thereof that is inconsistent with [the clause prohibiting state and local governments from regulating
(continued...)
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FCC lacks the authority to adopt rules implementing section 332(c)(7)’s limitations. These court
decisions, however, held that section 332(c)(7) was ambiguous and applied the now-defunct
Chevron doctrine to defer to the FCC’s assertion of implementing authority.252 Because Chevron
has since been overruled,253 the FCC’s implementing authority over section 332(c)(7) might be
challenged, should the agency adopt new rules implementing this provision.
In addition to these statutory provisions, section 6409(a) of the Spectrum Act of 2012254 requires
that state and local governments approve any request to modify an existing wireless facility “that
does not substantially change the physical dimensions” of the facility.255 While this provision
does not direct the FCC to preempt state action or provide a mechanism for parties to challenge
state action, as sections 253 and 332 do, section 6409(a) is enforced by the Commission and
therefore the Commission may promulgate regulations implementing it.256
The FCC’s Orders
In 2018, the FCC issued two orders addressing state and local authority over small cell siting. The
first of these orders prohibits localities from instituting moratoria on processing applications
relating to telecommunications infrastructure deployment, including cell sites (Moratorium
Order).257 The second order states the FCC’s position that a state or local requirement “effectively
prohibits” the provision of services articulated in sections 253 and 332 when such requirement
“materially inhibits” the deployment of telecommunications facilities (Small Cell Order).258 In
2020, the FCC issued a declaratory ruling clarifying its rules implementing section 6409(a) of the
Spectrum Act (June 2020 Declaratory Ruling).259 Recognizing that 5G deployment will not
depend solely on small cells, the June 2020 Declaratory Ruling addresses FCC regulations
governing state and local approval of modifications to existing wireless equipment.260
The Moratorium Order
The FCC stated in the Moratorium Order that “explicit refusals to authorize deployment and
dilatory tactics that amount to de facto refusals to allow deployment” of telecommunications
the placement, construction, and modification of wireless facilities based on the environmental effects of radio
frequency emissions] may petition the Commission for relief.”).
252 City of Arlington, 668 F.3d at 251–52 (5th Cir. 201) (“In sum, we conclude that § 332(c)(7) is ambiguous with
respect to the FCC’s authority to establish the 90- and 150-day time frames. Although the statute clearly bars the FCC
from using its general rulemaking powers under the Communications Act to create additional limitations on state and
local governments beyond those the statute provides in § 332(c)(7)(B), the statute is silent on the question of whether
the FCC can use its general authority under the Communications Act to implement § 332(c)(7)(B)’s limitations.”); see
also Up State Tower Co., 718 F. App’x at 31 n.1 (“We agree with the 5th Circuit that because the two FCC Orders
cited herein are reasonable constructions of § 332(c)(7)(B), they ‘are thus entitled to Chevron deference.’”) (citing City
of Arlington, 668 F.3d at 256).
253 See supra “Broadband Regulation” for a further discussion of the now-overruled Chevron doctrine.
254 Pub. L. No. 112-96, title VI, 126 Stat. 156, 232 (codified as 47 U.S.C. § 1455).
255 47 U.S.C. § 1455(a).
256 See 47 U.S.C. § 1403(a) (directing the FCC to implement and enforce the Spectrum Act “as if [it] is a part of the
Communications Act of 1934”).
257 Moratorium Order, 33 FCC Rcd. 7705 (2018).
258 Small Cell Order, 33 FCC Rcd. 9088 (2018).
259 Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification
Requests, 35 FCC Rcd. 5977 (2020) [hereinafter June 2020 Declaratory Ruling]; see also Acceleration of Broadband
Deployment by Improving Wireless Siting Policies, 30 FCC Rcd. 31, 43, ¶¶ 135–241 (2014) [hereinafter 2014
Infrastructure Order] (promulgating regulations under section 6409(a)).
260 June 2020 Declaratory Ruling, 35 FCC Rcd. at 5978–79, ¶ 2.
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facilities violate section 253.261 The Commission focused both on “express moratoria”—written
legal requirements that prevent or suspend the processing of permits and applications necessary
for deploying wireless facilities—and “de facto moratoria” that effectively prevent or suspend
such processing but are not codified.262 Both express and de facto moratoria, the FCC found,
inherently violate section 253 because such moratoria “prohibit or have the effect of prohibiting”
deployment of facilities necessary to provide telecommunications service.263 The Commission
rejected the argument that such moratoria do not violate Section 253 because they are timelimited, noting that some localities impose “temporary” moratoria without definite end dates or
continually extend such moratoria.264
The FCC also determined that the exceptions in section 253(b) and section 253(c) do not
ordinarily apply to express and de facto moratoria. As mentioned, section 253(b) reserves “the
ability of a State” to impose requirements on a “competitively neutral basis” that are necessary to
“preserve and advance universal service, protect the public safety and welfare, ensure the
continued quality of telecommunications services, and safeguard the rights of consumers.”265 The
Commission reasoned that this exception generally would not apply because it discusses only the
authority of a state, and the absence of any indication that the exception applies to local
government would preclude its application to municipal moratoria.266 Further, the FCC found that
even if local moratoria fell within section 253(b)’s jurisdictional scope, most moratoria would not
meet the exception’s substantive requirements, such as being “competitively neutral” or being
necessary for any of the four “public interest” purposes listed in the subsection.267 The
Commission acknowledged, however, that in “limited situations” a moratoria may be necessary to
“protect the public safety and welfare,” such as in the instance of a natural disaster that results in
a widespread power or telecommunications outage.268
The Commission likewise concluded that section 253(c) does not apply. As mentioned, section
253(c) reserves to state and local governments “the authority . . . to manage public rights-of-way
or to require fair and reasonable compensation from telecommunications providers, on a
competitively neutral and nondiscriminatory basis,” for use of such rights of way.269 Per the
Moratorium Order, section 253(c)’s applicability to a moratorium depends on whether moratoria
may constitute management of public rights-of-way.270 Although section 253 does not define
management of public rights-of-way, past FCC precedent specifies “coordination of construction
schedules, determination of insurance, bonding and indemnity requirements, establishment and
enforcement of building codes, and keeping track of the various systems using the rights-of-way
to prevent interference between them” as examples of public rights-of-way management.271 From
this precedent, the Commission concluded that section 253(c) applies to “certain activities that
261 Moratorium Order, 33 FCC Rcd. at 7775, ¶ 140. Because the Moratorium Order relies on section 253, it applies to
all facilities used in the provision of telecommunications service, not just wireless facilities. Compare 47 U.S.C.
§ 253(a) (applying to any legal requirement that affects “any interstate or intrastate telecommunications service) with
47 U.S.C. § 332(c)(7) (singling out “personal wireless service facilities”).
262 Id. at 7777, 7780, ¶¶ 145, 149.
263 Id. at 7779, 7782, ¶¶ 147, 151.
264 Id. at 7779–80, ¶ 148.
265 47 U.S.C. § 253(b).
266 Moratorium Order, 33 FCC Rcd. at 7782–83, ¶ 154.
267 Id. at 7783-84, ¶¶ 155–56.
268 Id. at 7784-85, ¶ 157.
269 47 U.S.C. § 253(c).
270 Moratorium Order, 33 FCC Rcd. at 7786, ¶ 159.
271 Id. at 7786, ¶ 160 (quoting TCI Cablevision of Oakland Cty., 12 FCC Rcd. 21396, 21441, ¶ 103 (1997)).
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involve the actual use of the right-of-way,” rather than activities that preclude access to the rightof-way at all.272 Thus, the FCC held that section 253(c) did not apply to moratoria.
The Small Cell Order
In comparison to the relatively narrow issue addressed in the Moratorium Order, the Small Cell
Order deals with a wide range of topics relating to state and local government authority to slow
the deployment of small wireless facilities. Most notably, the Small Cell Order addresses (1)
when state or local actions “prohibit or effectively prohibit” the provision of wireless service, and
(2) the timeframes within which state and local governments must act on small cell applications.
With respect to the first issue, and in contrast to the Moratorium Order, the FCC based the Small
Cell Order on sections 253 and 332—both of which include the same “prohibit or effectively
prohibit” language. The Small Cell Order applied the “prohibit or effectively prohibits” language
to reach three rulings.
•
•
•
The appropriate standard for determining whether state or local conduct
“prohibit[s] or effectively prohibit[s]” the provision of service under sections 253
or 332 is whether the conduct “materially limits or inhibits the ability of any
competitor or potential competitor to compete in a fair and balanced legal and
regulatory environment.”273
State and local fees associated with the deployment of wireless infrastructure
only comply with this “materially limits or inhibits” standard if they are nondiscriminatory and reasonably approximate the state or locality’s reasonable
costs.274
Aesthetic requirements only comply with the “materially limits or inhibits”
standard if they are reasonable, non-discriminatory, “objective and published in
advance.”275
With respect to the appropriate standard, the FCC relied on FCC precedent that first articulated
the “materially inhibit” standard.276 The Commission further adopted the interpretations of the
First, Second, and Tenth Circuits, which held that a legal requirement can meet the “materially
inhibit” standard even if it does not present an “insurmountable barrier” to the entry or provision
of wireless services.277 The FCC determined that wireless service is “materially inhibited” not
only when legal requirements materially inhibit the introduction of wireless service, but also
when legal requirements materially inhibit improvement of existing services, such as by
densifying an existing network.278
Regarding fees, the Commission concluded that fees “materially inhibit” the provision of wireless
service unless they reasonably approximate the state or local government’s costs, take into
272 Id. at 7786–87, ¶ 160.
273 Small Cell Order, 33 FCC Rcd. 9088, 9102, ¶ 35 (2018) (quoting California Payphone Ass’n, Petition for
Preemption of Ordinance No. 576 NS of the City of Huntington Park, Cal., 12 FCC Rcd. 14191, 14206, ¶ 31 (1997)
[hereinafter California Payphone]).
274 Id. at 9112–13, ¶ 50.
275 Id. at 9132, ¶ 86.
276 Id. at 9102, ¶ 35 (citing California Payphone, 12 FCC Rcd. at 14206, ¶ 31).
277 Id.; see, e.g., TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002); P.R. Telephone Co. v.
Municipality of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006); RT Commc’ns v. FCC, 201 F.3d 1264, 1268 (10th Cir.
2000).
278 Small Cell Order, 33 FCC Rcd. at 9104, ¶ 37.
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account only “objectively reasonable costs,” and are “no higher than the fees charged to similarlysituated competitors in similar situations.”279 The FCC relied in part on the text of section 253(c),
which permits state and local governments to collect “fair and reasonable compensation from
telecommunications providers, on a competitively neutral basis, for use of public rights-of-way
on a nondiscriminatory basis.”280 The FCC did not decide whether section 253(a) preempts all
fees not expressly reserved by section 253(c), but concluded that, in the context of small wireless
facilities, otherwise “small” fees may materially inhibit facility deployment when considered in
the aggregate, given the expected volume of small wireless facilities.281 The Commission also
identified a “safe harbor” of presumptively valid fees, including a $500 “upfront” application fee
for up to five small wireless facilities or a $1,000 non-recurring fee for a new utility pole, and
$270 per small wireless facility per year for all recurring fees.282
Addressing aesthetic requirements, the FCC noted that such requirements impose additional costs
on wireless providers and therefore may materially inhibit the provision of wireless service in
violation of sections 253 and 332.283 The FCC concluded that the harms aesthetic requirements
are meant to address are analogous to the “costs” borne by state and local governments and
therefore aesthetic requirements that are reasonably directed at resolving these harms would be
permissible.284 To meet this standard, the aesthetic requirements (1) must be reasonable, (2) must
not burden small wireless facilities more than similar infrastructure deployments, (3) must be
objective (i.e., “incorporate clearly-defined and ascertainable standards, applied in a principled
manner”), and (4) must be published in advance.285
Lastly, in addition to clarifying when state or local actions “prohibit or effectively prohibit”
wireless service under sections 253 and 332, the Small Cell Order separately set forth “shot
clocks” governing review of applications for wireless facilities. The Commission set a time limit
of sixty days for attachment of a small wireless facility to an existing structure and ninety days
for a new structure.286 For authority, the FCC relied on section 332(c)(7)’s requirement that
localities “act on any request for authorization to place, construct, or modify personal wireless
service facilities within a reasonable time,” as well as on that section’s “prohibit or effectively
prohibit” language.287 The Small Cell Order explains that in situations where a jurisdiction misses
the shot clock deadline, the applicant should, in most cases, be able to obtain expedited relief in
court under section 332(c)(7), which directs courts to decide suits brought by any adversely
affected person on an “expedited basis.”288 According to the Order, in such cases, applicants
should have a relatively low hurdle to clear in establishing a right to expedited judicial relief,”
since missing the shot clock would amount to a presumptive violation of section 332(c)(7).289
279 Id. at 9112–13, ¶ 50.
280 Id. at 9113–14, ¶ 52 (citing 47 U.S.C. § 253(c)).
281 Id. at 9114, ¶ 53.
282 Id. at 9129, ¶ 79.
283 Id. at 9132, ¶ 87.
284 Id.
285 Id. at 9132, ¶¶ 87–88.
286 Id. at 9092, ¶ 13.
287 Id. at 9148–49, ¶¶ 117–118.
288 Id. at 9149, ¶ 120.
289 Id.
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The June 2020 Declaratory Ruling
In 2014, the Commission issued rules implementing section 6409(a) (2014 Infrastructure
Order).290 Under section 6409(a), state and local governments must approve any request to
modify an existing wireless facility “that does not substantially change the physical dimensions”
of the facility.291 The FCC’s 2014 rules specify that a modification to a wireless facility
“substantially change[s] the physical dimensions” of the facility if it would “defeat” the
“concealment elements” of the facility or, in the case of wireless towers, increase the height of the
tower by a certain amount.292 The rules also set a sixty-day shot clock for facility
modifications.293 After a coalition of municipalities challenged this order in court, the Fourth
Circuit affirmed the 2014 Infrastructure Order, holding that the Commission had statutory
authority to make its rules and had not defined any terms in section 6409(a) unreasonably.294
The June 2020 Declaratory Ruling sought to clarify the rules implemented by the Commission in
the 2014 Infrastructure Order. Recognizing that localities had inconsistently applied the 2014
Infrastructure Order’s sixty-day shot clock, the FCC stated that the shot clock begins when (1) the
party applying for the modification “takes the first procedural step” required by the local
jurisdiction’s review process, and (2) the applicant demonstrates in writing that the proposed
modification is covered by section 6409(a).295 In addition to addressing the shot clock, the June
2020 Declaratory Ruling further elaborates what qualifies as “substantially chang[ing] the
physical dimensions” of a wireless facility, addressing several definitional ambiguities found in
the regulations issued under the 2014 Infrastructure Order.296 The Declaratory Ruling specified,
for example, when a modification defeats a wireless facility’s concealment elements. The
Declaratory Ruling explained that a “concealment element” makes the wireless facility look like
something else (e.g., a “pine tree, flag pole, or chimney”) but does not include any design to make
the wireless facility less noticeable (e.g., setting it back on a roof so that it cannot be seen).297
Legal Challenges
A number of parties, including state and local governments, utilities, telecommunications
providers, and interest groups have petitioned federal courts for review of the FCC’s orders. In
2020, the Ninth Circuit upheld the bulk of the Small Cell and Moratorium Orders—vacating only
the Small Cell Order’s aesthetic requirements.298 In 2024, the Ninth Circuit largely upheld the
June 2020 Declaratory Ruling, although it invalidated the portion of the Ruling that clarified
when a modification defeats a wireless facility’s concealment elements.299
In the challenges to the Small Cell and Moratorium Orders, state and local governments
challenged the FCC’s action under a number of theories, including a number of evergreen
290 2014 Infrastructure Order, 30 FCC Rcd. 31 (2014) (codified at 47 C.F.R. § 1.6100).
291 47 U.S.C. § 1455(a).
292
47 C.F.R. § 1.6100(b)(7).
293 Id. § 1.6100(c).
294 Montgomery Cty. v. FCC, 811 F.3d 121 (4th Cir. 2015).
295 June 2020 Declaratory Ruling, 35 FCC Rcd. at 5986, ¶ 16.
296 Id. at 5989–99, ¶¶ 24–44; see 47 C.F.R. 1.6100(b)(7) (defining “substantial change” for purposes of section
6409(a)).
297 June 2020 Declaratory Ruling, 35 FCC Rcd. at 5994–98.
298 City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (upholding all of the FCC’s requirements except for
its aesthetic requirements).
299 League of Cal. Cities v. FCC, 118 F.4th 995 (9th Cir. 2024) (per curiam).
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administrative law doctrines such as the “arbitrary and capricious” standard and the now defunct
Chevron deference framework.300 The local governments argued that the FCC’s orders go beyond
what sections 253 and 332 permit and do not articulate administrable standards.301 They further
argued that the orders violated the Constitution by, among other things, compelling them to
enforce or administer a federal regulatory program in violation of the Tenth Amendment.302
In August 2020, however, the Ninth Circuit largely upheld both orders in City of Portland v.
United States.303 As a threshold matter, the Court upheld the FCC’s application of its “material
inhibition” standard to determine when municipal regulations “prohibit or effectively prohibit”
the provision of services under sections 253 or 332.304 The court reasoned that this standard was
consistent with Ninth Circuit precedent and that any differences in the way the FCC now applied
this standard in the 5G context could be “reasonably explained” by the differences in
technology.305 Moving on to the orders’ specific rulings, the court held that the Small Cell Order’s
fee limitations and shot clocks, and the Moratorium Order’s definitions of express and de facto
moratoria, were consistent with the statutory provisions and were not arbitrary or capricious.306
The court vacated and remanded, however, the Small Cell Order’s aesthetics requirements.307 It
reasoned that section 332 “expressly permits some difference in treatment of different providers,
so long as the treatment is reasonable.”308 Consequently, the FCC’s blanket prohibition that
municipalities may not impose aesthetic requirements on small wireless facilities more
burdensome than similar infrastructure deployments was, according to the court, inconsistent with
section 332.309 The court further held that the FCC acted arbitrarily and capriciously by
prohibiting subjective aesthetic requirements.310 The court explained that “aesthetic regulation of
small cells should be directed to preventing the ‘intangible public harm of unsightly or out-ofcharacter deployments,’” and that such harms are, “at least to some extent, necessarily
subjective.”311 Separate from the statutory and administrative law issues, the court rejected the
constitutional arguments advanced by the municipalities.312 Most notably, the court rejected the
argument that the orders violated the Tenth Amendment by requiring the municipalities to
“enforce federal law.”313 The court explained that, rather than “commandeer[ing] State and local
officials in violation of the Tenth Amendment[,]” the orders simply “confer[] on private entities . .
. a federal right to engage in certain conduct subject to only certain (federal) constraints.”314
In addition to the Small Cell and Moratorium Order challenges, a consortium of municipalities in
California and Oregon challenged the June 2020 Declaratory Ruling, alleging that the FCC
300 See Brief for Petitioners, City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (No. 18-72689), ECF No.
62.
301 Id. at 29–34.
302 Id. at 106–16.
303 City of Portland, 969 F.3d at 1020.
304 Id. at 1035.
305 Id.
306 Id. at 1037–39, 1043–45, 1047–48.
307 Id. at 1040–43.
308 Id. at 1040.
309 Id. at 1040–41.
310 Id. at 1042.
311 Id. (quoting Small Cell Order, 33 FCC Rcd. 9088, 9132, ¶ 87 (2018)).
312 Id. at 1048–49.
313 Id. at 1049.
314 Id. (quoting Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 476 (2018)).
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violated the Administrative Procedure Act, the Constitution, and the Communications Act in
issuing it.315 In a 2024 decision, the Ninth Circuit largely rejected these challenges, although it
struck down the portion of the Declaratory Ruling that clarified when a modification defeats a
wireless facility’s concealment elements.316 According to the Ninth Circuit, what the FCC
characterized as a clarification was inconsistent with the 2014 Infrastructure Order because the
Order’s use of the term “concealment element” unambiguously included designs to make the
wireless facility less noticeable.317 This inconsistency meant that the FCC’s purported
clarification was not a mere interpretation but a “legislative rule” (i.e., a new substantive
requirement), which the FCC was required to issue through the APA’s notice-and-comment
process.318 Because the FCC had not followed the notice-and-comment process, the court
invalidated this portion of the Declaratory Ruling.319
Legislative Activity
Several bills from the 116th, 117th, and 118th Congresses addressed state and local authority over
small cell siting. Some of these bills, such as the STREAMLINE Act,320 the WIRELESS
Leadership Act,321 and Title I of the American Broadband Deployment Act of 2023,322 would have
largely adopted the FCC’s conclusions in the Small Cell Order and would have built on the
Order’s requirements by adding a “deemed granted” remedy (i.e., allowing a wireless provider’s
application to be deemed granted after a sufficient period of inaction). Other bills, such as the
Accelerating Broadband Development by Empowering Local Communities Act323 and the
Securing Local Communities Input in Broadband Development Act,324 would have invalidated
the Small Cell Order and Moratorium Order.
Conclusion
The scope of the FCC’s preemption authority is more than an academic issue. The Commission’s
authority to displace state law is central to many of its regulatory initiatives and continues to be
litigated in federal courts. Delineating the contours of the FCC’s preemption authority can
become complex once specific statutory provisions are brought to bear on particular issues. At its
core, however, the analysis involves applying the basic principles of preemption. As with
preemption generally, Congress’s purpose is the ultimate “touchstone” for determining the scope
of the FCC’s preemption authority.325 Courts determine this purpose by examining the FCC’s
regulatory authority and any specific statutory provisions limiting its ability to preempt state
laws.326 Federalism considerations also inform this analysis, with courts on rare occasions
315 Petition for Review, League of Cal. Cities v. FCC, 118 F.4th 995 (9th Cir. 2024) (per curiam) (No. 20-71765), ECF
No. 1.
316 League of Cal. Cities v. FCC, 118 F.4th 995 (9th Cir. 2024) (per curiam).
317 Id. at 1024–28.
318 Id. at 1028.
319 Id. at 1030–31.
320 S. 1699, 116th Cong. (2019).
321 H.R. 1060, 117th Cong. (2021).
322 H.R. 3557, 118th Cong. (2023).
323 H.R. 530, 116th Cong. (2019).
324 H.R. 8082, 118th Cong. (2024).
325 Wyeth v. Levine, 555 U.S. 555, 565 (2009).
326 See, e.g., supra “Overview of the FCC’s Preemption Authority Under the Communications Act.”
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requiring a clear statement from Congress authorizing the FCC to preempt state law in a way that
upsets the usual balance between the state and federal government.327
Any congressional attempts to address the FCC’s authority to preempt may benefit from
consideration of each of these issues. To ensure that the Commission has jurisdictional authority
to preempt, any desired exercise of preemption should arise under a regulatory function delegated
to the FCC—and, should Congress so desire, it may delegate new functions to the FCC by
statute.328 If Congress seeks to address the bounds of specific statutory limits on the
Commission’s preemption authority, it may explicitly spell out those limits. Congress might also
ensure that any preemptive language is a “clear statement” of congressional intent to preempt, so
as to mitigate constitutional concerns in areas that might disrupt the “normal constitutional
balance.”329
Author Information
Chris D. Linebaugh
Legislative Attorney
Eric N. Holmes
Attorney-Adviser (Constitution Annotated)
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
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copy or otherwise use copyrighted material.
327 See, e.g., supra “Clear Statement Rule.”
328 See Mozilla Corp. v. FCC, 940 F.3d 1, 75 (D.C. Cir. 2019).
329 See Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004).
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.