Yet Another Call to Get Permitting Reform Done

Believers in the need for permitting reform received another boost on July 29 when two prominent voices co-authored a letter in Route Fifty calling for significant improvements in obtaining the government permits needed to start virtually all infrastructure projects. Brandon Tatum, CEO of the National Governors Association, and Jonathan Spalter, CEO of USTelecom, correctly note that maintaining global technology leadership will require significant investments in many fields. However, much of the current debate has centered around projects to extend broadband coverage to all Americans. Although both Congress and the Administration have made important strides in this issue, it is not clear that their efforts will result in lower costs or significantly faster permits.

The authors do a good job of putting the problem in perspective. They correctly point out that:

America is entering a period of extraordinary infrastructure need — driven by artificial intelligence, advanced manufacturing and data-intensive technologies. The country will need major expansions in electricity generation, transmission capacity, wireless infrastructure, fiber networks and more, simply to remain competitive, let alone to continue to lead the world and ensure future economic opportunities reach everyone. 

In a previous Perspectives from FSF Scholars, I pointed out the extraordinary demands that AI and related technologies will have on information networks. I also made a powerful argument for permit reform to allow contractors to shorten the time and costs of obtaining government approval to use rights-of-way. This is especially important for broadband projects. With the Administration’s Build America initiative and a $42.45 billion Broadband Equity and Access Deployment (BEAD) program, the pressure to complete projects extending broadband coverage to all Americans is likely to increase. Unjustified permitting costs and delays may well adversely affect the success of these projects. Broadband is part of a larger issue in which bureaucratic conservativism and lack of accountability result in long delays. In some cases, a lack of funds and/or expertise may also be part of the problem. Unfortunately, the cost of these delays is often hidden. Congress and the Administration have taken some positive steps: Senate leaders are discussing a broad bipartisan package for permitting. Most of the focus has been on streamlining the National Environmental Policy Act review process. The House of Representatives has passed reforms including the PERMIT Act and the SPEED Act aiming to set enforceable federal permitting timelines and address judicial review delays. In 2018, the FCC promulgated rules for Small Cells that set maximum time limits for deciding permit requests and restrictions on the fees agencies can charge contractors. It also proposed rules to speed both wireless and wireline deployments. Questions remain whether these good faith efforts will result in meaningful progress in obtaining broadband rights-of-way, let alone permission for other forms of infrastructure. The jury is still out on that. Each effort has been opposed by state and local governments arguing that neither the Communications Act nor the Constitution give Congress or the FCC the power to interfere with their permitting requirements. Although the BEAD program offers state and local governments the promise of broadband expansion, it also imposes a significant demand on local resources. Agencies with tight budgets may face a significant increase in workloads. The BEAD program currently contains $21 billion in unallocated funds. It would make sense to use at least some of that money to help agencies streamline their permitting processes. According to the Route Fifty letter, Massachusetts and West Virginia have implemented significant process improvements that could be extended to other jurisdictions. Most of "Build America’s future lies in its own hands. Subjecting projects to unnecessary costs and unreasonable delays frustrates the public will. As Tatum and Spalter say: “let’s build.”

Finding a Consensus on Accomplishing Permitting Reform

With the House of Representatives’ failure to schedule a vote on the American Broadband Deployment Act of 2025, we may have reached an impasse, at least for the moment, on achieving additional permitting reform at the state and local levels. Congress has taken several steps forward on reform at the federal level. But these mostly involved changes to the National Environmental Policy Act or the National Historic Preservation Act, the statutes that govern the majority of federal permitting decisions. However, one past attempt at negotiation may offer some lessons.

The success at the federal level led many to conclude that circumstances might be right for a more comprehensive reform to remove obstacles at the state and local levels. On March 24, Representative Buddy Carter (R-GA) introduced H.R. 2289, the American Broadband Deployment Act, which combined provisions from roughly 20 previous bills, including shot clocks and limits on fees, to accomplish broad reform. The bill passed the House Committee on Energy and Commerce and was scheduled to go before the House Rules Committee on April 20^th. However, a vote was indefinitely postponed once it became obvious that the bill lacked the votes to pass. This change in outlook was widely attributed to opposition from a number of associations representing state and local government, including the National Association of Counties and the U.S. Conference of Mayors.

Although Congressman Carter expressed confidence that the bill would pass later this Congress, the debate currently seems to be at an impasse. While the FCC is pursuing permitting reform under its own authority, the timing of any decision is not known and any significant change will be immediately challenged in court, delaying its effect. Meanwhile the significant increase in buildout activity due to the Broadband Equity, Access, and Deployment Program (BEAD) is approaching.

This is a shame because sensible permitting reforms would benefit both broadband providers and local governments. To start, unnecessary time and costs delay the build-out and use of broadband coverage to local households. Coverage in turn is firmly linked to greater economic activity and higher living standards. In the short-run permitting also increases local demand for skilled labor. So far much of the debate has been confined to anecdotes regarding specific experiences and limitations on the FCC’s powers, especially in light of recent Supreme Court decisions. While a list of unreasonable fees, unrelated construction requirements, poor construction planning, and damage to state and local property catches one’s attention, it is probably not the best grounds for determining public policy.

Almost two years ago the Benton Institute for Broadband & Society teamed up with the Georgetown Law Institute for Technology Law & Policy and groups of both Internet supporters and state and local governments to explore the possibility of improving the permitting process in ways that benefit all stakeholders. The effort involved a survey of stakeholders, a one-day conference, and a written report.

The report contained several sensible suggestions for reform. It listed three findings, each of which produced more specific suggestions. First, the parties should foster a partnership between the permit seeker and the permitting authority. They should try to create trust and accountability by meeting early and often and understanding the role of both local government and the proposed development. According to the report, one key issue is determining when any shot clock would start.

Second, the parties should maximize the resources available to the permitting authority. There was a consensus that many permitting agencies lack the resources needed to handle the normal permitting volume, let alone the significant increase expected from BEAD disbursements. Given BEAD’s history and the current delay in announcing how the government will spend approximately $21 billion in non-deployment funds, one should not be surprised if a large number of projects experience significant delays from a variety of causes, placing greater strains on agencies. Given that much of the under capacity may be due to the increase in BEAD-funded construction projects, perhaps using some of the excess to increase local capacity, at least through the surge, makes sense. Providers should also help agencies build public support by articulating the benefits of broadband delivery.

Third, the process should be transparent and consistent. Efforts to modernize the process by allowing builders to download forms, submit applications online, and look up the current status of projects can lower total costs and reduce unnecessary duplication. Modern online dashboards are already being used successfully in some jurisdictions.

In general, and certainly in the abstract, the Benton Institute report recommendations are sensible and merit action. However, they do not address some of the worst abuses regarding permitting at the local government level. These abuses increase the costs of broadband deployment projects and delay the provision of new or improved service to consumers.

Taking the position that state and local governments should face no deadlines, should be able to charge whatever fees they suggest are reasonable, and should be allowed to require substantial unrelated improvements seems like something we should avoid.

Congressman Latta's Bill Would Cut Wireless Permitting Red Tape

On September 4, Representative Bob Latta (R-OH), co-chair of the Rural Broadband Caucus, reintroduced the Winning the International Race for Economic Leadership and Expanding Service to Support (WIRELESS) Leadership Act (the Act). First introduced in February 2021, the Act would "modernize broadband permitting to reduce barriers to deployment."

Among other things, the Act would:

• Establish shot clocks for state and local agencies to act on an application (60 days for the placement of a "small" personal wireless facility using an existing structure, 90 days for other actions relating to a "small" facility or to a larger facility using an existing structure, and 150 days for other actions relating to a larger facility), after which, and upon written notice to the agency, the application would be deemed granted.

• Prohibit "discriminat[ion] among personal wireless service facilities or providers of communications service."

• Ban state and local agencies from exercising their local zoning authority in a manner that would "prohibit or have the effect of prohibiting the provision, improvement, or enhancement of personal wireless services.

• Require that fees be "competitively neutral, technology neutral, and nondiscriminatory"; "established in advance and publicly disclosed"; "calculated based on actual and direct costs" that are "objectively reasonable."

Parties that have been "adversely affected by any final action or failure to act" could seek either expedited judicial relief or administrative relief from the FCC, which would be required to act upon such a request within 120 days.

As Congressman Latta was quoted in the Press Release, "Over the years, billions of dollars have been allocated to expand rural broadband, but without meaningful broadband permitting reform, … all of the federal money will be tied up in burdensome permitting reviews…. " The Act would "streamline state and local permitting, cut through burdensome reviews, and accelerate broadband deployment so more communities can get connected."

Senators Reintroduce Bill for Faster Broadband Permitting on Federal Land

According to reports, on March 5, Senators John Thune, Ben Ray Luján, and John Barrasso reintroduced the Accelerating Broadband Permits Act. The bill's purpose is to improve executive agencies' processing of permit applications to construct communications facilities on federal land. 

As explained in my blog post from August 7, 2024, executive agencies with supervision over federal lands have been found by have problems processing permit applications within the MOBILE NOW Act's 270-day deadline. The Accelerating Broadband Permits Act is intended to help identify instances where the agencies are at risk of missing deadlines deadline and ensure they meet them.

 

The Accelerating Broadband Permits Act isn't a big, wasteful spending bill. It is an agency accountability bill that could help accelerate broadband network on land held in trust or owned by the federal government. Senators Thune, Luján, and Barrasso deserve credit for bringing this bill back. Hopefully, the Act fares better in the 119th Congress and receives timely consideration.

 

(At the time of this blog post, no bill number or link to the bill are available on the Senate's website.) 

House Passes Bills to Improve Broadband Infrastructure Siting on Federal Property

On December 16, the U.S. House of Representatives, by voice votes, passed the Expediting Federal Broadband Deployment Act (H.R. 3293) and the Federal Broadband Deployment Tracking Act (H.R. 3343). Both bills are now in the Senate. Although there do not appear to be any companion bills in the House, perhaps the unanimous passage in the House will prompt the final passage of both measures by the end of the 118th Congress or early in the 119th Congress.  

My May 30, 2023, blog post noted the unanimous passage of both bills by the House Energy and Commerce Committee. That post summarized H.R. 3293 and H.R. 3343:

The Expediting Federal Broadband Deployment Reviews Act [H.R. 3293] would authorize the NTIA to establish an interagency "strike force" to ensure that each Federal land management agency "prioritizes the review of requests for communications use authorizations." The strike force would conduct periodic calls among those agencies and monitor their progress. And within 270 days after the Act becomes law, the NTIA would be required to submit to Congress a report on "the effectiveness of the strike force in ensuring that Federal land management agencies prioritize reviews of requests for communications use authorizations. 

 

The Federal Broadband Deployment Tracking Act [H.R. 3343] would require the NTIA to submit to Congress a plan for the agency to track requests for communications use authorizations on federal property and provide transparency to applications regarding the status of their applications. 

The FCC has long recognized that slow and cumbersome permitting processes can be a major impediment to market entry for communications services, and broadband Internet service providers frequently identify delays and costs associated with obtaining approvals to construct infrastructure on rights-of-way and government property as an impediment to timely and efficient network deployment. If passed into law, H.R. 3293 and H.R. 3343 could help streamline permit approvals and help prevent avoidable delays for infrastructure construction and major upgrades on federal property. Credit is due to the House for passing the bills. Hopefully, the Senate will give H.R. 3293 and H.R. 3343 prompt consideration.

Survey Shows Sharp Increases in Mobile Data, Growth in 5G Home Broadband

On September 10, CTIA released its 2024 Annual Survey. The Survey Highlights report is available online. It shows the strong growth in mobile wireless connections, data usage, cell sites, and 5G Home connections during the year 2023.  

CTIA reported that wireless data traffic in the U.S. grew, as U.S. wireless networks supported 100 trillion MB of traffic last year, up from the nearly 74 trillion MB from the year before. Additionally, nearly 40% of wireless devices were 5G devices, for 216 million total active 5G devices in 2023, and the 558 million total wireless connections were up from 523 million from the year prior. Also, the total number of cell sites in the U.S. grew to 432,469 – up 24% from 2018. This continued growth was supported by annual wireless investment totaling $30 billion in 2023. Regarding 5G Home Broadband – or fixed wireless access (FWA) services – CTIA reported: "Over the past two years, 95% of net new broadband subscribers chose 5G home service—and importantly, 1 out of 5 net 5G home adds were entirely new home broadband subscribers." More stats are contained in the 2024 Annual Survey Highlights.

 

My July 30, 2023, blog post spotlighted CTIA's 2023 Annual Survey Highlights.

 

To fully realize the benefits of 5G connections, more spectrum will need to be available, especially licensed spectrum for commercial wireless uses. In January 2024, Free State Foundation President Randolph May published "Communications Law and Policy Priorities for 2024." One of those priorities is to "Reopen the Spectrum Pipeline and Act to Fill It." As FSF President May explained in a Media Advisory from March of this year, one constructive proposal for doing that is the Spectrum Pipeline Act of 2024 (S.3909).

 

Also, legislation for streamlining and speeding up permit processes for wireless infrastructure construction would help foster continued growth in wireless services and improve as well as increase connections for Americans. My blog post from August 7 identified one measure worth considering, the Accelerating Broadband Permits Act (S.4281), which is intended to help ensure the timely processing of permits for building new wireless infrastructure on federal lands. 

Senate Bill Would Ensure Timely Broadband Infrastructure Builds on Federal Land

On July 29, Senators John Thune, Ben Ray Luján, and John Barrasso introduced the Accelerating Broadband Permits Act. The purpose of the bill is to improve executive agencies’ processing of permit applications for the construction of communications facility installations on federal land. Under the MOBILE NOW Act of 2018, executive agencies with supervision over federal lands have 270 days to make decisions on applications for permits to build towers, antennas, cables, or any other infrastructure associated with wireless or wireline services. An April 2024 Government Accountability Office Report found problems with agencies processing those applications within the deadline. The Accelerating Broadband Permits Act is intended to address those problems and help identify instances where the agencies are likely to fail to meet the deadline and ensure timely processing.

The FCC has long recognized that local permitting processes are often a major impediment to timely broadband access. The Accelerating Broadband Permits Act would help alleviate that impediment on federal lands. The Act appears to be worthwhile legislation that could help accelerate network infrastructure deployment to underserved and unserved Americans. Much land in western states is held in trust or owned by the federal government, and federal agencies must fulfill the responsibilities that come with being a trustee or property owner, not to mention comply with the MOBILE NOW Act. 

 

Senators Thune, Luján, and Barrasso deserve credit for bringing forward this bill. Several billion dollars in subsidies are going to be distributed by NTIA to the states under the Broadband Equity, Access, and Deployment (BEAD) Program to fund new buildouts. The effectiveness of BEAD Program subsidy dollars will depend, to a significant extent, on having workable federal siting policies in place. The 118th Congress should give the Accelerating Broadband Permits Act timely consideration.  

Senate Bill Would Improve Permitting for Broadband Projects on Federal Land

On September 21, Senators John Barrasso and Kyrsten Sinema introduced the Closing Long Overdue Streamlining Encumbrances to Help Expeditiously Generate Approved Permits (CLOSE THE GAP) Act. The purpose of the bill is to make permitting processing faster and more efficient for broadband infrastructure projects on federal lands.

Among other things, the CLOSE THE GAP Act would require federal land management agencies – namely, National Park Service, Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, Bureau of Indian Affairs, and Forest Service  – to adopt new rules for streamlining the process for considering and approving broadband project applications on federal lands. Within a year of the Act becoming law, the Secretary of the Interior would be required to adopt regulations that, the maximum practical extent, require federal land management agency permitting processes be "uniform and standardized." Also, the regulations must require that applications to locate or modify broadband facilities must be granted on a "competitively neutral, technologically neutral, and nondiscriminatory basis." And agency cost recovery fees for locating or modifying facilities must be cost-based. 

 

Additionally, the CLOSE THE GAP Act would make it easier to monitor the status of broadband infrastructure projects by making those projects trackable under the Permitting Dashboard that was established pursuant to the Fixing America's Surface Transportation (FAST) Act of 2015. The Permitting Dashboard is "an online tool for Federal agencies, project developers, and interested members of the public to track" federal environmental reviews and authorization processes for "large or complex infrastructure projects." Additionally, the bill would establish online portals for submissions of Standard Form-299 Applications (SF-299s), which are standard forms required by federal land management agencies in applying for access to rights-of-way, leases, licenses, or permits involving federal lands. 

 

Furthermore, the CLOSE THE GAP Act includes exemptions from the National Environmental Policy Act for broadband infrastructure on federal lands that previously received permit approval as well as exemptions from NEPA and the NHPA for collocations of radio towers on existing towers as well as for removal or replacement of radios on existing towers. These exemptions and others included in the bill would reduce likely unnecessary permitting expenses and delays in building out broadband infrastructure.

 

The permitting process reforms included in the CLOSE THE GAP Act are particularly important in western states like Wyoming and Arizona, where large geographic areas are designated as federal lands. In the past few years, Congress has dedicated over $100 billion to expanding access to broadband services, including about $65 billion in the Infrastructure Investment and Jobs Act of 2021. In order to help ensure that those substantial sums are spent timely and efficiently to bring broadband access to unserved and underserved areas, improved permitting processes should be a priority of Congress. Senators Barrasso and Sinema are to be applauded for introducing the bill. The Senate should give the legislation timely consideration. 

 

The House of Representatives has pending legislation that would streamline permitting processes for broadband deployments on federal lands. For more, see my FSF Blog post from April 23 of this year, "Subcommittee Looks at Legislation Promoting Broadband Infrastructure Buildout," and my May 2023 post, "House Committee Passes Reforms for Broadband Infrastructure Siting on Federal Property." 

 

(Note: A Senate bill number for the CLOSE THE GAP Act has yet been provided. This post will be updated with the number and link to the filed bill when it is made available.)