Tag Archives: permitting

BEAD Rule Changes for Permitting

NTIA issued new General Terms and Conditions dated November 2025 that include dozens of changes to the BEAD rules for recipients, but also changes that impact state Broadband Offices that have wider implications on States. I’m not listing all of the changes here, but there is a great summary of the changes done by the Benton Institute on January 14. This blog will look at the issues related to permitting that have repercussions far outside of the BEAD grant recipients.

In Section 13.D of the revised NTIA Terms and Conditions, State Broadband Offices (SBOs – which are described as Grantees by the NTIA) have a lot of major new obligations related to permitting.

SBOs must “establish procedures to ensure that broadband-related permit applications are promptly accepted, and requests are approved or denied within 90 days”.

In general, SBOs don’t hold a position of authority in State governments to impose rules on anybody other than recipients of grants. Permits for BEAD will mostly mean getting permits to build along existing roads. SBOs are going to have to agree to this requirement, but it’s hard to imagine how an SBO can impose rules for State roads, County roads, Township roads, Municipal roads, roads through Tribal lands, and the biggest challenge – roads passing through federal lands. The goal of getting permits completed within 90 days is great, but it’s hard to think that the small number of people working in SBOs even know the identity of the many permitting authorities in a state, let alone can have any influence, other than perhaps begging, to get BEAD permitting authorities to meet the 90-day deadline. An even bigger challenge is permitting on private land, since a lot of rural roads are privately owned. What can an SBO possibly do to influence private permits?

SBOs must assist “state and local authorities in establishing a single, dedicated point of contact, which has knowledge of the application and review processes, for broadband-related permits.

The key word in this requirement is ‘assist”. Assuming that States even want to go through this process, they vary widely in how this would be achieved. There are States where a Governor might be able to do this. There are States where a State Regulatory Commission might have the authority to tackle this. But in many States, this might require action for a Legislature. What happens in States that don’t undertake the formation of a single, dedicated point of contact?

SBOs must provide technical assistance to permitting agencies to ensure sufficient capacity (e.g., Master Agreement and Consultant Reimbursement Agreement templates, surge support for permit processing, etc.)

This recognizes that local governments often will not have enough staff to quickly process all of the permits required by a BEAD project. SBOs must develop template contracts that can assist a locality if it wants to get help to speed up permitting. But this doesn’t address the issue and time required by local governments when hiring outside vendors. It doesn’t address if a local government has a budget for additional help. Interestingly, this extra funding could come in some states from BED nondeployment funds, assuming there is enough such funding for the purpose.

SBOs must provide “deference to the construction techniques chosen by BEAD Subgrantees (without seeking to influence those decisions), absent any identified safety concerns.

I don’t know if anybody, except perhaps for big ISPs that might have suggested this language to NTIA, really knows what this means, other than allowing construction practices that would otherwise not be allowed by pole owners or by the governments who control the rights-of-way for buried construction. SBOs are being directed to turn their heads to what would normally be non-compliant construction techniques. I’m not sure how pole owners and rights-of-way owners will be expected to comply with this.

SBOs must maximize “streamlined processing through permitting by rule; batch processing of substantially similar permit requests; and waiving or expediting duplicative or burdensome broadband permitting requirements where possible.”

SBOs can certainly promote language that allows batch processing. But, related to the staffing issue addressed earlier, how might a County with little or no staffing be expected to comply with big batches of permits? Even more confounding, are SBOs expected to look at local rules for permitting across the state to identify the ones that are duplicative or burdensome – and what do they do when they identify such rules?

SBOs must follow “FCC rules regarding timelines, rates, terms, and conditions for access to municipally owned poles and conduit for broadband projects – including provisions in the FCC’s rules providing for “one-touch make-ready” and “self-help” – and requiring BEAD Subgrantees that own poles (including cooperatives) to comply with FCC rules across their footprint.”

Around 23 states and D.C. have decided to have their own pole attachment rules, something that has been allowed by federal legislation. While most of these rules are largely the same as the FCC rules, many differ in substantive ways. How can an SBO in a state with its own pole regulation somehow force the State to suddenly follow the FCC rules. The specific requirement cites self-help and one-touch make ready, which are some of rules where States have taken a decidedly different stance than the FCC.

Overall impression of these requirements. SBOs will clearly try to follow these requirements since they must agree to them before they get BEAD funding. But these rules create huge problems for SBOs that don’t have the authority and muscle to impose these rules on the rest of the State and on the many entities that are involved in permitting. To some degree, the severity of these rules, when judged against the practical chance of an SBO accomplishing them, seems like a tool for NTIA to be able to say that any selected State has failed its obligations. I assume that if NTIA tries to withhold funding to a State based on these rules that it will be sued, but that means BEAD goes on hold in that State, to the detriment of the many rural residents relying on better broadband. Interestingly, none of these rules hinders satellite BEAD winners.

Can the FCC Regulate Local Permitting?

ACA Connects, an industry group that represents midsize cable companies and fiber overbuilders, recently asked the FCC to issue regulations to streamline permitting and the acquisition of rights-of-way. For those who lose track of the various industry advocacy organizations, ACA Connects was previously known as the American Cable Association.

The ACA Connects comments were filed in response to the open Notice of Inquiry that asks for comments that can eliminate barriers to wireline deployments. The ACA Connects comments ask the FCC to investigate and regulate three issues. First is the timeline for local communities to respond to a request for rights-of-way or construction permits. ACA Connects members have related stories of communities that sit on requests for months with no response. ACA Connects advocates for a shot clock that requires communities to react within a specified time, similar to what has been required by the FCC for requests for placing a new wireless tower.

Second, the group asks that fees charged for access to rights-of-ways be cost-based and objectively reasonable, and that new ISPs are provided the same treatment that was provided to incumbent providers. There are communities that want large up-front fees to obtain rights-of-way and permits that go far beyond a reasonable value. I’ve often suspected that this is a result of cities losing franchise fees as the cable TV industry continues to lose customers.

ISPs also object to hidden fees and costs. The filing documents examples of unreasonable costs, such as having to bury conduit deeper than is required by industry standards. The filing cites an example where an ISP was asked to repave a full block after disturbing only a small portion of a sidewalk.

It’s worth noting that these are not universal problems, and many communities are welcoming fiber overbuilders with open arms and easing the process of bringing competition to their community. But any ISP understands how unexpected delays and costs for a routine function like obtaining rights-of-ways and permits can delay, and even kill plans to complete a new network project.

ACA Connects recognizes that this would be a big lift for the FCC. Communities are going to strongly resist any efforts to dictate rules for how cities manage and charge for rights-of-way. The FCC has made headway in managing the placement of towers and wireless facilities. But that’s partially because the process of siting a tower is unique. However, rights-of-way rules apply to a lot larger universe than just ISPs. Any changes to the rules will suddenly change the way that cities interact with electric utilities, cable companies, gas utilities, and even the general public who wants to make changes like cutting a new driveway into a busy road.

Local communities view control or rights-of-ways as one of the most important rights of a community and will resist any attempt by a federal agency to change the rules. I predict a huge legal battle if the FCC decides to tackle this. Not that it should matter, but that means that implementing what ACA Connects recommends could take many years and many lawsuits before implementation.

The FCC’s ability to tackle something like this has been weakened by recent Supreme Court rulings. For example, in Loper Bright Enterprises v. Raimondo, the Supreme Court largely ended the Chevron deference and ruled that federal agencies are on shaky ground when they make decisions that are not explicitly directed by Congress. In the 2025 ruling, McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., the Supreme Court ruled that Courts can more easily disagree with rulings made by federal agencies, making it easier for courts to disagree with orders made by the FCC.

Like with many other regulatory issues, the reality of the court rulings means the right forum for fixing these issues is in Congress. But Congress has been conspicuously missing from regulation since the Loper Bright ruling. There is no question that the ISPs that prompted ACA Connects to file these comments are feeling pain in the market. But even if the FCC tackles what they are requesting, there won’t be any quick fixes.

Bottlenecks for BEAD Construction

It’s now clear that State Broadband Offices are going to put a lot of pressure on BEAD winners to spend grant awards and build networks as quickly as possible. ISPs generally have the same goal, because getting customers quickly is the best way to make sure an ISP can pay for the network.

However, there are numerous reasons why BEAD fiber construction might be delayed. Companies building in the northern U.S. must contend with a short construction season that makes it hard to build in the winter. While the whole industry has been gearing up to support BEAD projects, there still might be supply chain bottlenecks that pop up to plague some projects when there is a sudden flood of BEAD projects.  Some projects are going to get bogged down in environmental studies – particularly if the firms that do this kind of work are also swamped by the number of BEAD projects.

There are a few other major and predictable bottlenecks that will delay a lot of BEAD projects. For all construction, a possible major bottleneck is permitting. For aerial fiber construction, there will be delays due to make-ready issues on poles. For buried projects, there will be delays due to locating existing utilities.

Permitting. Contractors must obtain permits to engage in any construction. Since BEAD will largely be constructed in rural areas, the expected problems will come from county governments that are not ready to process permits that could cover a huge portion of the geography in a county. Counties might also be simultaneously dealing with projects funded by the FCC’s RDOF program, the FCC’s EACAM program, ReConnect grants, State broadband grants, and ARPA-funded grants. A lot of rural county’s have only a handful of employees and are not prepared for an onslaught of permitting requests.

Make-Ready. Make-ready is an industry term used to describe any work that must be done first to enable adding fiber to a pole. The effort required with make-ready can range from fairly simple work like trimming back tree branches that would interfere with the construction to the complex effort required to replace poles that can’t accommodate an additional fiber.

The process of putting fiber onto poles is highly regulated, and various States either have their own pole regulations or follow the FCC rules. Pole rules generally set a shot clock on how long a pole owner has to respond to a request to get onto poles and then complete any needed make-ready work. But for various reasons this process doesn’t always go smoothly, and there is a litany of things that can slow down the process. Some pole owners cooperate in the process while others quietly resist. Notably, State and federal pole rules don’t apply to poles owned by cooperatives and municipalities. Some poles are owned jointly by an electric utility and a telephone company and require that both parties buy off on requested changes. Pole replacement usually brings in the existing utilities that have wires on a pole – some of which will be competing with the new ISP. I could make a pages long list of specific ways that getting the make-ready work done could cause delays.

Locating. It’s mandatory that somebody locates existing buried utilities and other underground obstructions before somebody tries to bury new fiber. This is both a safety precaution (because hitting a gas or electric line can be deadly) and an attempt to minimize damage to existing underground utilities. It’s likely that you’ve seen evidence of a locate when you see spray painted lines and perhaps a message on streets like shown at the top of this blog.

Locates are not handled the same way everywhere. In some places, each existing utility locates its own infrastructure. In other jurisdiction the local government locates. In some places the locate work has been handed off to a third-party locator that ocates for every utility. The delays from locates are going to materialize when the folks who do the locates are going to be swamped by the sheer volume of miles of roads that must be examined due to BEAD.

Solutions. The NTIA recognized these roadblocks early and encouraged states to develop rules to expedite these processes, at least for the BEAD grant process. Some states have done so to some degree and have done things like tackling updated pole attachment rules. But it’s fairly obvious that most states have done nothing. In many cases the only solution is more money. For example, counties might need to hire additional locators or permitting staff to be ready for the increased workload.

It’s still not too late for states and counties to tackle these issues. I predict that the heaviest BEAD construction is going to be in 2026, meaning these pre-construction issues will hit in 2025. A lot of states have said that getting broadband to rural areas is a high priority – but if they don’t look at these key issues, then state and local governments will be part of the problem instead of the solution.

Removing Broadband Construction Barriers

One of the provisions of the IIJA legislation that created the BEAD grants is a directive that States should take steps to reduce costs and barriers to fiber deployment. The legislation lists specific ways that States can reduce the cost of BEAD grant project: promoting the use of existing infrastructure, adopting dig-once policies, streamlining the permitting processes, providing cost-effective access to poles, conduits, easements, and rights-of-way, and requiring reasonable access requirements.

The IIJA hoped that States would reduce barriers, reduce costs, and shorten timelines for BEAD project. The legislation not only wants States to make these changes for building along State highways but implies that States should ask counties and municipalities to make the same changes. The language also suggests making special exceptions for building BEAD infrastructure and not necessarily for other construction.

Anybody who has ever built fiber would agree on the benefits that come from most of the items on the list. The IIJA was enacted in November 2021, and states have had two years to react to these federal suggestions. I am sure that some States considered these recommendations in the last two years and perhaps even made a few improvements in processes. But I’ve seen very little evidence that most States have taken any action, and for the most part, States seem to have ignored the IIJA directive.

I’ve written many times about these same issues over the years, and I wonder if States have the ability or even interest to tackle these changes.

Use of Existing Infrastructure. I’ve been advocating this for years. There is a huge amount of unused fiber sitting in networks built by state highway departments, school systems, county and city networks, and statewide networks that could be a big benefit for commercial fiber deployment. But there are always reasons cited why governments won’t share fiber. There might be legislative prohibitions or restrictions from the original funding source that built the fiber. Governments might not want to expend the effort and cost to provide access to the fiber. Some governments worry about security.

Dig-once Policies. This is an idea that policymakers seem to love, but the market doesn’t value. There have been some successes with dig-once, particularly when an ISP already wanted access to fiber along a road that is under construction. But mostly, this policy goes nowhere. Road builders don’t want to incur any extra cost or schedule delays to accommodate fiber. Unless an ISP is part of the process, nobody wants to pay for conduit or access points. Even when conduit is built, it often doesn’t have the access points that ISPs want. Dig once builds disjointed stretches of infrastructure that don’t connect to other networks at the endpoints. To get infrastructure everywhere with dig once would probably take a hundred years.

Streamlining the Permitting Processes. This idea is at the top of most ISP’s wish list. While some states have worked to make it easier to build along state highways, in many cases, the state permits are the hardest to obtain. Most States have zero sway over influencing the processes for city and county roads, and trying to intervene or impose rules would set off an intense battle over state versus local rights.

Cost-effective Access to Poles, Conduits, Easements, and Rights-of-way. This is an interesting request in the IIJA because it conflicts with FCC jurisdiction over these issues. About half of the States still follow the FCC rules for these issues. The other half of States have their own rules but are only allowed to differ from the federal rules in relatively minor ways. States certainly can set fees for using State infrastructure but have limited power elsewhere.

One of the most interesting aspects of this legislative directive is that it is aimed mostly at State Broadband Offices. Most of the changes listed above either require legislative change or would mean making changes at embedded bureaucracies like State Highway Departments – two things that are far outside the reach and power of a State Broadband Office.

Reducing Construction Barriers

One of the most interesting sections of the BEAD NOFO requires that states must define how they are going to make it easier for grant recipients to implement broadband solutions. Specifically, the BEAD NOFO requires states to try to “reduce costs and barriers to deployment, promote the use of existing infrastructure, promote and adopt dig-once policies, streamlined permitting processes and cost-effective access to poles, conduits, easements, and rights of way, including the imposition of reasonable access requirements.

These are all great ideas, but I have to wonder if whoever wrote that understands how hard it is for a state to change any of these policies. Certainly, there is no state broadband grant office with the power to effectuate any of these changes – is this section of the NOFO aimed at legislatures?

Some states have wrestled with these issues for many years. Consider pole attachment and issues related to streamlining the process of building fiber on poles. At my last count, twenty states have adopted their own state rules for the processes related to pole attachments.

I have been involved in several state proceedings looking at pole attachment issues, and this is not something that any state can change quickly. Changing any of the rules associated with pole attachments means opening a docket and soliciting ideas from the parties involved. Since most poles are owned by electric companies, any proceeding brings in the full lobbying power of the electric companies to not do anything rash. It’s also debatable if a state can implement a radical pole attachment rule that is too far out of bounds with FCC rules – since the FCC requires state rules to still adhere to many FCC standards.

For the FCC to consider changing pole attachment rules would take even longer. The FCC has tackled this a few times, and as you might imagine, looking at this issue from a national perspective is hard since pole attachment issues vary widely by locality. The biggest issue with changing pole attachment rules is the lobbying power of the other parties that use the pole – the telcos and cable companies. While they build a lot of fiber, they don’t want to see it be easier for their competition to build fiber.

It’s hard to imagine finding a way to universally streamline permitting in a state. It’s easy to understand why fiber builders don’t like the hodgepodge of permitting rules since every local jurisdiction has its own set of permitting rules and processes. But there is probably not a lot of interest by ISPs to let a State set universal permitting rules – in many states, the permitting rules for building along state highways are some of the most onerous, costly, and time-consuming. I also doubt that many states could declare jurisdiction over permitting since most state constitutions grant authority over local infrastructure to local governments.

The one change on the NTIA list that would have the most impact would be a requirement to make it easy to use existing infrastructure. There are existing fibers running through almost every rural county that is off-limits to anybody that wants to build last-mile fiber. It’s owned by telcos, cable companies, cellular carriers, and electric utilities – and all would fight tooth and nail against having a mandate to give access to their spare fibers. There is also a lot of fiber owned by state governments, local governments, and school boards. Interestingly, in most states, the legislatures have put these government-owned fibers off-limits for commercial purposes – all due to the lobbying effort of the existing ISPs. This requirement from the NTIA would be asking state legislatures to reverse the rules they put into place and have followed for decades.

Every list about infrastructure efficiency always suggests dig-once as a solution for reducing the cost of building fiber. This policy might have made a difference for the current grants if it was implemented twenty years ago, but implementing dig-once now would have very little impact on building BEAD grants if the requirement went into place tomorrow. Even if dig-once is implemented, it’s unlikely that a state policy will require the extra cost to add frequent access points along buried conduit – and without the access points, buried conduit is often nearly worthless for building last-mile fiber.

I completely understand the sentiment behind this requirement, but I think that state broadband offices are all going to tell the NTIA that these issues are not under their control. I find it a bit ironic that the NTIA wants states to take steps to make it easier and more affordable to build fiber while the NOFO layers on a lot of requirements that significantly inflate the cost of building a BEAD grant network.

How Cities Affect Fiber Construction

Yesterday I wrote about the wish list cities have for the deployment of broadband. That got me to thinking about the ways that cities influence the fiber construction process, so today I am going to write about the flip side of that and talk about all of the ways that cities are involved in the fiber construction process. For anybody who has not been involved in fiber construction this will probably be an eye-opener. But let me preface this whole discussion by saying that the involvement in cities varies widely – some large cities can be relatively easy to work with and some small ones difficult – but generally the larger the city the more of the following processes are involved:

Rights-of-Way. Some cities require that anybody that wants to construct any utility in their city first get permission to use the rights-of-way. This process goes by various names and might be called a franchise agreement (which is different than the agreement to provide cable TV) or a right-of-way agreement. But for cities that require this, nothing else can be done until this is first approved. Some cities extract a ‘pound of flesh’ in the franchising process and may ask for use of fiber pairs or some other concession before granting approval to build fiber.

Permitting. Permitting is the process that can be the most time-consuming for a fiber builder. A permit generally requires getting approval for specific construction done at a certain time. Permit requests may require engineering drawings (something that most builders prefer to do only after the construction). Permitting can become onerous if too many permits must be filed (such as one for each block of construction), or if the permits are for short discrete time windows that can expire when there are construction delays.

Locating. Many cities do the locating of existing utilities. This is the process of marking where existing utilities are supposed to be before a fiber builder can dig up the street.

Traffic Control. Cities often get involved in traffic control. For example, they may require that parked cars are moved before construction. They might provide police or other traffic control when building on busy streets.

Placement of Devices. Many cities want approval of the placement of any hut, cabinet or other device. They may have rules that prohibit certain kinds of devices in certain neighborhoods. Probably one of the best examples of a poor policy was one in a western city that gave homeowners in a neighborhood the right to veto the placement of any cabinets. This meant holding mini-elections in neighborhoods.

Inspection. Cities generally inspect the construction process. They may inspect during the construction process to make sure that specifications from the permits are being met. They also usually inspect after construction to make sure that debris and dirt are cleared and that streets, sidewalks, and yards were returned to a clean condition. Just like any other kind of inspection, the in-process inspections often require the stoppage of work until inspectors do their job.

Paperwork. Many cities require specific paperwork to document the ‘as-built’ network. These are detailed engineering drawings that show what was built and where. Today some cities are starting to ask for electronic records instead, generally in an ESRI format to incorporate into their GIS systems.

Other Issues. Cities might have all sorts of other ordinances and rules that affect the construction process. For example, they might have a dig once, policy (something I discussed last week). They might require a fiber builder to use existing excess conduit. They might have aesthetic rules that require somehow hiding huts and cabinets.

Every one of these steps requires time, interface with city employees and paperwork. If done poorly, these processes can greatly slow the pace of fiber construction. For example, construction might be delayed until a city employee locates existing utilities. Then construction might only be able to proceed so far until an inspector approves. Or a rain delay might mess up a traffic control plan and create significant delays until that is reset. With so many different steps and processes there are ample opportunities for problems to arise. Often cities are not staffed to be able to accommodate a citywide fiber construction program and will need time to get ready.

I’ve found that cities who are active partners in getting a fiber network are usually willing to work to make the processes flow smoothly. But I’ve also seen cases where the city is a major impediment to timely fiber construction and can introduce significant delays and costs in the construction process. One function not listed is the liaison process with a city. We’ve seen it works best to ask the city to have a single point of contact to work through various issues during the construction process.