Industry groups USTelecom and NTCA–The Rural Broadband Association are backing a request from fiber operator Lumos for the FCC to override some permitting fees and requirements imposed by Stark and Mahoning counties in Ohio.
But the County Engineers Association of Ohio (CEAO) is urging the FCC to exercise caution in its decision making, while the counties themselves argue that Lumos’ claims misrepresent the situation.
The petition in question was initially filed by Lumos in June, claiming that the counties’ permitting fees and requirements for fiber buildout projects violate section 253 of the Communications Act by erecting barriers to deployment. According to Lumos, these prohibitive requirements forced it to abandon fiber builds set to serve roughly 200,000 homes and businesses in the Ohio counties.
“Compliance with the challenged requirements would have increased Lumos’s total project costs by approximately 50% in Stark County rights-of-way, representing a staggering 23% of Lumos’s expected project revenues in the County over the next five years,” states the petition from Lumos.
According to Lumos, Stark County requires that Lumos submit a plan stamped by a professional surveyor, that it pay a $1 fee for every foot of fiber deployed within the right-of-way, and that Lumos fund regular inspections conducted by a county engineer.
In Mahoning County, said Lumos, the provider is required to have all of its plans prepared and certified by a state-licensed engineer and certified by a professional surveyor.
“Preemption is easily warranted here. Lumos has faced exactly the kind of local barriers Section 253 was designed to prevent: excessive right-of-way fees, unreasonable and uncapped inspection charges, and sweeping non-fee requirements,” argued Lumos in its petition.
The company added that the requirements in question were imposed in a “discriminatory” manner: “Based on Lumos’s review of public permitting records, Stark County imposed none of these requirements on other providers, and Mahoning County similarly singles out the first new deployer for surveying obligations. Moreover, Stark County did not include any of the requirements on its public schedules until after Lumos applied for its initial permits—and still has not published the per-foot fee at all,” claimed the petition.
In a July blog post from Lumos explaining its decision to petition the FCC on the matter, the company said that “more than a year was spent working with county officials in an effort to find a practical path forward” before filing the petition; however, “those efforts did not produce a workable solution.”
Bigger fight
With this petition, Lumos also appears to be looking to help advance an industry objective to get the FCC to use its authority to preempt local permitting regulations more broadly. Telecom groups including USTelecom and ACA Connects last year urged the FCC to do just that in response to a notice of inquiry (NOI) on how the FCC can use its section 253 authority to reduce barriers to wireline deployment.
Lumos gave a nod to the larger fight afoot in its blog post:
“Fundamentally, this case is not about Lumos. It is about whether local governments must allow consumers and communities to have access to competitive options. Federal law requires that they must,” wrote Lumos. “Congress addressed this issue directly in Section 253 of the Communications Act, which bars state and local requirements that ‘prohibit or have the effect of prohibiting’ the provision of telecommunications services,” the company added.
In comments filed to the FCC this week, both USTelecom and NTCA–The Rural Broadband Association threw their support behind Lumos’ petition, citing the larger implications of the FCC’s decision.
“NTCA supports localities’ right to recoup the reasonable costs they incur in managing public rights-of-way (‘RoWs’) and to establish practical construction coordination requirements that protect public facilities/streets and other utilities (fiber included) that may already be present in the area in question. Yet the fees and other requirements described in the Petition go well beyond what is reasonable and what is typically required by state and local governments,” argued NTCA in an FCC filing on August 24. “They are so burdensome that NTCA agrees that they cannot be squared with Section 253(a) as they have caused Petitioner to abandon their deployment plans. Should the Commission fail to act, it will send a signal to localities that such requirements are permissible under the law.”
USTelecom also pointed to Lumos’ abandoning of the projects as evidence that the pole attachment requirements were unlawfully prohibitive according to section 253.
“The Petition describes local permitting requirements that forced Lumos to cancel planned fiber deployments in Stark and Mahoning Counties, Ohio—stranding more than $1.4 million in engineering costs and leaving approximately 200,000 Ohio households and businesses without access to competitive telecommunications services,” said USTelecom in its filing. “Congress enacted Section 253 of the Act to prevent precisely this type of result. Therefore, the Commission should promptly grant the Petition and preempt the challenged requirements to the extent necessary to remove these unlawful barriers to wired infrastructure deployment.”
In addition to the telecom groups, Lumos’ petition also got support from its partial owner, T-Mobile, which acquired Lumos in a 50/50 joint venture with private equity firm EQT last year.
“T-Mobile has a direct interest in this proceeding, which reflects the evolution of our business,” stated the company’s filing. “…the unlawful fees, charges, and inspection requirements imposed by Stark and Mahoning Counties have already forced Lumos to cancel planned fiber deployments in those counties—meaning that approximately 200,000 Ohio households and businesses will not have access to Lumos’s fiber network. And because T-Mobile’s fiber service is delivered through Lumos’s network, its inability to deploy means T-Mobile Fiber is unable to serve those customers.”
‘Caution and restraint’
But Lumos’ petition is getting pushback from local forces. In a filing this week, the County Engineers Association of Ohio (CEAO) urged the FCC to exercise caution in its decision making.
“CEAO does not represent Stark County or Mahoning County in this proceeding, and CEAO takes no position on the specific fee schedules, fee amounts, disclosure practices, or individual permitting decisions described in the Petition. Those matters are being addressed by the counties directly,” the group wrote.
“Instead, CEAO writes for a limited purpose: to caution the Commission against any ruling that – however tailored to the disputes before it – would inadvertently call into question the authority of Ohio’s counties to require the professional engineering and survey review necessary to protect the public and the other utilities that share the ROW, or to collect reasonably related fees necessary to effectuate that protection,” CEAO added.
The filing goes on to debunk claims in Lumos’ petition that underground fiber deployment presents “literally no surface disturbance” and points to the physical risks presented by fiber deployers, including Lumos.
“Indeed, based on news reports, ‘Lumos Networks’ is understood by CEAO to be among or related to fiber installers responsible for multiple recent catastrophic utility strikes in northeast Ohio (Trumbull County),” added CEAO in its filing, pointing to local reporting.
In turn, rather than use this occasion to issue a “broadly worded ruling” that will reach “far beyond the two counties,” CEAO is asking the FCC to narrow its scope to Lumos’ specific complaints.
“CEAO respectfully urges the Commission to exercise caution and restraint,” said the engineers association in its filing. “Specifically, CEAO asks that any relief the Commission might grant be narrowly limited to the specific fee structures or procedures actually found unlawful (if any), and that the Commission expressly confirm that its ruling does not disturb the authority of local governments to require reasonable, professionally certified engineering and survey review, and reasonable inspection, in furtherance of the safe, shared use of the public rights-of-way.
“If so limited, any potential remedy can address the parties’ dispute without stripping counties of the tools they need to prevent the next utility strike,” added CEAO.
Counties cry foul
For their part, though, both Stark and Mahoning counties filed joint oppositional comments disputing several of Lumos’ claims and urging the FCC to “dismiss or deny” the company’s petition.
The counties also noted that the FCC has “no jurisdiction” to grant Lumos’ requests.
“But even if it did, Lumos misrepresents many of the Counties’ right-of-way management requirements and, as a result, falsely portrays them as unlawful barriers to broadband deployment,” the counties’ filing added. “Lumos also improperly belittles both Counties’ responsibility to safely manage facility work within their rights-of-way and overlooks its own role in causing the delays and costs it now attributes to the Counties.”
The counties’ filing instead alleged that Lumos “repeatedly delayed its own permitting process” and allowed “two months to pass before responding to Stark’s efforts to continue coordinating the project” when discussions began in 2024.
The Ohio counties also disputed Lumos’ claims about fees, stating that the company’s petition cites fees that were never imposed and exaggerated surveyor fee estimations.
“Stark has no ‘per foot construction fee,’ much less a dollar per foot fee. That Stark was considering such a fee was mentioned at one meeting with Lumos, but it was never adopted or imposed, and that is why it was never publicly disclosed on any application form or at the County’s website … The story in Mahoning is much the same. The County imposes no per-foot right-of-way fee. All of its fees are cost recovery fees,” stated the filing from Stark and Mahoning.
“On any or all of these multiple grounds, the Commission must deny Lumos’s Petition,” the counties added.
