1. Change Detected
Source Information
Source Name: 47 U.S.C. § 253 - Telecom Federal Preemption
Practice Area: Telecommunications Law
Change Summary: New FCC Order 26-15 adds subsection (f) requiring state-interest balancing test before preemption
Side-by-Side Comparison
Removed Text
(No text removed)
Added Text
(f) State-interest balancing requirement
Before exercising preemption authority under subsection (d), the Commission shall conduct a balancing analysis weighing the federal interest in removing barriers to telecommunications service provision against the legitimate state regulatory interests...
2. Affected Entry: TELECOM-001
LawGuide Section (Original)
Entry ID: TELECOM-001
Title: Federal Preemption Under 47 U.S.C. § 253
Practice Area: Telecommunications Law
Last Updated: 2024-11-15
SUMMARY:
Section 253 of the Telecommunications Act prohibits state and local governments from enacting laws that have the effect of prohibiting any entity from providing interstate or intrastate telecommunications services.
KEY STATUTES:
47 U.S.C. § 253, 47 U.S.C. § 332(c)(7)
KEY CASES:
• City of Arlington v. FCC, 569 U.S. 290 (2013)
• National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005)
ANALYSIS:
Federal preemption in telecommunications is primarily governed by two provisions: Section 253, which addresses state barriers to entry, and Section 332(c)(7), which addresses local zoning authority over wireless facilities...
3. Impact Assessment
UPDATE NEEDED HIGH CONFIDENCE
Reason: This change materially affects the preemption analysis by introducing a new mandatory balancing test that the FCC must apply before exercising preemption authority. This is a significant procedural requirement that alters how Section 253(d) operates and will impact practical guidance for telecommunications providers and state regulators.
4. LawGuide Proposed Change
Change Description: Added discussion of new subsection (f) state-interest balancing requirement and its impact on preemption analysis under Section 253(d).
PROPOSED TITLE:
Federal Preemption Under 47 U.S.C. § 253 (Updated for FCC Order 26-15)
PROPOSED SUMMARY:
Section 253 prohibits state and local laws that effectively prohibit telecommunications services. As of January 2026, FCC Order 26-15 requires the Commission to conduct a state-interest balancing analysis before exercising preemption authority under subsection (d).
NEW STATUTES ADDED:
47 U.S.C. § 253(f)
PROPOSED ANALYSIS (excerpt):
Federal preemption in telecommunications is primarily governed by Section 253, which addresses state barriers to entry. However, FCC Order 26-15 (effective January 15, 2026) significantly modified the preemption framework by adding a new subsection (f).
Under the new subsection (f), before exercising preemption authority under subsection (d), the FCC must conduct a balancing analysis weighing four factors: (1) the degree to which the state requirement serves public safety, consumer protection, or universal service objectives; (2) whether less restrictive alternatives exist; (3) the impact on state sovereignty; and (4) the specific factual circumstances of the case.
This balancing requirement introduces a mandatory procedural step that may limit the FCC's previously broad preemptive authority. Practitioners should note that the balancing test does not apply to facially discriminatory state requirements or those that facially prohibit telecommunications service...
5. Exact Law (Old vs New)
Old Version (Pre-FCC Order 26-15)
Section 253. Removal of barriers to entry
(a) No State or local statute or regulation may prohibit the ability of any entity to provide any interstate or intrastate telecommunications service.
(d) If the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b), the Commission shall preempt the enforcement of such statute.
(e) Nothing in this section shall affect the application of section 332(c)(7).
New Version (Post-FCC Order 26-15)
Section 253. Removal of barriers to entry
(a) No State or local statute or regulation may prohibit the ability of any entity to provide any interstate or intrastate telecommunications service.
(d) If the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b), the Commission shall preempt the enforcement of such statute.
(e) Nothing in this section shall affect the application of section 332(c)(7).
(f) State-interest balancing requirement
Before exercising preemption authority under subsection (d), the Commission shall conduct a balancing analysis weighing the federal interest in removing barriers to telecommunications service provision against the legitimate state regulatory interests identified in subsection (b). The Commission shall consider:
(1) The degree to which the state or local requirement serves public safety, consumer protection, or universal service objectives;
(2) Whether less restrictive alternatives exist that would accommodate both federal and state interests;
(3) The impact of preemption on state sovereignty and the traditional state role in local governance; and
(4) The specific factual circumstances presented, including the nature of the telecommunications service at issue and the competitive landscape in the relevant market.
This balancing requirement does not apply to state or local requirements that facially prohibit telecommunications service or that discriminate among functionally equivalent service providers.