On June 25, 2026, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) that would, for the first time, set nationwide limits on how much time state and local governments may take to approve wireline telecommunications deployments (networks delivered over physical lines such as fiber-optic, copper, or coaxial cable) in public rights-of-way¹ and how much they may charge for that access. The proposals would reach state and local governments at every level that issue permits, right-of-way agreements, or pole attachment approvals for fiber and other wireline builds. Federal agencies are unaffected: the proposals rest on Section 253 of the Communications Act, which limits only state and local requirements that prohibit or effectively prohibit the provision of telecommunications service.

Commissioner Olivia Trusty's accompanying statement notes that, according to Census Bureau data, there are more than 90,000 local governments in the United States, and FCC data indicate that, as of June 2025, more than 2,000 broadband providers operate nationwide. The FCC's own Initial Regulatory Flexibility Analysis (IRFA)—the small-entity impact assessment required by the Regulatory Flexibility Act—estimates that at least 48,724 of 90,835 local government jurisdictions have populations under 50,000 and acknowledges that "[s]mall governmental jurisdictions are likely to incur new costs" to comply if these rules are adopted.

The stakes run in several directions at once. For providers, the proposals promise faster, cheaper access to rights-of-way. For state and local governments, the proposed rules threaten permitting revenue, budget flexibility, and control over public property. (The City of Dallas warned the FCC that fee limits could force property tax increases.) And for communities, the proceeding raises less obvious questions: Will "dig once" policies, spare conduit requirements, and other in-kind conditions that localities use to advance their own connectivity goals survive? Is the FCC quietly extending federal protection to broadband deployment through a proceeding nominally about telecommunications services (broadband internet access service is classified as an information service—not a telecommunications service—under the Communications Act as courts currently construe it²)?

The NPRM was adopted with Chairman Brendan Carr and Commissioners Anna Gomez and Olivia Trusty each issuing separate statements; Commissioner Gomez stated the item "has my support" while raising substantial doubts about the FCC's legal authority. Comments will be due 45 days after publication in the Federal Register, with reply comments due 90 days after publication. [Note: As of this writing, the item (WC Docket No. 25-253) has not been published in the Federal Register, so the actual comment deadlines have not been set.]

Background: Section 253 and the Road to This Proceeding

Congress enacted Section 253 of the Communications Act as part of the Telecommunications Act of 1996. Section 253(a) provides that no state or local statute, regulation, or other legal requirement may "prohibit or have the effect of prohibiting" any entity's ability to provide telecommunications service. Two savings clauses—provisions that preserve specified state and local authority from a statute's broader reach—temper that preemption: Section 253(b) preserves competitively neutral requirements necessary for universal service, public safety and welfare, service quality, and consumer protection, and Section 253(c) preserves state and local authority to manage public rights-of-way and to require "fair and reasonable compensation" for their use, on a competitively neutral, nondiscriminatory, and publicly disclosed basis. Section 253(d) directs the FCC, after notice and comment, to preempt specific state or local requirements that violate Section 253(a) or (b).

In 2018, the FCC issued two orders that form the template for this NPRM. The Moratoria Order declared that express and de facto moratoriums on processing telecommunications applications violate Section 253. The Small Cell Order held that state and local requirements "effectively prohibit" service when they materially inhibit competition, established a cost-based standard for fees on small wireless facility deployments, and updated deadlines for government action (called "shot clocks") for wireless siting applications. The U.S. Court of Appeals for the Ninth Circuit upheld both orders in City of Portland v. United States in 2020. In September 2025, the FCC opened this docket with a Notice of Inquiry (NOI)—a preliminary information-gathering step—examining delays, fees, and in-kind compensation demands in wireline permitting (para. 10). This NPRM is the next step, converting that inquiry into concrete proposed rules.

What the FCC Proposes

The NPRM advances four interlocking proposals.

1. A 120-day deadline for all authorizations. The FCC proposes a rebuttable presumption (meaning the violation would be treated as established unless the government comes forward with evidence justifying its conduct) that a state or local government has effectively prohibited wireline telecommunications service—violating Section 253(a) and falling outside Section 253(b) and (c)—if it fails to act within 120 days on all authorizations needed for a deployment in a particular right-of-way. What happens when the clock runs out is narrower than it may sound: the application is not automatically approved. The FCC declines to propose a 'deemed granted' remedy, under which an authorization would take effect by operation of law when the deadline passes, calling its approach 'incremental'—and the Commission acknowledges that Section 253(d) does not expressly authorize it to order a government to grant a permit. Instead, a missed deadline would create a rebuttable presumption that the government has violated Section 253—ammunition for a preemption petition at the FCC or a lawsuit, not a permit.

Several features make this proposal more sweeping than a conventional shot clock:

• The clock would start when a provider submits its first written application (or takes the first mandatory pre-application step), not when the government deems the application complete. And the shot clock would cover every authorization a jurisdiction requires.
• The NPRM's own example is a deployment requiring a right-of-way agreement, a construction permit, road closure permits, and other approvals, all of which would need to be granted within a single 120-day window from the first filing.
• The FCC frames 120 days not as the time review should take, but as the point at which delay presumptively becomes an unlawful effective prohibition. The proposed deadline would also apply to requests to access government-owned property in rights-of-way, including government-owned poles, relying on City of Portland.

The FCC seeks comment on extending the deadline to facilities outside rights-of-way, such as fiber huts, and to batched applications covering multiple deployments in one jurisdiction.

Governments could rebut the presumption, and the FCC asks what factors—complex projects, incomplete applications, late-filed permits, mutual extensions—should justify more time.

2. A cost-based fee standard with safe harbors. The FCC proposes to limit state and local fees for wireline authorizations to "a reasonable approximation of the government's actual and direct costs" of managing the rights-of-way with respect to that authorization, provided those costs are objectively reasonable, competitively neutral, and nondiscriminatory. The FCC tentatively concludes that fees recovering more than such costs do not constitute "fair and reasonable compensation" under Section 253(c). "Direct costs" would mean expenses traceable to the provider's application that would not have been incurred but for the provider's use; "actual costs" would mean costs substantiated by invoices or documentation, "not hypothetical or speculative." The FCC also proposes safe harbors: fee levels at or below which fees would be presumptively lawful, sparing governments the need to document cost bases unless they charge more. Fees above the safe harbors or the cost standard would be presumed to violate Section 253, subject to rebuttal, and providers could petition the FCC for preemption under Section 253(d). The FCC seeks comment on prohibiting specific fee structures—gross-revenue fees, per-linear-foot fees, fair-market-value fees, and recurring use fees—as inconsistent with cost recovery, and tentatively concludes the cost standard should also apply to attachments to government-owned poles and conduit.

3. Counting in-kind compensation against fee limits. The FCC tentatively concludes that in-kind compensation demands—non-monetary conditions such as installing extra conduit for municipal use—can effectively prohibit service under Section 253(a), and proposes that the value of any in-kind compensation count toward the safe harbor fee levels. The NPRM offers an example: if a municipality's safe harbor allowed $3,000 in compensation and it required the provider to install conduit costing the provider $1,200, the municipality could collect no more than $1,800 in cash fees absent a showing of higher actual costs. The FCC does not propose to prohibit any specific type of in-kind demand outright, but asks probing questions about where routine street restoration ends and in-kind compensation begins—including whether required curb ramps, accessibility features, or new signage count—and how to treat requirements that providers install infrastructure a municipality then leases to their competitors—arrangements that, in the NPRM's characterization, "effectively require providers to subsidize their competitors."

4. Protecting commingled facilities. Finally, the FCC proposes a presumption that a state or local government violates Section 253 if it imposes requirements that exceed the FCC's timelines and fee limits on the grounds that the wireline telecommunications infrastructure may also be used to provide other services—such as broadband Internet access service—on a commingled basis. The FCC tentatively concludes that infrastructure "does not cease to be" telecommunications infrastructure because it also carries other traffic, citing its own precedent on commingled wireless services and the Supreme Court's National Cable & Telecommunications Association v. Gulf Power Co. pole attachment decision. In that case, the Supreme Court held that a cable operator's pole attachment remains covered by Section 224 of the Communications Act (the pole attachment provision) even if it is also used to provide high-speed Internet access. The NPRM's own footnotes record the counterargument: the League of Oregon Cities, joined by the City of Ann Arbor, argues that the U.S. Court of Appeals for the D.C. Circuit, in its 2019 Mozilla Corp. v. FCC decision, rejected the FCC's reasoning that commingled facilities are subject to FCC jurisdiction when used only for broadband, finding the statute "textually forecloses" application to broadband-only networks because they do not provide telecommunications service.

The NPRM also seeks comment, without making proposals, on incentivizing providers to build promptly once authorizations are issued and to remove old, unused facilities from rights-of-way. The FCC tentatively concludes it has authority under Sections 253, 4(i), 201(b), and 303 of the Act, and that its Section 253(a) authority "is not limited to case-by-case consideration."  

Legal Authority

Underpinning all four proposals is a set of tentative conclusions about the FCC's own power—and this may be where the proceeding is ultimately won or lost (especially if challenged in court).

The FCC tentatively concludes that it possesses authority under Sections 253, 4(i), 201(b), and 303 of the Communications Act of 1934, as amended, "to make findings concerning what constitutes a violation of Section 253(a) and what qualifies for the Section 253(b) or (c) exceptions," and to adopt regulations that enable it to better effectuate its preemption authority under Section 253(d). The latter three provisions are general grants of agency power rather than anything specific to rights-of-way:

• Section 4(i) (47 U.S.C. § 154(i)) authorizes the FCC to perform acts, make rules, and issue orders not inconsistent with the Communications Act as necessary to execute its functions;
• Section 201(b) (47 U.S.C. § 201(b)) authorizes rules "necessary in the public interest" to carry out the Communications Act's common carrier provisions; and
• Section 303 (47 U.S.C. § 303) enumerates the FCC's general powers, including making rules necessary to carry out the Communications Act.

The NPRM cites these provisions but does not explain what independent work each would do to support the proposed rules—the substantive discussion rests on Section 253 itself.

Two tentative conclusions in this section carry the weight. First, the FCC concludes that its authority to address effective prohibitions under Section 253(a) "is not limited to case-by-case consideration (or, where appropriate, preemption) of specific state or local legal requirements"—that is, it may set generally applicable standards by rule rather than adjudicating one local ordinance at a time. Second, the FCC observes that many courts have not treated Section 253(d) as the exclusive means of enforcing Section 253, since providers have been permitted to challenge state and local requirements directly in federal court. The FCC also rejects the argument pressed by the League of Oregon Cities and Minnesota local franchising authorities that Congress "expressly withheld" FCC authority to preempt requirements falling within Section 253(c)'s rights-of-way savings clause; the FCC responds that it has rejected this argument before, reasoning that otherwise "any party could avoid preemption or the Commission's jurisdiction simply by invoking section 253(c) as a defense."

Commissioner Gomez's separate statement directly challenges these conclusions, even as she voted to seek comment. She said that she is "dubious about the Commission's authority under Section 253 to use rulemaking to preempt states and localities when it comes to their management of rights of way and fees charged to providers." Her argument has two parts.

First, she notes that Section 253(d) authorizes preemption only of requirements that violate subsections (a) or (b)—not subsection (c)—and points to legislative history, cited in the record, suggesting Congress narrowed the preemption authority to make clear that "local powers should be retained locally," perhaps including the power to price rights-of-way access "beyond actual and direct costs." 

Second, she reads Section 253(d)'s text—authorizing the FCC to preempt "such statute, regulation, or legal requirement" upon determining that "a State or local government" has violated the statute—as suggesting case-by-case preemption of individual requirements, "rather than using rulemaking authority to issue a blanket preemption." She expressly asks commenters to address whether the FCC's contrary reading "is likely to survive judicial scrutiny under" Loper Bright Enterprises v. Raimondo— the Supreme Court's 2024 decision, which ended judicial deference to agency interpretations of ambiguous statutes and requires courts to identify the "best" reading themselves—"without which it is unclear the Commission has a basis to issue rule-based preemptions."

The FCC seeks comment on all of these tentative conclusions and asks commenters to identify any additional sources of authority for preempting excessive permitting delays and fees.

Given that a Commissioner who voted for the item has publicly questioned whether the agency can lawfully finish it, the legal-authority portion of the comment record may prove as consequential as the record on timelines and fees.

What to Watch

Several aspects of the NPRM may be worth watching for broadband stakeholders.

What About Consumer and Community Protections?

Permitting is not only red tape. Congress said as much in the statute this NPRM interprets: Section 253(b) preserves state 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," (emphasis added) and Section 253(c) preserves state and local authority to manage public rights-of-way. The NPRM itself acknowledges why that review exists: wireline deployments "can involve excavation, road closures, aerial attachments, and other types of work that impact the public and warrant review consistent with the purposes identified by Congress." Government commenters describe the tasks that fill a review period—inspections, meetings, votes by governing bodies—and the FCC's small-entity analysis lists "application review and public safety inspections" among the work jurisdictions perform. Commissioner Gomez's statement frames the underlying tension directly: providers want speed, while "states and localities face large volumes of requests that they may or may not have the resources to respond to as rapidly as providers would like."

The proposals above press on those public-facing functions in at least three ways.

• First, the 120-day presumption applies to all the work Sections 253(b) and (c) contemplate: the FCC tentatively concludes that 120 days "ordinarily provides sufficient time to perform the tasks outlined in Section 253(b) and (c)" (para. 24), and it goes a step further, asking whether a government's failure to adopt more efficient procedures would itself "support the conclusion" that its requirements effectively prohibit service. The burden of defending a longer safety or welfare review would fall on the government, after the fact, in a preemption proceeding.
• Second, the fee proposals reach revenue that currently funds other public purposes. Under the cost-based standard, fee income above a government's actual, direct costs—the "net revenue that is applied to other governmental purposes," in the NPRM's own phrasing—would be presumptively unlawful. Whether that revenue currently supports services communities value is not a question the NPRM asks; the FCC asks instead for the balance sheets that would quantify it.
• Third, the in-kind proposal puts community-benefit conditions on the table. The NPRM asks whether requiring providers to install curb ramps, other accessibility features, or new signage "that did not previously exist" constitutes in-kind compensation—which, under the proposal, would count against any fee caps—and whether the same applies to "dig once" requirements and spare conduit. The stakes and the specific questions commenters can answer are addressed below.

To be accurate about the other side of the ledger: the NPRM's theory is that deployment itself is the consumer benefit—Chairman Carr's statement casts permitting barriers as "leaving consumers on the wrong side of the digital divide"—and the document contains genuinely consumer-facing elements. The FCC asks whether to require governments to publicly disclose their fees, as Section 253(c) already directs, in a form detailed enough for providers and the FCC to evaluate them. And the FCC asks, without proposing rules, how to hold providers to their side of the bargain: whether it can incentivize providers to actually complete deployments once authorizations are issued and to remove old, unused facilities from rights-of-way. But the provider-side items appear only as questions, while the NPRM's core constraints on governments are advanced as proposals and tentative conclusions. Consumers otherwise appear in the NPRM as the ultimate beneficiaries of faster deployment, while Section 253(b)'s consumer-protection and public-welfare purposes are addressed chiefly as hurdles for governments to clear.

The central move: wireless rules without the wireless statute.

The entire framework—shot clocks, cost-based fees, safe harbors, rebuttable presumptions—is imported from the 2018 Small Cell Order. But that order rested in part on Section 332(c)(7)(B)(ii), which expressly requires governments to act on wireless siting requests "within a reasonable period of time." No comparable text exists in Section 253, and the NPRM candidly airs the state and local argument that reading a deadline into Section 253(a) would render Section 332's timing provision superfluous (para. 16). This is the legal fault line of the proceeding.

Post-Loper Bright drafting throughout—without naming it.

The NPRM's text never cites Loper Bright, but it is lurking there, we promise: the FCC repeatedly asks whether its proposals reflect "the best reading" of the statute (see paras. 15, 39, 41, 49 of the NPRM)—the Loper Bright standard—rather than a permissible or reasonable one. More striking, the FCC twice asks whether courts would be "legally bound" to follow its rules or would treat them merely as "persuasive authority." An agency asking, in its own rulemaking, whether its rules would bind courts is a notable admission of the post-Loper Bright enforcement landscape.

Candid limits on enforcement.

As noted above, the FCC acknowledges that Section 253(d) "does not expressly authorize the Commission to order injunctive relief"—it cannot force a government to grant a permit. Consistent with that, it declines to propose a "deemed granted" remedy (under which an application would be automatically approved when the clock expires), calling its approach "incremental" and reserving the option to revisit. The practical consequence: even if adopted, the rules would give providers a presumption to wield in preemption petitions and litigation, not an automatic approval.

Conspicuously absent: safe harbor numbers.

The fee proposal's centerpiece—safe harbor levels—has no proposed dollar figures. The FCC concedes that, although commenters urged it to follow the Small Cell Order methodology, "we did not receive the suggested data sets in comments or specific safe harbor proposals," and it now requests those data. The request is structured to fill that gap within this proceeding: the FCC asks commenters to submit fee regulations and ordinances, copies of executed right-of-way agreements with a comparative spreadsheet, cost surveys, and "specific safe harbor fee levels for the Commission's consideration, including a structure for how any fee level should apply." Nothing in the NPRM contemplates a further notice before adopting figures, so the safe harbor levels could be set in the order concluding this rulemaking, on a record built in this comment round. That gives state and local governments a concrete reason to engage now: a government that sits this round out may find the numbers set largely on provider-submitted data. Whether adopting specific dollar figures that were never themselves proposed would satisfy the fair-notice requirements of the Administrative Procedure Act (APA)—the federal statute governing agency rulemaking—is a question the NPRM does not address.

Conspicuously absent: BEAD and federal funding deadlines.

For state broadband officials, the most striking gap in the NPRM may be a discussion of the Broadband Equity, Access, and Deployment (BEAD) Program or other federal deployment funding. The NPRM never analyzes how a 120-day federal permitting clock would interact with BEAD buildout schedules, even though that interaction is arguably the strongest practical argument for the rules and the most immediate stake for federal broadband deployment programs.

Conspicuously absent: Tribal governments

The NPRM contains no discussion of Tribal governments, Tribal lands, or the distinct permitting regime that governs them. That silence has a substantive consequence the document never acknowledges: Section 253 by its terms reaches only "State or local" legal requirements, and Tribal governments are neither. Deployments on Tribal trust lands generally require both Tribal consent and approval from the Bureau of Indian Affairs (BIA), a federal agency, under the Indian Right-of-Way Act (25 U.S.C. § 324) and Bureau of Indian Affairs regulations (25 CFR Part 169)—a process outside the proposed rules entirely. So providers building on Tribal lands, including grantees under federal Tribal broadband programs, would get no 120-day clock and no fee protections from this proceeding, and the NPRM asks no questions about it.

What about local budgets?

The FCC's response to governments' budget concerns is unusually direct: any budget adjustments "would be a necessary consequence of complying with the mandates of the statute." The FCC "assume[s]" that governments claiming economic harm "have balance sheets, projections, and other financial reports" and asks them to submit that financial data—effectively challenging localities to provide proof. The FCC dispatches Fifth Amendment takings arguments by citing the Ninth Circuit's rejection of the same claims in City of Portland and characterizing rights-of-way as "subject to monopolistic control by state or local governments" rather than assets traded in a market.

Commingled-facilities

The commingling proposal (paras. 68–72) may be the item with the longest reach. Broadband Internet access service is currently classified as an information service outside Section 253's direct scope—a fact the NPRM does not dwell on—but because modern fiber "simultaneously carr[ies] both telecommunications traffic and broadband traffic," the proposed presumption would extend Section 253's shield to essentially any broadband-capable fiber build so long as it also enables telecommunications service. Notably, the NPRM cites "state rate regulation of broadband" as a record example of the "additional or more onerous requirements" that frustrate deployment. That phrasing suggests the proceeding could become a vehicle for preempting state broadband-specific requirements well beyond permitting timelines and fees.

What communities could lose in the in-kind proposal.

Under the proposal, the value of in-kind conditions—the record's examples include spare conduit, dark fiber, and infrastructure built at provider expense that becomes city property—would count against the safe harbor fee levels, and the FCC tentatively concludes that compensation demands "unrelated to a provider's use of public rights-of-way" that prohibitively raise deployment costs are "likely to be preempted if challenged." But the NPRM's questions give commenters three distinct openings: 1) whether conditions like street restoration, curb ramps, and accessibility features are properly considered "compensation" at all, or simply part of managing the rights-of-way; 2) whether requirements that "promote beneficial 'dig once' policies" warrant different treatment under the counting rule; and 3) which types of in-kind demands should be permissible or prohibited outright. Commenters who want these tools preserved will need to answer with specifics—the FCC asks what purposes such conditions serve and what costs they impose, and the record it receives will determine what survives.

Where the Commissioners stand.

Chairman Carr frames the item as the permitting-reform half of his two-part agenda alongside spectrum, citing the just-concluded Advanced Wireless Services (AWS-3) auction, which saw gross winning bids exceed $3.5 billion. Commissioner Trusty emphasizes predictability and expresses interest in "working with Congress as it considers additional permitting reforms"—a hint that legislative action may be part of the endgame. Commissioner Gomez supports issuing the NPRM while questioning whether the rules it contemplates can lawfully be adopted at all.

Notes

1. The publicly owned or controlled land along and under streets and roads where utility poles, conduit, and cables are placed
2. Under the Communications Act, a "telecommunications service" is pure transmission: carrying the user's information between points the user chooses "without change in the form or content" (47 U.S.C. § 153(50), (53))—traditional phone service is the paradigm. An "information service," by contrast, offers the capability to generate, store, process, or retrieve information via telecommunications (47 U.S.C. § 153(24)), and the Act's common-carrier obligations—including Section 253—attach only to the former.

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