Proposed Rule2026-16196
Build America: Eliminating Barriers to Wireline Deployments
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Published
August 7, 2026
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) proposes and seeks comment on rules that would eliminate state and local requirements that constrain the deployment of modern high-speed wireline infrastructure in violation of section 253 of the Communications Act (Act), particularly through the imposition of excessive delays and fees that impede infrastructure deployments and disincentivize investments in them. Based on the record resulting from a Notice of Inquiry that identified numerous challenges providers face in offering telecommunications services and deploying wireline infrastructure (2025 Notice of Inquiry), this Notice of Proposed Rulemaking seeks comment on codifying rules that would: establish a rebuttable presumption that state and local governments have effectively prohibited the provision of wireline telecommunications services if they fail to process all authorizations for use of public rights-of-way to provide wireline telecommunications services or to deploy wireline telecommunications infrastructure within 120 days; limit the fees that state and local governments may charge for a wireline telecommunications authorization to a reasonable approximation of the government's actual, direct costs of managing the rights-of-way with respect to that authorization and establish safe harbor fee levels that presumptively comport with that standard; require that the value of in-kind compensation demanded by state and local governments count toward any safe harbor fee levels adopted by the Commission; and prohibit state and local governments from imposing additional requirements on wireline telecommunications infrastructure deployments on the grounds that the infrastructure may be used to provide other services. The Notice of Proposed Rulemaking also seeks comment on the Commission's authority to enact these proposals.
Full Text
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[Federal Register Volume 91, Number 151 (Friday, August 7, 2026)]
[Proposed Rules]
[Pages 51121-51138]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-16196]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WC Docket No. 25-253; FCC 26-40; FR ID 359677]
Build America: Eliminating Barriers to Wireline Deployments
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) proposes and seeks comment on rules that would eliminate
state and local requirements that constrain the deployment of modern
high-speed wireline infrastructure in violation of section 253 of the
Communications Act (Act), particularly through the imposition of
excessive delays and fees that impede infrastructure deployments and
disincentivize investments in them. Based on the record resulting from
a Notice of Inquiry that identified numerous challenges providers face
in offering telecommunications services and deploying wireline
infrastructure (2025 Notice of Inquiry), this Notice of Proposed
Rulemaking seeks comment on codifying rules that would: establish a
rebuttable presumption that state and local governments have
effectively prohibited the provision of wireline telecommunications
services if they fail to process all authorizations for use of public
rights-of-way to provide wireline telecommunications services or to
deploy wireline telecommunications infrastructure within 120 days;
limit the fees that state and local governments may charge for a
wireline telecommunications authorization to a reasonable approximation
of the government's actual, direct costs of managing the rights-of-way
with respect to that authorization and establish safe harbor fee levels
that presumptively comport with that standard; require that the value
of in-kind compensation demanded by state and local governments count
toward any safe harbor fee levels adopted by the Commission; and
prohibit state and local governments from imposing additional
requirements on wireline telecommunications infrastructure deployments
on the grounds that the infrastructure may be used to provide other
services. The Notice of Proposed Rulemaking also seeks comment on the
Commission's authority to enact these proposals.
DATES: Comments are due on or before September 21, 2026 and reply
comments are due on or before November 5, 2026.
ADDRESSES: Pursuant to Sec. Sec. 1.1415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments, identified by WC Docket No. 25-253, by any of the
following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the Commission's Electronic Comment
Filing System (ECFS): <a href="https://www.fcc.gov/ecfs">https://www.fcc.gov/ecfs</a>.
<bullet> Paper Filers. Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by hand or messenger delivery, by
commercial courier, or by the U.S. Postal Service. ALL filings must be
addressed to the Secretary, Federal Communications Commission.
<bullet> Hand-delivered or messenger-delivered paper filings for
the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m.
by the FCC's mailing contractor at 9050 Junction Drive, Annapolis
Junction, MD 20701. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
<bullet> Commercial courier deliveries (any deliveries not by the
U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis
Junction, MD 20701.
<bullet> Filings sent by U.S. Postal Service First-Class Mail,
Priority Mail, and Priority Mail Express must be sent to 45 L Street
NE, Washington, DC 20554.
<bullet> People with Disabilities: To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#e5a3a6a6d0d5d1a5838686cb828a93"><span class="__cf_email__" data-cfemail="60262323555054200603034e070f16">[email protected]</span></a> or
call the Consumer and Governmental Affairs Bureau at 202-418-0530
(voice).
<bullet> Availability of Documents. Comments, reply comments, and
ex parte submissions will be publicly available via ECFS.
FOR FURTHER INFORMATION CONTACT: For further information about the
Notice of Proposed Rulemaking, contact Jesse Goodwin, Attorney Advisor,
Competition Policy Division, Wireline Competition Bureau, at
<a href="/cdn-cgi/l/email-protection#adefc8c3c7ccc0c4c383eac2c2c9dac4c3edcbcece83cac2db"><span class="__cf_email__" data-cfemail="f1b3949f9b909c989fdfb69e9e9586989fb1979292df969e87">[email protected]</span></a>. For additional information concerning the
Paperwork Reduction Act proposed information collection requirements
contained in this document, email to <a href="/cdn-cgi/l/email-protection#71212330311712125f161e07"><span class="__cf_email__" data-cfemail="db8b899a9bbdb8b8f5bcb4ad">[email protected]</span></a> or contact Nicole
Ongele at (202) 418-2991.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, in WC Docket No. 25-253, FCC 26-40, adopted on
June 25, 2026 and released on June 26, 2026. The complete text of this
document is available online at <a href="https://docs.fcc.gov/public/attachments/FCC-26-40A1.pdf">https://docs.fcc.gov/public/attachments/FCC-26-40A1.pdf</a>.
Paperwork Reduction Act. This Notice of Proposed Rulemaking may
contain proposed new and revised information collection requirements.
The Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and the Office of Management and
Budget (OMB) to comment on the information collection requirements
contained in this document, as required by the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501-3521. In addition, pursuant to the Small
Business Paperwork Relief Act of 2002, 44 U.S.C. 3506(c)(4), we seek
specific comment on how we might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
Providing Accountability Through Transparency Act: Consistent with
the Providing Accountability Through Transparency Act, Public Law 118-
9, a summary of this document will be available on <a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</a>.
Ex Parte Rules. The proceeding this NPRM initiates shall be treated
as a
[[Page 51122]]
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must: (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
Synopsis
I. Notice of Proposed Rulemaking
The record developed in response to the 2025 Notice of Inquiry
shows that while some state and local governments have implemented
effective and efficient requirements for issuing the authorizations
that providers need to access and use public rights-of-way to provide
wireline telecommunications services, many others are imposing
requirements that cause deployments to be scaled back or abandoned
altogether due to excessive delays, fees, or other onerous conditions.
The record is also clear that the barriers created by such state and
local governments have a ripple effect, with excessive delays, fees,
and conditions in one jurisdiction impacting a provider's ability to
complete a deployment and provide services in other jurisdictions. It
is therefore essential that all state and local governments take action
to ensure that their statutes, regulations, and other legal
requirements do not effectively prohibit the provision of wireline
telecommunications services in violation of Congress's direction in
Section 253. As the expert agency charged with administering the
Communications Act and Section 253 specifically, we adopt this Notice
of Proposed Rulemaking to propose and seek comment on rules that would
establish standards for compliance with the statute. In particular, we
propose and seek comment on rules that would require state and local
governments to process applications to access and use public rights-of-
way in a timely manner and to limit their fees and other demands as
necessary to avoid prohibitive financial burdens. Section 253 applies
to ``the ability of any entity'' to provide telecommunications service.
Accordingly, we use the term ``provider'' to refer to any entities that
provide telecommunications services directly to consumers as well as
those that deploy infrastructure with the ability to provide
telecommunications services. We use the term ``authorization'' to refer
to any type of authorization a state or local government may require
for a provider to access and use public rights-of-way to provide
wireline telecommunications services or deploy wireline
telecommunications infrastructure, including permits and right-of-way
agreements. We use the term ``right-of-way agreement'' to refer to
licenses, franchises, or any other contract that a state or local
government may require providers to obtain to access and use public
rights-of-way. While cable franchises regulated pursuant to Title VI of
the Act are not the focus of this Notice of Proposed Rulemaking, we do
not foreclose the possibility that cable franchisees may be able to
avail themselves of any rules or guidance adopted through this
proceeding to the extent they are deploying facilities subject to
Section 253.
A. Establishing a Deadline for State and Local Governments To Act on
Wireline Telecommunications Authorization Requests
We propose to adopt a presumption that any failure by a state or
local government to act by a specified deadline on all applications for
authorizations to access and use public rights of way to provide
wireline telecommunications services or deploy wireline
telecommunications infrastructure constitutes an effective prohibition
that violates Section 253(a) and does not qualify for the savings
clauses in Sections 253(b) and (c). While comments filed in response to
the 2025 Notice of Inquiry show that some state and local governments
have established procedures to review and approve authorization
applications in a timely manner, others can often take months or even
years to complete reviews. This can result in wireline
telecommunications deployments and service offerings being canceled,
delayed, or scaled back. For example, Intrepid describes the
difficulties it has experienced when seeking construction permits and
other authorization approvals from localities in Illinois, Minnesota,
Massachusetts, and Colorado, and it details how various local
requirements have delayed its projects by months to years. Crown Castle
states that it has faced extensive delays in obtaining authorizations
from the City of Los Angeles, California, ``where the average time to
receive a permit from the Department of Transportation for installation
of underground fiber facilities is nine months.'' It also describes
enduring protracted processes for obtaining right-of-way agreements
from localities, such as the Village of Itasca, Illinois, which offered
to supply a model right-of-way agreement but did not do so, and then
failed to communicate with Crown Castle about draft agreements that
Crown Castle provided in an effort to expedite the process. WISPA
reports that it can take months or years to obtain authorizations,
which presents a particular challenge in localities such as Ottawa
County, Ohio, where permits, when finally granted, remain valid for
only 90 days. WISPA explains that delays associated with authorization
approvals makes it extremely difficult for providers to plan and
schedule the work needed to complete a project within that 90-day
timeframe. T-Mobile describes a city in Ohio where fiber construction
``requires 13 different departments with 70 different individuals to
review a single application,'' resulting in myriad delays that hinder
deployments.
Examples such as these illustrate how wireline telecommunications
deployments can become mired in red tape for years when state and local
governments fail to act on authorization requests in a timely manner,
and how such delays can squander provider resources and constrain
deployments
[[Page 51123]]
across the nation. We therefore believe it is necessary and appropriate
for the Commission to propose and seek comment on rules that will place
presumptive limits on the time that state and local governments may
take to review and act on authorization requests. We base our proposal
on the point that excessive delays presumptively constitute an
effective prohibition that Congress has deemed unlawful under Section
253.
Establishing a Presumptive Deadline to Act Under Section 253(a).
Courts and the Commission have recognized that excessive delays in
processing and approving applications for authorizations can
effectively prohibit the provision of telecommunications services in
violation of Section 253(a). The Commission has stated that ``in
certain circumstances, a failure by a local government to process a
franchise application in due course may `have the effect of
prohibiting' the ability of the applicant to provide telecommunications
service, in contravention of section 253.'' Some courts have also found
that excessive delays in processing a franchise agreement can
constitute an effective prohibition under Section 253. For instance,
the Second Circuit found that ``the extensive delays in processing
TCG's request for a franchise have prohibited TCG from providing
service for the duration of the delays.'' In that case, the delay
``spann[ed] over seven years since TCG's initial request in 1992, one
[and] a half years since TCG's first request after the promulgation of
the Ordinance [at issue in the case] and more than half a year since
TCG's re-application in February 1999.'' Given the record evidence of
excessive delays described above, the barriers they create to wireline
telecommunications infrastructure and services, and the significant
support in the record for addressing those barriers through the
establishment of a deadline, we propose to identify the point at which
a delay by a state or local government to act on a required
authorization is so excessive that it can be presumed to constitute an
effective prohibition that violates Section 253(a). We seek comment on
this approach.
Do commenters agree that the Commission's authority under Section
253(a) allows the Commission to establish a deadline for when a failure
to act by state and local governments can be presumed to effectively
prohibit the provision of wireline telecommunications services? In the
Small Cell Order, 83 FR 51867 (October 15, 2018), the Commission
determined that violations of the shot clocks applicable to Small
Wireless Facilities presumptively constitute an effective prohibition
under Section 332(c)(7)(B)(i)(II) of the Act, which uses similar
language in the context of the placement, construction, and
modification of commercial mobile services and facilities. For the
purposes of this Notice of Proposed Rulemaking, the term ``Small
Wireless Facilities'' has the same meaning as the definition in section
1.6002(l) of the Commission's rules. Several commenters responding to
the 2025 Notice of Inquiry argue that, given the comparable language
and purposes of Section 253 and Section 332, it is appropriate to
construe Section 253 to similarly authorize limits on the time that
state and local governments may take to review and act on wireline
telecommunications authorization requests. Commenters also suggest
that, in the absence of such limits, state and local governments can
erect barriers to entry and restrain competition simply by delaying
authorization reviews, in direct contravention of Congress's intent
when it enacted Section 253. Are these arguments consistent with the
best reading of Section 253(a)? Are there additional arguments that
would support the establishment of a deadline for when state and local
governments' failures to act on wireline telecommunications
authorization requests presumptively prohibit telecommunications
service under Section 253(a)?
State and local government commenters that responded to the 2025
Notice of Inquiry generally oppose the establishment of a deadline
under Section 253(a). In particular, they note that the shot clocks
that the Commission established for Small Wireless Facilities implement
language in Section 332 that does not exist in Section 253.
Specifically, Section 332 contains a requirement that state and local
governments ``act on any request for authorization to place, construct,
or modify personal wireless service facilities within a reasonable
period of time after the request is duly filed with such government or
instrumentality[.]'' Some state and local government commenters argue
that if Congress intended shot clocks to be established under an
effective prohibition standard, which exists in both Section 253(a) and
Section 332(c)(7)(B)(i)(II), it would not have enacted the separate
requirement in Section 332(c)(7)(B)(ii) that state and local
governments act ``within a reasonable period of time,'' i.e., that
establishing a deadline for state and local governments to act under
Section 253(a) or Section 332(c)(7)(B)(i)(II) would render Section
332(c)(7)(B)(ii) superfluous. Do other commenters agree? Does the fact
that Congress adopted a specific requirement in Section 332 for state
and local governments to act within a reasonable period of time with
respect to wireless siting applications suggest that it did not intend
to subject state and local governments to a deadline if the
requirements and procedures they impose result in prohibitive delays
within the meaning of Section 253(a)? Could the ``reasonable period of
time'' requirement in Section 332(c)(7)(B)(ii) simply impose a more
specific standard for wireless siting applications than the effective
prohibition standard in Section 253(a), which sweeps more broadly to
reach all telecommunications services? Does the fact that we propose to
establish a deadline based on the point at which delays in approving
authorizations can be safely presumed to effectively prohibit the
provision of wireline telecommunications services--not the ``reasonable
period of time'' standard in Section 332--render the arguments
presented by state and local governments concerning the textual
differences between Section 253 and Section 332 moot? Are there any
other arguments that the Commission should consider when determining
whether to establish a deadline under the effective prohibition
standard in Section 253(a)?
Timeframe. We propose to establish 120 days from the date that an
application for an authorization is submitted as the deadline by which
state and local governments must ordinarily--subject to possible
exceptions discussed below--act on all applications for authorizations
needed to access and use public rights-of-way to provide wireline
telecommunications services or deploy wireline telecommunications
infrastructure. Commenters that favor establishing a deadline propose
timeframes ranging from 30 to 150 days, at times contingent on the type
of authorization in question (e.g., a permit versus a right-of-way
agreement) or the nature of the deployment. As discussed above, our
proposed standard is designed to guard against ``effective
prohibitions'' as contemplated by Section 253(a). As such, the deadline
we propose to choose is the point at which a delay presumptively
constitutes an effective prohibition--not the amount of time that it
reasonably should take a state or local government to process a
particular type of authorization. The record does not show that the
lower range of deadlines proposed by commenters would meet that
standard. We
[[Page 51124]]
tentatively conclude based on the existing record, however, that delays
that exceed several months routinely have a prohibitive effect by
increasing the costs of the deployments and generating uncertainty that
requires providers to cancel, postpone, or scale back their investments
in certain projects. We thus believe that setting the deadline at 120
days--a deadline closer to the longer time periods proposed in the
record--is consistent with Congress's intent to preclude state and
local requirements from having a prohibitive effect on the provision of
telecommunications services. Notably, the record indicates that a
number of state and local governments are already striving to process
applications for authorizations to access and use public rights-of-way
in significantly less time than 120 days, suggesting that our proposed
deadline would appropriately target only those state and local
governments engaging in review practices that have a presumptively
prohibitive effect within the meaning of Section 253(a). We seek
comment on our tentative findings concerning the prohibitive effect of
delays longer than 120 days and on this proposed approach. We note that
franchising authorities must act on a competitive cable franchise
application within 90 or 180 days, depending on whether the competitive
applicant already has access to the right-of-way to provide a non-cable
service. The deadline is calculated from the date that the applicant
files an application that includes information required by our
regulation, and if a franchising authority fails to act within the
allotted time, the franchising authority is deemed to have granted the
application on an interim basis, under which the applicant may begin
providing service.
Do commenters agree that the proposed 120-day deadline reflects the
point at which a delay in acting on a request to access and use public
rights-of-way to provide wireline telecommunications services can be
presumed to have a prohibitive effect? Does this timeframe accurately
reflect the point at which delays impede the ability of providers to
invest in and complete deployments? Is a shorter or longer time period
more appropriate? We seek detailed comment on when it becomes nonviable
for a provider to wait for authorizations and how a provider makes such
determinations. Given the extent of planning required to deploy
wireline telecommunications infrastructure and the need to muster
resources well in advance, at what point does a provider need an
answer, including a possible denial, before it decides to forego or
scale back a given project? How does the size of the provider or the
extent of the project affect this analysis? We ask that commenters
submit specific examples to the Commission of projects that have been
canceled, postponed, or reduced in scope as a result of delays created
by state and local requirements, with references to specific state and
local requirements and the specific point in time that they made the
decision to cancel, postpone, or reduce the project (e.g., 120 days,
365 days). Was the decision to cancel, postpone, or reduce the project
because of costs associated with the longer review? If so, what were
those specific costs (e.g., lessened return on investment, penalties
under contracts, lost funding from federal and state programs, customer
churn)? Could delays in one jurisdiction or set of jurisdictions have
effects on deployment in other markets? For example, to what extent
would delays beyond 120 days in one area (or the aggregate effects of
such delays in multiple areas) preclude a provider from beginning
additional deployments in other areas by tying up resources needed to
undertake those additional deployments?
We propose that the 120-day time period start when a provider
submits a written application for an authorization, or, if a state or
local government requires pre-application steps, when the provider
takes the first mandatory procedural step. A number of commenters
support such an approach. Do other commenters agree? If commenters
disagree, when should the period begin? For example, some state and
local government commenters contend that the start of any such
timeframe should be the point at which an application is deemed
complete. As discussed in more detail below, while some commenters
favoring establishing a deadline argue that it should be extended upon
discovery of application deficiencies or incompleteness, they further
argue that calculating the deadline from the point at which a state or
local government deems the application complete could render the
deadline meaningless if a state or local government improperly delays
that determination. Do commenters agree that requiring completeness
would enable gamesmanship by state and local governments to extend
their review periods indefinitely, resulting in effective prohibitions?
Would requiring completeness before the timeframe begins be
inconsistent with the approach that the Commission took to establish
shot clocks for Small Wireless Facilities, as Free State Foundation
suggests, and if so, what would the consequence of any such
inconsistency be? If the Commission were to consider starting the 120-
day timeframe on the date that a state or local government deems an
application complete, how should the Commission define completeness?
Should the Commission consider adopting a rule that requires a state or
local government to provide an applicant with written notice that their
application is incomplete within a certain period of time, with a
failure to do so eliminating incompleteness as a basis for rebutting a
presumption that an effective prohibition has occurred?
Authorizations Subject to Deadline. We propose that any and all
authorizations that a state or local government may require for a
particular use of a particular right-of-way must ordinarily be acted on
within the 120-day period that commences when a provider of wireline
telecommunications services submits its first application for a
required authorization. For instance, if a local government requires
that a provider obtain a right-of-way agreement, a construction permit,
road closure permits, and additional types of authorizations for a
single deployment of wireline telecommunications service infrastructure
in a particular right-of-way, the standard we propose would--subject to
the possible exceptions discussed below--require that all such
authorizations be approved within 120 days of the first request
submitted. The record is clear that providers must have a sense of when
they will obtain the authorizations needed for their builds to proceed
in order to plan and budget for their deployments, as variables such as
excessive state and local processing delays can render builds cost
prohibitive and the risks of further investment too high. Further,
sequential authorization demands that drag out for months, if not
years, may delay deployments well beyond the point that we may presume
an effective prohibition to have occurred pursuant to the proposals
herein. We thus believe the goals of establishing a deadline for state
and local governments to act on applications for authorizations that
would avoid a presumption that they have violated Section 253 would be
best achieved by applying it to all authorizations that the governments
may require for a particular deployment in a particular right-of-way,
and seek comment on that view.
Do commenters agree that the Commission should adopt a single
deadline that applies to any and all authorizations that a state or
local
[[Page 51125]]
government may require a wireline telecommunications services provider
to obtain for a particular use of a particular right-of-way? Do state
and local governments identify all of the authorizations that a
provider must obtain for a particular deployment early in the process,
such that providers could organize and submit their applications in a
manner that would work with the proposed 120-day period? Are there
authorizations that must be processed sequentially and that require
review periods that would make it impracticable for all authorizations
to be reviewed within a single 120-day period? If so, should the 120-
day period restart for certain types of authorizations, or should
sequential authorization processing be a basis for seeking an extension
of the 120-day period? To the extent governments require providers to
obtain authorizations from multiple state or local agencies to deploy
wireline telecommunications infrastructure within a particular right-
of-way, is it feasible for those agencies to coordinate their work to
comply with a single 120-day period? If not, why not? What else should
the Commission consider when determining whether to require state and
local governments to act on all authorizations required for a
particular deployment in a particular right-of-way by a single
deadline? If commenters propose that the Commission take a different
approach, e.g., separate deadlines for different types of
authorizations needed for a particular use of a particular right-of-
way, we ask that commenters detail how their proposals would function
and comport with the effective prohibition standard in Section 253(a).
We also seek comment on whether the 120-day period should apply to
``batched'' applications, i.e., requests for authorizations for
multiple deployments within a single jurisdiction. In the Small Cell
Order, the Commission found that ``the way in which Small Wireless
Facilities are likely to be deployed, in large numbers as part of a
system meant to cover a particular area,'' warranted applying the shot
clocks applicable to such facilities to batched applications. Do the
same considerations apply in the context of deploying infrastructure to
provide wireline telecommunications services? Is there sufficient
uniformity between the applications for authorizations for multiple
deployments within a single jurisdiction to enable state and local
governments to efficiently review them all within a single 120-day
period, or are there variances between the applications or the
locations where the infrastructure is to be deployed that warrant
separate review periods? How do state and local governments require
providers to structure their applications for authorizations in the
wireline context? Are providers required to submit separate
applications for each street, sidewalk, or other public right-of-way
where they propose to install facilities within a single jurisdiction?
Are they required to break their applications down even further (e.g.,
by city block)? Do any state or local governments allow providers to
submit jurisdiction-wide applications? What challenges would state and
local governments encounter if they were required to process batched
applications within a single 120-day period?
Lastly, we seek comment on whether the Commission can and should
apply its proposed 120-day period to applications for state and local
authorizations to place infrastructure needed to provide wireline
telecommunications services outside the public right-of way. What state
and local statutes, regulations, and legal requirements currently apply
to requests to place such facilities outside of public rights-of-way?
What facilities do providers deploying wireline networks need to place
outside of the public rights-of-way (e.g., fiber huts)? Do state and
local procedures for placing wireline telecommunications facilities
outside of public rights-of-way differ from applications to access and
use public rights-of-way? Do the procedures result in delays that
effectively prohibit the provision of wireline telecommunications
services in violation of Section 253(a)? If so, would the savings
clause in Section 253(c) apply to such requirements, given that the
statutory provision expressly applies to uses and management of public
rights-of-way? Would the savings clause in Section 253(b) apply? What
else should the Commission consider when evaluating whether to apply
the proposed 120-period to requests to place wireline
telecommunications facilities outside the public rights-of-way? Should
the Commission evaluate whether there are state and local laws that
prohibit or effectively prohibit providers from requesting and
obtaining access to private utility easements within the meaning of
Section 253?
Section 253(b) and (c) Savings Clauses. We tentatively conclude
that 120 days ordinarily provides sufficient time to perform the tasks
outlined in Section 253(b) and (c) and seek comment on that view. We
acknowledge the safety and other public welfare purposes of the
permitting process and the role state and local governments have in
managing public rights-of-way to address those concerns. Wireline
telecommunications 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 in
Sections 253(b) and (c) of the Act. Nevertheless, we believe that in
most circumstances 120 days provides an adequate amount of time to
complete that review, as evidenced by comments from both providers and
governments stating that authorization requests are often processed in
less than 120 days. Indeed, some states that have adopted deadlines for
their political subdivisions to process authorizations for wireline
deployments have codified much shorter time periods, e.g., 60 days.
Further, our proposal to adopt a single deadline based on the point
that an effective prohibition can be presumed to have occurred if the
provider cannot proceed with its deployment--rather than structured
deadlines for each type of authorization that may be required--would
allow state and local governments to continue employing the management
and review methods that they have deemed necessary for their
jurisdictions. That said, we believe it is important to set a
definitive point at which the state and local review process must
presumptively stop so as to give providers the certainty they need to
plan, fund, and implement their deployments, and that our proposal
would achieve that critical objective.
We seek comment on this approach. Do commenters agree that 120 days
provides enough time for state and local governments to carry out the
tasks set forth in Section 253(b) and (c)? If not, what specific tasks
would state and local governments not be able to complete within that
timeframe (e.g., inspections, meetings, any required vote by a
government body), and what deadline would allow sufficient time for
those tasks to be completed? Is 120 days sufficient time for state and
local governments to address the unique geographic, economic, or other
regulatory considerations of their jurisdictions? If not, why not? Can
state and local government commenters provide specific examples of
applications that took longer than 120 days to review and detailed
explanations for why that was the case (e.g., incomplete applications)?
Are there measures that the Commission should consider adopting to
address any impediments to completing application reviews within 120
days (e.g.,
[[Page 51126]]
requirements concerning the submission of complete applications)? Could
any challenges identified by state and local governments be mitigated
through more efficient procedures? For example, INCOMPAS points out
that numerous federal, state, and local agencies complete complex
permitting activities within mandatory timelines in other contexts. Is
there any reason that state and local governments could not develop
standard processes that would allow them to complete the public welfare
tasks identified in Sections 253(b) and (c) and comply with a deadline
to act on wireline telecommunications authorization requests? Would a
failure to take such steps that could improve processing times support
the conclusion that a state or local government's requirements
effectively prohibit the ability of an entity to provide wireline
telecommunications services? What else should the Commission consider
to determine whether 120 days or another time period that reflects the
point at which an effective prohibition has presumptively occurred
under Section 253(a) also exceeds any timeframe necessary for a state
or local government to perform the tasks identified in Section 253(b)
and (c)?
Bases for Rebutting the Presumption of a Section 253 Violation and
Extending the Deadline. We propose that state and local governments be
permitted to rebut the presumption that an effective prohibition has
occurred under Section 253(a). We seek comment on the factors that
should be considered to determine whether the presumption has been
rebutted and whether the Commission should consider adopting specific
provisions for extending the deadline under certain circumstances. For
instance, are there particular types of applications or projects that
inherently require more time to review due to their complexity, scope,
or other factors, and that providers should expect state and local
governments to need more time to review when planning their builds? If
so, what specific aspects of the applications or projects trigger the
need for more time (e.g., the terrain, need for third-party
coordination, particular engineering issues) and why could those
factors not be addressed within a 120-day period? Are there any other
factors that are relevant to rebutting the presumption that an
effective prohibition has occurred if more time than any deadline
adopted by the Commission is needed (e.g., incomplete applications)?
Should the Commission consider adopting specific extensions of the
120-day period when certain circumstances arise? For example, if--
through no fault of the state or local government--a provider does not
file an application needed for a particular deployment until late in
the 120-day review period (e.g., the provider applied for a right-of-
way agreement on Day 1 but does not submit an application for a
separate excavation permit until Day 118), should the state and local
government be able to take more time to review the late-filed
application? If so, should the 120-day clock be restarted for the late-
filed permit, or should the 120-day review period be extended for a
shorter set period? Should the Commission consider a set extension for
applications that are submitted but are incomplete? Should the review
period be extended if a provider revises its deployment plan after its
applications have been submitted? Should providers and governments be
able to extend the 120-day review period by mutual agreement? Should
the 120-day period be paused while the parties negotiate a mutual
agreement? And what process should take place if negotiations fail and
no good-faith, mutual agreement is reached? If a state or local
government approves an authorization during the 120-day review period,
but then revokes it and requires the provider to reapply, should the
120-day period restart for the renewed application, or should the prior
120-day period still apply and be extended? Should an extension be
prohibited if the revocation is due to the state or local government
changing its requirements for an application after the provider submits
it, or due to a mistake or omission by the government during the review
process? Are there any factors or circumstances that should be
preemptively rejected as bases for extending the 120-day review period?
Applicability to Government-Owned Structures. The mandates of
Section 253 apply not only to requests to access and use public rights-
of-way to provide telecommunications services, but to requests to
access and use government-owned property in public rights-of-way.
Indeed, in City of Portland, the Ninth Circuit agreed with the
Commission's determination in the Small Cell Order that state and local
governments do not act solely as market participants when they grant or
deny access to government-owned structures in public rights of way,
stating that ``[t]he rights-of-way, and manner in which the
municipalities exercise control over them, serve a public purpose, and
they are regulated in the public interest, not in the financial
interests of the cities.'' Thus, the court upheld the Commission's
application of its interpretations of Section 253 to government-owned
property in public rights of way, concluding that governments ``act in
a regulatory capacity when they restrict access to the public rights-
of-way because they are acting to fulfill regulatory objectives.''
Further, the court noted that the Commission's determination was not
novel, citing prior in-circuit precedent concluding that ``cities
operate in a regulatory capacity when they manage access to public
rights-of-way and property thereon.''
Consistent with this precedent, we propose to apply the 120-day
deadline for state and local governments to act on applications for
authorizations to provide wireline telecommunications services and
deploy wireline telecommunications infrastructure to requests to access
and use government-owned property located in public rights-of-way,
including, but not limited to, government-owned poles. We seek comment
on this approach. Are there any factual or practical distinctions
between requests to access public roadways, highways, streets,
sidewalks, or similar property and requests to attach to different
types of government-owned poles or structures that warrant taking a
different approach? Is the proposed 120-day deadline sufficient to
review applications to attach facilities to government-owned
structures? If not, should the Commission consider a longer deadline
that is inclusive of any type of authorization that a provider may seek
from a jurisdiction, or should the Commission consider a separate
deadline that applies solely to applications to access and use
government-owned structures? What would be the impact of not applying
the proposed deadline to government-owned structures? Would it
disadvantage certain types of deployments or providers? Is applying the
proposed deadline to government-owned structures necessary to ensure
that state and local requirements are applied in a competitively
neutral, nondiscriminatory manner, as required by Section 253? What
else should the Commission consider when determining whether to apply
the proposed deadline to government-owned structures in public rights-
of-way?
Enforcement. We seek comment on how providers could seek
enforcement of the proposed deadline. We expect that one method of
enforcement would be action on petitions submitted to the Commission
under Section 253(d) of the Act. That provision directs the Commission
to preempt the enforcement of any statute, regulation, or legal
requirement ``to the extent
[[Page 51127]]
necessary to correct'' a violation of, or inconsistency with, Section
253(a) after public notice and comment. Accordingly, if the Commission
were to adopt a presumption that a failure to comply with the proposed
120-day deadline constitutes an effective prohibition that violates
Section 253, and a state or local government requires that providers
comply with procedures for authorization reviews that exceed that
timeframe, providers could petition the Commission for preemption of
those procedures. At that point, as proposed above, the relevant state
or local governments could respond with any arguments the Commission
should consider to determine if the presumption of an effective
prohibition has been rebutted and/or any additional arguments for why
it believes the procedures should be saved from preemption under
Section 253(b) or (c). We seek comment on this approach. We observe
that Section 253(d) does not expressly authorize the Commission to
order injunctive relief, e.g., to require a state or local government
to grant a permit or follow procedures specified by the Commission. In
view of this, would preempting state and local requirements that allow
review and approval of authorizations beyond the 120-day timeframe,
without any further relief, sufficiently resolve an effective
prohibition created by excessive delays? If not, can commenters
identify any source of authority that would enable the Commission to
require state and local governments to grant an authorization request
or to provide other injunctive relief? Are there other forms of relief
the Commission could order beyond preemption that would enable the
provider to proceed with its project? Would a petition to the
Commission under Section 253(d) be viable if the delay is based on
inaction that is not rooted in a statute, regulation, or legal
requirement?
Would providers be able to seek enforcement of a deadline adopted
by the Commission in court? We note that Section 332(c)(7) of the Act
authorizes providers to commence an action in court if a state or local
government fails to act on an authorization to place, construct, or
modify personal wireless service facilities within a reasonable period
of time where they may seek injunctive relief. We expect that, at a
minimum, the Commission's determinations of what constitutes an
effective prohibition under Section 253, including any presumption
adopted by the Commission on when excessive delays have a prohibitive
effect, would be persuasive authority to courts. Would courts be
legally bound to enforce rules adopted by the Commission that codify
and implement the proposals discussed above?
Consistent with the incremental approach taken to establish shot
clocks under Section 332 in the Small Cell Order, we decline at this
time to propose the ``deemed granted'' remedy requested by some
commenters. We expect that creating a standard that providers can use
to challenge delays as effective prohibitions will be sufficient to
address the consequences identified by providers in the record,
particularly given that the record indicates that many jurisdictions
currently process applications within the proposed deadline period.
However, we may revisit this decision if evidence submitted to the
Commission suggests that a ``deemed granted'' remedy is needed and, as
discussed above, commenters identify sources of authority that would
allow the Commission to order state and local governments to grant
authorization requests. We thus seek comment on our proposed
incremental approach and any bases upon which the Commission could and
should require state and local governments to grant requests for
authorizations to provide wireline telecommunications services and
deploy wireline telecommunications infrastructure.
We also seek comment on whether and how the Commission should
enforce its prior determination that de facto moratoria violate Section
253 if we were to adopt the proposed deadline. In the Moratoria Order,
the Commission determined that de facto moratoria prohibit or
effectively prohibit the provision of telecommunications services
through indefinite or unreasonable delays in the processing of
applications or issuance of permits, such as through blanket refusals
to process applications, refusals to issue permits for a category of
structures, and frequent and lengthy delays of months or even years in
issuing permits and processing applications. By contrast, express
moratoria are created via state or local statutes, regulations, or
other written legal requirements that expressly prevent or suspend the
acceptance, processing, or approval of applications or permits
necessary for deploying telecommunications services and/or facilities,
and also violate Section 253. If the Commission were to codify a
presumption that a state or local government has effectively prohibited
the provision of wireline telecommunications services if it does not
act on authorization applications by a set deadline, would that render
the Commission's prior ruling on de facto moratoria moot in the context
of wireline services? Are there circumstances where de facto moratoria
could still exist? If so, what are those circumstances? Should the
Commission codify its declaratory rulings on moratoria?
Expediting Deployments Upon Approval. Some government commenters
have suggested that some providers do not complete deployments after
authorization approvals have been issued. They argue that this results
in a waste of financial and administrative resources. If the Commission
were to adopt a rule that requires state or local governments to act on
wireline authorizations within 120-days to avoid a presumption that
they have violated Section 253, are there steps that the Commission
could also take to incentivize providers to act quickly on those
authorizations so that state and local governments have more certainty
that the deployments will be completed and that their resources are
being correctly applied? Are there formal requirements that the
Commission should consider, and if so, could they be adopted under
Section 253 or another source of authority?
B. Establishing a Standard for State and Local Fees That Complies With
Section 253
The courts and the Commission have long applied Section 253 of the
Act to limit fees charged by state and local governments that impose
prohibitive financial burdens on the provision of wireline
telecommunications services and the deployment of wireline
telecommunications infrastructure. Despite this precedent, the record
developed in response to the 2025 Notice of Inquiry shows that many
state and local governments continue to assess fees against providers
seeking authorizations to deploy and provide wireline
telecommunications services as profit generators for their
jurisdictions, rather than as compensation for costs incurred due to
the provider's requested or actual use of the public rights-of-way. The
record makes clear that state and local governments assess these fees
without regard to the financial burden they create for the provider and
its ability to provide service. For instance, Crown Castle reports that
it is either stuck at an impasse or has been forced to walk away from
projects planned for municipalities in Alabama, Washington, and Arizona
due to excessively high fees that have ``caused [the] projects to be
uneconomical.'' INCOMPAS similarly asserts that above-cost fee
requirements set by cities in Arizona,
[[Page 51128]]
Oregon, New Mexico, California, and New Mexico, including gross-revenue
and per-linear-foot fees, have ``led [its] members to abandon planned
projects in those localities as uneconomic.'' T-Mobile, meanwhile,
claims that non-cost-based fees ``can and have caused our fiber
partners to abandon deployment projects,'' citing as examples a
Minnesota city's ``$160 fee for any structure (i.e., handholds, vaults,
terminal boxes, etc.) that the company install[s]'' and an Ohio
municipality's high per-linear-foot fees. USTelecom also states that
some of its members have abandoned or scaled back projects due to
excessive fees, including one project for which a city in Minnesota
sought close to $30,000 in per-linear foot fees for a single block.
While these and other examples in the record of providers
canceling, delaying, or scaling back projects raise serious concerns
about the fees being assessed by state and local governments for
wireline telecommunications deployments, those concerns are amplified
when considering the impact of excessive fees on a regional or national
basis. As NCTA states, when ``any given locality's unreasonable
permitting fees and conditions sap a disproportionate share of a
provider's available capital for a particular multi-jurisdictional
deployment project, that locality may be effectively prohibiting the
provider's ability to follow through on its plan to extend its network
to other jurisdictions.'' Accordingly, even if many state and local
governments charge fees that are not excessive, the ones that do can
cause prohibitive effects that reach beyond their jurisdictional
boundaries.
To ensure that excessive fees do not effectively prohibit the
provision of wireline telecommunications services in violation of
Section 253 of the Act, either within the jurisdiction where they are
charged or in the aggregate, we propose to adopt a rule that codifies a
cost-based standard for the fees that state and local governments may
collect in connection with authorizations to access and use public
rights-of-way to provide such services and to deploy wireline
telecommunications infrastructure. Specifically, we propose that state
and local fees be limited to a reasonable approximation of the
government's actual and direct costs of managing its public rights-of-
way in connection with a particular wireline telecommunications
authorization, provided that those costs are objectively reasonable,
competitively neutral, and nondiscriminatory. We propose to codify a
presumption that state and local fees do not impose financial burdens
that violate Section 253(a) and constitute ``fair and reasonable
compensation'' within the meaning of Section 253(c) when they comport
with this standard. As we did in the context of Small Wireless
Facilities, we propose to adopt safe harbor fee levels, with fees that
fall within the safe harbor levels deemed presumptively compliant with
our proposed fee standard. We propose and seek comment on additional
measures to implement this fee standard below.
Cost-Based Fee Standard. In the Small Cell Order, the Commission
established a cost-based standard for fees that state and local
government may assess for authorizations to deploy Small Wireless
Facilities. In doing so, the Commission reviewed a line of judicial
precedent that: (1) found excessive fees can violate Section 253(a);
and (2) supported an interpretation of Section 253(c) that requires
``fair and reasonable compensation'' to be cost-based. For instance, in
City of White Plains, the Second Circuit examined an ordinance that
charged providers a monthly fee of five percent of annual gross
revenues. Although the Second Circuit did not resolve whether the term
``compensation'' limited fees to costs, the court observed that Section
253(c) ``requires compensation to be reasonable essentially to prevent
monopolistic pricing by towns,'' as ``[w]ithout access to local
government rights-of-way, provision of telecommunications service using
land lines is generally infeasible, creating the danger that local
governments will exact artificially high rates.'' The court noted that
``compensation is . . . sometimes used as a synonym for costs,'' but
ultimately did not resolve whether fair and reasonable compensation is
``limited to cost recovery, or whether it also extends to a reasonable
rent,'' relying instead on the fact that ``White Plains has not
attempted to charge Verizon the fee that it seeks to charge TCG'' to
determine that the fee failed the ``competitively neutral and
nondiscriminatory'' standard in Section 253(c). Similarly, in
Municipality of Guayanilla, the First Circuit held that Section 253(a)
preempted a municipal ordinance charging a monthly fee of five percent
of annual gross revenues, concluding that the fees placed such a
``significant burden'' on providers that they impermissibly ``strain[ed
the] ability to provide telecommunications services.'' It found that
Section 253(c) did not save the fee requirement because the fees lacked
a nexus with ``the actual use of the rights of way, . . . an essential
part of the equation'' in determining whether the fees were ``fair and
reasonable compensation as opposed to monopolistic pricing.'' Due to
this case-specific finding, the First Circuit determined that it ``need
not decide whether fees imposed on telecommunications providers by
state and local governments must be limited to cost recovery'' to
comply with the statute. The First Circuit also noted that the inquiry
under Section 253 is not limited to the impact that a fee has on the
deployment in the jurisdiction that imposes the fee, but the aggregate
effect of fees when totaled across all relevant jurisdictions. And in
City of Santa Fe, the Tenth Circuit preempted an ordinance enabling the
City of Santa Fe, New Mexico, to charge an annual rent of $6,000 for a
single 12'x18' block of concrete, which it deemed to be a prohibitive
financial burden. The Tenth Circuit reasoned that it was ``sufficient
[under Section 253(a)] to show that the rental provisions [were]
prohibitive because they create[d] a massive increase in cost'' for the
provider, and after noting that the city had conceded that its rent
requirement was not cost based, concluded that the requirement did not
constitute ``fair and reasonable'' compensation under Section 253(c)
pursuant to the ``totality of the circumstances'' test adopted by some
federal circuits. We acknowledge, too, that some courts have upheld
gross-revenue fees.
These cases--each of which interpreted Section 253 in the context
of wireline telecommunications services--did not conclusively determine
that Section 253(c) requires state and local fees to be cost-based.
They do, however, support a conclusion that the best reading of
Sections 253(a) and (c) is that Congress intended to limit state and
local fees to prevent governments from using their control over public
rights-of-way to extract exorbitant sums from providers, thereby
increasing providers' costs, lowering their profitability, and
effectively prohibiting their ability to provide and expand their
telecommunications services. This is clear from the statutory text,
which requires state and local fees to be limited to what is ``fair and
reasonable'' for ``use of public rights-of-way,'' imposed on a
``competitively neutral and nondiscriminatory'' basis, and disclosed
publicly. This qualifying language expressly limits the fees that state
and local governments may charge and thus stands in opposition to a
reading of the statute that would entitle state and local governments
to charge profit-driven fees. The Ninth Circuit
[[Page 51129]]
concurred with this reading of the statute in City of Portland, stating
that Section 253(c) ``requires that compensation be `fair and
reasonable;' this does not mean that state and local governments should
be permitted to make a profit by charging fees above costs'' where the
Commission has reasonably determined that the aggregate effect of such
fees is to effectively prohibit the provision of telecommunications
services. The Ninth Circuit thus upheld the Commission's adoption of a
cost-based approach for fees assessed in connection with authorizations
to deploy Small Wireless Facilities, deeming the approach of the Small
Cell Order ``consistent with the language and intent of Section
253(c).''
Consistent with this precedent, we tentatively conclude that: (1) a
state or local government does not effectively prohibit the provision
of wireline telecommunications services in violation of Section 253(a)
if it merely requires a provider to bear the government's actual and
direct costs of authorizing the provider to use the public rights-of-
way in its jurisdiction to provide service or deploy infrastructure;
and (2) fees that recover more than such costs do not constitute ``fair
and reasonable compensation'' under Section 253(c). Consistent with
these tentative conclusions, we propose to adopt a rule that limits
state and local government fees for authorizations required to provide
wireline telecommunications services and deploy wireline
telecommunications infrastructure to those that are a reasonable
approximation of the government's costs of managing the public rights-
of-way in connection with a particular authorization. We seek comment
on this approach.
Do commenters agree that the interpretations of Section 253 set
forth above are the best reading of the statute? If so, what additional
authorities exist to support those interpretations? If not, what
authorities support an argument that the best reading of ``fair and
reasonable compensation'' under Section 253(c) is that state and local
governments may extract profits in exchange for granting access to
public rights-of-way to provide wireline telecommunications services?
For instance, do commenters agree with the local governments that argue
that the best reading of ``fair and reasonable compensation'' under
Section 253(c) is that state and local governments may charge market-
based rates?
Do commenters agree that a cost-based fee standard is appropriate
in the context of wireline telecommunications services? In the Small
Cell Order, the Commission concluded that ``infrastructure builders,
like all economic actors, have a finite (though perhaps fluid) amount
of resources to use for the deployment of infrastructure,'' and that
``fees imposed by localities, above and beyond the recovery of
localities' reasonable costs, materially and improperly inhibit
deployment that could have occurred elsewhere.'' The Commission further
concluded that the ``regulatory uncertainty created by such effectively
prohibitive conduct creates an appreciable impact on resources that
materially limits plans to deploy service.'' In reaching these
conclusions, the Commission deemed it appropriate to consider ``the
aggregate effects of fees imposed by individual localities,'' stating
that it had to ``consider the marketplace regionally and nationally and
thus . . . consider the cumulative effects of state or local fees on
service in multiple geographic areas that providers serve[d] or
potentially would serve.'' Opting to proceed incrementally based on the
record before it on 5G deployments, which require the installation of
many closely spaced small cells to ensure reliable services, the
Commission determined that ``fees above a reasonable approximation of
cost, even when they may not be perceived as excessive or likely to
prohibit service insolation, will have the effect of prohibiting
wireless service when the aggregate effects are considered.'' Thus, the
Commission concluded that Section 253 precludes non-cost-based fees for
the deployment of Small Wireless Facilities because such fees can
prohibitively increase the financial burdens of a single deployment and
be prohibitive when the cumulative effect of state and local fees is
considered on a national or regional basis.
As noted above, the record developed in response to the 2025 Notice
of Inquiry indicates that excessive fees are also having a prohibitive
effect on wireline telecommunications deployments in the jurisdiction
where they are assessed and in the aggregate, when the financial
burdens of deploying in one jurisdiction requires a provider to divert
resources from planned deployments in another. Do commenters agree with
that tentative conclusion? If not, why not? And if commenters do agree
that excessive fees are having a prohibitive effect, as indicated in
the record developed in response to the 2025 Notice of Inquiry, do
commenters agree that the same rationales for adopting a cost-based
standard in the Small Cell Order apply to wireline telecommunications
deployments? Do commenters believe that limiting state and local
governments to the recovery of their costs would remedy the prohibitive
effects of excessive fees identified in the record?
We also seek comment on the effect of limiting fees to the recovery
of costs on state and local governments. The record shows that some
states, such as Missouri and Ohio, have already enacted statutes that
limit the compensation that localities may collect for use of their
public rights-of-way to actual costs. Are there other states that have
done so as well? If so, which states? Are there localities that have
adopted cost-based fee schedules? If so, how many have done so and can
commenters identify the regulations that establish the cost-based fees?
We note that some local government commenters have indicated that they
do not fundamentally oppose requiring fees to be cost-based; rather,
their concern is primarily about whether and how those fees will be
capped. Does that reflect the view of other state and local
governments? Stated differently, would more state and local governments
support a cost-based fee standard if mechanisms were in place to ensure
that they are able to recoup the actual costs they incur due to a
particular authorization (e.g., safe harbors, the ability to rebut a
presumption that a fee is excessive in a particular case)?
We seek comment on additional concerns raised by state and local
commenters. For instance, some governments assert that a cost-based
standard would disrupt local budgets. Others, like the City of Dallas,
argue that this may result in property tax increases for residents in
order to recapture lost revenue. We believe that this argument is
inconsistent with the text of Section 253(c), which, as explained
above, contains language that limits state and local fees to fair and
reasonable compensation for use of public rights-of-way, indicating an
intent by Congress to prevent state and local governments from using
their control over public rights-of-way as a profit generator that
prohibitively increases the financial burdens of telecommunications
deployments. Accordingly, we believe that any adjustments to local
budgets that may be needed as a result of limiting state and local fees
as proposed herein would be a necessary consequence of complying with
the mandates of the statute. As detailed below, we propose to establish
safe harbors for fees that would presumptively comply with a cost-based
standard under Section 253 and seek comment on the data that the
[[Page 51130]]
Commission should consider to set such safe harbors. It may be that,
after considering that data, the Commission sets safe harbors that are
consistent with the fees assessed by many jurisdictions for
authorizations to access and use public rights-of-way to provide
wireline telecommunications services. Accordingly, at this time, any
argument that state and local governments may lose revenue due to a
rule establishing a cost-based fee standard is speculative. We seek
comment on these views, and how much state and local fees might change
if we were to adopt the proposed cost-based standard. Given that some
state and local governments assert that limiting fees to cost-based
recovery will have a significant economic impact on their
jurisdictions, we assume that those governments have balance sheets,
projections, and other financial reports that set forth how much they
collect in authorization fees, the costs that those fees cover, the net
revenue that is applied to other governmental purposes, what those
purposes are, etc. Are these data points that state and local
governments can submit to the Commission, both to assist our
consideration of the economic-impact arguments asserted by commenters
and to evaluate whether any fee safe harbors established by the
Commission would sufficiently compensate state and local governments
for their costs? Is the data available via public sources?
Some government commenters also argue that limiting fees to cost-
based recovery would constitute a Fifth Amendment taking and that
``compensation'' requires recovery of fair market value. As an initial
matter, we note that the Ninth Circuit rejected similar arguments when
it upheld the cost-based fee standard adopted in the Small Cell Order,
concluding that no regulatory taking within the meaning of the Fifth
Amendment took place because the Commission's standard allowed state
and local governments to recover their actual costs of providing access
to public rights-of-way pursuant to Section 253(c). The court pointed
to the U.S. Supreme Court's decision in FCC v. Florida Power Corp.,
which found that ``it is . . . settled beyond dispute that the
regulation of rates chargeable from the employment of private property
devoted to public uses is constitutionally permissible'' and that
``[s]o long as the rates set are not confiscatory, the Fifth Amendment
does not bar their imposition.'' Here, we do not even seek to set rates
for right-of-way access, but merely to establish a standard that
ensures such fees comply with Section 253 in the context of wireline
telecommunications services. Further, the standard we seek to establish
would expressly allow state and local governments to recover their
actual costs. Accordingly, we do not believe our proposed standard
implicates the Fifth Amendment. Even if it were otherwise, it remains
unclear how ``fair and reasonable'' compensation under Section 253(c)
could be based on ``fair market value'' given that public rights-of-way
are not assets freely bought and sold in a ``market,'' but are more
accurately described as subject to monopolistic control by state or
local governments. In such circumstances, actual costs or other readily
discernable amounts have been deemed reasonable proxies for estimating
just compensation. We seek comment on these views. Do commenters agree
that our proposed fee standard does not implicate the Fifth Amendment?
If not, on what basis could state and local governments argue that an
uncompensated taking will occur under the Fifth Amendment if they are
limited to compensation for the costs they incur due to a provider's
use of public rights-of-way?
Some government commenters also express concern that requiring fees
collected in connection with the provision and deployment of wireline
telecommunications services to be cost-based may lead to preferential
treatment of telecommunications providers over other users of the
public rights-of-way (e.g., electric and other utilities). While it is
not clear from the current record whether this is true, we note that
Congress had a specific objective when it enacted Section 253: to
remove state and local barriers to the deployment of telecommunications
services and promote the rapid deployment of new telecommunications
technologies. Accordingly, any preference favoring telecommunications
deployments that may be perceived pursuant to the implementation of the
statute is one directed by Congress. Do commenters agree? Is there a
legal basis for concluding that state and local fees for wireline
telecommunications authorizations may not be limited to the recovery of
costs under Section 253 if other users of public rights-of-way are
charged above-cost fees? Do commenters agree that Congress may enact
statutes that result in different users of state and local public
rights-of-way being subject to different fees or other requirements?
Objectively Reasonable Costs. In addition to limiting fees for
wireline telecommunications authorizations to a reasonable
approximation of the costs incurred by a state or local government for
managing their public rights-of-way in connection with a particular
authorization, we propose to limit the costs that may be recovered to
those that are objectively reasonable. We seek comment on the costs
that should be included or excluded under this standard.
To start, we propose that state and local governments be limited to
recovering the actual and direct costs that they incur to manage the
public rights-of-way with respect to the provider's access and use of
the right-of-way. By ``direct costs,'' we mean expenses that can be
directly traced to a provider's application to access and use a public
rights-of-way, and would not have been incurred but for the provider's
access and use of the public right of way. By ``actual costs,'' we mean
costs that can be substantiated by invoices or other documentation and
are not hypothetical or speculative. We believe this approach is
consistent with the text of the statute, which states that ``fair and
reasonable compensation'' may be required ``from telecommunications
providers . . . for use of public rights-of-way on a nondiscriminatory
basis.'' We believe the best reading of that language is that Congress
intended state and local governments to recover the costs they actually
incur due to the direct use of public rights-of-way by a particular
provider, and not costs associated with management of the public
rights-of-way generally or that were incurred due to uses of the public
rights-of-way by other entities. We seek comment on this view. Do
commenters agree that state and local governments would collect ``fair
and reasonable compensation'' if they recover the actual and direct
costs that they incur due to a provider's specific use of a particular
right-of-way? If so, what would those costs include? For instance,
would they include the costs of processing the provider's application
to access the right-of-way, and what do those costs include (e.g.,
labor hours)? Would they include costs associated with monitoring the
provider's deployment of facilities, and what do those costs include
(e.g., inspections, surveys)? Are there other actual and direct costs
that should be included as objectively reasonable? Are there certain
costs that are arguably incurred due to a provider's specific use of a
public right-of-way, but should be excluded from any measure of
objectively reasonable costs because they are inherently excessive or
unnecessary? For instance, should exorbitant fees charged by
consultants retained by state and local governments be excluded?
Some commenters suggest that state and local governments should be
[[Page 51131]]
permitted to recover modest overhead costs under Section 253, such as
joint and common costs for the administration and upkeep of public
rights-of-ways or intergovernmental coordination when reviewing
deployment projects. Do other commenters agree? If the Commission were
to allow for such recovery, what joint and common costs should be
included and how should they be allocated among users of the public
rights-of-way? For instance, how should joint and common costs be
allocated if a local government conducts a routine inspection of a
public right-of-way that contains wireline telecommunications,
electric, and water main infrastructure? Should state and local
governments be required to employ a particular allocation method for
joint and common costs based on relative usage of the public rights-of-
way or the degree to which a provider benefits from the cost-imposing
activity to determine the portion of joint and common costs that can be
recovered from each provider using the right-of-way? Would a recovery
of joint and common costs be consistent with the best reading of
Section 253?
Safe Harbors. We propose to establish one or more safe harbors,
with state and local fees for wireline telecommunications
authorizations set at or below the safe harbor level presumptively
deemed compliant with Section 253(a) and ``fair and reasonable
compensation'' under Section 253(c). Under this approach, the
Commission would not automatically preempt any and all state and local
fees that are not cost-based, but instead adopt a presumption that fees
that fall within the safe harbors are ``so clearly reasonable that
justification [is] not necessary.'' Thus, state and local governments
would not be required to establish the cost basis for each fee assessed
for a wireline telecommunications authorization unless they seek to
charge a fee that exceeds any applicable safe harbor limit. In such
cases, the fee higher than the safe harbor limit would be deemed to
violate Section 253 unless the state and local government can show that
it only recovers the government's actual and direct costs incurred due
to the provider's access and use of the public rights-of-way, and that
those costs are objectively reasonable, competitively neutral, and
nondiscriminatory.
We seek comment on this approach. Providers that responded to the
2025 Notice of Inquiry generally support the establishment of safe
harbors as a means of preventing excessive fees--bound by no limits--
from curtailing and delaying deployments in violation of the statute
while ensuring that state and local governments receive compensation
for the actual and directs costs that they incur due to those
deployments. Do other commenters agree? Does the wireline context pose
unique considerations that make safe harbors unsuitable, and if so,
how? Do safe harbors limit the flexibility of state and local
governments to capture actual, objective costs? Would establishing safe
harbors help state and local governments avoid setting fees that could
have a prohibitive effect in violation of Section 253? Would safe
harbors deter unnecessary disputes and litigation? Would safe harbors
provide certainty for providers seeking to deploy wireline projects?
Would failure to establish safe harbors in the wireline context place
additional demands on state and local governments by requiring them to
demonstrate the cost basis for all fees?
We seek comment on how the Commission should set fee safe harbors
in the context of authorizations to provide wireline telecommunications
services. In the Small Cell Order, the Commission established safe
harbors after reviewing small cell legislation in twenty states, a
sample of local legislation from municipalities in states that had not
yet passed small cell legislation, the Commission's pole attachment
rate formulas, and comments in the record, which included cost surveys
and other analyses. Some commenters responding to the 2025 Notice of
Inquiry advocated that the Commission take a similar approach to set
safe harbors in the context of wireline telecommunications services,
but we did not receive the suggested data sets in comments or specific
safe harbor proposals. Accordingly, we request such data and proposals
now. If commenters argue that we should look to existing state and
local fees for the provision of wireline telecommunications services to
establish safe harbors that would apply on a national scale, what
specific state and local fees should we review? We request a complete
set of citations for any and all state and local regulations,
ordinances, fee schedules, or other sources of fee data that commenters
believe we should consider. Given that fees are often memorialized in
right-of-way agreements for wireline telecommunications services, we
request that commenters submit copies of such agreements executed with
state and local governments across the country together with a
spreadsheet summarizing and comparing the relevant fee provisions. To
the extent that commenters argue that certain fee demands by state and
local governments are excessive and thus should not be considered when
setting safe harbors, we ask that commenters specifically identify the
source of those fees (e.g., the specific local ordinance or right-of-
way agreement) and an explanation for why those fees fail to reflect
the actual and direct costs incurred by the state and local government
due to the provider's access and use of the public right-of-way. We ask
that commenters submit cost surveys and other analyses demonstrating
the actual and direct costs that state and local governments incur when
acting on applications to access and use public rights-of-way to
provide wireline telecommunications services, and explanations for why
those costs may differ between different types of projects (e.g., based
on the scope of the build, whether it involves trenching or aerial
deployments), location (e.g., geography, topography, population
density), or other factors. We ask that commenters propose how the
Commission should take such variables into consideration when
establishing safe harbor fee levels.
Taking into consideration any relevant data sources and the varying
nature of wireline telecommunications deployments, we ask that
commenters propose specific safe harbor fee levels for the Commission's
consideration, including a structure for how any fee level should
apply. For instance, should the Commission consider adopting one safe
harbor that encompasses the sum of all actual and direct costs incurred
by a state or local government in connection with a provider's use of
their public rights-of-way to provide telecommunications services,
irrespective of how such costs may be recovered through different fees,
i.e., if a jurisdiction requires a right-of-way agreement fee, an
excavation permit fee, and a road closure fee, they all presumptively
comply with Section 253 provided that the total tally does not exceed
an outer-bound fee level? Or should the Commission consider applying a
structure similar to the one adopted in the Small Cell Order, with
different safe harbors applying to different types of fees and facility
deployments? The Small Cell Order established safe harbors of ``$500
for non-recurring fees, including a single up-front application that
includes up to five Small Wireless Facilities, with an additional $100
for each Small Wireless Facility beyond five, or $1,000 for non-
recurring fees for a new pole (i.e., not a collocation) intended to
support one or
[[Page 51132]]
more Small Wireless Facilities'' and ``$270 per Small Wireless Facility
per year for all recurring fees, including any possible ROW access fee
or fee for attachment to municipally-owned structures in the ROW.''
Would a different structure be more appropriate? For instance, should
safe harbors differ by the type or size of jurisdiction? Should the
safe harbors vary based on other factors? We ask that commenters
identify the data that supports their safe harbor proposals.
Competitively Neutral and Nondiscriminatory. We tentatively
conclude that to be competitively neutral and nondiscriminatory as
required by Section 253(c), any fee charged to one provider of wireline
telecommunications services may not be materially higher than those
charged to other providers of wireline telecommunications services for
similar uses of the public rights-of-way. We believe this tentative
conclusion is consistent with determinations by both courts and the
Commission that imposing requirements on one provider that are not
imposed on similarly situated providers is inconsistent with the
statutory text of Section 253(c), and seek comment on that view. Do
commenters agree with our interpretation of the statute? Is a different
interpretation a better reading of the statute? What are the real-world
implications of applying this standard in the context of wireline
telecommunications services? For instance, would it be easy to assess
whether two different providers of wireline telecommunications services
are being charged materially similar fees for deployments when their
builds are of a different scope, utilize different deployment methods
(e.g., aerial versus buried), or involve different technologies? Should
fees be assessed in a technologically neutral manner to ensure they are
not discriminatory, or do different technologies result in state and
local governments incurring different costs that would justify
different fees? What other factors should the Commission evaluate to
determine when fees are competitively neutral and nondiscriminatory?
Section 253(c) requires that fair and reasonable compensation
collected by state and local governments be ``publicly disclosed.''
Some commenters suggest that state and local governments are not
complying with this statutory directive. We seek comment on whether the
Commission should ensure compliance by adopting a requirement that
state and local governments publicly disclose any fees they collect in
connection with an authorization to access and use public rights-of-way
to provide wireline telecommunications services in a particular manner.
Would the Commission have authority to adopt such a rule? If the
Commission adopts such a rule, in what form should public disclosures
take place? Is it sufficient if state and local governments post a
table on their websites or another publicly accessible platform listing
the fees they have collected in connection with approved
authorizations? Is it sufficient if state and local governments
maintain a list of all fees that they have collected and provide it to
anyone from the public on request? Should we require that state and
local governments establish and publicly disclose fees in advance of
the imposition of the fee for a particular application? Should we
require that state and local governments describe the costs included in
the fees they impose with sufficient detail to permit providers and the
Commission to evaluate whether the fees comport with the ``fair and
reasonable'' and ``competitively neutral and nondiscriminatory''
requirements of Section 253(c)? Is there other information that should
be included in the disclosures? Should state and local governments be
required to publicly disclose fees in a manner that is accessible to
all providers on equal terms? To the extent state and local governments
are currently complying with the statutory public disclosure
requirement, how are the public disclosures being made?
Section 253(b) Savings Clause. We seek comment on whether our
proposed fee standard is consistent with the best reading of the
savings clause in Section 253(b), which preserves a state's ability to
``impose . . . 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.'' Would limiting the fees that state and local governments
may recover to a reasonable approximation of their objectively
reasonable costs impact a state's ability to perform these tasks? If
so, how? Would commenters recommend any adjustments to our proposed fee
standard to address any negative impacts? Is the question of Section
253(b)'s application to our proposed fee standard moot, given that we
propose to adopt a presumption that state and local governments do not
effectively prohibit the provision of wireline telecommunications
services if they comply with it (i.e., if there is no prohibitive
effect within the meaning of Section 253(a), the savings clause in
Section 253(b) is irrelevant)? What else should the Commission consider
when evaluating whether our proposed fee standard implicates the
Section 253(b) savings clause?
Prohibited Fee Types. We seek comment on whether the Commission
should adopt a rule that prohibits state and local governments from
recovering certain types of fees that may not comport with the cost-
based standard we propose above. For instance, some providers have
suggested that it would be inconsistent with a cost-based fee standard
for state and local governments to assess fees based on a provider's
gross revenue, the asserted fair market value of public rights-of-way,
the linear feet of a wired deployment, or to collect fees on a
recurring versus one-time basis (e.g., recurring use fees in a right-
of-way agreement). Do other commenters agree? Are fees assessed based
on gross revenue, a valuation of rights-of-way, or linear feet
reflective of the costs that a state or local government incurs due to
a providers' access and use of public rights-of-way to provide wireline
telecommunications services? Or do such fee measures generate revenue
for state and local governments irrespective of their costs? Are
recurring right-of-way use fees charged to recover costs that state and
local governments may incur due to a provider's access and use of
public rights-of-way on an ongoing basis, i.e., does an annual use fee
recover costs that the state or local government incurs during the year
that it is charged, even after the deployment and installation of
facilities is complete? Or do state and local governments recover their
costs via the initial collection of authorization fees, such that use
fees collected after the deployment is complete are profit? In the
Small Cell Order, the Commission noted that gross revenue fees
generally are not based on the costs associated with an entity's use of
public rights-of-way, but acknowledged that ``a fee not calculated by
reference to costs might nonetheless happen to land at a level that is
a reasonable approximation of objectively reasonable costs, and
otherwise constitute fair and reasonable compensation as we describe
herein.'' Accordingly, under the standard adopted in the Small Cell
Order, ``[i]f all these criteria are met, the fee would not be
preempted.'' Is the same true in the context of wireline
telecommunications services? If so, should the Commission refrain from
prohibiting the use of certain fee measurements provided that the fee
collected ultimately complies with any cost-based standard and safe
harbors adopted by the Commission?
[[Page 51133]]
Application to Government-Owned Structures. We seek comment on
whether the fee standard we propose to adopt above should apply to
applications to attach wireline telecommunications facilities to
government-owned infrastructure in public rights-of-way or whether a
different standard should apply. The record developed in response to
the 2025 Notice of Inquiry suggests that providers of wireline
telecommunications services pay excessively high fees when they seek to
attach facilities to government-owned poles and conduit. As discussed
above, the mandates of Section 253 apply when providers seek to access
and use government-owned infrastructure in public rights-of-way; thus,
state and local governments may not charge fees that effectively
prohibit the provision of wireline telecommunications services in
violation of Section 253(a) and may only charge fair and reasonable
compensation that is competitively neutral and nondiscriminatory,
consistent with Section 253(c). Accordingly, we tentatively conclude
that any cost-based fee standard adopted by the Commission for
authorizations to provide wireline telecommunications services should
apply when a provider of wireline telecommunications services seeks to
attach to government-owned infrastructure in public rights-of-way. We
seek comment on that view and how the Commission should implement that
approach.
For instance, some state and local government commenters argue that
there are concerns specific to government-owned infrastructure that
differ from other requests to access public rights-of-way, such as the
need to conduct engineering reviews of poles. These commenters argue
that such differences weigh against limiting the fees that state and
local governments can collect, whether generally or in the same manner
upheld by the Ninth Circuit in the context of Small Wireless
Facilities. Do other commenters agree? To the extent these concerns
indicate that a state or local government incurs greater costs when a
provider seeks to access poles or conduit in public rights-of-way,
could those concerns be addressed by establishing safe harbor fee
levels consistent with those higher costs? If so, we request that
commenters submit data to the Commission demonstrating how the
Commission should establish safe harbors for attachments to government-
owned poles and conduit to ensure that they reflect a reasonable
approximation of the actual and direct and objectively reasonable costs
incurred by state and local governments when providers of wireline
telecommunications services seek access. We request data demonstrating
the actual and direct costs of, for example, conducting inspections and
performing engineering reviews. To the extent variables such as
location or geography can affect costs, we seek data highlighting their
impact on costs and how state and local governments account for these
differences in the fees they impose. We request that commenters submit
specific proposals for safe harbors that the Commission should consider
adopting in this context.
Some commenters argue that the Commission would impermissibly
circumvent Section 224 by preempting a state or local law applicable to
government-owned poles and conduit under Section 253. The Commission
rejected this argument in the Small Cell Order, noting that ``[s]ome
have argued that Section 224 of the Communications Act's exception of
state-owned and cooperative-owned utilities from the definition of
`utility' . . . suggests that Congress did not intend for any other
portion of the Act to apply to poles or other facilities owned by such
entities. . . . Nothing in Section 253 suggests such a limited reading,
nor does Section 224 indicate that other provisions of the Act do not
apply.'' As noted above, the Ninth Circuit upheld the Commission's
application of Section 253 to government-owned structures in public
rights-of-way in City of Portland. Accordingly, we reiterate our prior
conclusion that Congress's choice to exclude government-owned poles and
conduit from regulation under Section 224 does not indicate an intent
to remove such infrastructure from the scope of Section 253, which
expressly reaches any state or local statute, regulation, or legal
requirement that has a prohibitive effect on the provision of
telecommunications services.
Enforcement. We propose that any state and local government fees
that exceed a fee standard adopted by the Commission for wireline
telecommunications services be presumed to have a prohibitive effect
that violates Section 253(a) and fail to constitute fair and reasonable
compensation under Section 253(c). Under this approach, providers would
be permitted to seek preemption of the fees through a petition to the
Commission under Section 253(d), and state and local governments would
be permitted to rebut the presumption by demonstrating that the fees
recover the actual, direct, and objectively reasonable costs they
incurred due to the provider's access and use of the public right-of-
way to provide wireline telecommunications services and are
competitively neutral and nondiscriminatory. We seek comment on our
proposal. What would be the impact of the Commission preempting fees
that do not comply with the proposed cost-based standard? Would the
potential for preemption by the Commission incentivize providers to
proactively adopt fees that comport with any safe harbor fee levels
adopted by the Commission, thereby reducing the need for litigation in
any forum? Are there any other benefits or consequences of this
proposed approach?
We also seek comment on whether a fee standard adopted by the
Commission for wireline telecommunications services under Section 253
could be enforced through actions initiated in court. We expect that,
at a minimum, any fee standard adopted by the Commission would act as
persuasive authority for courts considering challenges under Section
253. Would federal district courts be bound to follow a fee standard
adopted by the Commission?
C. Requiring In-Kind Contributions To Comply With Section 253
The record developed in response to the 2025 Notice of Inquiry
shows that providers of wireline telecommunications services are often
required to supply various forms of in-kind compensation to state and
local governments as a condition for obtaining authorizations to access
and use public rights-of-way. The record demonstrates that these
requirements often do not relate to or far exceed the costs of a
provider's actual use of the public rights-of-way. Such required in-
kind compensation can significantly increase the cost of wireline
deployments in a manner that results in projects being delayed or even
canceled. We therefore tentatively conclude that in-kind compensation
demands can have a prohibitive effect on the provision of wireline
telecommunications services in violation of Section 253(a) and thus are
subject to preemption unless they constitute objectively reasonable
compensation under Section 253(c), consistent with the cost-based fee
standard we propose above, and are imposed in a competitively neutral
and nondiscriminatory manner. Under this approach, the cost or value of
any in-kind compensation requirements imposed by state and local
governments as a condition of issuing authorizations to access and use
public rights-of-way to provide wireline telecommunications
[[Page 51134]]
services must count toward any safe harbor fee levels adopted by the
Commission to implement our proposed cost-based fee standard. For
example, if a municipality could collect $3,000 in compensation for
costs incurred due to a particular wireline project pursuant to safe
harbor fee levels adopted by the Commission, and the municipality
requires the provider to install additional conduit for municipal use
at a cost of $1,200 to the provider, then that $1,200 of in-kind
compensation would be deducted from the $3,000 compensation limit. The
municipality would be presumed to have complied with Section 253
provided that: (1) it collects no more than $1,800 in fees from the
provider; or (2) it can demonstrate that the actual and direct costs
that it incurred due to the wireline project exceeded the $1,200 in in-
kind compensation received and the fees that it collected in excess of
$1,800. Similarly, if the municipality were to charge $2,800 in fees,
then it could demand no more than $200 in in-kind compensation.
We seek comment on this proposal. We believe our tentative
conclusion to be consistent with the findings of courts considering
this issue. Does other legal authority support our tentative
conclusion? Does contrary precedent exist? Would our proposal
sufficiently remedy the prohibitive effects that excessive in-kind
contributions have on deployments? How should the Commission approach
the valuation of in-kind compensation for the purposes of determining
whether it has been appropriately applied toward the overall
compensation collected by state and local governments? As suggested in
the example above, should it be based on the actual costs incurred by
the provider in supplying it (e.g., labor, materials)? Should it be
based on any applicable market value (e.g., what the government would
have had to pay to purchase equipment)? Is there another method of
valuation we should consider? At what point does work such as street or
curb restoration stop being a reasonable cost that a provider should
incur for the work it performs in public rights-of-way and become in-
kind compensation? Does restoration have to be limited to exactly what
existed before the provider commenced work? If an installation requires
a limited street cut, does restoration of the road beyond that cut
constitute in-kind compensation? Does requiring providers to do
additional work to install curb ramps and other accessibility features
or additional signage that did not previously exist constitute in-kind
compensation? What kind of documentation should be required to
substantiate the value of in-kind compensation? Who should bear the
burden of proof during a dispute of in-kind valuation? Should the
Commission require public disclosure of in-kind contribution
requirements, and in what manner?
The Commission has addressed in-kind compensation in the context of
cable franchise fees, as defined by section 622(g) of the Act.
Specifically, the Commission has found that cable franchise fees ``can
encompass both monetary payments imposed by a franchising authority or
other governmental entity on a cable operator, as well as `in-kind'
payments--i.e., payments consisting of something other than money, such
as goods and services--that are so imposed,'' and determined that
specific types of cable-related, in-kind contributions are franchise
fees subject to the 5% statutory cap under section 622(b) of the Act.
Are there types of in-kind compensation that impose costs on
providers that cannot be easily assigned a value? For instance, some
commenters express concerns about municipalities that effectively
require providers to subsidize their competitors by requiring them to
install infrastructure that the municipality then leases out to other
providers. How should such requirements be addressed? Could this be a
basis for state and local governments to waive or significantly lower
the fees they demand from providers? What would happen if a provider
simply refused to install infrastructure that could or would be used by
a competitor? Could state or local governments use the opportunity
created by the provider's deployment to purchase and install additional
facilities itself, rather than imposing the obligation on the provider?
Do these requirements promote beneficial ``dig once'' policies, and if
so, how should the Commission take that into account? Are there other
forms of in-kind compensation that drive up costs for providers in a
manner that implicates Section 253 but cannot be assigned a value? Are
there types of in-kind contributions that are so onerous that they
prohibit the provision of wireline telecommunications irrespective of
whether their monetary costs would exceed our fee standard?
Some commenters request that we determine that in-kind requirements
that have no bearing on a provider's use of public rights-of-way are
prohibited by Section 253. While we do not propose outright
prohibitions on specific types of in-kind compensation at this time, we
reiterate that Section 253(c) only allows state and local governments
to collect fair and reasonable compensation ``for use of public rights-
of-way.'' For this reason, the Commission and courts have already
recognized that demands for compensation that effectively prohibit the
provision of telecommunications services in violation of Section 253(a)
and are unrelated to a provider's use of public rights-of-way may not
be saved from preemption by Section 253(c). We therefore tentatively
conclude that, if in-kind compensation demands are unrelated to a
provider's use of public rights-of-way and increase the costs of
deployment in a manner that effectively prohibits the provision of
wireline telecommunications service within the meaning of Section
253(a), they are likely to be preempted if challenged before the
Commission or in court. We seek comment on this view and whether
commenters believe it is necessary for the Commission to codify a rule
that memorializes these statutory standards. Are there in-kind
compensation demands that are unrelated to a provider's use of public
rights-of-way but are permissible under the statute because they do not
effectively prohibit the provision of telecommunications services under
Section 253(a)? Are the questions of whether an in-kind compensation
demand is related to use of public rights-of-way so case specific that
they should be resolved via individual adjudications versus a generally
applicable rule? How should the Commission define what it means for an
in-kind compensation demand to be ``related'' to a provider's use of
the right-of-way? Does making spare conduit or dark fiber strands
available ``relate'' to the use of the right-of-way in the same way
mitigation measures like repaving roads or restoring curbs do, or do
such demands more closely resemble requirements such as providing a
municipality with free services or other donations? Are any of these
examples more or less objectionable with respect to how they relate to
a provider's use of the right-of-way? Should Commission establish an
exception for in-kind compensation that is voluntarily negotiated?
We also seek comment on whether state and local governments demand
in-kind compensation that has a prohibitive effect that violates
Section 253(a) and would not qualify as ``fair and reasonable
compensation'' under Section 253(c), but may nonetheless be saved from
preemption under Section 253(b). If so, what types of in-kind
compensation meet the criteria of Section 253(b) and how should the
[[Page 51135]]
Commission consider Section 253(b) when evaluating the above proposal?
D. Applying the Deadline and Fee Standard to Commingled Facilities
We propose to adopt a rule that prohibits state and local
governments from effectively prohibiting the provision of wireline
telecommunications services by imposing additional requirements on
wireline telecommunications infrastructure that can also be used to
provide other services. Specifically, we propose to codify a
presumption that a state or local government has violated Section 253
if it imposes requirements that exceed any limits on processing
timelines and fees adopted by the Commission for wireline
telecommunications authorizations on the grounds that the provider may
provide other services over the same infrastructure on a commingled
basis. We seek comment on this proposal.
We note that the Commission clarified in 2019 that the Act
prohibits franchising authorities from charging cable operators
duplicative fees--for example, a cable franchise fee and a ``broadband
access fee''--for use of public rights of way. Section 622(a) of Title
VI the Act states that any cable operator may be required under the
terms of any franchise agreement to pay a franchise fee. Section 622(b)
provides that ``[f]or any twelve-month period, the franchise fees paid
by a cable operator with respect to any cable system shall not exceed 5
percent of such cable operator's gross revenues derived in such period
from the operation of the cable system to provide cable services.'' In
2019, the Commission observed that ``Title VI does not permit
franchising authorities to extract fees or impose franchise or other
requirements on cable operators insofar as they are providing services
other than cable services'' and preempted ``(1) any imposition of fees
on a franchised cable operator or any affiliate using the same
facilities franchised to the cable operator that exceeds the formula
set forth in section 622(b) of the Act . . . whether styled as a
`franchise' fee, `right-of-access' fee, or a fee on non-cable (e.g.,
telecommunications or broadband) services, and (2) any requirement that
a cable operator with a Title VI franchise secure an additional
franchise or other authorization to provide non-cable services via its
cable system.''
The record developed in response to the 2025 Notice of Inquiry
shows that in today's marketplace, wireline telecommunications
infrastructure commonly transports both telecommunications and non-
telecommunications services. As noted above, Section 253 applies to the
deployment of infrastructure that can be used to provide
telecommunications services, even if the entity deploying the
infrastructure is not offering telecommunications services to end
users. As USTelecom observes, ``[p]roviders build and operate
integrated fiber networks that simultaneously carry both
telecommunications traffic and broadband traffic.'' It is axiomatic
that wireline telecommunications infrastructure does not cease to be
such simply because it is used to carry other types of traffic, and we
thus tentatively conclude that the infrastructure remains subject to
the protections of Section 253 irrespective of whether the buildout is
required solely to provide telecommunications services or to provide
non-telecommunications services, as well. This is a principle that has
been recognized by the Commission for almost twenty years, dating back
to when the Commission concluded that ``Section 332(c)(7)(B) would
continue to apply to wireless broadband internet access service that is
classified as an `information service' where a wireless service
provider uses the same infrastructure to provide its ``personal
wireless services'' and wireless broadband internet access service.''
As the Commission observed then, ``classifying wireless broadband
internet access services as `information services' will not exclude
these services from the section 332(c)(7) framework when a wireless
provider's infrastructure is used to provide such services commingled
with `personal wireless service.' Commingling services does not change
the fact that the facilities are being used for the provisioning of
personal wireless services.'' These conclusions were similar to the
view taken by the U.S. Supreme Court in National Cable &
Telecommunications Ass'n v. Gulf Power Co., which concluded that a pole
attachment by a cable operator does not cease to be such for the
purposes of Section 224 of the Act if it is someday also used to
provide high-speed internet access. Indeed, any other approach would
seem in tension with the express text of the statute, which provides
that ``[n]o State or local statute or regulation, or other State or
local legal requirement, may prohibit or have the effect of prohibiting
the ability of any entity to provide any interstate or intrastate
telecommunications service.'' Accordingly, if a provider seeks to
deploy infrastructure that enables the ability to provide
telecommunications services, no state or local requirement may prohibit
or have the effect of prohibiting it, regardless of whether the
provider offers other services on a commingled basis. We seek comment
on these tentative conclusions.
The record indicates that some state and local governments impose
additional or more onerous requirements on providers seeking
authorizations to deploy wireline telecommunications infrastructure
when that infrastructure may be used to provide other services on a
commingled basis. The record further suggests that these additional or
more onerous requirements, such as state rate regulation of broadband,
frustrate the ability of providers to offer wireline telecommunications
services, with deployments facing delays or cancelation. In view of
this, we propose to adopt a presumption that a state or local
government violates Section 253 if it imposes requirements that exceed
any limits on processing timelines and fees adopted by the Commission
for wireline telecommunications authorizations on the basis that the
wireline telecommunications infrastructure may be used to provide other
services. We seek comment on this proposal and these views.
How common is it for state and local governments to impose
additional review or fee requirements on wireline telecommunications
authorization requests because the provider may also offer broadband or
other services? Can providers offer additional examples of the
prohibitive effect of these additional requirements, e.g., examples of
specific deployments that have been postponed, scaled back, or
canceled, whether in the jurisdiction where the additional requirements
are applied or because additional requirements imposed in one
jurisdiction precludes a build from proceeding in another? Are there
legitimate reasons for a state or local government to require more time
to review an authorization request if additional services are offered
over the wireline telecommunications infrastructure? Do the actual and
direct costs incurred by a state or local government increase if
wireline telecommunications infrastructure is also used to provide
other services?
What would be the practical effect of adopting the proposed rule?
For instance, to the extent state and local governments have enacted
specific procedures and fees applicable to the deployment of broadband
infrastructure, would those requirements be deemed compliant with
Section 253 provided that they are no more onerous than the
requirements applicable to wireline telecommunications services? What
[[Page 51136]]
types of additional regulatory restrictions on broadband deployments
(e.g., engineering requirements or facility-placement rules) would be
preempted if the Commission adopted its proposed rule? What else should
the Commission consider while evaluating this proposal?
E. Unused Facilities in Public Rights-of-Way
Some state and local government commenters ask that the Commission
refrain from adopting requirements that would interfere with permit or
land use conditions that pertain to old, unused telecommunications
infrastructure left in the public rights-of-way. While we do not
propose to adopt measures that would do so, we take this opportunity to
seek comment on the extent to which unused wireline telecommunications
facilities remain buried or installed in public rights-of-way and
whether there are steps the Commission could take under Section 253 or
any other authority to incentivize providers to remove such facilities
as they upgrade their networks and complete additional deployments. Are
there currently state and/or local laws that require providers to
remove unused facilities? If so, do providers comply with those laws,
and if not, why not? Do providers maintain their own procedures for
removing old, unused facilities? In general, what are the obstacles to
removing unused facilities from state and local rights-of-way and how
can they be addressed?
F. Legal Authority
We tentatively conclude that the Commission possesses authority
under Sections 253, 4(i), 201(b), and 303 of the Act 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 the Commission to better effectuate its
authority under Section 253(d) to preempt statutes, regulations, or
legal requirements that violate Sections 253(a) or (b). We tentatively
conclude that the Commission's authority to address effective
prohibitions as described in Section 253(a) is not limited to case-by-
case consideration (or, where appropriate, preemption) of specific
state or local legal requirements. We note that many courts have not
construed Section 253(d) as establishing an exclusive method of
enforcing Section 253, as evidenced by the fact that they have allowed
providers to challenge state and local requirements in federal court,
regardless of the availability of the Commission as a forum to resolve
petitions. We seek comment on these tentative conclusions. We also seek
comment on additional sources of authority under which the Commission
could preempt state and local requirements that impose excessive
permitting delays and fees.
Some state and local government commenters argue that ``Congress
expressly withheld from the Commission authority to preempt . . .
requirements that fall within the scope of Section 253(c).'' This
argument has previously been made by state and local governments
challenging the ability of the Commission to preempt state and local
requirements under Section 253 and has been rejected. As the Commission
has explained, if this argument were viable, ``any party could avoid
preemption or the Commission's jurisdiction simply by invoking section
253(c) as a defense, `creating a procedural oddity where the
appropriate forum would be determined by the defendant's answer, not
the complaint.' ''
II. Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Federal Communications Commission (Commission) has prepared
this Initial Regulatory Flexibility Analysis (IRFA) of the policies and
rules proposed in the Notice of Proposed Rulemaking (Notice) assessing
the possible significant economic impact on a substantial number of
small entities. The Commission requests written public comments on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments specified on the first page of the
Notice. The Commission will send a copy of the Notice, including this
IRFA, to the Chief Counsel for the Small Business Administration (SBA)
Office of Advocacy. In addition, the Notice and IRFA (or summaries
thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
In the Notice, pursuant to congressional direction found in the
Telecommunications Act of 1996, which sought to spur rapid deployment
of new telecommunications technologies in part by reducing regulation,
we continue efforts by the Commission to eliminate barriers to the
provision of wireline telecommunications services. Such barriers
include state and local statutes, regulations, excessive fees, and
other legal requirements that can constrain providers attempting to
deploy wireline telecommunications infrastructure and provide wireline
telecommunications services. We seek comment on proposals that would
codify presumptions for when state and local requirements for obtaining
authorizations prohibit, or have the effect of prohibiting, wireline
telecommunications services in violation of Section 253 of the
Communications Act of 1934. Specifically, we propose establishing a
deadline for state and local governments to act on wireline
telecommunications authorizations requests; establishing a standard for
state and local fees that complies with Section 253; requiring in-kind
contributions to comply with Section 253; and applying the deadline and
fee standard to commingled facilities that carry both
telecommunications services and other kinds of services. Further, we
seek comment on our legal authority to establish such presumptions and
on whether any rules promulgated by the Commission would have a binding
effect on the courts.
B. Legal Basis
The proposed action is authorized pursuant to sections 1, 4(i),
253, 303, and 403 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i), 253, 303, and 403.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act (SBA). A ``small business concern'' is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA. The SBA establishes small business size standards that agencies
are required to use when promulgating regulations relating to small
businesses; agencies may establish alternative size standards for use
in such programs, but must consult and obtain approval from SBA before
doing so.
Our actions, over time, may affect small entities that are not
easily categorized at present. We therefore describe three broad groups
of small entities that could be directly affected by our actions. In
general, a small
[[Page 51137]]
business is an independent business having fewer than 500 employees.
These types of small businesses represent 99.9% of all businesses in
the United States, which translates to 34.75 million businesses. Next,
``small organizations'' are not-for-profit enterprises that are
independently owned and operated and not dominant their field. While we
do not have data regarding the number of non-profits that meet that
criteria, over 99 percent of nonprofits have fewer than 500 employees.
Finally, ``small governmental jurisdictions'' are defined as cities,
counties, towns, townships, villages, school districts, or special
districts with populations of less than fifty thousand. Based on the
2022 U.S. Census of Governments data, we estimate that at least 48,724
out of 90,835 local government jurisdictions have a population of less
than 50,000.
The rules proposed in the Notice will apply to small entities in
the industries identified in the chart below by their six-digit North
American Industry Classification System (NAICS) codes and corresponding
SBA size standard. Where available, we also provide additional
information regarding the number of potentially affected entities in
the industries identified below.
Table 1--2022 U.S. Census Bureau Data by NAICS Code
----------------------------------------------------------------------------------------------------------------
Regulated industry (footnotes specify Total
potentially affected entities within a NAICS SBA size standard Total small % Small
regulated industry where applicable) code firms firms firms
----------------------------------------------------------------------------------------------------------------
Electric Power Generators, Transmitters 2211 250-1000................... 2,626 2,103 80.08
and Distributors.
Natural Gas Distribution................ 221210 1,150 employees............ 432 354 81.94
Water Supply and Irrigation Systems..... 221310 $41 million................ 3,887 2,988 76.87
Wired Telecommunications Carriers....... 517111 1,500 employees............ 3,403 3,027 88.95
Wireless Telecommunications Carriers 517112 1,500 employees............ 1,184 1,081 91.30
(except Satellite).
All Other Telecommunications............ 517810 $40 million................ 1,673 1,007 60.19
Computer Infrastructure Providers, Data 518210 $40 million................ 12,054 8,895 73.79
Processing, Web Hosting, and Related
Services.
Engineering Services.................... 541330 $25.5 million.............. 47,367 37,363 78.88
----------------------------------------------------------------------------------------------------------------
Table 2--Telecommunications Service Provider Data
------------------------------------------------------------------------
2025 Universal service SBA size standard (1,500 employees)
monitoring report ----------------------------------------
telecommunications service
provider data (data as of
December 2024) Total number FCC Small % Small
-------------------------------- Form 499A filers firms entities
Affected entity
------------------------------------------------------------------------
Competitive Local Exchange 4,049 3,853 95.16
Carriers (CLECs)..............
Incumbent Local Exchange 1,175 920 78.30
Carriers (Incumbent LECs).....
Interexchange Carriers (IXCs).. 112 92 82.14
Local Exchange Carriers (LECs). 5,224 4,773 91.37
Operator Service Providers 26 24 92.31
(OSPs)........................
Other Toll Carriers............ 72 69 95.83
Wired Telecommunications 4,971 4,531 91.15
Carriers......................
Wireless Telecommunications 608 522 85.86
Carriers (except Satellite)...
------------------------------------------------------------------------
Table 3--Cable Entities Data
----------------------------------------------------------------------------------------------------------------
% Small
Cable entities Size standard Total Small firms in
firms firms industry
----------------------------------------------------------------------------------------------------------------
Cable System Operators (Telecom Act Serves fewer than 498,000 530 524 98.87
Standard), Small Cable Operator. subscribers, either directly or
through affiliates.
Cable Companies and Systems (Rate Serves 400,000 or fewer 530 523 98.51
Regulation), Small Cable Company. subscribers nationwide.
Cable Companies and Systems (Rate Serves 15,000 or fewer 4,545 3,965 87.24
Regulation), Small Cable System (headends). subscribers.
----------------------------------------------------------------------------------------------------------------
D. Description of Economic Impact and Projected Reporting,
Recordkeeping, and Other Compliance Requirements for Small Entities
The RFA directs agencies to describe the economic impact of
proposed rules on small entities, as well as projected reporting,
recordkeeping and other compliance requirements, including an estimate
of the classes of small entities which will be subject to the
requirements and the type of professional skills necessary for
preparation of the report or record.
Small governmental jurisdictions are likely to incur new costs in
order to expedite review of wireline authorizations and to comply with
the proposals in the Notice, if adopted. Other proposed rules may
result in changes to state and local governments' administrative
procedures. However, our proposals, if adopted, may reduce the time and
expense for small and other service providers attempting to obtain
authorizations for accessing and using state and local public rights-
of-way to provide wireline telecommunications service.
In the Notice, the Commission seeks comment on proposals that, if
adopted, offer clarification as to when a state or local statute,
regulation, or legal requirement prohibits or effectively prohibits the
provision of wireline telecommunications service, potentially
[[Page 51138]]
reducing barriers to entry for the latter and enabling small entities
to avoid unnecessary legal and administrative costs. Specifically, we
propose to require that state and local governments act upon
applications for authorizations to access and use public rights-of-way
to provide wireline telecommunications services or deploy wireline
telecommunications infrastructure within 120 days of a submission by a
provider.
Although these tasks, including, e.g., application review and
public safety inspections, would be performed irrespective of any
proposed deadline, some small governmental jurisdictions may need to
act on timelines shorter than those currently being followed. As such,
the Commission proposes to establish a rebuttable presumption that
would enable small governmental jurisdictions to offer evidence that
its timelines, fees, and other associated requirements do not prohibit
or effectively prohibit the provision of wireline telecommunications
services, or that they fall within the scope of Section 253's savings
clauses. This evidence may include, for example, data that demonstrates
that a state or local government's fees relate to its actual, direct,
and objectively reasonable costs for the provider to access and use the
right-of-way. Although we expect small governmental jurisdictions
already keep such records, the Notice's proposals may necessitate more
diligent recordkeeping and the need to report to the Commission any
such evidence in the event a state or local requirement is challenged
under Section 253(d).
We also propose to limit fees that state and local governments may
collect to a reasonable approximation of the government's actual and
direct costs of managing its public rights-of-way in connection with a
particular wireline telecommunications authorization. Further, we
propose that in-kind compensation received by state and local
governments be subject to preemption. Finally, we propose that state
and local governments be prohibited from exceeding the deadline for
processing authorizations or any safe harbor fee levels that may be
adopted on the grounds that the provider's wireline telecommunications
infrastructure is capable of providing other services such as broadband
internet access service.
E. Discussion of Significant Alternatives Considered That Minimize the
Significant Economic Impact on Small Entities
The RFA directs agencies to provide a description of any
significant alternatives to the proposed rules that would accomplish
the stated objectives of applicable statutes, and minimize any
significant economic impact on small entities. The discussion is
required to include alternatives such as: ``(1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
In the Notice, the Commission seeks comment on a number of
alternatives designed to codify standards for when small governmental
jurisdictions must act on authorization requests to deploy wireline
telecommunications infrastructure and provide wireline
telecommunications services. The Commission also seeks comment on
establishing standards for what types of fees state and local
governments may charge providers seeking such authorizations. Further,
the Commission proposes to apply these standards to commingled
facilities, i.e., wireline facilities that can be used to provide both
telecommunications and other services. The Commission also seeks
comment on alternatives such as setting timelines for small
governmental jurisdictions to comply with Section 253 beyond the
proposed 120 days, and whether this time period should start when a
provider requests authorization or at some other point, or should be
extended if the government entity cannot act on a provider's
application because it is incomplete or otherwise deficient.
Additionally, the Commission seeks comment on limiting the scope of
authorization requests that a small governmental jurisdiction must act
on concurrently, and establishing bases for rebutting any presumption
that a small governmental jurisdiction has violated Section 253 of the
Act. This may be contingent on how rights-of-way are granted (i.e., by
permit or contract), whether multiple authorizations are required to
enable a provider to deploy service, or other factors that may increase
the complexity of review. Additionally, the Commission considers
different approaches to cost-based fees and alternative fee standards.
These include safe harbors, which would permit small governmental
jurisdictions to charge fees under a certain threshold that would be
presumed reasonable under Section 253. The Commission also seeks
comment on allowing overhead costs such as joint and common costs.
Relatedly, the Commission seeks comment on in-kind compensation
demands, such as requirements that providers make spare conduit
available or to repair street curbs damaged in the process of deploying
wireline telecommunications infrastructure, and whether it should
enable small governmental jurisdictions to impose certain kinds of in-
kind compensation requirements, or whether some demands (such as those
related to public safety) should not be considered in-kind compensation
at all.
In evaluating the proposals in the Notice, the Commission will
fully consider the economic impact on small entities as it evaluates
the comments filed, including comments related to costs and benefits.
Alternative proposals and approaches from commenters will further
develop the record and could help the Commission further minimize the
economic impact on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
IV. Ordering Clauses
Accordingly, it is ordered, pursuant to sections 1, 4(i), 253, 303,
and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154(i), 253, 303, and 403, that this Notice of Proposed Rulemaking
hereby is adopted.
It is further ordered that, pursuant to applicable procedures set
forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR
1.415, 1.419, interested parties may file comments on this Notice of
Proposed Rulemaking on or before 45 days after publication in the
Federal Register, and reply comments on or before 90 days after
publication in the Federal Register.
It is further ordered that the Commission's Office of the
Secretary, shall send a copy of this Notice of Proposed Rulemaking,
including the Initial Regulatory Flexibility Analysis, to the Chief
Counsel for the Small Business Administration (SB) Office of Advocacy.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2026-16196 Filed 8-6-26; 8:45 am]
BILLING CODE 6712-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.