The Federal Communications Commission has released a draft Notice of Proposed Rulemaking titled Build America: Eliminating Barriers to Wireline Deployments, WC Docket No. 25-253, that would establish new federal rules addressing state and local requirements affecting wireline telecommunications infrastructure deployment.
The proposal is part of the FCC’s broader “Build America” agenda and is aimed at reducing delays, excessive fees, and other local approval conditions that the Commission believes may impede the deployment of modern wireline networks, including fiber facilities. The FCC’s proposal focuses on whether certain state and local practices violate Section 253 of the Communications Act, which prohibits state and local legal requirements that prohibit or have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications service.
The FCC’s draft NPRM follows a 2025 Notice of Inquiry in which the Commission examined right-of-way authorization delays, permitting fees, and other compensation or conditions imposed by state and local governments. According to the Commission, the record developed in that proceeding indicates that some providers face delays lasting months or years, fees that may not be tied to the government’s actual costs of managing rights-of-way, and additional conditions that may make planned deployments more expensive, less predictable, or economically infeasible.
Proposed 120-Day Presumptive Deadline for Right-of-Way Authorizations
The FCC proposes to establish a rebuttable presumption that a state or local government has effectively prohibited the provision of wireline telecommunications services if it fails to act on an application for access to or use of public rights-of-way within 120 days.
The proposed deadline would apply to authorizations needed to provide wireline telecommunications services or to deploy wireline telecommunications infrastructure. The FCC is not proposing an automatic grant remedy at this stage, but it is seeking comment on whether failure to act within the proposed timeframe should create a presumption of a Section 253 violation. The Commission also seeks comment on what circumstances, if any, should allow a state or local government to rebut the presumption or justify additional time.
For providers, this proposal could create a clearer framework for challenging prolonged permitting or authorization delays. For state and local governments, the proposal could require closer review of internal processes, application completeness procedures, hearing schedules, inspection practices, and other factors that affect the timing of right-of-way approvals.
Proposed Cost-Based Standard for State and Local Fees
The FCC also proposes to limit the fees that state and local governments may charge for wireline telecommunications authorizations to a reasonable approximation of the government’s actual, direct costs of managing the rights-of-way with respect to the authorization.
This proposal would extend concepts the FCC has previously applied in other infrastructure deployment contexts, including the principle that fees imposed on infrastructure deployment may become unlawfully prohibitive when they exceed reasonable cost recovery and materially inhibit deployment. The FCC is seeking comment on how to define recoverable costs, how to evaluate whether a fee is reasonably related to those costs, and how to determine whether fee practices are competitively neutral and nondiscriminatory.
The FCC also seeks comment on establishing safe harbor fee levels that would be presumed to comply with the proposed cost-based standard. The Commission has not yet proposed specific safe harbor amounts and is asking commenters to provide data and recommendations regarding appropriate fee levels and structures. Potential approaches could include a single safe harbor covering all fees associated with a right-of-way authorization, separate safe harbors for different categories of fees, or safe harbors that vary based on the type of project, jurisdiction, facility, or deployment method.
Treatment of In-Kind Compensation
The draft NPRM also addresses non-monetary obligations imposed as a condition of right-of-way access. These may include requirements to provide conduit, fiber strands, equipment, services, restoration work beyond the direct impact of construction, or other benefits to a state or local government.
The FCC proposes that the value of any in-kind compensation required by a state or local government must count toward any applicable fee limit or safe harbor adopted by the Commission. In other words, a jurisdiction could not avoid fee limits by shifting compensation from monetary payments to non-cash obligations.
The FCC seeks comment on how in-kind compensation should be valued, including whether valuation should be based on the provider’s actual costs, market value, or another methodology. The Commission also asks how to distinguish legitimate right-of-way management conditions from unrelated demands that increase deployment costs and may effectively prohibit service.
Protection for Commingled Facilities
The FCC further proposes to prohibit state and local governments from imposing additional requirements on wireline telecommunications infrastructure merely because the infrastructure may also be used to provide other services.
This issue is significant because modern wireline networks often carry multiple types of traffic over integrated facilities, including telecommunications services, broadband Internet access service, enterprise services, and other IP-based offerings. The FCC tentatively concludes that infrastructure capable of supporting telecommunications service should not lose the protections of Section 253 simply because it is also used for non-telecommunications services.
If adopted, this proposal could help reduce duplicative reviews, additional fees, or separate authorization requirements based on the multi-use nature of modern fiber and wireline networks.
Legal Authority and Scope of the Proceeding
The FCC is also seeking comment on its legal authority to adopt the proposed rules under Section 253 and related provisions of the Communications Act. The proceeding is likely to draw significant participation from wireline providers, broadband providers, cable operators, competitive carriers, infrastructure companies, municipalities, counties, state and local government associations, and other stakeholders.
The draft item has been released as part of a permit-but-disclose proceeding. Interested parties should be mindful that written and oral presentations to the FCC may trigger ex parte filing obligations. Comments will be due 45 days after publication of the NPRM in the Federal Register, and reply comments will be due 90 days after Federal Register publication.
Why This Matters
If adopted, the proposed rules could materially affect how providers plan, budget, negotiate, and challenge state and local right-of-way requirements. The proceeding may be particularly important for companies deploying fiber, expanding wireline networks, upgrading legacy infrastructure, entering new markets, or facing local permitting delays, escalating fees, duplicative approval processes, or non-monetary deployment conditions.
The proceeding also presents an important opportunity for affected providers to help shape the FCC’s final rules. The Commission is specifically seeking data, examples, and practical input regarding permitting delays, fee structures, cost impacts, in-kind compensation, commingled facilities, and the real-world effects of local authorization practices on deployment decisions.
The CommLaw Group can help providers evaluate the potential impact of the proposed rules, assess existing right-of-way and permitting challenges, develop comments or reply comments, and engage with the FCC through the comment and ex parte process.
Please contact your attorney or reach us at mail@commlawgroup.com if you have questions about this proceeding, would like assistance evaluating potential compliance impacts, or are interested in participating in the FCC comment process.