Insights

FCC Proposes National Standards for Wireline Access to Rights-of-Way

The FCC's draft NPRM in its Section 253 wireline docket proposes nationwide timelines and cost-based limits for rights-of-way approvals, fees, and in-kind requirements that could significantly affect fiber and other wireline network construction

By Robert G. Scott Jr., Maria T. Browne, Alan Galloway, and Heather Moelter

06.10.26

In advance of its June 25, 2026 open meeting, the Federal Communications Commission (FCC or Commission) released a draft Notice of Proposed Rulemaking (Draft NPRM) titled "Build America: Eliminating Barriers to Wireline Deployments." The proposal builds on the Commission's September 2025 Notice of Inquiry, which we discussed in a previous advisory. The Draft NPRM reflects another step in the FCC's broader effort to accelerate fiber and other communications infrastructure deployments by clarifying when state or local requirements "effectively prohibit" wireline telecommunications services under Section 253 of the Communications Act (the Act).

The Draft NPRM extends and expands upon the Commission's earlier efforts to eliminate barriers to wireless and wireline telecommunications infrastructure deployment in its 2018 Small Cell Order and 2018 Moratoria Order, both of which were upheld by the Ninth Circuit in 2020 in nearly all respects. Consistent with those efforts, the Draft NPRM proposes a nationwide framework addressing permitting timelines, fees for authorization and use of government-owned property, and other conditions imposed on access to public rights-of-way for wireline providers. Key proposals include:

a 120-day deadline for action on requests for authorization to use public rights-of-way and government-owned property (i.e., poles);
limiting state and local fees imposed for such authorization to reasonably approximate the government's direct and actual costs of managing the public right-of-way for each specific authorization;
a presumption that state and local governments may not ignore any limits on the timeframe and costs for each authorization because the provider commingles and offers services other than telecommunications over the network; and
enforcement would primarily be through petitions for preemption submitted to the FCC by service providers.

Presumptive 120-Day Deadline for Right-of-Way Authorizations

The FCC proposes to establish a rebuttable presumption that a jurisdiction violates Section 253 if it fails to act on requests for right-of-way authorizations for wireline infrastructure deployments within 120 days. The proposed deadline would apply to all approvals required for wireline deployments—including permits and right‑of‑way agreements—reflecting the Commission's view that delays beyond "several months" can increase costs and derail deployments, thereby effectively prohibiting the provision of wireline services. The 120-day time limit would also apply to requests to access and use government-owned property, such as utility poles and conduit.

The FCC also seeks comment on:

whether 120 days is the appropriate threshold;
whether different timelines should apply to different authorizations;
how the rule should apply to batched applications covering multiple deployments; and
whether Section 253 permits the FCC to impose shot‑clock style deadlines.

Cost‑Based Limits on State and Local Fees

The Draft NPRM proposes to adopt a rule limiting state and local government fees for permits needed to provide and deploy wireline telecommunications services to amounts that reasonably approximate the government's actual and direct costs of managing its public rights-of-way in connection with that authorization. The Commission also proposes to limit recoverable costs to those that are "objectively reasonable, competitively neutral, and nondiscriminatory."

The FCC specifically seeks comment on:

whether the fee standard "should apply when a provider of wireline telecommunications services seeks to attach to government-owned infrastructure in public rights-of-way," including utility poles and conduit;
what constitutes "actual and direct" costs, including whether overhead or shared administrative expenses may be recovered; and
whether it should adopt a rule that prohibits recovery of certain types of fees that do not satisfy the cost-based fee standard, including fees based on gross revenues, fees based on the asserted "fair-market value" of public rights-of-way, linear-foot fees, or recurring use fees in a right-of-way agreement.

The Commission also proposes establishing "safe harbor" levels for state and local fees that would be presumed to comply with the cost‑based standard without regard to the cost basis for each fee. Conversely, fees exceeding the safe harbor presumptively violate Section 253. The Commission also tentatively concluded that in-kind compensation demands have a prohibitive effect and are subject to preemption unless they constitute objectively reasonable compensation under Section 253(c). The Commission requests that commenters submit data regarding existing fees as well as surveys and analyses demonstrating the actual and direct costs state and local governments incur in regulating providers' access and use of public rights-of-way to provide telecommunications services.

Commingled Networks

The Commission proposes an additional presumption that a state and local government violates Section 253 if it imposes requirements that exceed any time limits or fee restrictions the Commission may adopt for wireline telecommunications authorizations simply because the provider may offer services other than telecommunications over the network. The Commission tentatively concludes that Section 253 applies whenever a provider seeks to deploy network infrastructure that enables the ability to provide telecommunications services, regardless of whether the provider offers other services on a commingled basis. That tentative conclusion may indicate the Commission's willingness to interpret "commingled services" more broadly than the historical understanding of networks that are actually providing both telecommunications and non-telecommunications services.

Enforcement

The Draft NPRM proposes that future enforcement of the new rules occur primarily through petitions to the FCC for preemption under Section 253(d), potentially in proceedings on delegated authority by the Wireline Competition Bureau. The Commission notes that the Act does not expressly provide the FCC with authority to issue injunctions, and that most courts to have considered remedies have held that the appropriate remedy is an injunction ordering the issuance of permits.

Next Steps

The Draft NPRM proposes that comments be filed within 45 days after publication of the item in the Federal Register, with reply comments due 90 days after publication. We will continue to monitor developments in this proceeding and will update this advisory to reflect any final Commission actions.

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