In the October 2, 2025 edition of the ICORE Blog we reported that in September, 2025, the FCC adopted a Notice of Inquiry (NOI) into state and local requirements that are perceived to constrain the deployment of high- speed wireline infrastructure. The NOI sought comments regarding concerns expressed by providers regarding state and local requirements related to (1) delays encountered when seeking access and use of public rights of way; (2) the fees imposed when seeking such authorization; (3) the in-kind compensation requirements imposed on providers; and (4) whether these requirements have the effect of prohibiting the provision of services in violation of Section 253 of the Communications Act. In addition, the NOI invited comment on other types of state and local requirements that have a prohibitive effect on the deployment of telecommunications infrastructure.
Numerous parties filed comments and reply comments in this proceeding (see ICORE Blogs dated 11/25/25 and 1/7/2) discussing how providers in rural areas face challenges in obtaining timely and cost-effective access to state and local government-controlled rights of way and often times the fees for obtaining access are excessive. Further, authorizations conditioned upon “in-kind” contributions to a government entity are typically unrelated to the overall project and drive up the overall project costs. In addition, it was suggested that the Commission has clear authority to define and preempt unreasonable state and local permitting and fee practices that materially inhibit deployment.
In addition, to the comments and reply comments to the NOI discussed above, comments have now been filed with the Commission on the state of competition in the communications marketplace for its annual Communications Marketplace Report (2026). Several parties filed comments citing delays related to state and local government permitting rules and requirements as being significant barriers to deployment.
In response to the comments in the NOI and perhaps the annual Communications Marketplace Report, the Commission, at its June 25, 2026 Open Meeting, adopted a Notice of Proposed Rulemaking (NPRM) proposing rules that would prevent state and local statutes from having the effect of prohibiting the provision of wireline telecommunications services in violation of Section 253 of the Communications Act. The NPRM proposes and seeks comment on the following:
- Establishing a rebuttable presumption that state and local governments have effectively prohibited the provision of wireline telecommunications services if they fail to process applications for access and use of public rights-of-way within 120 days.
- Limiting 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.
- Requiring that the value of in-kind compensation demanded by state and local governments count toward any safe harbor fee levels adopted by the Commission.
- Prohibiting 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.
- On the Commission’s authority to enact these proposals.
We anticipate that there will be a significant level of comments filed in response to this NPRM and further, that the comments from advocates for the ILEC industry will be consistent with those filed in response to the September, 2025 NOI. We will continue to follow this issue and will provide timely updates as more information becomes available.
