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№ 51 · appended

FCC proposes a 120-day clock on local rights-of-way, and a cap on what a city may charge for them

A public right-of-way is one of the last pieces of physical leverage a municipality holds over national infrastructure, and this proposal converts it into a deadline and a cost-recovery formula set in Washington. The mechanism deserves attention on its own terms: a shot clock plus a cost-based access fee is the classic instrument for forcing a gatekeeper to open its network to smaller entrants, because discretion over access and pricing is how a gatekeeper excludes. The FCC is applying it correctly and pointing it at an elected local government. Which reading is right turns on who counts as the edge, the household waiting for fibre or the community deciding what gets built under its own streets, and both descriptions fit the same rule. Commissioner Gomez’s own statement, questioning the Commission’s authority to do this by rulemaking, is the clearest evidence that the question is live inside the agency and not only outside it.

Comments close today on a Federal Communications Commission proposal that would tell every city and state in the United States how long they may take to answer a telecommunications carrier asking to dig up a street, and how much they may charge for the privilege.

The Notice of Proposed Rulemaking, Build America: Eliminating Barriers to Wireline Deployments, is FCC 26-40 in WC Docket No. 25-253. The Commission adopted it on 25 June 2026 and released it on 26 June. It was published in the Federal Register on 7 August 2026, which set the comment deadline at 21 September 2026 and reply comments at 5 November 2026. Chairman Carr and Commissioners Gomez and Trusty each issued separate statements.

The shot clock

The Commission proposes 120 days, running from the date an application is submitted, as the deadline by which state and local governments must ordinarily act on applications to access and use public rights-of-way for wireline telecommunications. Miss it and the government is presumed to have effectively prohibited the provision of telecommunications service, in violation of Section 253(a) of the Communications Act.

The clock is not per permit. The NPRM proposes that every authorisation a government requires for a particular use of a particular right-of-way must be acted on within the 120-day period that starts when the provider files the first of them. The example the Commission gives is a deployment needing a right-of-way agreement, a construction permit and road closure permits: all of them, in 120 days from the first request.

The Commission is unusually direct about what the number is and is not. Commenters proposed timeframes from 30 to 150 days. The FCC declines the shorter end on the grounds that its standard is not an estimate of reasonable processing time but a legal threshold, describing the deadline it chose as "the point at which a delay presumptively constitutes an effective prohibition." Its supporting finding is that delays beyond several months routinely raise deployment costs and force carriers to cancel, postpone or scale back projects, including in other jurisdictions where capital then runs short. It also notes that many governments already act well inside 120 days, which it offers as evidence the rule would bite only on outliers.

Small governmental jurisdictions would be able to rebut the presumption with evidence that their timelines and fees do not prohibit service, or that they fall within the savings clauses of Section 253.

Notably, the Commission declines to propose the deemed granted remedy that several carriers asked for, citing the incremental approach it took with wireless shot clocks in the 2018 Small Cell Order. It expects a challengeable presumption to be enough, and says it may revisit that if the record shows otherwise. A missed deadline, under this proposal, gives a carrier a strong argument in court. It does not hand it a permit.

The fee cap

The second proposal is the one local governments will fight hardest. The Commission proposes to limit state and local fees for wireline rights-of-way authorisations to "a reasonable approximation of the government's actual and direct costs" of managing the right-of-way in connection with that particular authorisation, provided those costs are objectively reasonable, competitively neutral and nondiscriminatory. Fees meeting that standard would be presumed not to violate Section 253(a) and to constitute fair and reasonable compensation under Section 253(c).

The Commission proposes to adopt safe harbour fee levels, with anything at or below them presumptively compliant, and asks commenters to supply the numbers. The NPRM does not set them.

Two anti-circumvention proposals sit alongside it. In-kind and non-monetary compensation would count against the limit: the NPRM's own worked example takes a $3,000 compensation limit, values a municipality's demand for extra conduit at $1,200, and concludes the municipality may then collect no more than $1,800 in fees. And under the commingled facilities proposal, a government could not impose additional requirements on wireline telecommunications infrastructure merely because that infrastructure can also carry other services.

The in-kind section is where the Commission's theory of the case shows. It records carrier complaints that cities require them to install shadow conduit or spare fibre which the city then leases to competitors, and characterises this as providers being made to subsidise their rivals. It stops short of proposing an outright ban, and asks how in-kind contributions should be valued, whether at the provider's labour and materials cost or at market value.

A commissioner says the quiet part

The most useful document in the package is Commissioner Anna Gomez's separate statement, which supports faster buildout and then questions whether the Commission may do this at all. She writes that she is "dubious about the Commission's authority under Section 253 to use rulemaking to preempt" states and localities on rights-of-way management and fees.

Her reasoning is structural. Section 253(d) authorises the Commission to preempt a specific state or local statute, regulation or legal requirement that violates Section 253(a) or (b). Section 253(c), which preserves local management of public rights-of-way and the right to fair and reasonable compensation, is conspicuously not in that list. Gomez reads the drafting as a deliberate narrowing, with Congress intending that local powers be retained locally and that states and localities price access to their own property, possibly above actual and direct costs. The NPRM tentatively concludes the opposite, that fees exceeding direct and actual costs violate Sections 253(a) and (c), and grounds its authority in Sections 253, 4(i), 201(b) and 303.

The National Association of Counties has said it opposes federal rules that would preempt local project reviews, limit standard fees or override community standards, according to the Maryland Association of Counties.

Why it matters

A public right-of-way is one of the few pieces of physical leverage a municipality still holds over national infrastructure. This proposal converts that leverage into a deadline and a cost-recovery formula, both set in Washington.

What makes it genuinely hard, rather than simply objectionable, is that a shot clock plus a cost-based access fee is the classic decentralising instrument. It is the shape of the rule that forces an incumbent to open its network to smaller competitors, and it is used because discretion over access and pricing is how a gatekeeper excludes. The FCC is applying that instrument correctly, in mechanism. It is just pointing it at an elected local government rather than at a monopoly.

So the question is which party is the edge. If the edge is the household on the street waiting for fibre, and a town council is the chokepoint extracting rents, the proposal moves control outward. If the edge is the community deciding what gets built under its own roads and what that access is worth, the proposal moves control inward, to a federal agency and to carriers large enough to litigate. Both descriptions fit the same rule.

The honest position is that this depends on facts about how often municipal delay is genuine capacity shortage rather than leverage, and those facts are what the record is supposed to establish. As of today, the comment window is what decides whether anyone supplied them.

What is still unknown

The safe harbour fee levels are the heart of the fee proposal and they do not exist yet. Until the Commission proposes numbers, nobody can say whether the cap is binding or cosmetic. [NEEDS DATA: proposed safe harbour levels, and the median local wireline rights-of-way fee actually charged.]

The NPRM as read does not separately address a municipality that operates its own retail broadband network, where the same government is both permitting authority and competitor. The in-kind discussion circles it without resolving it. [UNVERIFIED: whether the proposed rules would apply to municipally owned networks on the same terms as private carriers.]

Evidence on the scale of the problem is thin in the parts of the record the NPRM quotes. One ex parte filing cited by the Commission reports 609 wireline rights-of-way applications submitted in a year against 447 completed and 146 abandoned or incomplete, which is a single jurisdiction's figures offered by a party with an interest in them. [NEEDS DATA: how many wireline rights-of-way applications nationally sit past 120 days, and where.]

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