Contents

Introduction and Summary 1

The Commission Should Establish a Deemed-Granted Deadline for Wireline Authorizations 2

The Commission Should Limit Fees to The Actual Costs Of ROW Management 3

The Commission Should Preempt In-Kind Compensation and Restoration Requirements 3

Conclusion. 4

Endnotes 4

Introduction and Summary

The Information Technology and Innovation Foundation (ITIF) appreciates the opportunity to comment on eliminating barriers to wireline broadband deployment.[1] ITIF supports the Commission’s continued efforts to reduce state and local regulatory barriers that unnecessarily increase the cost or delay the deployment of modern wireline infrastructure. As ITIF explained in response to the Commission’s 2025 Notice of Inquiry, state and local governments have legitimate authority to manage public rights-of-way (ROW), but excessive permitting delays, unreasonable fees, and unrelated compensation requirements can divert resources away from broadband deployment and, in some cases, make otherwise viable projects uneconomic.[2]

The Commission should establish federal guardrails designed to address state and local requirements that have a prohibitive effect under Section 253 of the Communications Act while preserving legitimate ROW-management functions. These guardrails should include a deemed-granted deadline, clear rules governing incomplete applications and extensions, a cost-based approach to ROW fees, and preemption of in-kind demands.

Section 253 strikes an appropriate balance between state and local authority over public ROW and the federal interest in preventing requirements that prohibit or effectively prohibit broadband service. The appropriate objective of state and local permitting rules is therefore to ensure that cost recovery is limited to actual project costs and thus does not stand in the way of universal connectivity. The Commission’s final rules should remain closely tied to the statutory goal of determining whether a state or local requirement prohibits or effectively prohibits broadband service and, if so, whether the Act’s exceptions protect it.

The Commission Should Establish a Deemed-Granted Deadline for Wireline Authorizations

Delays in obtaining state and local authorization can impede wireline deployment. Deployment capital is finite, and delays in obtaining necessary ROW authorizations impose costs on providers that can reduce the resources available for network construction and expansion. These costs can accrue to the point of becoming prohibitive, resulting in abandoned wireline deployment projects. A predictable authorization timeline would reduce costly delays and give providers and governments clearer expectations regarding the authorization process.[3] In so doing, the deadline would help implement Section 253(a)'s rule against state and local requirements that prohibit or have the effect of prohibiting broadband service.

Clear and Limited Tolling Rules Should Preserve the Deadline’s Predictability

For a presumptive authorization deadline to improve deployment predictability, providers and governments must be able to determine when it begins, when it expires, and when additional time is justified. The Commission’s wireless-siting framework addresses incomplete applications through defined notice and tolling rules.[4] A wireline rule should similarly require a reviewing authority that considers an application materially incomplete to identify the deficiency promptly and with enough specificity for the applicant to fix it. The wireline clock should ordinarily begin upon submission rather than depend on an open-ended completeness determination.[5]

Tolling or extensions should be limited to defined circumstances, including identified material deficiencies, applicant-caused delay, and mutually agreed extensions subject to a maximum duration. Any other extension should require a specific showing that circumstances outside the reviewing authority’s ordinary control make additional review necessary. These exceptions must not become an alternative means of creating an indefinite authorization process.

A Missed Deadline Should Trigger Automatic Approval

ITIF previously recommended that a locality that misses an applicable deadline be required to expedite the authorization process because a deadline that produces no practical consequence when missed provides little certainty for applicants.[6] As such, a missed deadline should result in a project being deemed granted. If the Commission sets a review deadline that provides reasonable time for a reviewing authority to approve or deny a permit, then the consequence of missing that deadline should not be additional delays while the presumptive prohibition is given judicial relief. That approach does not meet the Commission’s goals of expeditiously connecting Americans to the Internet.

The Commission Should Limit Fees to The Actual Costs Of ROW Management

State and local governments should be permitted to recover objectively reasonable costs associated with managing public ROW and processing applications, but control over public ROW should not become a mechanism for extracting unrelated revenue from broadband deployment.[7] Charges that exceed costs directly attributable to ROW management result in the prohibition of broadband service. The NPRM appropriately proposes limiting fees for wireline authorizations to a reasonable approximation of the government's actual, direct costs of managing the ROW for the authorization.

Recoverable Fees Should Be Limited to Documented Costs Directly Attributable to the Provider’s ROW Use

Recoverable fees should bear a demonstrable relationship to costs reasonably attributable to the provider’s authorization or use of the ROW. Section 253(c) permits fair and reasonable compensation for the use of public ROW.[8] A charge that exceeds the costs directly attributable to the provider’s use becomes increasingly difficult to characterize as fair and reasonable compensation and should be presumed inconsistent with the Commission’s cost-based standard.

Safe Harbors Could Increase Predictability, But Their Amounts Should Be Evidence-Based

The Commission also proposes safe-harbor fee levels that would presumptively comply with Section 253. Safe harbors could provide greater certainty at the outset and reduce the need for individualized cost determinations.[9] However, the Commission should establish numerical safe harbors only where clear, well-documented evidence demonstrates that the amounts approximate legitimate ROW-management costs. A safe harbor should simplify compliance with the cost-based standard, not inadvertently legitimize extraneous charges.

The Commission Should Preempt In-Kind Compensation and Restoration Requirements

The NPRM considers circumstances in which in-kind requirements may themselves violate section 253, but as ITIF has previously argued, a more sound approach would preempt in-kind compensation altogether.[10] A demand does not cease to impose a cost simply because compensation takes the form of conduit, dark fiber, free or discounted service, infrastructure, or another nonmonetary benefit. Furthermore, these nonmonetary compensation methods overcomplicate the authorization process and present a less clear-cut cost recovery method for state and local governments. In-kind compensation can thus have a prohibitive effect that violates Section 253 and should be preempted.

Restoration Requirements Should Be Causally Related and Proportionate to the Effects of Deployment

The Commission should distinguish legitimate restoration requirements from demands for unrelated benefits based on the provider’s actual effect on the ROW. A provider that excavates, damages, or alters a public ROW should be required to repair the damage it caused or restore property disturbed by its construction. However, the Commission should distinguish restoration from compensation by examining causation and proportionality. A requirement should qualify as restoration when it addresses an identifiable effect of the provider’s deployment and is reasonably proportionate to that effect. Requirements that address unrelated infrastructure needs or materially exceed the effects of the deployment should instead be treated as in-kind compensation and be preempted.

Conclusion

The Commission should establish predictable federal guardrails to address wireline deployment barriers while preserving legitimate state and local ROW-management functions. These measures would give providers and governments clearer expectations and reduce some regulatory uncertainty surrounding deployments that require state or local authorization. The goal of these rules is to ensure that a balanced approach does not prevent progress towards achieving universal connectivity in the United States.

Thank you for your consideration.

Endnotes