Section 253 of the Telecommunications Act of 1996 prevents state and local governments from enacting laws that prohibit any entity from providing telecommunications services but allows for regulations that are competitively neutral and nondiscriminatory to manage public rights-of-way. It was intended to remove barriers to market entry and promote competition. However, how states and local governments have utilized section 253 has increasingly come under attack from the FCC and other parties who believe that broadband wireline employment has been stifled but unnecessary regulations and red tape. Now the FCC plans on “fixing” this perceived problem. On September 30, 2025, the Commission released a Notice of Inquiry (Notice) in Docket 25-253 to determine ways the agency can accelerate the buildout of wireline infrastructure by reviewing this key section.
According to the Commission:
Currently, in order to build out wireline infrastructure to consumers, providers must obtain authorization from state and local governments to deploy facilities and provide service, which can involve filing applications with numerous jurisdictions, resulting in delays and increased costs. This onerous process delays deployment discourages private investment in networks, and risks wasting taxpayer funded federal support for these deployment projects. In 2018, the Commission took important steps to streamline requirements for siting, which spurred significant deployments in the ensuing years. However, wireline deployment projects continue to be delayed by regulatory red tape at the state and local levels. (FCC September 30, 2025, News Release).
In the Notice the Commission seeks industry comments on the following potential impediments to broadband wireline deployment:
Authorization Delays that Violate Section 253 – The agency seeks comment on whether state and local statutes, regulations, or other legal requirements (e.g., required processes and procedures) create excessive delays when providers request authorizations to access or use public rights-of-way and whether those delays prohibit or effectively prohibit the provision of wireline telecommunications service. Providers have indicated that they encounter such prohibitive requirements when they engage with state and local governments to obtain franchises, license agreements, permits, and/or other authorizations to access and use public rights-of way, and that the excessive delays impair their ability to complete deployments, expand their facilities and service offerings, and invest in new infrastructure builds.
Fees That Violate Section 253 – The Commission seeks comment on whether state and local governments are imposing fees that have the effect of prohibiting the provision of wireline telecommunications services within the meaning of section 253(a). Courts have recognized that excessive fees charged by local governments can violate section 253(a) by placing significant financial burdens on providers that effectively prohibit their ability to deploy telecommunications infrastructure and services.
Conditioning Approvals on In-Kind Compensation – The agency seeks comment on whether state and local government requirements that condition authorizations to access and use public rights-of-way on in-kind compensation (e.g., the installation of excess conduit or fiber for the government’s use) or other concessions unrelated to a provider’s use of the rights-of-way violate section 253. Some courts have suggested that in-kind compensation requirements that increase a provider’s costs can have a prohibitive effect in violation of section 253, and some providers have suggested that localities are doing just that—using the permitting process to demand concessions that increase the costs of their deployments.
Commingled Facilities – The Commission has found that the effective prohibition standard in section 253 of the Act applies to infrastructure that is “used for the provision of both telecommunications and other services on a commingled basis.” It seeks comment on the services that providers offer on a commingled basis over wireline telecommunications infrastructure, and any additional requirements that state and local governments may impose on providers with respect to those additional services.
Identification of Specific Requirements with Preemptive Effects – Finally, the Commission invites broad comment on any other types or categories of state or local requirements that commenters believe prohibit or have the effect of prohibiting the provision of wireline telecommunications service.
Industry comments on the Notice are due on November 17, 2025. Reply comments are due on December 17, 2025.