Reply Comments of Nicholas Krosse[1]

Introduction and Summary

In its Notice of Proposed Rulemaking (NPRM), the Federal Communications Commission proposes rules that would provide for a blanket preemption of state and local permitting requirements that “effectively prohibit the provision of wireline telecommunications services.”[2] The Commission’s proposed rules include the establishment of “shot clocks,” or deadlines for state and local governments to act on complete applications to deploy wireline broadband infrastructure, as well as limits on the fees that state and local governments can charge to review these applications and access public rights-of-way.[3]

The Commission’s proposed rules strike the right balance between preserving state and local governments’ essential role in managing public rights-of-way and ensuring that these processes—intended to ensure that deployers won’t run afoul of zoning, environmental, or historical laws or hinder the use of rights-of-way—do not create unnecessary barriers to broadband deployment through excessive delays and fees. As the Commission finalizes its proposed rules, it should consider how the lack of a defined enforcement mechanism for shot clocks may reduce their benefits. Furthermore, in analyzing the impact of cost-based standards for fees on state and local budgets, the Commission should also examine whether any state and local revenue losses could instead be more efficiently raised through general taxation.

Shot Clocks Reduce Processing Times, but Also Need an Enforcement Mechanism

In the NPRM, the Commission proposes a 120-day “shot clock,” or deadline, by which state or local permitting authorities must take action on permitting applications for wireline telecommunications deployments.[4] Shot clocks are a cornerstone of many permitting processes because they remove uncertainty and “analysis paralysis” brought on by endless review.[5] The British Naval historian Cyril Northcote Parkinson famously observed, “work expands so as to fill the time available for its completion.”[6] Without deadlines, people tend to take longer than needed to complete a task or make a decision. In the case of broadband permitting, delays in application decisions have real-world costs. While states and localities need sufficient time to review an application to ensure deployers will comply with relevant laws, excessively long reviews reduce the amount of time deployers have to recoup their investment costs.[7] This deters investment and ultimately deprives consumers, particularly in rural and poorer areas, not only of direct access to more and better connectivity options, but also leads to deleterious spillover effects from services they use such as hospitals not having access to the same.[8]

There is evidence that shot clocks work to speed up processing time in the context of broadband deployment. For instance, in 2018, Congress imposed a 270-day shot clock for federal agencies reviewing communications infrastructure permits on federal lands through the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless (MOBILE NOW) Act.[9] The Government Accountability Office (GAO) found in a retrospective review that the average processing time at two agencies, the U.S. Forest Service and the Bureau of Land Management, declined by 57 percent between fiscal year 2018—when the shot clocks were enacted—and fiscal year 2022.[10]

The specific length of the timeline matters less than its existence and enforceability. While the GAO study discussed above shows that deadlines alone can improve processing speeds, it also found that both agencies studied were still missing deadlines in at least 22 percent of cases.[11] The MOBILE NOW Act imposed deadlines without clear consequences. In its NPRM, the Commission declines to impose a specific enforceability requirement, such as deeming granted any application not acted upon at the end of the 120-day period.[12] It instead will rely on deployers whose applications have not been acted upon within 120 days to seek relief through court action or before the Commission, adding further time and expense to the process.[13] While the existence of the deadlines will have benefit on its own, the lack of specific enforceability requirements may well mean that in the marginal case, state and local permitting offices will still delay decisions and potentially wait until action from a court or the Commission to issue a permit, limiting the benefit of the Commission’s new rules.

Some local governments are concerned that shot clocks would limit their ability to effectively review applications.[14] They argue that shot clocks would strain local permitting offices and budgets. These are not unreasonable concerns, but they do not negate the need for clear timelines. As the Commission points out in the NPRM, its proposed deadline is longer than what many states require in their own statutes, as well as what many cities already strive to do.[15] Given that many localities already can comply with these timelines, localities that have concerns about meeting these new deadlines can learn from other localities, as well as take advantage of new technologies and systems to help speed up processing. States and localities around the country have experimented with using artificial intelligence (AI) to speed up processing timelines for permitting applications in a variety of contexts, leading to reductions in processing times.[16] Cities that use AI to process permitting applications not only report faster processing times, but also improved accuracy, fewer errors, and more informed decisions thanks to AI’s ability to quickly extract necessary data and compare applications with historical data.[17]

Fee Limits Ensure Broadband Deployers Only Pay Costs Directly Attributable to Their Use of Rights-of-Way

The Commission also proposes a cost-based standard for assessing what application fees “impose prohibitive financial burdens on the provision of wireline telecommunications services and the deployment of wireline telecommunications infrastructure.”[18] Specifically, the Commission proposes to limit fees “to a reasonable approximation of the government’s actual and direct costs of managing its public rights-of-way in connection with a particular wireline telecommunications authorization, provided that those costs are objectively reasonable, competitively neutral, and nondiscriminatory.”[19] Once again, the Commission’s proposed rules properly balance the need for states and localities to ensure taxpayers are not responsible for costs imposed on rights-of-way by broadband deployers, while preventing state and local governments from relying on permitting as a revenue offset for costs unrelated to the use of rights-of-way.

As the Commission notes in its NPRM, excessive fees can deter broadband deployment by making projects uneconomical.[20] Yet the Commission also points to comments from municipalities in the Notice of Inquiry stage that a cost-based standard for judging the appropriateness of permit fees would “disrupt local budgets.”[21] To the extent deployers are using public resources, such as permitting office staff time for reviews and inspections, they should ultimately bear the cost as they receive direct and definable benefits from this use of public resources.[22] This is in line with the federal government’s own guidance on how federal agencies should think about imposing user fees on use of federal resources versus relying on general taxation revenue to support federal programs.[23] But if a federal program provides benefits in such a way that it is difficult to assign them on an individual or otherwise particularized way, then it is generally more efficient to rely on general taxation to fund that program. In other words, user fees should generally not be used to subsidize programs that bear no relation to the fee being levied. Therefore, any analysis of the impact of these proposed rules on state and local government budgets must consider not just the overall fiscal impact, but also whether any lost revenue from a cost-based standard would instead be more appropriate to raise through general taxation.

Conclusion

The Commission’s proposed rules strike the right balance between recognizing the essential role state and local governments play in managing rights-of-way as well as the potential for excessive delays and fees to potentially inhibit socially valuable investment in communications networks. In finalizing its rules, the Commission should consider how the lack of a defined enforcement mechanism for its shot clocks may reduce their potential benefits. Additionally, when considering the fiscal impact of cost-based standards for fees, the Commission should analyze whether state and local revenue losses could instead be more efficiently raised through general taxation. In adopting these rules, the Commission will ensure that America’s broadband infrastructure is prepared to support growing demand for broadband access, as well as higher speeds and lower latency needed for future network needs including AI.

***

 

Respectfully submitted,

Nicholas Krosse

Director, Technology & Innovation Policy

The American Action Forum

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

NKrosse@americanactionforum.org

 

November 4, 2026

[1] Nicholas Krosse is the Director of Technology & Innovation Policy at the American Action Forum. These comments represent the views of Nicholas Krosse and not the views of the American Action Forum, which takes no formal positions as an organization.

[2] Build America: Eliminating Barriers to Wireline Deployments, Notice of Proposed Rulemaking, WC Docket No. 25-253, FCC 26-40, at para. 3 (Jun. 26, 2026) (NPRM), https://docs.fcc.gov/public/attachments/FCC-26-40A1.pdf

[3] Id. at para. 4.

[4] NPRM, supra note 2, at para. 17.

[5] “What Are Permit Shot Clocks?,” Housing Affordability Institute (Oct. 7, 2026), https://www.housingaffordabilityinstitute.org/what-are-permit-shot-clocks/; Jigar Shah, “Senator Heinrich on the Permitting Bill: Clocks, a Backstop, and ‘Real Fines,’” Energy Empire (Sep. 30, 2026), https://www.energyempire.fm/episodes/the-permitting-bill-is-out-senator-heinrich-walks-us-through-it.

[6] Cyril Northcote Parkinson, “Parkinson’s Law,” The Economist (Nov. 19, 1955), https://archive.org/details/parkinsons-law-the-economist.

[7] See, e.g., Jeffrey Westling & Kristian Stout, “The Permission Layer: Clearing the Way for AI-Era Broadband,” International Center for Law & Economics, Issue Brief 2026-09-09 (Sep. 9, 2026), https://laweconcenter.org/resources/the-permission-layer-clearing-the-way-for-ai-era-broadband/.

[8] Id.

[9] Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless (MOBILE NOW) Act, Pub. L. No. 115-141, div. P, tit. VI, § 606(a), 132 Stat. 1097, 1101 (2018) (amending 47 U.S.C. § 1455(b)(3)).

[10] Government Accountability Office, “Broadband Deployment: Agencies Should Take Steps to Better Meet Deadline for Processing Permits,” GAO-24-106157 (Apr. 2024), https://www.gao.gov/products/gao-24-106157.

[11] Id. Both agencies lacked complete or accurate data on whether they processed applications on time in 28 percent of cases.

[12] NPRM, supra note 2, at para. 32.

[13] Id. at para. 30.

[14] See, e.g., Comments of the United States Conference of Mayors, the National Association of Counties, the National League of Cities, and the National Association of Telecommunications Officers and Advisors Re: Build America: Eliminating Barriers to Wireline Deployments, WC Docket No. 25-253, FCC 26-40, (Sep. 21, 2026), https://www.fcc.gov/ecfs/document/26110077417/1.

[15] NPRM, supra note 2, at para. 17, n. 51, para. 24, n. 72, & 73.

[16] Tami Fillyaw, “Use AI to Transform City Operations,” National League of Cities (Jul. 31, 2025), https://www.nlc.org/article/2025/07/31/use-ai-to-transform-city-operations.

[17] Id.

[18] NPRM, supra note 2, at para. 35.

[19] Id. at para. 37.

[20] Id. at para. 35, n. 98, 99, 100, & 101.

[21] Id. at para. 45.

[22] See, e.g., “Wireline Telecommunications Permitting Challenges: Economic Impact of State and Local Permitting Practices,” Fiber Broadband Association, at 6 (Sep. 29, 2026), https://fiberbroadband.org/resources/wireline-permitting-study-economic-impact-on-fiber-fba/.

[23] See, e.g., Government Accountability Office, “Federal User Fees: A Design Guide,” GAO-08-386SP (May 29, 2008), https://www.gao.gov/products/gao-08-386sp; Congressional Research Service, “Economics of Federal User Fees,” R45463 (Jan. 29, 2019), https://www.everycrsreport.com/reports/R45463.html.