On March 30, 2015, the FCC issued a Notice of Proposed Rule Making, Second Report and Order, and Order on Reconsideration (“Order”). The Order updates the FCC’s “Part 4” network outage reporting rules to reflect technological advancements in wireless and wireline networks. It also responds to petitions for reconsideration and requests for rulemaking, some of which have been pending for nearly 11 years. While the Order is largely technical in nature, one noteworthy item is the FCC’s proposal to grant States access to the database the FCC maintains that collects carrier-submitted outage reports (the National Outage Reporting System (NORS) database.) Historically, the NORS database has been accessible only by the FCC, and providers have traditionally urged the FCC to keep it that way.

While we outline some of the more noteworthy proposals below, because of their technical nature, we urge affected providers to review the proposals with technical/engineering staff to assess the need for the proposed changes and the associated compliance burdens (which, not surprisingly, the FCC asserts will be minimal).

Background

In 2004, the FCC adopted its network outage reporting rules, which require communications providers, including wireline, wireless, paging, cable, satellite, and Signaling System 7 service providers, to electronically report information about significant disruptions or outages to their communications systems that meet specified thresholds. Providers must also report information regarding communications disruptions affecting Enhanced 9-1-1 services, airports and other critical facilities. The FCC views this information as critical to its goal of ensuring the reliability and security of the nation's communications infrastructure.

The NPRM

Except for extending the requirements to interconnected VoIP in 2012, the rules have been amended only minimally since 2004. As a result, the NPRM seeks to update certain requirements in light of technological developments over the years. For example, while the current rules focus on gathering data about network outages that affect the routing of calls to E911 public safety answering points, the FCC has proposed extending the reporting requirements to network degradations, as well (¶¶ 9-12). The NPRM also seeks comment on how service degradations should be measured and what impairment thresholds should trigger a reporting requirement. The NPRM also proposes a variety of new performance metrics for wireless network performance – in particular the “inability of a network to support excess demand…” (¶ 14). Among other things, the FCC believes that this information will help it to assess network performance in times of public crisis, when demands on wireless networks can be extreme.

Other noteworthy proposals in the NPRM include the following:

• Wireline backhaul – New metrics and reporting thresholds proposed for wireline carriers’ backhaul and wholesale circuits. The FCC requires reporting of “failures of communications infrastructure components having significant traffic-carrying capacity,” which is currently defined in terms of impact on DS3 circuits. The NPRM seeks comment on raising the reporting threshold to account for changes in how networks are scaled and designed, moving away from bare measures of network capacity to service utilization. (The details of the FCC’s proposal are described in ¶¶ 22-23 of the Order.) The FCC also proposes shortening the time period for carriers to report simplex outages from five days to 48 hours (¶¶ 24-30).
• Wireless – For wireless providers, the FCC proposes several new metrics and reporting requirements for assessing the impact on customers of wireless network outages and service degradations (¶¶ 31-37).
• Special Offices and Facilities – The rules require providers to report outages that potentially affect “special offices and facilities,” a term defined to include “major military installations, key government facilities, nuclear power plants, and [relatively major airports].” The NPRM proposes expanding these requirements to facilities participating in the Telecommunications Service Priority (TSP) program. (TSP-enrolled facilities include military installations; federal cabinet-level department and agency headquarters; state governors’ offices; Federal Reserve Banks; national stock exchanges; federal, state, and local law enforcement facilities; hospitals; airports; major passenger rail terminals; nuclear power plants; oil refineries; and water treatment plants.)  The NPRM also proposes changes to the kinds of impairments that must be reported for service provided to airports.

Sharing Outage Information with States

Perhaps the most noteworthy item in the Order is the FCC’s proposal to grant States access to the NORS database. By way of background, outage reports filed in NORS are presumed confidential and thus withheld from routine public inspection. The FCC routinely shares NORS reports with the Office of Emergency Communication at DHS, which may provide information from those reports to such other governmental authorities as it deems appropriate, but the FCC does not share NORS information directly with state governments.

In the absence of this information, many states independently require communications providers to file network outage reports with their public utility commissions or similar agencies. The content of such reporting overlaps to a great extent with the information providers must report to the FCC, and the FCC views the proposal to formally extend access to this information to the states as an attempt to rationalize and streamline carrier reporting requirements. The NPRM seeks comment on the proposal as the limitations that should be attached to that access, as well as on how other federal agencies should be granted access.

Other Matters

Presumably as part of the FCC’s attempt to clean its dockets and close out old matters, the Order disposes of nearly a dozen petitions for reconsideration and rulemaking, several of which have been pending since 2004. The rulings themselves are not particularly noteworthy; we note them here simply to acknowledge that the FCC eventually usually does deal with matters filed before it, even if it sometimes takes the agency a long time to do so.