FCC Storms Ahead, Seeks to Expand Outage Reporting Rules to VoIP and Broadband Providers

            As a follow-on to an earlier comment cycle, the FCC released a Notice of Proposed Rulemaking (“NPRM”) proposing to extend its Part 4 outage reporting requirements to interconnected VoIP providers and broadband Internet providers.  There was little support in last year’s record to further burden network operators with new reporting obligations and the FCC’s authority to require VoIP and broadband providers has been questioned by one Commissioner. Nevertheless, the FCC cites the need to ensure public safety and 9-1-1 communications as the basis for extending its rules.  Comments likely will be due later this summer – 60 days from Federal Register publication of the NPRM – with Reply Comments due 60 days thereafter.  It is perhaps no accident that the FCC initiated this proceeding during an active tornado season and at the outset of hurricane season

            In 1992, the FCC adopted rules requiring circuit-switched wireline providers to file reports of outages.  In 2004, this requirement was extended to providers of paging communications over wireless, cable and satellite communications.  And since 2005, the FCC has required interconnected VoIP providers to provide 9-1-1 emergency calling capabilities to their customers.  The FCC now seeks to make the outage rules applicable to interconnected VoIP providers and broadband ISPs, who would be required to make “presumptively confidential” reports to the FCC as a means to “help providers recover or prevent future outages, and ensure to the extent possible that broadband networks are prepared for natural and man-made disasters.”  The FCC states that its existing reporting obligations provided numerous benefits in the aftermath of Hurricane Katrina in 2005.  The FCC also noted that almost 30 percent of voice calls are made using VoIP service.

            The FCC proposed the actual language of its proposed rules – something that was almost never done in previous administrations but is becoming more common under Chairman Julius Genachowski.  The FCC has requested comment on the following proposal, which adopts certain “triggers” for the reporting requirement: 

Interconnected VoIP Providers

Broadband Internet Access Service Providers

Would be required to electronically notify the FCC within 120 minutes of discovering that they have experienced on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration: 

(1) Of a Call Agent, Session Border Controller, Signaling Gateway, Call Session Control Function, or Home Subscriber Server: 

(2) That potentially affects at least 900,000 user minutes of interconnected VoIP service and results in (i) complete loss of service; or (ii) an average packet loss of 1 percent or greater; or (iii) average round-trip latency of 100 ms or greater; or (iv) average jitter of 4 ms or greater, with all packet loss, latency, and jitter measurements taken in each of at least 6 consecutive 5 minute intervals from source to destination host; 

(3) That potentially affects any special offices and facilities; or 

(4) That potentially affects a 9-1-1 special facility, in which case they also shall notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 9-1-1 facility as the provider’s contact person for communications outages at that facility, and the provider shall convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on efforts to communicate with that facility.

Would be required to electronically notify the FCC within 120 minutes of discovering that they have experienced, on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration: 

(1) Of a ISP-operated Domain Name System server, Dynamic Host Control Protocol server, or Home Subscriber Server; 

(2) That potentially affects at least 900,000 user minutes and results in (i) complete loss of service; or (ii) an average packet loss of 1 percent or greater, or (iii) average round-trip latency of 100 ms or greater, or (iv) average jitter of 4 ms or greater, with all packet loss, latency, and jitter measurements taken in each of at least 6 consecutive 5 minute intervals from source to destination host; 

(3) That potentially affects any special offices and facilities; or 

(4) That potentially affects a 9-1-1 special facility, in which case they also shall notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 9-1-1 facility as the provider’s contact person for communications outages at that facility, and the provider shall convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on efforts to communicate with that facility. 

Similar rules would apply to broadband backbone ISPs.

 

            For broadband providers to non-mobile users, the number of IP addresses affected would be used to calculate “user minutes.”  For broadband access providers to mobile users, the number of potentially affected users should be determined by multiplying the maximum number of simultaneous users by a concentration ratio of 8.

            Among other things, the FCC asks throughout the NPRM for comment on the burdens and costs associated with the extended reporting requirements.  The FCC specifically asks whether the burdens would be greater on smaller VoIP providers and broadband ISPs, and asks for alternatives (though according to the Initial Regulatory Flexibility Analysis, the FCC considered but did not propose waivers for smaller entities).  

            Importantly, the FCC proposes to treat data collected through the reporting process as “presumptively confidential,” just as it treats existing outage information.  The FCC also asks for comment on whether it should be allowed to share information with other Federal agencies on a presumptively confidential basis. 

            Curiously, the FCC waited until the end of the NPRM to request comment on whether it has the legal authority to impose the new requirements.  The NPRM concludes that the FCC has “ancillary authority” to adopt the rules because it has general jurisdiction covering the regulated subject and the regulations are “reasonably ancillary” to the FCC’s performance of its statutory responsibilities.  For VoIP providers, the FCC finds that collecting outage information is “reasonably ancillary” to ensuring that VoIP providers are able to satisfy their 9-1-1 obligations and to enable the FCC to improve the reliability of 9-1-1 services.  For broadband ISPs, the FCC relies on the same authority, but to get around the fact that broadband providers do not have 9-1-1 obligations, the FCC states that they are subject to outage reporting because interconnected VoIP services ride on broadband networks.  As noted above, Commissioner Robert McDowell – who has a reputation for doubting the FCC’s “ancillary authority” – has questioned whether the FCC can impose these requirements. 

            The record from last year’s preview was predictable, with public safety advocates supporting extension of outage reporting requirements and private industry telling the FCC that the rules should not be extended.  There’s little doubt that the record this time around will be similar.  But at least we have specific language of proposed rules to consider.