May 26, 2016–FCC Commissioners today approved a report and order that the agency said makes “targeted refinements” to current communications network outage reporting requirements, as well as a further notice of proposed rulemaking seeking comment on proposals to change the reporting requirements to cover broadband service disruptions, establish reporting requirements for interconnected voice-over-Internet-protocol (VoIP) providers, and change reporting requirements to better reflect wireless service outages in rural areas.
The text of the report and order, further notice of proposed rulemaking (FNPRM), and order on reconsideration in Public Safety docket 15-80, Engineering and Technology docket 04-35, and PS docket 11-82 were not available at TRDaily’s news deadline. The order updates the FCC’s part 4 rules.
FCC Chairman Tom Wheeler and Commissioners Mignon L. Clyburn and Jessica Rosenworcel voted for the items. Commissioners Ajit Pai and Mike O’Rielly concurred in part and dissented in part. In a blog posting earlier this month (TRDaily, May 18), Chairman Wheeler noted that “communications providers currently report 911 outages that occur on legacy networks, but not for next-generation 911 over IP networks,” and said the item that he had circulated for a vote at today’s meeting “would refine our network outage reporting requirements and propose common-sense updates to keep pace with technological change.” Last year, the FCC adopted an NPRM in the proceeding that proposed requiring providers to report any outages that “significantly” degrade or prevent the completion of 911 calls to public safety answering points (PSAPs), not just total outages (TRDaily, March 30, 2015). It also proposed allowing states to access outage information covering their states.
At today’s FCC meeting, David Simpson, chief of the agency’s Public Safety and Homeland Security Bureau, said that the increased reliance on broadband communications by consumers, businesses, and public safety agencies makes it “critical” that network outage reporting requirements change to meet that reality, and that the new requirements will help promote greater network reliability and resilience.
Brenda Villanueva, an attorney-advisor in the bureau, said the items approved today include, among other provisions, a standardized method for wireless service providers to calculate the number of potential users impacted by an outage, a “flexible methodology” for calculating the impact of wireless service outages on 911 call centers, a ruling on what constitutes a “reportable” loss of communications to 911 call centers, and provisions to close “a gap that resulted in unreported outages” impacting 911 call centers. She also said the items streamline rules for reporting outages affecting special offices and facilities.
She said the further notice proposes a requirement “to keep pace with technological changes in emergency and nonemergency communications,” specifically proposing that “both service outages and debilitating incidents in broadband networks” be reported. It also proposes to require wireless service providers to report on “certain call failures in the radio access network and local access network and amend the reporting requirements to better reflect wireless outages in rural areas.”
“Taken together, these rules and proposal will keep the Commission abreast of challenges to, and promote the reliability of, the networks that American citizens, businesses, public safety, and critical infrastructure industries rely on for their communications needs,” she said.
Chairman Wheeler recounted that the FCC in 2012 updated its rules to include outage reporting from interconnected VoIP providers, but that the reporting requirements continued to “remain tailored primarily to legacy networks.”
“This leaves us with two tasks: to bring legacy network reporting into today’s digital era and to lay the groundwork for the broadband world,” he said. “For example, 911 services are already increasingly reliant on IP-networks and transitioning to broadband-enabled Next Generation 911. Unless we update our rules, we risk losing critical visibility into the status of emergency communications in America. That is why in March 2015, the Commission approved a Notice of Proposed Rulemaking to explore additional updates to reflect new technologies.”
The items adopted today include “many of the proposals in the 2015 NPRM, refining our network outage reporting requirements to reflect the digital nature of today’s networks and proposing common-sense updates in light of the transition to IP-based networks,” he said. “The Further Notice of Proposed Rulemaking initiates a dialogue and seeks comment on ways to keep our reporting requirements current, whether for outages to emergency or non-emergency communications, so that we can continue to collectively safeguard the networks that American consumers and businesses rely upon.”
“Reviewing and, where appropriate, updating our rules to make sure they are keeping pace with technological advances and changing consumer preferences has been an agency-wide priority for the past several years,” he said. “When the stakes are potentially life and death, as they are with public safety, it’s imperative that we do so with our outage reporting rules. By helping us to learn from the experience of network disruptions, today’s Order will help us know better how to make sure our networks are secure and reliable.”
“As the nation’s demand for broadband service increases, it is imperative that the Commission’s network outage reporting rules keep pace,” said Commissioner Clyburn. “The report, order, and further notice aim to do just that.”
“It is important to keep in mind that the fundamental purpose of these rules is to collect and analyze data that would affect the nation’s security, public health, and economic well-being,” she said, adding that the FCC “has no means of gathering on a consistent and reliable basis” that kind of information from any other source.
She said that executing the new reporting requirements will take “time, planning, and resources, which is why I ask for sensible timelines for the implementation of the reporting obligation in the report and order and clarity on acceptable methodologies” for allocating capacity when an outage only affects some public safety answering points served by a mobile switching center.
Commissioner Rosenworcel cited recent broadband and phone service outages around the country including those impacting access to 911 services, and said that such outages are not “just inconvenient,” but constitute a “dangerous new vulnerability.”
“It’s a problem,” she said, adding, “But we cannot manage problems that we do not measure. That is why our action here is so important. We refine our existing rules for outage reporting in order to ensure that the data we receive is timely and accurate. Then we seek comment on outage reporting for consumer broadband service, because we need to understand communications vulnerabilities in order to address them. This public safety effort has my full and unequivocal support.”
Commissioner Pai said he supported the 2015 NPRM to modernize service outage reporting rules “because updating these rules would advance the Commission’s core public safety mission and would focus the private sector’s attention on getting consumers back online rather than filing unnecessary paperwork,” but said that “somewhere between the Notice’s good intentions and the document before us, this proceeding got way off track.”
Rather, he said, the FNPRM is “about regulation for its own sake,” rather than “actual outages that impact actual consumers.”
“Rather than focusing on outages that actually impact consumers, the Commission mandates that companies file reports even when their networks are fully functioning and no consumer is affected,” he said. “Rather than requesting targeted outage information that would make it easier for the FCC to identify trends and threats, it requires a flood of new reports that will only make this task more difficult. Rather than promoting public safety and lowering costs for consumers, the item simply asserts that we’re improving public safety and in fact raises costs.”
In particular, he criticized the FNPRM’s language on wireless service outages, saying, “On the wireless side, the Commission does not limit its proposal to cell towers that are down. Instead, it tentatively concludes that providers must file outage reports when their towers are fully functional and operating at capacity. It does not matter if there are no call failures. It does not matter if excess demand never materializes. And it certainly does not matter if the report diverts resources that could be used to identify and repair actual outages. The Commission proposes that providers must nonetheless report that these towers are ‘out.’ Tellingly, it places the word ‘out’ in quotation marks throughout this section, which just highlights its refusal to focus on actual outages.”
Regarding the FNPRM’s language on broadband service, he said, “Instead of focusing on actual outages, it concludes that broadband providers should track and report on numerous metrics selected by the FCC—packet loss, latency, and throughput, among potentially many others—metrics that may have nothing to do with an outage or consumers’ ability to use their broadband service. The Further Notice even suggests that broadband providers will be responsible for providing reports about facilities that they do not own, operate, lease, or use. This is a marked departure, and a bizarre distraction, from the goals of our outage reporting regime.”
“Another major deficiency in this document is its cost-benefit analysis—or rather, the lack thereof,” Mr. Pai said. “A meaningful discussion of costs and benefits is nowhere to be found in today’s decision. Indeed, the FCC focuses almost exclusively on the nation’s largest broadband providers—AT&T, Comcast, and Verizon, for instance—and suggests that those corporations are large enough to bear the costs imposed by our rules, however steep they may be. That might be true, and perhaps this reflects the market structure the majority would like to see. But there is virtually no consideration given to the thousands of small and mid-size providers who are critical to competition in these markets. Small cable operators, cellular companies, fixed wireless competitors, and others lack the army of lawyers and regulatory compliance departments that their larger competitors employ. Many of them have told the FCC that this top-heavy approach to outage reporting will siphon resources away from broadband deployment, slow genuine outage repair, and provide no benefit [to] consumers.”
He continued, “And there is reason to believe that the regulatory costs will be quite high. At least one provider submitted a detailed, quantitative analysis of the costs associated with our reporting regime. While the FCC requires three separate reports for every outage or event, the analysis shows that it takes about a dozen hours to prepare and file just a single one of those reports. That’s nearly six times the number of hours the FCC includes in its cost estimate. So how does the agency respond to this data? How does it modify its cost-benefit analysis? It doesn’t. It simply asserts ‘we are not convinced that twelve hours are necessary.’ Why is that exactly? What is the basis for this assertion? The agency offers no insight.”
Commissioner Pai said he concurred with parts of the order that would eliminate an “obsolete DS3-based reporting metric,” and that would provide a “reasonable” transition period for providers to comply with new reporting requirements.
Commissioner O’Rielly said he was able to “concur to today’s order portion, because it does help clarify current rules and provides some relief for entities that fall under this reporting regime,” even though he said he remained “skeptical of our Part 4 information collections, and any other efforts that place burdens on industry for the sake of just having information on hand or for such amorphous concepts as ‘network visibility’ and ‘situational awareness.”
He also said he was pleased with edits he proposed that will ensure “industry has a reasonable time to implement the revised rules,” and ones that will lengthen the time for reporting “simplex outages” and that deal with synchronizing Part 4 reporting structure across all services.
Other than those items, he said he “strongly opposed” the FNPRM and said it marked a continuation in the FCC’s “power grab” over the Internet by extending outage reporting to broadband Internet access services. “From a statutory authority perspective this item represents quite an epic work of fiction,” he said. “Over eight pages, the Commission uses the kitchen sink approach, invoking the CVAA; Title II, including section 254 implementing the Universal Service Fund; section 706; Title III and others to justify this proposal. Even section 4(o) is bandied about as a rationale for this travesty. If only the Commission used the same level of effort to provide more thoughtful cost-benefit analyses.”
He continued, “Regardless of my well-known disagreement regarding our statutory authority over the Internet, some of the ideas teed up in this notice are just preposterous. For instance, BIAS providers may have to act as a ‘central reporting point’ for outages occurring in Internet services, such as IP transport, that are outside of their control. It even goes so far as to make the outrageous suggestion that BIAS providers should enter into agreements that would enable them to acquire outage information that originates with other providers, who may, in some cases, be their competitor.”
“Generally, it is unclear what the Commission will do with all of this collected information about broadband networks,” he said. “It seems likely that the Commission plans even more future regulation on the resiliency and reliability of the Internet, as the language in the notice is quite telling. In the section regarding performance degradation and ‘general useful availability and connectivity,’ which is code for not really an outage, the Commission asks ‘[s]hould we consider a metric measuring the average relative bandwidth, where providers would compare active bandwidth against the provider’s bandwidth [as] advertised or offered.’ Further, in seeking comment about maintaining the confidentiality of these reports, the item states that ‘this approach of presumed confidentiality may need to evolve as networks, and consumer expectations about transparency, also evolve.’ This suggests that this requirement would be used to further bolster the Net Neutrality transparency rule and/or as a means for the Enforcement Bureau to play a game of gotcha.”
“The notice also inquires into whether reports should include information about ‘unintended changes to software or firmware or unintended modifications to a database,’” he said. “Once again, the Commission is trying to edge its way into the realm of cybersecurity, an area where the Commission does not have authority and other agencies, such as DHS, have jurisdiction and already engage with Internet providers about breaches. The Commission should not attempt to use reporting as a backdoor method to insert itself into the cyber debate.”
“Another utterly ridiculous idea is that providers would have to file an outage report in the case of congestion in either a wireless or wireline network,” he said. “Yes, congestion, which occurs in fully functional communications networks, would be treated as an actual outage. One of the suggested reasons for this data collection is that such reports would allow the Commission to identify particular equipment that may be susceptible to failure during times of congestion. And, is the Commission going to ‘suggest’ what network components providers should install or which equipment vendors are preferable? A similar theme is encountered in the section discussing VoIP outage reporting, where the Commission suggests that the current reporting regime has resulted in ‘significant gaps in the Commission’s visibility into such outages and hinders its ability to take appropriate remedial actions.’ While the Commission can contact a VoIP and inquire about an outage, is the Commission going to tell them how to fix the problem? This is the ultimate fishing expedition, unglued from rationality or necessity,” he continued.
“Lastly, the cost-benefit analysis contained in this item is dreadful,” Commissioner O’Rielly said. “Not only is the quantitative analysis and comparison of the costs and benefits for the modified and proposed reporting requirements insufficient, but the item summarily dismisses one industry participant’s assessment that it takes 11 to 12 hours to prepare and file an outage report. Frankly, I am more likely to believe the detailed analysis of those who actually file these reports as opposed to the Commission’s ethereal analysis that this only takes two hours. Additionally, the cost-benefit assessments in no way take into account the time and cost of preparing networks and systems for these modified reporting requirements. Is there is anyone who believes that it only takes two hours to compile and analyze data, prepare the reports and engage in multiple layers of review to ensure that a report is even required and that it is accurate?”
“Today’s order expanding network reports to the FCC and proposals to impose broad new requirements on reporting broadband network performance will continue to raise the costs of delivering service to consumers,” said Jon Banks, senior vice president-law and policy at the U.S. Telecom Association. He continued, “Broadband companies compete to deliver robust and reliable products to consumers, and are providing very high levels of service as the Commission’s Measuring Broadband America program data illustrates. While we appreciate efforts by Commissioners to move towards realistic timelines to implement these new requirements, we are concerned that the costs of the requirements will far outweigh any benefits they may bring.” – John Curran, john.curran@wolterskluwer.com
Courtesy TRDaily