[Federal Register Volume 72, Number 196 (Thursday, October 11, 2007)]
[Rules and Regulations]
[Pages 57879-57888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20061]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 12

[EB Docket No. 06-119; WC Docket No. 06-63; FCC 07-177]


Recommendations of the Independent Panel Reviewing the Impact of 
Hurricane Katrina on Communications Networks

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) considers petitions for reconsideration and/or 
clarification (Petitions) of the Order that adopted the Commission's 
rule, which required that certain local exchange carriers (LECs) and 
commercial mobile radio service (CMRS) providers have an emergency 
backup power source for all assets that are normally powered from local 
AC commercial power. The Commission modifies its rules to address 
several meritorious issues raised in the petitions. These modifications 
will facilitate carrier compliance and reduce the burden on LECs and 
CMRS providers, while continuing to further important homeland security 
and public safety goals.

DATES: The rules in 47 CFR 12.2 contains information collection 
requirements that have not been approved by the Office of Management 
and Budget (OMB). The Federal Communications Commission will publish a 
document in the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Jean Ann Collins, Deputy Division 
Chief, Communications Systems Analysis Division, Public Safety and 
Homeland Security Bureau, Federal Communications Commission at (202) 
418-2792. For additional information concerning the Paperwork Reduction 
Act information collection requirements contained in this document, 
send an e-mail to [email protected] or contact Judith B. Herman at (202) 418-
0214.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in EB Docket No. 06-119 and WC Docket No. 06-63, FCC 
07-177, adopted October 2, 2007, and released October 4, 2007. The full 
text of this document is available for public inspection and copying on 
the Commission's Internet site at http://www.fcc.gov. It is also 
available for inspection and copying during regular business hours in 
the FCC Reference Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554. This document may also be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc., Room 
CY-B402, 445 12th Street, SW., Washington, DC 20554, telephone (202) 
488-5300, fax (202) 488-5563; or via e-mail [email protected]. 
Alternative formats (computer diskette, large print, audio cassette, 
and Braille) are available to persons with disabilities by sending an 
e-mail to [email protected] or calling the Consumer and Governmental 
Affairs Bureau at (202) 418-0530, TTY (202) 418-0432.

Synopsis of the Order on Reconsideration

Background

    In January 2006, Chairman Kevin J. Martin established the Katrina 
Panel pursuant to the Federal Advisory Committee Act, Public Law 92-
463, as amended. The mission of the Katrina Panel was to review the 
impact of Hurricane Katrina on communications infrastructure in the 
areas affected by the hurricane and to make recommendations to the 
Commission regarding ways to improve disaster preparedness, network 
reliability and communications among first responders such as police, 
fire fighters, and emergency medical personnel. The Katrina Panel 
submitted its report on June 12, 2006. The Katrina Panel's report 
described the impact of the worst natural disaster in the Nation's 
history, as well as the overall public and private response and 
recovery efforts. The Commission's goal is to take the lessons learned 
from that disaster and build upon them to promote more effective, 
efficient response and recovery efforts, as well as heightened 
readiness and preparedness.
    The Commission issued a Notice of Proposed Rulemaking (NPRM) on 
June 19, 2006 inviting comment on what actions the Commission should 
take to address the Katrina Panel's recommendations. On July 26, 2006, 
the Commission issued a public notice asking commenters to address the 
applicability of the Katrina Panel's recommendations to all types of 
natural disasters (e.g., earthquakes, tornadoes, hurricanes, forest 
fires) as well as other types of incidents (e.g., terrorist attacks, 
influenza pandemic, industrial accidents). The public notice also asked 
parties to address whether the panel's recommendations are broad enough 
to take into account the diverse topography of our Nation, the 
susceptibility of a region to a particular type of disaster, and the 
multitude of communications capabilities a region may possess. The 
Commission received over 100 comments and reply comments in response to 
the NPRM. In June 2007, the Commission released the Katrina Panel Order 
directing the Public Safety and Homeland Security Bureau (PSHSB) to 
implement several of the recommendations made by the Independent Panel 
Reviewing the Impact of Hurricane Katrina on Communications Networks 
(Katrina Panel). Among other things, the Commission adopted a rule 
requiring some communications providers to have emergency/backup power. 
The backup power rule adopted specifically states:
    Local exchange carriers (LECs), including incumbent LECs (ILECs) 
and competitive LECs (CLECs), and commercial mobile radio service 
(CMRS) providers must have an emergency backup power source for all 
assets that are normally powered from local AC commercial power, 
including those inside central offices, cell sites, remote switches and 
digital loop carrier system remote terminals. LECs and CMRS providers 
should maintain emergency backup power for a minimum of 24 hours for 
assets inside central offices and eight hours for cell sites, remote 
switches and digital loop carrier system remote terminals that are 
normally powered from local AC

[[Page 57880]]

commercial power. LECs that meet the definition of a Class B company as 
set forth in Sec.  32.11(b)(2) of the Commission's rules and non-
nationwide CMRS providers with no more than 500,000 subscribers are 
exempt from this rule.
    On August 2, 2007, the Commission released an Order that extended 
the effective date of Sec.  12.2 of the Commission's rules, the backup 
power rule adopted in the Katrina Panel Order, to October 9, 2007. The 
Commission did so on its own motion in order to provide additional time 
to consider the issues raised by CTIA in its Motion for Administrative 
Stay and to hear from other concerned parties on the issues raised in 
that motion.
    As indicated above, seven petitions were filed seeking 
reconsideration and/or clarification of the backup power rule adopted 
by the Commission in the Katrina Panel Order. The petitioners assert 
that the Commission should rescind, modify and/or clarify the backup 
power rule adopted in the Katrina Panel Order. The Commission also 
received five timely comments to these petitions and several additional 
ex parte comments.

Discussion

    Petitioners argue that the Commission should rescind or 
substantially modify the backup power rule. Among other things, several 
petitioners assert that the rule should be modified to implement the 
Network Reliability and Interoperability Council (NRIC) best practice 
as recommended by the Katrina Panel and that the Commission should 
clarify that the rule applies only to assets directly related to the 
provision of critical communications services. Finally, some 
petitioners argue that, if the Commission wants to pursue 
implementation of a backup power rule, it should issue a Notice of 
Inquiry or Notice of Proposed Rulemaking.
    Administrative Procedure Act (APA) Notice and Comment. Several 
petitioners contend that the Commission's adoption of the backup power 
rule violated the Administrative Procedure Act (APA) by failing to 
provide adequate notice that it was considering the adoption of that 
rule and failing to provide opportunity to comment. They argue that the 
NPRM was too general to adequately support the backup power rule 
ultimately adopted and that the final rule deviates too sharply from 
the initial proposals to satisfy the notice and comment requirements. 
Petitioners contend that the NPRM never discussed the backup power 
issue in terms of a potential mandate and only asked how the Commission 
could best encourage implementation of the Katrina Panel's backup power 
recommendation that the Commission encourage the implementation of NRIC 
VII Recommendation 7-7-5204. Petitioners also assert that the NPRM did 
not suggest that the physical scope of the backup power recommendation 
might extend to all cell sites other remote assets or that the 
Commission intended to select a specific durational requirement for 
emergency power, let alone an eight- or twenty-four hour standard.
    Section 553(b) and (c) of the APA requires agencies to give public 
notice of a proposed rule making that includes ``either the terms or 
substance of the proposed rule or a description of the subjects and 
issues involved'' and to give interested parties an opportunity to 
submit comments on the proposal. The notice ``need not specify every 
precise proposal which [the agency] may ultimately adopt as a rule''; 
it need only ``be sufficient to fairly apprise interested parties of 
the issues involved.'' In particular, the APA's notice requirements are 
satisfied where the final rule is a ``logical outgrowth'' of the 
actions proposed.
    In this instance, the Commission provided adequate notice in 
compliance with the APA regarding the backup power rule. The Katrina 
Panel Report repeatedly stated that the lack of adequate backup power 
for communications facilities was a critical problem after Katrina that 
caused communications network interruptions and hampered recovery 
efforts. These findings provided the context for the Report's 
recommendation that the Commission encourage the NRIC best practice 
that states: ``[s]ervice providers, network operators and property 
managers should ensure availability of emergency/backup power (e.g., 
batteries, generators, fuel cells) to maintain critical communications 
services during times of commercial power failures. * * *'' In the 
NPRM, the Commission noted that the Katrina Panel observed significant 
challenges to maintenance and restoration of communications services 
after Hurricane Katrina, due in part to problems with access to key 
resources such as power and/or generator fuel. The Commission also 
noted that the Katrina Panel recommended that the Commission encourage 
the implementation of certain NRIC best practices intended to promote 
the reliability and resiliency of the 911 and E911 architecture, 
including a recommendation that service providers and network operators 
should ``ensure'' availability of emergency backup power capabilities 
(located on-site, when appropriate). The Commission sought comment on 
how the Commission can best encourage implementation of these 
recommendations consistent with its statutory authority and 
jurisdiction and welcomed further suggestions on measures that could be 
taken to strengthen 911 and E911 infrastructure and architecture. The 
Commission also invited ``broad comment on the Independent Panel's 
recommendations and on the measures the Commission should take to 
address the problems identified'' and to build upon the lessons learned 
from Hurricane Katrina and promote greater resiliency and reliability 
of communications infrastructure, heightened readiness and 
preparedness, and more effective, efficient response and recovery 
efforts, in the future.
    Further, in the NPRM, the Commission sought comment on whether it 
should rely on voluntary consensus recommendations or whether it should 
rely on other measures for enhancing readiness and promoting more 
effective response efforts. The NPRM also invited comment on whether 
the Katrina Panel's observations warranted additional measures or steps 
beyond the report's specific recommendations and welcomed suggestions 
and recommendations of different actions or additional measures beyond 
the Katrina Panel's recommendations. In its report and recommendations, 
the Katrina Panel found that the lack of power and/or fuel was one of 
three main problems that caused the majority of communications network 
interruptions and significant impediments to the recovery effort in the 
aftermath of Hurricane Katrina. The Katrina Panel Report also noted 
that during and after the hurricane, the power needed to support the 
communications networks was generally unavailable throughout the region 
and that backup batteries and generators were required for 
communications systems to continue to operate. The Katrina Panel 
further noted that ``the majority of the adverse effects and outages 
encountered by wireless providers were due to a lack of commercial 
power or a lack of transport connectivity to the wireless switch.'' 
Additionally, the Katrina Panel Report stated that ``[w]ireless 
providers cited security for their personnel, access and fuel as the 
most pressing needs and problems affecting restoration of wireless 
service'' and that the loss of power in the wireline telephone network 
also had a huge impact on the

[[Page 57881]]

ability of public safety systems to function. The Katrina Panel noted 
that electric utility networks had a high rate of survivability 
following Hurricane Katrina due, in part, to the fact that they were 
built with significant onsite backup power supplies (batteries and 
generators). Although the Katrina Panel found that ``the communications 
industry has generally been diligent in deploying backup batteries and 
generators and ensuring that these systems have one to two days of fuel 
or charge,'' it also noted that not all locations had such backup 
batteries or generators installed and that, because all locations were 
not able to exercise and test the backup equipment in any systemic 
fashion, some generators and batteries did not function during the 
crisis. Although the power outages during and after Hurricane Katrina 
were exceptionally long, the Panel's observations clearly emphasized 
the importance of power supply to resiliency of communications 
networks.
    Taken together, the questions raised in the NPRM as well as the 
Katrina Panel Report's findings regarding the lack of emergency power 
were sufficient to put interested parties on notice that the Commission 
was considering how to address the lack of emergency backup power, 
including through the possible adoption of an emergency backup power 
rule. Specifically, the NPRM sought comment on how the Commission could 
best encourage implementation of various NRIC best practices, including 
ensuring the availability of emergency backup power. Even if that 
language were not read to propose a mandatory rule, the NPRM still gave 
ample notice that this was a possibility. The NPRM specifically 
inquired about ``whether [the Commission] should rely on voluntary 
consensus recommendations, as advocated by the [Katrina] Panel, or 
whether [it] should rely on other measures for enhancing readiness and 
promoting more effective response efforts,'' a line of inquiry that the 
Commission reiterated in the July 26 public notice. Moreover, the DC 
Circuit has held that the ultimate adoption of a mandatory rule can 
constitute the logical outgrowth of a voluntary standard. Thus, because 
parties could have anticipated that the rule ultimately adopted was 
``possible,'' it is considered a ``logical outgrowth'' of the original 
proposal, and there is no violation of the APA's notice requirements.
    Indeed, the Commission notes that the National Emergency Number 
Association (NENA) did propose a backup power requirement in response 
to the NPRM. In addition, St. Tammany Parish Communications District 1 
told the Commission that ``[v]oluntary consensus measures * * * have 
fallen short many times'' and that ``it is imperative that [wireline] 
and wireless telephone providers be required to demonstrate they have 
adequate backup procedures in place.'' Carriers also commented on the 
importance of having backup power. CTIA observed that wireless carriers 
``must ensure network reliability and reliance'' and that, to do so, 
they ``provision their cell sites and switches with batteries to power 
them when electrical grids fail'' and ``maintain permanent generators 
at all of the switches and critical cell sites, as well as an inventory 
of backup power generators to recharge the batteries during extended 
commercial power failures.'' USTA likewise gave examples of telephone 
companies that had already deployed backup power capabilities that 
enabled their cell networks to remain in operation for several days 
after a loss of main power. In light of these comments, the Commission 
does not find credible the argument that the NPRM failed to apprise 
parties that the Commission would address the issue of backup power in 
this proceeding.
    Petitioners' argument that the Commission did not give adequate 
notice that it might select a specific durational requirement for 
emergency power, such as twenty-four or eight hours, also lacks merit. 
Had the Commission adopted a general backup power requirement that did 
not require a minimum amount of backup power, it would have risked 
creating an illogical and meaningless requirement that would have 
allowed providers to have only one minute of backup power. Thus, 
parties should have realized that an emergency backup power mandate 
would inevitably include a specific durational requirement.
    Statutory Authority. PCIA asserts that section 1 of the 
Communications Act, the statutory authority upon which the Commission 
adopted the backup power rule, is patently inadequate statutory 
authority. PCIA contends that section 1 of the Communications Act, as 
amended, (the ``Act'') is only a general grant of jurisdiction that, 
absent other specific authority, does not authorize the Commission to 
impose requirements to maintain backup power at cell sites. PCIA argues 
that the Commission's ancillary authority under section 1 of the Act 
does not empower it to act where such action would be ``ancillary to 
nothing.''
    The Commission's section 1 ancillary jurisdiction covers 
circumstances where: (1) The Commission's general jurisdictional grant 
under Title I covers the subject of the regulations, and (2) the 
regulations are reasonably ancillary to the Commission's effective 
performance of its statutorily mandated responsibilities. This two-part 
test for ancillary jurisdiction was developed by the Supreme Court in 
Southwestern Cable.
    To fulfill the first prong of the ancillary jurisdiction test, the 
subject of the regulation must be covered by the Commission's general 
grant of jurisdiction under Title I of the Communications Act, which 
encompasses ``all interstate and foreign Communication by wire or 
radio.'' In the instant rule making, this first prong of the ancillary 
jurisdiction test is met because the backup power rule adopted by the 
Commission in the Katrina Panel Order pertains to the provisioning of 
``interstate and foreign commerce in communication by wire and radio.'' 
The second prong of the ancillary jurisdiction test requires that the 
subject of the regulation must be reasonably ancillary to the 
Commission's effective performance of its statutorily mandated 
responsibilities. It cannot seriously be disputed that the backup power 
requirement is ``reasonably ancillary to the effective performance'' of 
the Commission's responsibilities to promote public safety. Section 1 
itself makes clear that one of the Commission's missions is to ``make 
available * * * [a] wire and radio communication service with adequate 
facilities * * * for the purpose of promoting safety of life and 
property through the use of wire and radio communications.'' 47 U.S.C. 
151 (emphasis added). Section 1 thus requires the Commission to 
``consider public safety'' and to ``take into account its duty to 
protect the public.'' Nuvio Corp. v. FCC, 473 F.3d 302, 307 (2006); see 
also id. at 311 (Kavanaugh, J., concurring) (``the FCC possesses 
statutory authority * * * to address the public safety threat by 
banning providers from selling voice services until the providers can 
ensure adequate 911 connections''). And as this Court has recognized, 
it is well ``within the Commission's statutory authority'' to `` `make 
such rules and regulations * * * as may be necessary in the execution' 
'' of its section 1 responsibilities.'' Section 303(r) also provides 
ample authority to support the Commission's action here. Section 303(r) 
provides that the Commission may ``[m]ake such rules and regulations * 
* * as may be necessary to carry out the provisions of this Act.
    The presence of a backup power source installed by all local 
exchange carriers (LECs), including incumbent LECs (ILECs) and 
competitive LECs

[[Page 57882]]

(CLECs), as well as commercial mobile radio service (CMRS) providers 
for all assets that are normally powered from local commercial power 
including those inside central offices, cell sites, remote switches and 
digital loop carrier system remote terminals will facilitate 
communication for the purposes of national defense and the promotion of 
``safety of life and property'' during emergencies. Communications 
networks cannot operate without a power source. The Commission must 
therefore be mindful of an adequate power supply, particularly in 
emergencies, if it is to discharge its core responsibilities under 
section 1 of the Communications Act to regulate communications for the 
promotion of national defense, public safety and the protection of 
property. If commercially supplied power is incapacitated, the 
communications network will also fail. The backup power rule adopted by 
the Commission is a short-term attempt to sustain communication in a 
severe emergency for the purposes of promoting the Commission's salient 
purpose pursuant to section 1 to regulate interstate communications by 
wire and radio.
    PCIA's reliance on the broadcast flag ruling by the U.S. Court of 
Appeals for the District of Columbia (Court) is misplaced. In that 
case, the Court found that the Commission had not satisfied the second 
prong of the ancillary jurisdiction test because the restriction on 
recording digital television programs that were transmitted by cable or 
over-the-air broadcast exceeded the Commission's authority to regulate 
the transmission of communications by wire and radio given that the 
restriction pertained to a regulation imposed outside the course of the 
act of transmitting the communication. In this case, by contrast, 
backup power is necessary for the communication to be transmitted at 
all.
    Arguments Regarding Lack of Record Support, Consideration of 
Important Factors or Reasoned Basis for Rule. Petitioners contend that 
the backup power rule is arbitrary and capricious because the 
Commission failed to explain why a mandatory obligation including an 
inflexible minimum 8 or 24 hour period was necessary and why it 
rejected less restrictive alternatives to the rule, such as a voluntary 
best practices regime as recommended by the Katrina Panel. Several 
petitioners also allege that the Commission failed to consider the 
impact of the rule, failed to consider important aspects of the very 
problem it sought to redress, and failed to explain why present carrier 
preparedness plans are inadequate. Additionally, several petitioners 
argue that the backup power rule adopted lacks record support.
    Petitioners argue that there is no record evidence to support the 
backup power mandate in general, or the eight or 24-hour minimum in 
particular. Some petitioners note that the comments described in the 
Order when discussing the backup power rule do not concern CMRS 
providers at all, do not suggest any mandatory minimum standard, or 
have nothing to do with backup power. However, the rule adopted by the 
Commission enjoyed strong factual support. First, as described supra, 
the Katrina Panel repeatedly emphasized the importance of power supply 
to resiliency of communications networks. Further, it noted that backup 
generators and batteries were not present at all facilities. 
Additionally, the Katrina Panel Report stated that power for radio base 
stations and battery/chargers for portable radio devices are carefully 
planned for public safety systems; however, ``generators are typically 
designed to keep base stations operating for 24 to 48 hours.'' This 
language, along with the Katrina Panel's recognition that 24-48 hours 
is generally a sufficient time to permit the restoration of power in 
most situations, clearly provides support for requiring LECs and CMRS 
providers to maintain backup power for a minimum of 24 hours for assets 
located inside central offices. The 24 hour requirement imposes 
relatively less burden while still generally providing sufficient time 
for restoration of commercial power or for carriers to allocate 
additional power sources. Further, the Commission recognized the 
burdens of ensuring longer durations of backup power at other 
locations, which have subsequently been detailed by petitioners, and 
reasonably required only 8 hours of backup power for such locations, 
including, but not limited to, cell sites, remote switches and digital 
loop carrier system remote terminals. This will provide at least eight 
hours for commercial power restoration or carrier actions to obtain 
additional backup power sources.
    Additionally, the Katrina Panel's recommendation was that the 
Commission encourage the implementation of the NRIC VII Recommendation 
7-7-5204. That recommendation states that ``[s]ervice providers, 
network operators and property managers should ensure availability of 
emergency/backup power * * *'' The terms ``service providers'' and 
``network operators'' clearly include CMRS providers. In the Katrina 
Panel Order, the Commission noted that NENA recommended that ``the FCC 
or state commissions, as appropriate, require all telephone central 
offices to have an emergency backup power source.'' NENA states that, 
in its comments in the Katrina Panel Docket, it chose to mention 
telephone central offices as emblematic, not exhaustive, of critical 
switching points in wire and wireless networks, and it also endorsed 
the broader scope of NRIC Recommendation 7-7-5204.
    The Commission determined that a mandatory backup power requirement 
would be in the public interest. Although several carriers described 
their backup power plans, the Katrina Panel Report made clear the 
importance of backup power for resilient communications and restoration 
of communications services that have been disrupted. The report further 
made clear that, although many carriers do have backup power or backup 
power plans, not all locations have backup power. The Katrina Panel 
also noted that because those communications providers did not 
necessarily test and exercise their backup power sources in a 
systematic fashion, generators and batteries might not function during 
the crisis. Imposing a backup power rule would ensure that more 
communications assets have backup power and that providers ensure the 
availability of this power. Access to communications technologies 
during times of emergency is critical to the public, public safety 
personnel, hospitals, and schools, among others. Therefore, because the 
benefits of ensuring resilient communications during times of crises 
are so great, the Commission determined that a backup power rule was in 
the public interest. Moreover, it is important that both LEC and CMRS 
providers have backup power, because the public, public safety 
personnel, and hospitals, among others, rely heavily on both types of 
providers. In fact, many Americans now rely on only a wireless phone 
and public safety entities, hospitals and others are increasingly 
relying on wireless technologies. As the Katrina Panel Report and 
commenters note, lack of commercial power was one of the main causes of 
wireless outages during Hurricane Katrina, access to fuel was one of 
the wireless providers' most pressing needs during that catastrophe, 
and it is important that both wireless and wireline carriers ensure 
network reliability and resiliency by provisioning their sites with 
back up power.
    Petitioners also allege that the Commission failed to consider 
burdens and important matters, some of which affect the ability of 
carriers to comply

[[Page 57883]]

with the rule. They contend that legal impediments, including 
contractual obligations and inconsistency with federal, state and local 
environmental, safety, building and zoning laws will make compliance 
with the rule difficult, if not impossible and could result in 
preemption issues regarding state and local laws. Petitioners note that 
carriers have site leases with contractual obligations that regulate 
the placement, installation and operation of power sources. 
Additionally, petitioners assert that compliance with the backup power 
rule could result in threats to public health and safety. For instance, 
petitioners state that the installation of a generator and its 
combustible fuel on the roof of a school or public building, where many 
transmitters are located, may pose a risk to public health and safety 
even when in compliance with law. Further, petitioners assert that the 
Commission failed to properly consider the length of time it would 
reasonably take for providers to comply with the rule. They contend 
that compliance will take a significant amount of time and the time 
allowed by the Katrina Panel Order is insufficient, because providers 
must obtain permits, do site inspections, conduct structural 
engineering analysis, renegotiate leases, obtain permits, ensure 
compliance with legal requirements, evaluate backup power needs, and 
order and install the necessary equipment. Petitioners also assert that 
compliance will take time because thousands of ``non-critical'' sites 
do not have backup power and many of the sites that do have backup 
power do not have the amount required. As discussed in greater detail 
below, petitioners also argue that physical and other practical 
limitations make it difficult or impossible to comply with the backup 
power rule. Finally, petitioners argue that the Commission did not 
adequately consider the economic burden the rule will impose.
    The Commission finds that Petitioners' arguments regarding legal 
impediments and threat to public health and safety to be compelling and 
modify Sec.  12.2 to state that LECs and CMRS providers are not 
required to meet the backup power requirement if they demonstrate, 
through the reporting requirement described below, that such compliance 
is precluded by: (1) Federal, state, tribal or local law; (2) risk to 
safety of life or health; or (3) private legal obligation or agreement. 
With respect to private legal obligations or agreements, LECs and CMRS 
providers should make efforts to revise agreements to enable rule 
compliance where possible, for example through renegotiations or 
renewals. Obviously, the Commission will disapprove of attempts to 
circumvent the rule through private agreements. The Commission believes 
such exemptions are warranted because those impediments create a 
substantial burden for LECs and CMRS providers to overcome in order to 
comply with the rule that in some cases may be insurmountable. In the 
case of risk to safety of life or health, such an exemption is 
obviously in the public interest. As noted, supra, some petitioners 
assert that the Commission should clarify that the backup power rule 
applies only to assets directly related to the provision of critical 
communications services. The Commission agrees that the requirement 
should be clarified to apply only to assets necessary to the provision 
of communications services and modify the rule accordingly. The 
Commission declines, however, to limit the rule to ``critical'' 
communications services, because, although that term was included in 
the NRIC best practice recommended by the Katrina Panel, it is not well 
defined and the Commission believes, for public safety and public 
interest reasons, all assets necessary to the provision of 
communications services should have backup power. The Commission also 
agrees with AT&T that on-site power sources satisfy the requirement of 
this rule if such sources were originally designed to provide the 
minimum backup power capacity level required herein and the provider 
has implemented reasonable methods and procedures to ensure that 
batteries are regularly checked and replaced when they deteriorate. 
Finally, the Commission finds that the requirement should not be 
limited to assets normally powered from local ``AC'' commercial power. 
Regardless of the type of commercial power used, assets necessary to 
maintain communications should have backup power and be as reliable and 
resilient as possible. The Commission also notes that the NRIC best 
practice recommended by the Katrina Panel did not limit its 
recommendation in this way. Accordingly, the Commission deletes the 
reference to ``AC'' in the rule.
    While today the Commission addresses concerns raised by LECs and 
CMRS providers regarding their obligation to ensure emergency backup 
power, given the importance of backup power reserves during times of 
emergency, the Commission will seek information regarding the extent to 
which LECs and CMRS providers are in compliance with this rule. 
Accordingly, the Commission also modifies Sec.  12.2 to require LECs 
and CMRS providers to file reports with the Commission that identify 
the following information: (1) An inventory listing of each asset that 
was designed to comply with the backup power mandate; (2) an inventory 
listing of each asset where compliance is precluded due to risk to 
safety or life or health; (3) an inventory listing of each asset where 
compliance is precluded by private legal obligation or agreement; (4) 
an inventory listing of each asset where compliance is precluded by 
Federal, state, tribal or local law; and (5) an inventory listing of 
each asset designed with less than the required emergency backup power 
capacity and that is not otherwise precluded from compliance for one of 
the three reasons identified above. LECs and CMRS providers must file 
these reports within six months of the effective date of this 
requirement, and must include a description of facts supporting the 
basis of the LEs or CMRS provider's claim of preclusion from 
compliance. For example, claims that a LEC or CMRS provider cannot 
comply with the backup power mandate due to a legal constraint must 
include the citation(s) to the relevant laws and, in order to be deemed 
precluded from compliance, the law or other legal constraint must 
prohibit the LEC or CMRS provider from complying with the backup power 
requirement. The mere need to obtain a permit or other approval will 
not be deemed to preclude compliance with the backup power requirement. 
Claims that a LEC or CMRS provider cannot comply with the backup power 
mandate with respect to a particular asset due to a private legal 
obligation or agreement must include the relevant terms of the 
obligation or agreement and the dates on which the relevant terms of 
the agreement became effective and are scheduled to expire. Claims that 
a LEC or CMRS provider cannot comply with the backup power mandate with 
respect to a particular asset due to risk to safety of life or health 
must include a description of the particular public safety risk and 
sufficient facts to demonstrate substantial risk of harm. The 
Commission directs the Public Safety and Homeland Security Bureau to 
develop an appropriate auditing program to ensure that carriers' 
exclusion filings are reasonable and accurate.
    LECs or CMRS providers identifying assets designed with less than 
the required emergency backup power capacity and not otherwise 
precluded from compliance for one of the three reasons listed above 
must comply with

[[Page 57884]]

the backup power requirement or file, within 12 months from the 
effective date of the rule, a certified emergency backup power 
compliance plan that is subject to Commission review. That plan must 
describe how, in the event of a commercial power failure, the LEC or 
CMRS provider intends to provide emergency backup power to 100 percent 
of the area covered by any non-compliant asset, relying on on-site and/
or portable backup power sources or other sources as appropriate. The 
emergency backup power must be sufficient for service coverage as 
follows: A minimum 24 hours of emergency backup power for assets inside 
central offices and eight hours for other assets such as cell sites, 
remote switches, and digital loop carrier system remote terminals. The 
provider must be able to ensure backup power is available for 100 
percent of the area covered by any non-compliant asset pursuant to the 
emergency backup power compliance plan on the date that the plan is 
filed. All reports and plans required by Sec.  12.2 of the Commission's 
rules will be automatically afforded confidentiality, because the 
information in those reports and plans is sensitive, for both national 
security and/or commercial reasons. This reporting requirement should 
not be burdensome in light of many LEC and CMRS provider arguments that 
they already have business continuity plans that address the issue of 
backup power and in light of the fact that the plan is not due until 12 
months after the effective date of the modified rule which will require 
Office of Management and Budget approval before going into effect. In 
any event such burdens are outweighed by the importance of having 
backup power for communications assets.
    Petitioners argue that the Commission failed to consider the length 
of time it would reasonably take for CLECs and CMRS providers to comply 
with the rule and that it will take significant time to evaluate backup 
power needs, conduct structural engineering analyses, renegotiate 
leases if needed, prepare necessary applications for permits and other 
authorizations, ensure compliance with all applicable building codes 
and environmental regulations, coordinate with counsel, architects, 
construction personnel and government officials, order and receive the 
necessary equipment, and properly install the backup power source. The 
Commission notes that the Katrina Panel Order was released on June 8, 
2007, almost four months ago, and LECs and CMRS providers have known of 
the backup power requirement since that time. Further, the modified 
backup power rule adopted in the Order on Reconsideration will not go 
into effect until OMB approves the new information collection, giving 
providers additional time to come into compliance. To the extent LECs 
and CMRS providers identify non-compliant assets, they will receive 
even more time to file emergency backup power compliance plans. In 
addition, the modifications to the rule mitigate these concerns by 
exempting assets from compliance when precluded by law, private legal 
obligation or agreement, or risk to safety of life or health and by 
allowing an emergency backup power compliance plan in cases where 
assets do not comply with the 8-24 hour rule and are not subject to the 
exceptions. As such, the Commission believes that it will be feasible 
for providers to comply with the rule.
    Several petitioners argue that compliance with the backup power 
rule is burdensome due to physical and other practical limitations, 
that the required space might not be available at many sites, and that 
providers may be forced to modify structures containing cell 
transmitters or to build new structures. They assert, for example, that 
roofs and floors need to be designed to support the weight of power 
sources, that many rooftop cell sites were not engineered with the 
additional weight requirements made necessary by the backup power rule, 
and that many of those structures may simply not be able to physically 
support the weight of additional batteries or a generator. Petitioners 
also argue that there is not enough space at many cell sites to add 
additional backup power sources and note that cell transmitters are 
often placed in locations with limited room, such as building rooftops, 
church steeples and inside buildings. USTelecom notes that some remote 
terminals are physically too small to support a backup battery or a 
battery over a certain size. T-Mobile reports that, in the case of 
liquid propane-fueled generators, Occupational Safety and Health 
Administration requirements mandate a 10-foot radius clearance between 
the liquid propane fuel tank and its ignition source. T-Mobile argues 
that this could substantially increase the amount of space needed to 
install a backup power source.
    The Commission is not convinced that LECs and CMRS providers should 
be excused from having emergency backup power solely because they have 
chosen to place their assets at locations with limited weight or space 
capacities. The ultimate goal of this rule is to ensure that carriers 
have sufficient emergency backup power, particularly during times of 
emergencies. The Commission recognizes that, in order to comply with 
the rule, some carriers may have to modify sites to accommodate 
additional equipment or, in some cases, find other, more suitable, 
locations for their assets. The Commission believes, however, that any 
such burdens are far outweighed by the ultimate goal of this rule. For 
similar reasons, the Commission also rejects the notion that carriers 
should be excused from complying with the rule for vague ``practical'' 
reasons. Having said this, however, a carrier could be excused from the 
rule to the extent that the carrier can demonstrate that an asset with 
purported physical constraints fall into one of the three exceptions 
listed above. Additionally, where assets do not comply with the 8-24 
hour rule and are not subject to the exceptions, the Commission now 
allows an emergency backup power compliance plan.
    Although petitioners argue that the economic burden that the backup 
power rule will impose is substantial, the record before the Commission 
showed that several carriers have already deployed back-power power 
capabilities, some of which allow them to remain in operation for 
several days in the event of a loss of main power. In any event, the 
Commission finds that the benefits of ensuring sufficient emergency 
backup power, especially in times of crisis involving possible loss of 
life or injury, outweighs the fact that carriers may have to spend 
resources, perhaps even significant resources, to comply with the rule. 
Petitioners assert that compliance may be costly; however, the record 
does not show that it is ``cost-prohibitive'' for carriers. Moreover, 
the rule modifications, including new exemptions described above and 
the provision that providers file an emergency backup power compliance 
plan to ensure 100 percent coverage in areas covered by non-compliant 
assets, will decrease any economic burden substantially. Finally, the 
Commission finds that the goal of ensuring that carriers' networks have 
sufficient emergency backup power outweighs the economic burden 
described by petitioners and particularly the reduced economic burden 
in light of the rule modifications adopted herein. The need for backup 
power in the event of emergencies has been made abundantly clear by 
recent events, and the cost of failing to have such power may be 
measured in lives lost.
    Some Petitioners argue that, contrary to the ultimate goal of 
protecting the

[[Page 57885]]

provision of services, the backup power rule will not advance, but will 
actually risk undermining, carriers' emergency preparedness goals and 
efforts to achieve important business continuity and disaster recovery 
goals. Petitioners contend that the rule deprives carriers of the 
flexibility necessary to make intelligent and efficient plans for 
network resiliency as well as giving carriers the flexibility to 
respond to disasters in real time while remaining in compliance with 
the Commissions rules. Petitioners assert that, by diverting manpower 
and resources away from more appropriate efforts to tailor emergency 
communications plans, and by denying carriers the ability to move 
resources away from areas not impacted to those that have been 
impacted, the rule undermines rather than promotes the important goal 
of public safety.
    The Commission recognizes that carriers need some level of 
flexibility in the design and deployment of their networks. This need, 
however, must be balanced with the critical goal of ensuring that 
communications networks has sufficient backup power, particularly 
during times of disaster. The modifications made today strike a fair 
and equitable balance of these two interests. The modified rule adopted 
today will ensure that LECs, including ILECs and CLECs, as well as CMRS 
providers maintain sufficient level of emergency backup power for 
assets that are necessary to maintain communications and that are 
normally maintained by commercial power. At the same time, the 
modifications adopted in the Order on Reconsideration provide some 
level flexibility, both in terms of the exceptions provided and the 
requirements for submission of an emergency backup power compliance 
plan in cases where providers are not compliant. Moreover, inclusion of 
on-site back up power does not preclude the ability of carriers to 
maintain strategic stores of fuel, batteries or other backup equipment 
in other localities as a further layer of redundancy. Petitioners argue 
that enforcement could also lead to the termination or disruption of 
wireless cell sites, threatening the availability of service, including 
E-911 service. Petitioners further contend that carriers may have 
little choice but to shut down or move certain transmitters rather than 
risk operating in violation of the new rule or endangering public 
health and safety. NENA disagrees and contends that these arguments 
suggest that cellular providers should be immune from any disruptive 
regulatory discipline. The Commission believes that the exemptions now 
provided along with the requirement to develop an emergency backup 
power compliance plan in cases where assets do not comply with the 8-24 
hour rule and are not subject to the exceptions described herein will 
mitigate these concerns.
    Paging Carriers. The American Association of Paging Carriers (AAPC) 
argues that the Commission did not intend to apply the backup power 
rule to paging carriers and should so clarify. Alternatively, AAPC 
asserts that, if the Commission did intend for this rule to apply to 
paging carriers, the Commission should reconsider and exclude paging 
carriers or instead adopt the Katrina Panel's actual recommendation on 
this issue, as set forth in the Katrina Panel Report. The backup power 
rule adopted in the Katrina Panel Order requires commercial mobile 
radio service (CMRS) providers to have emergency backup power. CMRS 
providers that have no more than 500,000 subscribers are exempt from 
this rule. Therefore, paging carriers that are CMRS providers with more 
than 500,000 subscribers must comply with the rule. Paging services are 
a critical part of emergency response. Many first responders, hospitals 
and critical infrastructure providers rely on paging services during 
emergencies. Therefore, it is critical that these services be available 
during crises. Backup power at paging carrier facilities will help 
ensure the availability of these services. The importance of paging 
services is further demonstrated by the fact that paging carriers 
participate in the Commercial Mobile Service Alert Advisory Committee 
and are subject to the Commission's part 4 outage reporting rules. For 
these reasons and those set forth below, the Commission modifies Sec.  
12.2 to clarify that the rule applies to CMRS providers, as defined in 
Section 20.9 of the Commission's rules.
    AAPC argues that the Commission intended to exclude paging carriers 
from this backup power rule. AAPC asserts that the Katrina Panel Order 
bases the CMRS classification in Sec.  12.2 on a definition developed 
for the E-911 Proceeding and, because paging carriers do not provide E-
911 service, the inference is that the Commission intended to exclude 
paging carriers from this rule. The parts of the Katrina Panel Order 
cited by AAPC, however, do not define CMRS providers, but instead 
provide an exemption for non-nationwide CMRS providers with no more 
than 500,000 subscribers. In a footnote, the Commission merely stated 
that this exemption is based on the Tier III CMRS definition. AAPC 
contends that the etymology of the backup power rule supports a finding 
that the Commission intended to exclude paging carriers and to apply 
the rule only to entities that are required to provide E-911 service as 
defined in Section 20.18 of the Commission's rules. AAPC notes that the 
Katrina Panel made its backup power recommendation ``in order to ensure 
a more robust E-911 service'' and that, when requesting public comment 
on this recommendation, the Commission explained that the Panel 
``recommends that the Commission encourage the implementation of 
certain NRIC best practices intended to promote the reliability and 
resiliency of the 911 and E911 architecture.'' However, the backup 
power rule includes no such limitations and, in the NPRM, the 
Commission specifically sought comment on whether the Katrina Panel's 
observations warranted additional measures or steps beyond the report's 
specific recommendations and welcomed suggestions and recommendations 
regarding additional measures or actions beyond the Panel's 
recommendations. The Commission also sought comment on whether it 
should rely on voluntary consensus recommendations, as advocated by the 
Katrina Panel, or whether it should rely on other measures for 
enhancing readiness and promoting more effective response efforts. 
Further, AAPC argues that the deliberate use of the term ``cell sites'' 
in the rule supports the conclusion that the Commission did not intend 
that the rule apply to paging carriers because paging carriers do not 
operate cell sites in their networks. The reference to cell sites, 
however, is only one example of an asset that is normally powered from 
local commercial power and the assets identified in the rule are not an 
exhaustive list.
    AAPC requests, in the event that the Commission did intend to apply 
the backup power rule to paging carriers, that the rule be modified to 
ensure that it does not apply to paging carriers. AAPC argues that it 
is unreasonable to lump paging networks together with other types of 
CMRS networks for purposes of this rule without considering the 
particular engineering and cost characteristics of paging networks 
themselves. Although AAPC argues that applying the requirement to all 
paging base stations and terminals would be particularly troubling for 
paging carriers, the burden will be mitigated by the rule modifications 
adopted herein. Additionally, the burden for paging carriers would not 
necessarily be any more onerous for

[[Page 57886]]

paging carriers than for other CMRS providers. Paging providers use a 
variety of facilities to provide coverage which are, in most cases not 
that different from the facilities of other CMRS providers. The fill-in 
facilities employed by paging providers are similar in size and power 
requirements as those used by other CMRS providers. In many instances, 
paging providers use high-powered transmitters that are located in 
multiple transmitter sites. While there may be challenges to overcome 
such as space, zoning and structural limitations for these facilities, 
they are no more onerous than those faced by other CMRS providers. In 
addition, the backup power rule might be less burdensome for paging 
carriers than for other CMRS providers, because the number of fill-in 
paging sites that paging carriers deploy is likely less than the more 
extensive deployment of assets required by other CMRS providers. AAPC 
asserts that the Commission should define CMRS as those services that 
are identified in Sec.  20.18(a) of the Commission's rules, as it did 
for purposes of section 605(a) of the WARN Act, where the Commission 
defined the statutory phrase ``commercial mobile service.'' That 
definition, however was limited to section 605(a) of the WARN Act and 
was done for specific purposes of that section of the Act that are not 
relevant to the backup power rule. Further, the membership of the 
Commercial Mobile Service Alert Advisory Committee established pursuant 
to the WARN Act includes paging carriers. In light of these factors, 
the Commission declines to modify the rule as suggested by AAPC, and 
clarify that paging carriers are required to comply.
    Distributed Antenna System (DAS) Nodes and other non-traditional 
sites. NextG, MetroPCS and other petitioners ask the Commission to 
clarify that DAS Nodes and other ``non-traditional'' sites, such as 
cellular repeater sites, micro-cell and pico-cell locations, electric 
poles, light poles, and flagpoles, are not ``cell sites'' as the term 
is used in the Commission's new backup power rule. In the alternative, 
these petitioners request that the Commission reconsider and amend the 
rule to eliminate the backup power requirement for DAS Nodes and other 
``non-traditional'' sites. Other petitioners make similar arguments for 
``non-traditional'' sites and emphasize the burden of complying with 
the backup power rule due to physical constraints and economic 
resources. NextG explains that it provides telecommunications services 
to wireless carriers via a network architecture that uses fiber-optic 
cable and small antennas mounted in the public rights-of-way on 
infrastructure such as utility poles, street lights and traffic signal 
poles. NextG argues that DAS Nodes should not be treated as a cell site 
because the DAS Node does not include some of the features typically 
associated with a cell site. The antenna is not associated with a base 
station or network switching equipment at the DAS Node site. NextG and 
MetroPCS maintain that even if the Commission does treat the DAS Node 
as a cell site this equipment should be exempt from the backup power 
rule because it is ``technologically, financially, and politically 
infeasible'' to install eight hours of backup power. DAS Forum argues 
that the impact due to the loss of power to a portion of a DAS network 
is far less than the loss of power to a traditional cell site because 
the balance of the DAS network continues to function when one node is 
damaged.
    The Commission declines to exempt DAS Nodes or other sites from the 
emergency backup power rule. Rather, the Commission believes that to 
the extent these systems are necessary to provide communications 
services, they should be treated similarly to other types of assets 
that are subject to the rule. The Commission notes that many of the 
arguments made by petitioners are similar to the physical constraint 
arguments raised by other parties. As stated earlier, the Commission 
sees no reason why LECs and CMRS providers who choose to place assets 
at locations with limited physical capacities should generally be 
excused from compliance with the rule. The Commission realizes that 
many providers have begun to use DAS and other small antenna systems as 
part of their communications networks. That fact alone, however, is far 
outweighed by the need to ensure a reliable communications network. To 
the extent petitioners raise concerns regarding legal impediments, 
private agreement constraints and safety risk issues, the Commission 
notes that the modifications to the rule made today should address 
those concerns. DAS Forum and PCIA argue that the backup power rule 
will adversely impact the public interest and Commission policy goals, 
because the increased expense of compliance will prevent wireless 
carriers from further deploying their networks in this manner and that 
this will decrease capacity, coverage and reliability and affect 
emergency communications and wireless E911 coverage. Petitioners have 
not presented sufficient evidence that the backup power rule will 
prevent wireless carriers from deploying their networks, particularly 
in light of the reduced burden of compliance that will result from the 
rule modifications the Commission adopts in the Order on 
Reconsideration. Moreover, as noted above, the Commission finds that 
the benefits of ensuring backup power for communications assets 
outweighs any economic burden that LECs and CMRS providers may incur as 
a result of this rule.

Conclusion

    For the reason stated above, the Commission denies petitioners' 
requests that it rescind Sec.  12.2 of the Commission's rules, but find 
that the petitioners have presented an adequate basis for modifying 
this backup power rule as detailed above and in Appendix B of the 
Order.

Procedural Matters

    Supplemental Final Regulatory Flexibility Analysis. As required by 
section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, the 
Commission has prepared a Supplemental Final Regulatory Flexibility 
Analysis of the possible impact of the rule changes contained in this 
Order on Reconsideration on small entities. The Supplemental Final 
Regulatory Flexibility Act analysis is set forth in Appendix C of the 
Order. The Commission's Consumer & Government Affairs Bureau, Reference 
Information Center, will send a copy of this Order, including the 
Supplemental Final Regulatory Flexibility Act Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    Final Paperwork Reduction Act of 1995 Analysis. The rules in 47 CFR 
12.2 contains information collection requirements that have not been 
approved by the Office of Management and Budget (OMB). The Federal 
Communications Commission will publish a document in the Federal 
Register announcing the effective date.
    Congressional Review Act Analysis. The Commission will send a copy 
of this Order on Reconsideration in a report to be sent to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

    Accordingly, it is ordered, pursuant to sections 1, 4(i)-(k), 4(o), 
201, 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 405, 621(b)(3) 
and 621(d) of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i)-(k), 154(o), 201, 218, 219, 301, 303(g), 303(j), 303(r), 
332, 403, 405, 541(b)(3), and

[[Page 57887]]

541(d), and Sec. Sec.  1.3 and 1.106 of the Commission's rules, 47 CFR 
1.3, 1.106, that this Order on Reconsideration in EB Docket No. 06-119 
and WC Docket No. 06-63 is adopted.
    It is further ordered, that the Petitions for Reconsideration filed 
by The American Association of Paging Carriers, the DAS Forum, MetroPCS 
Communications, Inc., NextG Networks, Inc., PCIA--The Wireless 
Infrastructure Association (PCIA), and The United States Telecom 
Association are granted to the extent discussed above, and the 
remainder of those petitions are denied.
    It is further ordered that Sec.  12.2 of the Commission's rules is 
amended as specified in Appendix B of the Order, and that Sec.  12.2 
shall be effective on the date of Federal Register notice announcing 
OMB approval of the information collection requirements contained in 
that rule.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order on Reconsideration, including the Supplemental Final 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

List of Subjects in 47 CFR Part 12

    Communications, Reporting and recordkeeping requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 12 as follows:

PART 12--REDUNDANCY OF COMMUNICATIONS SYSTEMS

0
1. The authority citation for part 12 continues to read:

    Authority: 47 U.S.C. 151, 154(i)-(k), 154(o), 201, 218, 219, 
301, 303(g), 303(j), 303(r), 332, 403, 405, 541(b)(3), and 541(d).

0
2. Revise Sec.  12.2 to read as follows:


Sec.  12.2  Backup power.

    (a) Except to the extent set forth in 12.2(b) and 12.2(c)(4) of the 
Commission's rules, local exchange carriers, including incumbent local 
exchange carriers and competitive local exchange carriers 
(collectively, LECs), and commercial mobile radio service (CMRS) 
providers, as defined in Sec.  20.9 of this chapter, must have an 
emergency backup power source (e.g., batteries, generators, fuel cells) 
for all assets necessary to maintain communications that are normally 
powered from local commercial power, including those assets located 
inside central offices, cell sites, remote switches and digital loop 
carrier system remote terminals. LECs and CMRS providers must maintain 
emergency backup power for a minimum of twenty-four hours for assets 
that are normally powered from local commercial power and located 
inside central offices, and eight hours for assets that are normally 
powered from local commercial power and at other locations, including 
cell sites, remote switches and digital loop carrier system remote 
terminals. Power sources satisfy this requirement if they were 
originally designed to provide the minimum backup power capacity level 
required herein and the provider has implemented reasonable methods and 
procedures to ensure that the power sources are regularly checked and 
replaced when they deteriorate. LECs that meet the definition of a 
Class B company as set forth in Sec.  32.11(b)(2) of this chapter and 
non-nationwide CMRS providers with no more than 500,000 subscribers are 
exempt from this rule.
    (b) LECs and CMRS providers are not required to comply with 
paragraph (a) of this section for assets as described in paragraph (a) 
of this section where the LEC or CMRS provider demonstrates, through 
the reporting requirement as described in paragraph (c) of this 
section, that such compliance is precluded by:
    (1) Federal, state, tribal or local law;
    (2) Risk to safety of life or health; or
    (3) Private legal obligation or agreement.
    (c) Within six months of the effective date of this requirement, 
LECs and CMRS providers subject to this section must file reports with 
the Chief of the Public Safety & Homeland Security Bureau.
    (1) Each report must list the following:
    (i) Each asset that was designed to comply with the applicable 
backup power requirement as defined in paragraph (a) of this section;
    (ii) Each asset where compliance with paragraph (a) of this section 
is precluded due to risk to safety of life or health;
    (iii) Each asset where compliance with paragraph (a) of this 
section is precluded by a private legal obligation or agreement;
    (iv) Each asset where compliance with paragraph (a) of this section 
is precluded by Federal, state, tribal or local law; and
    (v) Each asset that was designed with less than the emergency 
backup power capacity specified in paragraph (a) of this section and 
that is not precluded from compliance under paragraph (b) of this 
section.
    (2) Reports listing assets falling within the categories identified 
in paragraphs (c)(1)(ii) through (iv) of this section must include a 
description of facts supporting the basis of the LEC's or CMRS 
provider's claim of preclusion from compliance. For example, claims 
that a LEC or CMRS provider cannot comply with this section due to a 
legal constraint must include the citation(s) to the relevant law(s) 
and, in order to demonstrate that it is precluded from compliance, the 
provider must show that the legal constraint prohibits the provider 
from compliance. Claims that a LEC or CMRS provider cannot comply with 
this section with respect to a particular asset due to a private legal 
obligation or agreement must include a description of the relevant 
terms of the obligation or agreement and the dates on which the 
relevant terms of the agreement became effective and are set to expire. 
Claims that a LEC or CMRS provider cannot comply with this section with 
respect to a particular asset due to risk to safety of life or health 
must include a description of the safety of life or health risk and 
facts that demonstrate a substantial risk of harm.
    (3) For purposes of complying with the reporting requirements set 
forth in paragraphs (c)(1)(i) through (v) of this section, in cases 
where more than one asset necessary to maintain communications that are 
normally powered from local commercial power are located at a single 
site (i.e., within one central office), the reporting entity may 
identify all of such assets by the name of the site.
    (4) In cases where a LEC or CMRS provider identifies assets 
pursuant to paragraph (c)(1)(v) of this section, such LEC or CMRS 
provider must comply with the backup power requirement in paragraph (a) 
of this section or, within 12 months from the effective date of this 
rule, file with the Commission a certified emergency backup power 
compliance plan. That plan must certify that and describe how the LEC 
or CMRS provider will provide emergency backup power to 100 percent of 
the area covered by any non-compliant asset in the event of a 
commercial power failure. For purposes of the plan, a provider may rely 
on on-site and/or portable backup power sources or other sources, as 
appropriate, sufficient for service coverage as follows: a minimum of 
24 hours of service for assets inside central offices and eight hours 
for other assets, including cell sites, remote switches, and digital 
loop carrier system remote

[[Page 57888]]

terminals. The emergency backup power compliance plans submitted are 
subject to Commission review.
    (5) Reports submitted pursuant to this paragraph must be supported 
by an affidavit or declaration under penalty of perjury and signed and 
dated by a duly authorized representative of the LEC or CMRS provider 
with personal knowledge of the facts contained therein.
    (6) Information filed with the Commission pursuant to paragraph (c) 
of this section shall be automatically afforded confidentiality in 
accordance with the Commission's rules.
    (7) LECs that meet the definition of a Class B company as set forth 
in Sec.  32.11(b)(2) of this chapter and non-nationwide CMRS providers 
with no more than 500,000 subscribers are exempt from this reporting 
requirement.

[FR Doc. E7-20061 Filed 10-10-07; 8:45 am]
BILLING CODE 6712-01-P