[Federal Register Volume 80, Number 115 (Tuesday, June 16, 2015)]
[Rules and Regulations]
[Pages 34321-34324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14685]



[[Page 34321]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 4

[ET Docket No. 04-35; FCC 15-39]


Commission Rules Concerning Disruptions to Communications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission resolves several pending 
matters in the proceeding that established the network outage reporting 
rules. The Commission declines to adopt a proposal to expand its 
``special offices and facilities'' outage reporting requirements to 
cover general aviation airports and it disposes of seven petitions for 
reconsideration. Each petition is granted, denied, or dismissed to the 
extent indicated.

DATES: Effective July 16, 2015.

FOR FURTHER INFORMATION CONTACT: Brenda D. Villanueva, Attorney 
Advisor, Public Safety and Homeland Security Bureau, (202) 418-7005 or 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order and Order on Reconsideration in ET Docket No. 04-35, 
FCC 15-39, adopted March 27, 2015 and released March 30, 2015. The full 
text of this document, FCC 15-39, is available for public inspection 
online at http://www.fcc.gov/document/fcc-adopts-part-4-improvements-item, or during regular business hours in the FCC Reference Information 
Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 
20554.

Synopsis

I. Second Report and Order

    The Report and Order in this docket, 69 FR 70316, established the 
Commission's part 4 outage reporting rules, which require certain 
providers of communications to electronically file reports of network 
outages that exceed specified thresholds of magnitude and duration. In 
the Further Notice of Proposed Rulemaking (FNPRM) that accompanied that 
Report and Order, 69 FR 68859, the Commission sought comment on a 
proposal to extend outage-reporting requirements for special offices 
and facilities to cover general aviation airports, a category that 
includes airports smaller than those already covered by section 4.5(b) 
of the rules. No comments were received on this proposal, and there 
remains a lack of record support for its adoption. Moreover, adoption 
of the proposal would run counter to the reasoning underlying some of 
the proposals in the (NPRM) that accompanies this document. In 
particular, we sought comment on excluding from the definition of 
``special offices and facilities'' all airports other than the nation's 
most heavily trafficked airports, because reports of airport-related 
outages at such airports have not been significant enough to pose a 
substantial threat to public safety. Alternatively, we consider, among 
other potential changes to section 4.5(b), the elimination of airport-
specific reporting requirements as duplicative of our proposed TSP-
based reporting requirements. Accordingly, we decline to adopt the 
proposal to extend section 4.5(b) to cover general aviation airports.

II. Order on Reconsideration

    The Commission received nine Petitions for Reconsideration of 
various aspects of the Report and Order, seven of which remain pending. 
The seven Petitioners are Cingular Wireless LLC (Cingular), CTIA-The 
Wireless Association (CTIA), Organization for the Promotion and 
Advancement of Small Telecommunications Companies (OPASTCO); Qwest 
Corporation and Qwest Communications Corporation (Qwest), Sprint 
Corporation (Sprint), US Telecom, and, filing jointly, AT&T, BellSouth, 
MCI, SBC and Verizon (collectively, Joint Petitioners). These seven 
petitions are disposed of in this Order on Reconsideration. In a 
companion document, a Notice of Proposed Rulemaking (NPRM) in PS Docket 
No. 15-80, the Commission seeks comment on modifications to the Part 4 
rules to improve their utility.

A. Issues Considered in the Notice of Proposed Rulemaking

    Certain proposals considered in the (NPRM) incorporate issues 
raised in various petitions. As we are considering there the merits 
Petitioners' requests for relief on these issues, we will incorporate 
into the record those portions of Petitioners' petitions that present 
substantive arguments on these issues. We also incorporate into the 
record those portions of any responsive pleadings filed in connection 
with the Petitions that present substantive arguments relevant to those 
issues. Any other aspects of the petitions relating to these issues are 
dismissed as moot.

B. Other Issues

    We now consider those issues raised in the various Petitions that 
we have not addressed in the (NRPM). We grant or deny each Petition to 
the extent indicated below.
1. Reporting Obligations of ``Pure Resellers''
    Before withdrawing its Petition, BellSouth requested therein that 
the Commission clarify section 4.9(f) to ``expressly state that pure 
resellers (those that do not own, operate, or maintain switching, 
routing, or transmission facilities) are exempt from the Commission's 
reporting requirements to the extent that a network failure occurs on 
resold facilities that are owned, operated, or maintained by an 
underlying facilities-based provider.'' BellSouth argued that pure 
resellers should not be subject to part 4 reporting obligations because 
resellers do not have direct access to the outage information that must 
be reported, and that the only way that a pure reseller becomes aware 
of a network outage is ``typically'' through ``customer calls, news 
reports . . . or from the underlying facilities based provider itself'' 
and that ``[n]one of these methods . . . are routine or foolproof.'' 
Sprint also addresses this issue in its Petition, focusing on section 
4.3(b) of the rules, arguing that pure resellers of wireless service 
``would not be able to provide any information on the extent and 
duration of the outage or the cause of the outage.'' Rather, Sprint 
argues, the Commission can obtain this information from reports filed 
by the underlying facilities-based provider because ``customers of 
these [pure reseller] providers are included in the reports of the 
affected underlying [facilities-based] wireless carrier.'' Sprint 
argues that the provision ``includ[ing] . . . affiliated and non-
affiliated entities that maintain or provide communications networks or 
services used by the provider in offering such communications'' could 
be read as encompassing a wireless service provider that does not own 
any wireless facilities or maintain a wireless network. Qwest also 
supports the position that pure resellers should be exempt from part 4 
outage reporting.
    NASUCA argued in its responsive pleading, on the other hand, that 
separate reporting by a pure reseller and its underlying facilities-
based communications provider would ensure ``that . . . the Commission 
. . . will have a deeper understanding of the full impact of the 
outage.'' It maintained that ``only the reseller knows how many

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telephone numbers in the block it acquired from the LEC [local exchange 
carrier] are operational and thus affected by the outage,'' and it 
therefore ``must be obliged to provide that information.''
    Although the applicability of outage reporting requirements to 
``pure resellers'' of communications services was not expressly 
addressed in Report and Order, the rules adopted therein require 
``[a]ll . . . communications providers'' in covered categories to file 
reports upon ``discovering that they have experienced'' a qualifying 
outage ``on any facilities that they own, operate, lease or otherwise 
utilize.'' Thus, resellers in the covered categories are within the 
reach of the part 4 rules insofar as they ``lease or otherwise 
utilize'' facilities to provide communications services to their 
customers.
    The underlying purpose of the part 4 outage reporting rules is to 
improve network reliability and resiliency, particularly as it affects 
the Nation's 911 system, by providing the Commission with the ability 
to analyze data regarding significant outages, regardless of the 
network(s) in which the underlying causal factors lie. This information 
enables the Commission to analyze how outages in one network affect 
other networks and to identify adverse trends. ``Pure resellers'' may 
lack direct access to the network facilities they use to provide 
service, but we agree with NASUCA that such providers may be uniquely 
positioned to provide information on outages affecting their customers. 
Similarly, outages induced from higher-level issues may stem from 
resellers' systems or applications. Finally, we observe that the 
Commission routinely receives reports of outages pertaining to 
facilities not under the direct control or ownership of the filing 
party, and such reports provide a valuable perspective on the course 
and impact of outages affecting multiple providers. We therefore deny 
Sprint's petition with respect to this issue.
2. Reporting of Planned Network Outages
    CTIA, Cingular and Sprint request reconsideration of the 
Commission's decision to treat planned outages related to network 
maintenance, repair, and upgrades the same as other outages for 
purposes of its reporting requirements. CTIA and Cingular maintain that 
planned system outages should not be reportable events, arguing that 
normal operational and maintenance requirements of providers may 
require planned service disruptions in order to conduct maintenance, 
perform upgrades, or complete repair work, and that these disruptions 
are intended to enhance network reliability. They also argue that 
mandated reporting of planned outages imposes undue burdens on 
providers. Sprint does not argue for the elimination of reporting 
requirements for planned outages, but rather advocates for an 
alternative filing requirement whereby providers would file a single 
report 72 hours after a planned outage.
    NASUCA opposes any modification to the requirements for reporting 
planned outages. NASUCA argues that, as far as consumer and national 
security interests are concerned, a planned outage is still an outage. 
NASUCA urges the Commission not to weaken Commission authority at a 
time that it must be exercised more firmly than ever before because of 
heightened national security concerns.
    The arguments raised by Petitioners on this issue were previously 
considered and addressed by the Commission in the Report and Order. 
While the Commission did not specifically consider facts and arguments 
of Sprint's proposed single field report 72 hours after discovery of a 
planned outage, the Commission did consider facts and arguments 
generally concerning the filing requirements. In declining to exempt 
planned outages from the outage reporting requirements it was adopting, 
the Commission acknowledged the reliance of both public safety 
personnel and the general public on wireless services for both 
emergency and routine communications. Petitioners have not presented 
facts or arguments in their Petitions that would lead us to reconsider 
the conclusion that such reliance creates a need for reporting of 
planned wireless network outages. Indeed, reliance on wireless services 
for emergency-related communications has only increased since adoption 
of the Report and Order, making it ever more imperative that wireless 
network outages are fully reported on a timely basis irrespective of 
their cause. In addition, the reporting burden associated with such 
reporting was fully considered in the original rulemaking proceeding. 
We decline to revisit that issue here. While we acknowledge the 
difficulties involved in maintaining complex communications networks, 
we continue to find that exempting planned outages from the scope of 
reporting would detract from the purposes of part 4. For the foregoing 
reasons, we deny the Petitions of CTIA, Cingular and Sprint with 
respect to reporting of planned network outages.
3. Rural Provider Reporting Obligations
    OPASTCO requests that the Commission reconsider its Part 4 outage 
reporting obligations insofar as they apply to rural telephone 
companies. In support of its Petition, OPASTCO alleges both procedural 
and substantive deficiencies in the Report and Order. First, OPASTCO 
contends that the Commission did not provide sufficient opportunity for 
comment on the information collections associated with its Part 4 rules 
before the Office of Management and Budget (OMB) approved them. Second, 
it alleges that the established 120-minute deadline for filing an 
initial notification is unduly burdensome as applied to rural 
providers. Finally, OPASTCO asserts that the Commission's Paperwork 
Reduction Act (PRA) analysis fails to account fully for the burdens 
that rural providers will incur in assessing whether they serve 
``special facilities'' as specified in section 4.5(b) or in reporting 
on their implementation of NRIC best practices. Dobson and TDS Telecom 
each filed responses in support of OPASTCO's petition.
    Neither OPASTCO nor its supporting commenters offer persuasive 
arguments for reconsideration of the Commission's outage reporting 
requirements as applied to rural telephone providers. First, any 
alleged procedural deficiency in OMB's approval of the part 4 
information collection has been made moot by the passage of time, as 
the public has been given subsequent opportunities to comment on the 
collection as part of OMB's periodic review and re-approval process. We 
find that this established process is the appropriate forum for 
addressing perceived deficiencies in the PRA analysis associated with 
the Commission's part 4 requirements.
    We also find that OPASTCO misstates the burden that accrues to 
rural providers in complying with the 120-minute deadline for filing 
initial notifications. This obligation extends to outages that last for 
at least 30 minutes and potentially affect at least 900,000 user 
minutes, but the 120-minute timeframe for filing an initial 
notification of the outage commences only upon discovery that a 
reportable outage exists. Although providers have an obligation to take 
reasonable steps to discover outages, there is no prescribed timeframe 
for detecting the presence of an outage, only for reporting on outages 
that the provider has determined meet the reporting criteria. This 
discussion further clarifies when the 120-minute timeframe begins, as 
OPASTCO requests. In practice, providers often

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have much longer than 120 minutes from the onset of an outage to file 
the notification. Our experience administering NORS has demonstrated 
that the established 120-minute deadline sets an appropriate balance 
between the Commission's need to be timely apprised of critical outages 
and the needs of providers to deploy scarce resources effectively when 
these outages occur. In the nine years since the rules went into 
effect, we are unaware of any small rural provider that has been 
significantly challenged in complying with the 120-minute deadline. We 
are therefore not persuaded that this requirement is too burdensome as 
applied to rural providers.
    For the foregoing reasons, we deny the OPASTCO Petition.
4. DS3 Simplex Outage Reporting
    Several Petitioners seek reconsideration of the requirement that 
providers report ``DS3 simplex'' outages and propose relaxation of the 
requirement. In the Partial Stay Order the Commission rejected 
arguments that this requirement should be eliminated outright, but it 
stayed the reporting obligation insofar as it applied to outages 
rectified within five days of their discovery. Petitioners have not 
presented facts or arguments beyond those considered and rejected in 
the Partial Stay Order that would support reconsideration of the DS3 
reporting obligation as applied to outages that persist longer than 
five days. In fact, as explained in the (NPRM) that accompanies this 
document, the volume of DS3 simplex outages reported in recent years 
has led us to propose tightening our DS3 simplex reporting 
requirements. Accordingly, Petitioners' request for reconsideration of 
this matter is denied.
5. Withdrawal of Notifications and Initial Reports
    In its Petition, Sprint requests that the Commission codify in 
section 4.11 its stated policy that providers may ``withdraw 
notifications and initial reports in legitimate circumstances,'' such 
as when the filing was made mistakenly. Although the Commission has 
consistently followed this policy throughout the tenure of NORS, we 
agree that codifying it in our rules may provide greater assurance to 
providers. Accordingly, on this issue we grant Sprint's request and 
amend section 4.11 accordingly.

III. Procedural Matters

A. Regulatory Flexibility Act

    1. As required by the Regulatory Flexibility Act of 1980 (RFA),\1\ 
the Commission has prepared a Final Regulatory Certification 
(Certification) for the Second Report and Order and Order on 
Reconsideration. The Certification is set forth as Appendix E. The 
Commission's Consumer and Governmental Affairs Bureau, Reference 
Information Center, will send a copy of the Second Report and Order and 
Order on Reconsideration and their Certification to the Chief Counsel 
for Advocacy of the Small Business Administration (SBA).
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    \1\ See 5 U.S.C.--603.
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B. Paperwork Reduction Act of 1995

    The rules adopted in the Second Report and Order and Order on 
Reconsideration in this document contain no new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13.

C. Congressional Review Act

    The Commission will not send a copy of this Order on 
Reconsideration pursuant to the Congressional Review Act, 5 U.S.C. 
801(a)(1)(A) et seq., because the adopted rule is a rule of ``agency 
organization, procedure, or practice'' within the meaning of 5 U.S.C. 
804(3)(C).

IV. Ordering Clauses

    Accordingly it is ordered that, pursuant to the authority contained 
in Sections 1, 4(i), 4(j), 4(o), 201(b), 214(d), 218, 251(e)(3), 301, 
303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, and 
615c of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i)-(j) & (o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 
303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, and 615c, this 
Final Rule, Second Report and Order and Order on Reconsideration in ET 
Docket 04-35 and PS Docket 15-80 is adopted, effective July 16, 2015.
    It is further ordered that, pursuant to Sections 4(i), 302, 303(e) 
303(f), 303(g), 303(r), and 405 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 302a, 303(e), 303(f), 303(g), 303(r), and 
405, the Petitions for Reconsideration filed by Cingular Wireless, 
CTIA--The Wireless Association, Qwest Communications, the Organization 
for the Promotion and Advancement of Small Telecommunications 
Companies, Sprint and the United States Telecom Association, and the 
Petition for Reconsideration filed jointly by AT&T, BellSouth, MCI, SBC 
and Verizon, in ET Docket No. 04-35, are granted, denied and dismissed 
to the extent indicated herein.
    It is further ordered that, pursuant to Sections 4(i), 302, 303(e) 
303(f), 303(g), 303(r), and 405 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 302a, 303(e), 303(f), 303(g), 303(r), and 
405, the Commission's rules are hereby amended.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Second Report and Order and Order on Reconsideration, 
including the Final Regulatory Certification, to the Chief Counsel for 
Advocacy of the U.S. Small Business Administration.

V. Final Regulatory Certification

    The Regulatory Flexibility Act of 1980, as amended (RFA) \2\ 
requires that a regulatory flexibility analysis be prepared for 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' \3\ The RFA generally defines ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' \4\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\5\ A small 
business concern is one which: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA).\6\
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    \2\ The RFA, see--5 U.S.C. S 601 et seq., has been amended by 
the Contract With America Advancement Act of 1996, Public Law 104-
121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
    \3\ 5 U.S.C.--605(b).
    \4\ 5 U.S.C.--601(6).
    \5\ 5 U.S.C.--601(3) (incorporating by reference the definition 
of ``small business concern'' in Small Business Act, 15 U.S.C. S--
632). Pursuant to 5 U.S.C.--601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \6\ Small Business Act,--15 U.S.C. S 632.
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    The Second Report and Order and Order on Reconsideration adopt the 
following rules:
     The Second Report and Order declines to adopt a proposal 
to expand

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the range of airports classified as ``special offices and facilities'' 
for purposes of outage reporting under Part 4.
     The Order and Reconsideration codifies in section 4.11 the 
Commission's longstanding policy of allowing providers to withdraw 
outage report filings under appropriate circumstances.
    The first of these involves a determination not to adopt a 
substantive rule, while the second merely codifies an existing policy. 
We thus certify that neither of these rules will have a significant 
economic impact on a substantial number of small entities.

List of Subjects in 47 CFR Part 4

    Airports, Communications common carriers, Communications equipment, 
Disruptions to communications, Network outages, Reporting and 
recordkeeping requirements, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 4 as follows:

PART 4--DISRUPTIONS TO COMMUNICATIONS

0
1. The authority citation for part 4 is revised to read as follows:

    Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 154, 
155, 201, 251, 307, 316.


0
2. Section 4.11 is amended by adding a sentence at the end of the 
paragraph to read as follows:


Sec.  4.11  Notification and initial and final communications outage 
reports that must be filed by communications providers.

    * * * Notifications and initial reports may be withdrawn under 
legitimate circumstances, e.g., when the filing was made under the 
mistaken assumption that an outage was required to be reported.

[FR Doc. 2015-14685 Filed 6-15-15; 8:45 am]
 BILLING CODE 6712-01-P