[Federal Register Volume 85, Number 54 (Thursday, March 19, 2020)]
[Rules and Regulations]
[Pages 15733-15741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03397]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 4

[GN Docket No. 15-206; FCC 19-138; FRS 16474]


Improving Outage Reporting for Submarine Cables and Enhanced 
Submarine Cable Outage Data

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) modifies a requirement for submarine cable licensees to 
report outages to the Commission. This Order on Reconsideration 
addresses two petitions submitted and refocuses the reporting 
requirements to capture significant disruptions to submarine cable 
communications, including outages with national security implications.

DATES: Effective April 20, 2020. The final rule amending 47 CFR 4.1, 
published August 8, 2016, at 81 FR 52362, is effective April 20, 2020. 
Compliance will not be required for 47 CFR 4.15 until the Commission 
publishes a document in the Federal Register announcing the compliance 
date.

ADDRESSES: The complete text of this document is available for 
inspection and copying during normal business hours in the FCC 
Reference Information Center, Portals II, 445 12th Street SW, Room CY-
A257, Washington, DC 20554, or at the following internet address: 
https://docs.fcc.gov/public/attachments/FCC-19-138A1.pdf.

FOR FURTHER INFORMATION CONTACT: For further information, contact 
Brenda D. Villanueva, Attorney-Advisor, Cybersecurity and 
Communications Reliability Division, Public Safety and Homeland 
Security Bureau, (202) 418-7005 or via email at 
[email protected]; or Suzon Cameron, Senior Attorney, 
Cybersecurity and Communications Reliability Division, Public Safety 
and Homeland Security Bureau, (202) 418-1916 or via email at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, FCC 19-138, adopted on December 20, 2019, and 
released on December 27, 2019. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 
418-0432 (TTY). The complete text of the order also is available on the 
Commission's website at http://www.fcc.gov.

Synopsis

I. Introduction

    1. In the Submarine Cable Outage Reporting Order (Order) 81 FR 
52354 (Aug. 8, 2016), the Commission mandated reporting obligations for 
certain disruptions of submarine cable communications. The Commission 
uses outage reporting primarily to aid government-wide incident 
response, public safety and national security efforts, and the analysis 
of network reliability trends. Two associations representing submarine 
cable providers, the North American Submarine Cable Association (NASCA) 
and the Submarine Cable Coalition (SCC), separately petitioned the 
Commission to reconsider certain aspects of the Order.
    2. This Order on Reconsideration reexamines and amends certain 
aspects of the required reporting of submarine cable infrastructure 
outages to better conform them to their expected uses. In doing so, we 
seek to preserve the benefits while minimizing the costs and 
administrative burdens of reporting by refocusing the submarine cable 
outage rules on significant disruptions to submarine cable 
communications and those outages that have national security 
implications.

II. Background

    3. Historically, the Commission employed a voluntary reporting 
regime for submarine cables through the Undersea Cable Information 
System (UCIS). That system provides a web portal for licensees to 
submit information about submarine cable operational status, including 
outages, on an ad hoc basis, 80 FR 67689 (Nov. 3, 2015). In contrast, 
communications providers covered by the Commission's mandatory 
reporting rules report outages through the Network Outage Reporting 
System (NORS), a web-based filing system that uses an electronic 
template to promote ease of reporting and encryption technology to 
ensure the security of the information filed.
    4. In 2016, the Commission observed that UCIS was largely 
ineffective, failed to provide visibility into the operational status 
of the majority of submarine cables, and failed to collect data in a 
uniform or timely manner necessary for the Commission's purposes. 
Accordingly, the Commission in the Submarine Cable Outage Reporting 
Order, 81 FR 52354 (Aug. 8, 2016) established mandatory reporting for 
submarine cables through NORS and decided to retire the Undersea Cable 
Information System. As the Order noted, ``[t]he operational status of 
submarine cables carries commercial, economic, social, financial, and 
national security implications.''
    5. The Order defines a submarine cable ``outage'' as ``a failure or 
significant degradation in the performance of a licensee's cable 
service, regardless of whether the traffic can be re-routed to an 
alternate path.'' The Order requires submarine cable licensees to 
report outages that last more than 30 minutes, or that implicate the 
loss of any fiber pair for four hours or more. The Order requires that 
licensees submit such outage reports as a ``Notification'' within eight 
hours of a licensee's determination that there has

[[Page 15734]]

been a reportable event, which would transition to a four-hour 
requirement three years after the rules' effective date. The Order also 
requires an ``Interim Report'' within 24 hours of licensees receiving a 
Plan of Work for any repair, and a ``Final Report'' within seven days 
of completing any repair. The Order requires licensees to begin 
complying with the rules within six months after approval of the 
information collection requirements by the Office of Management and 
Budget (OMB). As the Commission has not to date submitted these 
requirements to OMB for such approval, the rules are not currently in 
effect.
    6. Two entities, the North American Submarine Cable Coalition 
(NASCA) and the Submarine Cable Coalition (SCC) (collectively, 
Petitioners), filed separate timely Petitions for Reconsideration 
(``Petitions''), requesting that the Commission reconsider certain 
aspects of the Order. The Petitions requested that the Commission: (1) 
Clarify an inconsistency in the definition of an outage between the 
narrative text of the Order and the Final Rules; (2) exclude outages 
due to planned maintenance from the scope of the rules; (3) grant 
licensees more than six months for compliance following OMB approval of 
the information collection; (4) exclude outages that involve rerouted 
traffic from the scope of the rules; and (5) raise the minimum duration 
for a reportable outage from 30 minutes. NASCA further requested that 
the Commission give licensees more than eight hours to file the 
Notification, which is the first filing required. Finally, Petitioners 
disputed the cost-benefit analysis that the Commission conducted in 
adopting the Order and the rules.
    7. NASCA further filed a late supplement to its Petition, 
accompanied by a motion requesting that the Commission accept the 
supplement. In the supplement, NASCA asserted that the Commission 
should rescind the prospective submarine cable outage reporting rules 
altogether because of its view that (1) it is too difficult for 
submarine cable licensees to determine whether an outage impacts 
customer communications and connectivity; (2) the passage of time has 
shown few reportable outages in general; (3) the outage reporting 
obligations are duplicative of NORS reporting and Department of 
Homeland Security regulatory mechanisms; and (4) the Order's cost-
benefit analysis is deficient.
    8. The Commission sought comment on these petitions on October 31, 
2016. The public had 15 days to file oppositions to the Petitions and 
then ten days to reply to those oppositions. Latam Telecommunications 
was the only entity that responded to the Public Notice, and it 
supported both Petitions.

III. Discussion

    9. Refocusing our efforts on the substantial submarine cable 
communications disruptions, where the benefits of our reporting regime 
will be most meaningful, we now refine the reporting rules adopted in 
the Order. In this Order on Reconsideration, we grant in part and deny 
in part the requests in the Petitions. Specifically, we narrow the 
scope of reportable outages to reduce the potential for reporting of 
mundane events and to ease reporting obligations on affected entities 
for outages involving planned maintenance that is announced to 
customers. We also clarify the definition of ``outage'' in our rules to 
reconcile an inconsistency with the intent of the Order, and we address 
the substantial savings in compliance costs afforded by these changes. 
However, we decline to further extend the time before the obligations 
become effective, to extend the time after discovering a reportable 
outage that a licensee must submit a Notification, to exclude from the 
reporting obligation all outages that are mitigated by rerouting, or to 
raise the minimum duration for a reportable outage. In addition, we 
deny NASCA's request to rescind the submarine cable outage reporting 
rules altogether.
    10. Before considering the merits, we first address a procedural 
issue. In general, the Commission will not consider a supplement filed 
after the 30-day period, 47 CFR 1.429(d). Although NASCA filed its 
Supplement outside the 30-day period normally required, the Supplement 
raised new facts ``[b]ased on NASCA members' experience in preparing to 
implement the Commission's prospective rules,'' over a 12-month period. 
Specifically, NASCA determined that, contrary to statements in its 
petition, ``an outage definition based on customer impact is 
unworkable.'' In light of this changed circumstance, we find that it is 
in the public interest to consider the NASCA Supplement and its 
statements about how our new submarine cable outage reporting rules 
would work in practice. Accordingly, the Commission will grant leave to 
file based on NASCA's separate pleading stating the grounds for 
acceptance of the supplement.

A. Reporting Outages Due to Planned Maintenance

    11. The Order requires submarine cable licensees experiencing an 
outage of greater than 30 minutes on a portion of a submarine cable 
system between submarine line terminal equipment (SLTE), or greater 
than four hours affecting a fiber pair, to report the outage to the 
Commission, including when an outage is caused by planned maintenance. 
The Order reasoned that planned maintenance outages nevertheless affect 
the submarine cable ecosystem and that planned maintenance outages are 
covered by the part 4 reporting requirements for other types of 
facilities. The Order stated that there is ``no unique, compelling 
reason that would cause the Commission to depart from its past part 4 
practice of requiring reports on planned maintenance events that meet 
the reporting triggers.''
    12. In view of the record before us, we grant in part Petitioners' 
request that the Commission exclude planned maintenance from the outage 
reporting requirements. Because submarine cable outage reporting is 
partly motivated by national security concerns and partly by impact to 
customers, and not planned service disruptions, we deem it reasonable 
to exclude outages that result from planned maintenance as follows. In 
recognition that many submarine cable operators already notify 
customers (including national security agencies running traffic over a 
provider's cable) well in advance of routine maintenance, we grant this 
exemption on the condition that submarine cable operators continue to 
provide such advance notification to customers in these circumstances.
    13. When submarine cable operators provide advance notification to 
customers of planned outages, the reporting obligation is revised such 
that it will be limited to planned outages where (1) service is 
affected for an additional period of time that exceeds the announced 
scope of the planned maintenance, and (2) this additional period of 
time, standing alone, would otherwise trigger the outage reporting 
requirements. The Submarine Cable Coalition states that ``multiple 
submarine cable operators already notify customers (including national 
security agencies running traffic over a provider's cable) well in 
advance of routine maintenance.'' In other words, we modify the rules 
so that reporting for planned outages is necessary only if no advance 
notification to a customer is provided, or, if the planned maintenance 
event turns into an unplanned outage in which the duration of the 
unplanned portion is sufficient in and of itself to trigger the outage 
reporting threshold. For example, the Submarine Cable Coalition 
describes a situation in which a shunt fault may

[[Page 15735]]

develop into a ``major outage actually disrupting communications for a 
meaningful amount of time.'' If cable operators send different planned 
maintenance announcements to different classes of customers, the 
reporting requirement will be triggered after the event surpasses the 
shortest announced duration for the planned maintenance.
    14. We believe that this refinement to our rules more accurately 
reflects the realities of submarine cable system operations, by 
acknowledging that planned outages are ``a routine and necessary part 
of submarine cable maintenance and [are] already accounted for in 
wholesale customer agreements.'' Our change does not burden appropriate 
maintenance work, which by itself does not reflect the kinds of outages 
that warrant Commission concern. We also believe that any impact to 
national security from a planned outage is likely to be mitigated by 
advance notification from submarine cable operators to their customers, 
which include national security agencies. This refinement will also 
help to ensure that licensees are not burdened by compliance costs 
associated with reporting outages caused by planned maintenance.
    15. In the event that a licensee determines that a Notification, 
Interim Report, or Final Report filed for an outage was not required 
because the licensee later determines that the event does not meet the 
outage definition in 47 CFR 4.15(a), the licensee may withdraw the 
filing.

B. Reporting Outages for Rerouted Traffic

    16. The Order defined a submarine cable ``outage'' as ``a failure 
or significant degradation in the performance of a licensee's cable 
service regardless of whether the traffic can be re-routed to an 
alternate path.'' The Order explained that by requiring outage 
reporting even in instances in which traffic is rerouted, the 
Commission would be better able to promote and advance national 
security and public safety interests. In addition, the Order explained 
that reporting outages in which traffic is rerouted would provide the 
Commission with situational awareness regarding possible over-
utilization of redundant paths, and would offer insight into the 
operability of submarine cables, enabling the Commission to better 
safeguard their reliability.
    17. In their petitions, Submarine Cable Coalition and NASCA both 
presented arguments to exclude outages from reporting where traffic is 
rerouted based on the fact that there would be no customer impact. 
Although NASCA later withdrew its original customer impact-based outage 
proposal, it makes an important observation about customer impact in 
general by explaining that for the definition to work, cable operators 
would need access to real-time information regarding end-to-end 
communications. Further, NASCA explains that such access is unavailable 
even to networks and submarine cables owned by the same provider. NASCA 
argues that this leaves submarine cable operators without the ability 
to determine that an outage would produce no customer impact. 
Similarly, Submarine Cable Coalition argues that such reporting of 
outages even where rerouting occurs ``expend[s] funds and resources 
reporting an `outage' that has no effect on traffic viability,'' and 
that providers have already invested in making sure that outages do not 
have a ``meaningful effect on its customers or the nation's security.''
    18. As described above, we exempt from reporting those outages that 
are for planned maintenance purposes where the operator notified 
customers in advance of the outage. In this respect, we also recognize 
that these planned outages may involve planned remediation efforts such 
as rerouting and, because customers are notified, have less of an 
impact on customers. As such, we clarify that where a planned outage 
includes rerouting the outage need not be reported. For outages outside 
of planned maintenance, we will maintain the reporting requirement. In 
the case of unplanned outages, customers are not notified ahead of time 
that there will be an outage or the approximate duration of the outage 
in order to make the necessary preparations for their networks. In 
addition, as NASCA explained, submarine cable operators, even those on 
networks owned by the same provider, do not have the real time 
information about communications delivery to end-users to be confident 
that rerouting has been successful and that there has been no customer 
impact. Furthermore, unplanned outages also constitute a heightened 
national security concern, especially when the cause or the origin of 
the outage is unclear. Therefore, we remain concerned about unplanned 
outages even when traffic is rerouted and will require reporting as 
described below.
    19. Accordingly, we deny Submarine Cable Coalition's request to 
limit outage reporting for events involving rerouted traffic. We exempt 
reporting as described above for planned maintenance events, including 
those events involving rerouted traffic, but deny the request to alter 
the outage reporting requirement and therefore, maintain the reporting 
requirement for unplanned outages even when traffic is rerouted. First, 
we concur with NASCA's assertion that parsing from submarine cable 
outage reporting those outages with consumer impact would be too 
difficult and burdensome for providers due to the lack of information 
submarine cable operators have about customer communication delivery to 
end users, including for those on the networks owned by the same 
provider. Second, although Submarine Cable Coalition argues that 
providers have already invested in making sure that outages do not have 
a meaningful effect on the nation's security, we retain a modified 
reporting obligation in light of heightened concerns regarding the 
impact certain unplanned outages would have for national security 
interests, specifically those outages outside the planned maintenance 
exception discussed above. As explained in the Order, in ``promoting 
and advancing the national security and public safety interests served 
by U.S.-based landings and connections as a whole,'' the Commission 
aims to assess vulnerabilities of the ``total undersea cable 
environment serving the United States.'' In this respect, we find that 
the Commission and its national security partners, not the industry, 
are in the best position to determine when national security is 
implicated. Accordingly, except for outages due to planned maintenance 
as discussed above, submarine cable providers must report outages to 
the Commission when the outage is unplanned regardless of whether 
traffic is rerouted, meaning customers have not been notified in 
advance of the outage and of its expected duration as described in the 
previous section.
    20. Therefore, the outage reporting requirement and the planned 
maintenance exemption now focus the reporting rule to capture outages 
with the highest probability of customer impact, thus retaining 
significant reporting benefits while reducing the burden on providers. 
In particular, we anticipate that modifying our original outage 
reporting requirement, by exempting planned maintenance events 
announced to the customer, will considerably decrease the number of 
outages that will need to be reported. Accordingly, when considering 
the costs and benefits associated with continued reporting as modified 
today, we find that that the national security

[[Page 15736]]

and other benefits associated with this modified requirement, and the 
lighter burden associated with the modified reporting obligation, 
justify requiring that outages be reported even when all traffic is 
rerouted.
    21. In reaching this decision, we acknowledge Petitioners' 
arguments that when submarine cable traffic is rerouted during outages, 
that outage reporting is of less value than in other situations because 
of the limited effect on end users. However, while this may be true for 
some rerouted traffic events, such as with planned maintenance outages 
previously announced to customers, in other instances, such as with 
unplanned outages, customers are not notified in advance and at least 
some submarine cable operators are unable to determine that there was a 
limited effect on end users. Moreover, unplanned outages, even where 
traffic is rerouted, may raise national security concerns.

C. Minimum Duration of Reportable Outages

    22. The Order requires reporting of an outage that meets the 
requirements and lasts 30 minutes or more. The Order explained that 30 
minutes, not three hours, is an appropriate timeframe because ``damage 
or repair to facilities between the SLTE likely indicates a long-term 
problem that will not be cleared quickly, so there is no benefit to 
further delaying reporting.''
    23. In light of our decision to grant in part the Petitioners' 
request for relief with respect to outages for planned maintenance, we 
do not find the Petitioners' arguments here persuasive. We reject 
Petitioners' suggestion for a minimum threshold of ``four or more 
hours'' or even three hours. Outages of less than three hours may still 
have significant impact on communications networks and remain of 
interest to both the Commission and other government agencies with 
national security responsibilities. Reporting of these outages provides 
value to our incident response and national security considerations. 
The threshold sought by Petitioners could impair the government's 
ability to gather facts and discern patterns with respect to multiple 
short-term outages across submarine cable licensees that may be related 
to a single source or issue--e.g., a malicious actor leveling attacks 
in bursts over time; or a technical defect or vulnerability that begins 
to manifest in short, seemingly minor submarine cable outages.
    24. We also believe that this decision, coupled with our assessment 
in Section III.F., infra, to provide flexibility in the definition of 
an outage affecting a fiber pair as codified in section 4.15(a)(2)(ii) 
serves to alleviate any concerns that this requirement is ``too 
stringent and will capture mundane events.'' Therefore, we retain the 
30-minute outage duration threshold. Even short outages may have a 
significant cumulative effect if they occur simultaneously due to an 
emergency or other incident. We therefore deny Petitioners' request.

D. Notification Timeframe

    25. The Order provided that licensees submit notifications to the 
Commission within eight hours after discovering a reportable outage, 
phasing down to four hours after a three-year period. The Commission 
reasoned that the phased-in structure would ``give licensees ample time 
to hone their reporting structure while still achieving . . . prompt 
situational awareness.'' The Order noted that reporting entities ``need 
not provide substantive detail on the root cause, location, or duration 
of the outage if unavailable at that time,'' and explained the need for 
timely notification. As appropriate based on such notifications, the 
Commission may then take actions such as providing continuity 
assistance, coordinating with other government agencies, and helping 
manage the public information aspect of major outages.
    26. We deny Petitioners' request to extend the Notification 
reporting timeframe and retain the phased-in requirement of eight hours 
followed by four hours. We believe that the adopted notification 
timeframe strikes a reasonable balance between the need of licensees to 
identify and promptly respond to outages and the Commission's need for 
timely information.
    27. Notifications must be reasonably timely in order for the 
Commission to help protect national security, including by sharing 
information as appropriate with federal partners, aiding restoration 
efforts as appropriate, and analyzing data where possible to anticipate 
potential future outages. While we believe that proposals such as 
Notifications in 48 hours are insufficient to enable the Commission 
actions described above, we note that Notifications are now limited due 
to the other changes adopted in this Order on Reconsideration, and 
continue to call for an abbreviated set of information--not the more 
extensive data associated with the later reporting obligations--that 
the Commission needs on a timely basis.
    28. Furthermore, for other types of outages currently reported in 
NORS, 47 CFR 4.9, reporting often serves as the trigger for Commission 
personnel to engage with communications providers and other parties. We 
anticipate that Commission personnel would similarly engage as 
appropriate with submarine cable operators based on the new reporting 
requirements. This engagement is often facilitated, especially when 
outages occur and are reported in NORS outside of normal business 
hours, by the FCC Operations Center, which operates 24 hours a day, 
seven days a week, including holidays. The phased-in timeframe will 
enable reasonably prompt Notification to the Commission. This, in turn, 
will improve the Commission's situational awareness and increase the 
ability of both the Commission and other government agencies to respond 
as necessary to outages, including those ``that could affect homeland 
security, public health or safety, and the economic well-being of our 
Nation.'' We believe that this decision will enable the Commission to 
help facilitate communication and coordination between the submarine 
cable operator and both federal and local government officials in a 
reasonably timely manner, so that the Commission does not need to rely 
on happenstance to initiate its response. Information regarding such 
outages could also help the Commission inform the public as appropriate 
about major outages based on more accurate and timely information.

E. Compliance Timeframe

    29. In the Order, the Commission determined that the reporting 
rules would become effective six months following approval of the 
information collection by OMB. The Order observed that six months 
represented ``a balance between industry's needs to adequately prepare 
for these reporting requirements and the Commission's need to obtain 
timely situational awareness of the operational status of the nation's 
submarine cable infrastructure.'' Under the current voluntary reporting 
regime, only some submarine cable licensees report outages in UCIS, and 
even those licensees which report do so with varying types of 
information and in varying formats, so an implementation period of some 
duration was warranted to enable all licensees to prepare their systems 
to comply with the new rules.
    30. We disagree that additional time after OMB approval from six 
months to 12-18 months (NASCA) or 12-15 months (SCC) is warranted, and 
instead conclude that these rules, as modified today, should still 
become effective 6 months following approval by OMB. We find this 
shorter phase in period is appropriate because, as the Order noted, 
many providers are already providing

[[Page 15737]]

some level of outage notification. Moreover, because of the significant 
changes to the outage reporting regime in this Order on 
Reconsideration, the number of reportable outages will be significantly 
smaller now. Finally, the final rules, as modified in this Order on 
Reconsideration, have not yet taken effect and still require OMB 
approval, thus affected parties have still more time to prepare, which 
may alleviate the likelihood that some licensees will need to file 
extension or waiver requests due to an inability to comply.

F. Definition of an ``Outage''

    31. In the Order, the Commission defined an outage in pertinent 
part as ``a failure or significant degradation in the performance of a 
licensee's cable service.'' The term ``significant'' degradation, as 
opposed to all instances of degraded service, was designed to focus on 
major disruptions--including ones for which ``some traffic might be 
getting through during a period of massive disruption.'' The Order 
further stated that the ``failure or significant degradation of any 
fiber pair'' may also constitute a reportable outage.
    32. We grant the request to amend section 4.15(a)(2)(ii), and agree 
with NASCA that there is a discrepancy between the narrative text of 
the Order and the Final Rules in the Order's Appendix B. The text of 
the Order defines an outage affecting a fiber pair as a ``failure or 
significant degradation.'' The Final Rules, however, state that an 
outage affecting a fiber pair is a ``loss of a fiber pair,'' and omits 
the ``failure or significant degradation'' language. The text of the 
Order consistently uses the phrase ``failure or significant 
degradation'' to describe an outage, including in the discussion of an 
outage affecting fiber pairs for four hours or more. The Order's 
Appendix B contains the same definition of an ``outage'' at section 
4.15(a)(1), and then accurately defines an ``outage'' affecting 
portions of the submarine cable system between submarine line terminal 
equipment (SLTE) at section 4.15(a)(2)(i). NASCA correctly notes that 
in section 4.15(a)(2)(ii), however, the Final Rules refer to an outage 
affecting a fiber pair simply as a ``loss,'' rather than as the 
narrative text stated, as a ``failure or significant degradation.''. We 
therefore amend section 4.15(a)(2)(ii) to clarify that an outage that 
affects a fiber pair occurs not when there is a ``loss'' but rather 
when there is an ``outage,'' which is in turn correctly defined in 
section 4.15(a)(1) as a ``failure or significant degradation.''
    33. This modification makes the section consistent with the 
narrative text of the Order, which stated that an outage affecting a 
fiber pair is to act as a ``reporting backstop'' for the connectivity 
reporting requirement, which accounts for performance failures and loss 
of service. Also, the modification is consistent with the definition of 
an ``outage'' contained in section 4.15(a)(1) of the Final Rules of the 
Order. Further, this modification aligns the outage definition here 
with the outage definition in another outage reporting rule, section 
4.5(a), and follows the ``long established outage reporting requirement 
that an outage includes events where even `some traffic might be 
getting through during a period of massive disruption.' ''

IV. Summary of Impact on Costs

    34. The Petitioners are of course correct that new reporting rules 
will require licensees to incur compliance costs. However, those costs 
are limited by various factors. First, the changes adopted in this 
Order on Reconsideration reduce overall reporting requirements. 
Although we lack specific data on the exact magnitude of the reduction 
in reporting, as a general matter we expect that these changes will 
generate fewer reports than the number of reports originally 
contemplated by the Order, which will lower reporting costs without 
significantly reducing the benefits. In addition, we are requiring 
licensees to report only information that they routinely either have or 
must obtain to restore service. Indeed, many of the reporting 
requirements, as modified herein, only require reporting of information 
``if known.'' We therefore anticipate that the reporting requirements, 
as modified herein, are unlikely to result in substantial additional 
information gathering costs to licensees. We also consider that some 
licensees may incur one-time costs associated with the modified outage 
reporting obligations, but we anticipate that any such costs will be 
mitigated in part by the fact that, due to consortium agreements 
associated with submarine cables, not all licensees will incur the full 
scope of review costs. As many cables are jointly-owned by consortia of 
different licensees, these licensees may choose to register a 
Responsible Licensee with the Commission for reporting purposes with 
respect to the jointly-owned cable. Accordingly, not all licensees will 
incur the full scope of one-time review costs.
    35. The changes adopted today reduce less useful reporting 
elements, such as the change to limit the reporting obligation for 
outages involving planned maintenance announced to customers, but keep 
essential components, and therefore the benefits are not adversely 
affected to a significant degree. Although the benefits under the 
modified submarine cable outage reporting regime are significant, 
especially for national security and public safety purposes, it is not 
possible to estimate with precision the dollar value of these benefits. 
The analysis of submarine cable outage reporting benefits must consider 
the integral and indispensable role that submarine cables serve in the 
national and international communications infrastructure, including 
their impact on national security and public safety interests. 
Submarine cable outages do not occur with the same frequency as 
terrestrial outages, but when they do occur they may have a much higher 
impact due to the volume and the nature of communications carried over 
such cables. For example, in addition to outages caused by weather or 
inadvertent damage, we must also consider the potential for malicious 
damage by an adversary that could impair a significant amount of 
submarine cable traffic and severely degrade both government and non-
government communications.
    36. In these cases, mandatory and consistent outage reporting will 
deliver greater benefits than the previous voluntary reporting regime, 
because based on more than a decade of experience in outage reporting, 
if we were to rely on obtaining information from voluntary outage 
reporting and press reports, it might take days or weeks for the 
Commission to identify the occurrence of an outage, not to mention its 
cause and or scope. The voluntary reporting regime does not collect 
uniform and timely data, whereas consistent mandatory outage reporting 
will collect such data and provide the Commission with a visibility 
into the reliability of the submarine cable ecosystem as a whole, which 
is necessary to serve the government's missions described herein. For 
example, although some operators may provide information to DHS in 
certain circumstances, that reporting does not replicate the scope of 
the data that would be generated by our reporting requirements. 
Furthermore, individual cable operators generally have visibility only 
into their own cables, and indeed some of them may have limited 
visibility, as in the cases of consortiums or joint build systems. 
Targeted outage reporting will: (1) Speed up the process of identifying 
the cause and scope of outages; (2) enable the Commission and its 
government

[[Page 15738]]

partners to maintain situational awareness of outages and respond to 
them as needed; and (3) equip the Commission to promptly alert and 
coordinate response with national defense and other authorities, as 
necessary. These benefits may help reduce the extent of the damage or 
mitigate its effects on end users in support of maintaining national 
security. In addition to providing insight into specific incidents, 
this information will further enable the Commission to perform long 
term outage trend analysis, and help facilitate the Commission's 
interagency coordination processes in support of the ongoing resilience 
of the submarine cable ecosystem, which is vital to the national 
security and economic strength of the country. For all of these 
reasons, we conclude that the benefits of the targeted outage reporting 
requirement, as modified by this Order on Reconsideration, are 
significant and can reasonably be expected to exceed their cost.

V. Procedural Matters

    37. Regulatory Flexibility Act. Pursuant to the Regulatory 
Flexibility Act of 1980, as amended, the Commission has prepared a 
Supplemental Final Regulatory Flexibility Analysis (``Supplemental 
FRFA'') of the possible significant economic impact on small entities 
of the policies and rules adopted in this Order on Reconsideration. The 
Supplemental FRFA is attached as Appendix B.
    38. Paperwork Reduction Act Analysis. This document contains 
modified information collection requirements. The Commission, as part 
of its continuing effort to reduce paperwork burdens, will invite the 
public to comment on the information collection requirements contained 
in this Order on Reconsideration as required by the Paperwork Reduction 
Act of 1995, Public Law 104-13. In addition, the Commission notes that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought 
specific comment on how the Commission might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.
    39. In this present document, we have assessed the effects of the 
modifications of the rules herein, which require submarine cable 
licensees to report when they experience outages of certain durations 
and causes, on small business concerns and find that the rules modified 
here reduce the information collection burden on such entities.
    40. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs, that this rule is non-major 
under the Congressional Review Act, 5 U.S.C. 804(2). The Commission 
will send a copy of this Order on Reconsideration to Congress and the 
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

VI. Supplemental Final Regulatory Flexibility Analysis

    41. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Submarine Cable Notice of Proposed Rulemaking 
(Submarine Cable NPRM) adopted in September of 2015, 80 FR 67689 (Nov. 
3, 2015). The Commission sought written public comment on the proposals 
in Submarine Cable NPRM including comments on the IRFA. The Commission 
included a Final Regulatory Flexibility Analysis (FRFA) in Appendix C 
of the Submarine Cable Outage Reporting Order, 81 FR 52354 (Aug. 8, 
2016), in this proceeding. This Supplemental Final Regulatory 
Flexibility Analysis (Supplemental FRFA) supplements the FRFA in the 
Submarine Cable Outage Reporting Order to reflect the actions taken in 
the Order on Reconsideration and conforms to the RFA.

A. Need for, and Objectives of, the Order on Reconsideration

    42. In the Order on Reconsideration the Commission reexamined the 
required reporting of submarine cable infrastructure outages and 
addressed the issues raised by parties in their petitions for 
reconsideration of the Submarine Cable Outage Reporting Order adopting 
mandatory reporting requirements for submarine cable licensees. After 
considering the petitions, the Commission granted the request to exempt 
reporting of outages due to planned maintenance on the condition that 
submarine cable operators continue to provide customers with advance 
notification of the outage (including the duration) and any additional 
time beyond the announced duration of the outage does not exceed the 
amount of time that would otherwise trigger the outage reporting 
requirements. The Commission also granted the request to amend the 
rules to eliminate the inconsistency between the rule defining a 
submarine cable ``outage'' and the Order's characterization of that 
definition. However, the Commission denied the requests to raise the 
minimum duration for an outage, to extend the time to file a 
Notification, to eliminate reporting of outages when all traffic on a 
submarine cable is rerouted, and to extend the timeframe to begin 
compliance with the new rules.
    43. The Order on Reconsideration preserved the underlying value of 
reporting outages to aid in the analysis of network reliability trends 
and issues, situational awareness and incident response, and national 
security efforts while it narrowed associated reporting costs and 
administrative burdens.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    44. There were no comments filed that specifically addressed the 
proposed rules and policies presented in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    45. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments.
    46. The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    47. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act.'' 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 SBA.
    48. As noted above, the FRFA was incorporated into the Submarine 
Cable Outage Reporting Order. In that analysis, we described in detail 
the small entities that might be significantly affected by the rules 
adopted in the

[[Page 15739]]

proceeding. In this Supplemental FRFA we hereby incorporate by 
reference from the FRFA in the Submarine Cable Outage Reporting Order, 
the descriptions and estimates of the number of small entities that 
might be significantly affected by the rules modified and/or adopted 
herein.

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    49. The actions taken in the Order on Reconsideration amended rules 
in the Submarine Cable Outage Reporting Order and modified the 
recordkeeping, reporting or other compliance obligations on small 
entities as described below, and reduced their costs.
    50. To reduce confusion and the possibility that unnecessary outage 
reports will be filed, we clarified that the definition of an outage 
that affects a fiber pair occurs when there is a ``failure or 
significant degradation,'' rather than merely a ``loss.'' This 
modification eliminates the inconsistency between the rule defining 
submarine cable ``outage'' in Sec.  4.15(a)(1) of the Final Rules 
attached to the Submarine Cable Outage Reporting Order, and the 
Submarine Cable Outage Reporting Order's characterization of that 
definition.
    51. We reduced the reportable outages by exempting outages due to 
planned maintenance from the reporting requirement on the condition 
that the licensee has provided its customers with advance notification 
of the outage (including the duration). Reporting to the Commission is 
required if the cable operator planning the maintenance outage does not 
provide advance notification of the outage to its customers, or if the 
announced planned maintenance event turns into an unplanned outage in 
which the duration of the unplanned portion is sufficient in and of 
itself to trigger the outage reporting threshold.
    52. In the Submarine Cable Outage Reporting Order, we required an 
outage Notification notwithstanding whether the traffic was rerouted. 
Accordingly, to provide flexibility to licensees, when the outage is a 
planned maintenance outage as described above, the outage need not be 
reported to the Commission. Conversely, if the outage is unplanned or 
is planned but the customer is not notified in advanced of the event, 
the licensee must file a Notification. Additionally, if a licensee 
determines that a Notification, an Interim Report, or a Final Report 
filed for an outage is no longer required because the event no longer 
meets the outage definition in 47 CFR 4.15(a), the licensee may 
withdraw the filing.

F. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    53. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): ``(1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) and 
exemption from coverage of the rule, or any part thereof, for small 
entities.''
    54. The Commission took steps that will minimize the economic 
impact on small entities and other licensees by reducing certain 
requirements and adding additional discretion to other requirements. In 
general, the reporting rules as modified by the Order on 
Reconsideration will generate fewer reports than the number of reports 
estimated in the Submarine Cable Outage Reporting Order, which will 
lower costs for small entities and other licensees who experience an 
outage that triggers reporting. Specifically, and as discussed in the 
previous section, we have limited certain reporting obligations for 
outages involving planned maintenance. This alternative is a change 
from the existing rule in the Submarine Cable Outage Reporting Order, 
which included a reporting obligation for all outages involving planned 
maintenance.
    55. In light of these modified reporting requirements, small 
entities and other licensees are able to negotiate with their partners 
and plan for planned maintenance notifications ahead of any outages 
which may limit outage reporting associated costs.
    56. The Order on Reconsideration significantly reduced the scope of 
required reporting, but the Commission does not have specific data on 
the magnitude of the reduction in reporting that would result from the 
changes announced today. As a general matter we expect that these 
changes will generate fewer reports than the number of reports 
indicated by the Submarine Cable Outage Reporting Order, which will 
lower reporting costs for small entities and other licensees without 
significantly reducing the benefits. In addition, because these changes 
limit reporting to outages for which licensees must generally take 
action to restore service, we anticipate that the information required 
to be reported will likely be information that licensees routinely 
either have or must obtain to restore service. We note that many of the 
reporting requirements, as modified herein, only require reporting of 
information ``if known.'' We therefore anticipate that the reporting 
requirements, as modified herein, are unlikely to result in substantial 
additional information gathering costs to licensees. We also consider 
that some licensees may incur one-time costs associated with the 
modified outage reporting obligations, but we anticipate that any such 
costs are mitigated in part by the fact that, due to consortium 
agreements associated with submarine cables, not all licensees will 
incur the full scope of review costs.
    57. The Commission believes in this instance that applying the same 
rules equally to all entities is necessary to ensure consistent outage 
reporting covering all licensed cables in order to provide the 
Commission with a holistic picture of the resilience of the submarine 
cable ecosystem, which will enable outage trend analysis over the 
longer term. Mandatory, targeted outage reporting will (1) speed up the 
process of identifying the cause and scope of such outages; (2) enable 
the Commission and its government partners to maintain situational 
awareness of outages and respond to them as needed; and (3) equip the 
Commission to promptly alert and coordinate response with national 
defense and other authorities, as necessary. Among other benefits, this 
may help reduce the extent of the damage from outages or mitigate its 
effects on end users in support of maintaining national security. 
Further, outage reporting and the subsequent trend analysis from the 
information collected will assist the Commission as it works towards 
mitigating threats to undersea cables through trend analysis, which 
will help facilitate the agency's interagency coordination processes 
related to submarine cable deployment.

Report to Congress

    58. The Commission will send a copy of the Order on 
Reconsideration, including this Supplemental FRFA, in a report to 
Congress pursuant to the Congressional Review Act. In addition, the 
Commission will send a copy of the Order on Reconsideration, including 
this Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA. A 
copy of the Order on Reconsideration and Supplemental FRFA (or 
summaries

[[Page 15740]]

thereof) will also be published in the Federal Register.

VII. Ordering Clauses

    59. Accordingly, it is ordered pursuant to sections 1, 4(i), 4(j), 
4(o), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i)-(j) & (o), 405, and the Cable Landing License Act of 1921, 
47 U.S.C. 34-39, and 3 U.S.C. 301, that this Order on Reconsideration 
is adopted.
    60. It is further ordered that part 4 of the Commission's rules, 47 
CFR part 4, is amended as set forth in Appendix A, and that such rule 
amendments will become effective 30 days after publication of a summary 
of this Order on Reconsideration in the Federal Register. Section 4.15 
contains new or modified information-collection requirements that 
require review by the OMB under the PRA. For reasons discussed above, 
compliance with such rule amendments and with other changes to the 
Commission's rules announced in the Submarine Cable Outage Reporting 
Order, FCC 16-81, 81 FR 52354, will not be required until six months 
after the Commission publishes a notice in the Federal Register 
announcing OMB approval. The Commission directs the Public Safety and 
Homeland Security Bureau to announce the compliance date for those 
information collections in a document published in the Federal Register 
after OMB approval and to cause Sec.  4.15 to be revised accordingly. 
It is further ordered that the Commission shall send a copy of this 
Order on Reconsideration to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).
    61. 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.
    62. It is further ordered that, for reasons discussed herein, 
pursuant to section 1.429(d) of the Commission's rules, the motion for 
leave to supplement its petition for reconsideration submitted by the 
North American Submarine Cable Association on September 1, 2017, is 
Granted.
    63. It is further ordered that, pursuant to Sec.  1.429 of the 
Commission's rules, 47 CFR 1.429, the Petition for Reconsideration 
filed by North American Submarine Cable Association on September 8, 
2016 is granted in part and denied in part to the extent described 
herein.
    64. It is further ordered that, pursuant to section 1.429 of the 
Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed 
by Submarine Cable Coalition on August 11. 2016, is granted in part and 
denied in part to the extent described herein.

List of Subjects in 47 CFR Part 4

    Communications equipment, Reporting and recordkeeping requirements, 
Submarine cable, Telecommunications.

Federal Communications Commission.
Marlene 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:  47 U.S.C. 34-39, 151, 154, 155, 157, 201, 251, 254, 
301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 
615a-1, 615c, 1302(a), and 1302(b); 5 U.S.C. 301, and Executive 
Order no. 10530.


0
2. Section 4.15 is amended by revising paragraphs (a) and (b) and 
adding paragraph (d) to read as follows:


Sec.  4.15  Submarine cable outage reporting.

    (a) Definitions. (1) For purposes of this section, ``outage'' is 
defined as a failure or significant degradation in the performance of a 
licensee's cable service regardless of whether the traffic can be re-
routed to an alternate path, where:
    (i) An outage of a portion of submarine cable system between 
submarine line terminal equipment (SLTE) at one end of the system and 
SLTE at another end of the system occurs for 30 minutes or more; or
    (ii) An outage of any fiber pair, including due to terminal 
equipment, on a cable segment occurs for four hours or more, regardless 
of the number of fiber pairs that comprise the total capacity of the 
cable segment.
    (2) An ``outage'' does not require reporting under this section if 
the outage is caused by announced planned maintenance and the licensee 
notified its customers in advance of the planned maintenance and its 
expected duration, except that if the planned maintenance duration 
surpasses the shortest announced duration for the planned maintenance 
and this additional time triggers the requirements in paragraph (a)(1) 
of this section, the outage becomes reportable as of the time the 
maintenance exceeds the shortest announced duration for the planned 
maintenance.
    (b) Outage reporting. (1) For each outage that requires reporting 
under this section, the licensee (or Responsible Licensee as designated 
by a Consortium) shall provide the Commission with a Notification, 
Interim Report, and a Final Outage Report.
    (i) For a submarine cable that is jointly owned and operated by 
multiple licensees, the licensees of that cable may designate a 
Responsible Licensee that files outage reports under this rule on 
behalf of all licensees on the affected cable.
    (ii) Licensees opting to designate a Responsible Licensee must 
jointly notify the Chief of the Public Safety and Homeland Security 
Bureau's Cybersecurity and Communications Reliability Division of this 
decision in writing. Such Notification shall include the name of the 
submarine cable at issue; and contact information for all licensees on 
the submarine cable at issue, including the Responsible Licensee.
    (2) Notification, Interim, and Final Outage Reports shall be 
submitted by a person authorized by the licensee to submit such reports 
to the Commission.
    (i) The person submitting the Final Outage Report to the Commission 
shall also be authorized by the licensee to legally bind the provider 
to the truth, completeness, and accuracy of the information contained 
in the report. Each Final report shall be attested by the person 
submitting the report that he/she has read the report prior to 
submitting it and on oath deposes and states that the information 
contained therein is true, correct, and accurate to the best of his/her 
knowledge and belief and that the licensee on oath deposes and states 
that this information is true, complete, and accurate.
    (ii) The Notification is due within 480 minutes (8 hours) of the 
time of determining that an event is reportable for the first three 
years from the effective date of these rules. After three years from 
the effective date of the rules, Notifications shall be due within 240 
minutes (4 hours). The Notification shall be submitted in good faith. 
Licensees shall provide: The name of the reporting entity; the name of 
the cable and a list of all licensees for that cable; the date and time 
of onset of the outage, if known (for planned events as defined in 
paragraph (a)(2) of this section, this is the estimated start time/date 
of the repair); a brief description of the event, including root cause 
if

[[Page 15741]]

known; nearest cable landing station; best estimate of approximate 
location of the event, if known (expressed in either nautical miles and 
the direction from the nearest cable landing station or in latitude and 
longitude coordinates); best estimate of the duration of the event, if 
known; whether the event is related to planned maintenance; and a 
contact name, contact email address, and contact telephone number by 
which the Commission's technical staff may contact the reporting 
entity.
    (iii) The Interim Report is due within 24 hours of receiving the 
Plan of Work. The Interim Report shall be submitted in good faith. 
Licensees shall provide: The name of the reporting entity; the name of 
the cable; a brief description of the event, including root cause, if 
known; the date and time of onset of the outage; nearest cable landing 
station; approximate location of the event (expressed in either 
nautical miles and the direction from the nearest cable landing station 
or in latitude and longitude); best estimate of when the cable is 
scheduled to be repaired, including approximate arrival time and date 
of the repair ship, if applicable; a contact name, contact email 
address, and contact telephone number by which the Commission's 
technical staff may contact the reporting entity.
    (iv) The Final Outage Report is due seven (7) days after the repair 
is completed. The Final Outage Report shall be submitted in good faith. 
Licensees shall provide: The name of the reporting entity; the name of 
the cable; the date and time of onset of the outage (for planned events 
as defined in paragraph (a)(2) of this section, this is the start date 
and time of the repair); a brief description of the event, including 
the root cause if known; nearest cable landing station; approximate 
location of the event (expressed either in nautical miles and the 
direction from the nearest cable landing station or in latitude and 
longitude coordinates); duration of the event, as defined in paragraph 
(a) of this section; the restoration method; and a contact name, 
contact email address, and contact telephone number by which the 
Commission's technical staff may contact the reporting entity. If any 
required information is unknown at the time of submission of the Final 
Report but later becomes known, licensees should amend their report to 
reflect this knowledge. The Final Report must also contain an 
attestation as described in paragraph (b)(2)(i) of this section.
    (v) The Notification, Interim Report, and Final Outage Reports are 
to be submitted electronically to the Commission. ``Submitted 
electronically'' refers to submission of the information using 
Commission-approved Web-based outage report templates. If there are 
technical impediments to using the Web-based system during the 
Notification stage, then a written Notification to the Commission by 
email to the Chief, Public Safety and Homeland Security Bureau is 
permitted; such Notification shall contain the information required. 
Electronic filing shall be effectuated in accordance with procedures 
that are specified by the Commission by public notice. Notifications, 
Interim reports, and Final 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.
* * * * *
    (d) Compliance date. This section contains new or modified 
information-collection and recordkeeping requirements. Compliance with 
these information-collection and recordkeeping requirements will not be 
required until six months after the Commission publishes a document in 
the Federal Register announcing approval by the Office of Management 
and Budget and the compliance date. Following such approval, the 
Commission will publish a document in the Federal Register announcing 
that compliance date and removing or revising this paragraph.
[FR Doc. 2020-03397 Filed 3-18-20; 8:45 am]
 BILLING CODE 6712-01-P