[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Rules and Regulations]
[Pages 5105-5113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28834]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 4

[PS Docket Nos. 21-346, 15-80; ET Docket No. 04-35; FCC 23-71; FR ID 
192559]


Disruptions to Communications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) addresses the Petition for Clarification and 
Partial Reconsideration (Petition) filed by the Cellular 
Telecommunications and internet Association (CTIA) and the Competitive 
Carriers Association (CCA) (collectively, Petitioners) regarding the 
``Mandatory Disaster Response Initiative'' (MDRI) by extending the 
compliance deadline. In its Order on Reconsideration, the Commission 
also agrees with the request to treat Roaming under Disaster 
arrangements (RuDs) as presumptively confidential when filed with the 
Commission.

DATES: The final rule is effective May 1, 2024.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Erika Olsen, Acting Division Chief, Cybersecurity 
and Communications Reliability Division, Public Safety and Homeland 
Security Bureau, (202) 418-2868 or via email at [email protected] or 
Logan Bennett, Attorney-Advisor, Cybersecurity and Communications 
Reliability Division, Public Safety and Homeland Security Bureau, (202) 
418-7790 or via email at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, FCC 23-71, adopted September 14, 2023, and released 
September 15, 2023. The full text of this document is available by 
downloading the text from the Commission's website at: https://docs.fcc.gov/public/attachments/FCC-23-71A1.pdf.

Synopsis

I. Introduction

    1. The Report and Order adopted the MDRI to improve network 
resilience during disasters, aligning with the industry-developed 
Wireless Network Resiliency Cooperative Framework. It mandated five 
provisions for facilities-based mobile wireless providers, including 
bi-lateral Roaming under Disaster arrangements (RuDs), mutual aid 
agreements, municipal preparedness, consumer readiness, and public 
communication. In particular, the Report and Order requires that each 
facilities-based mobile wireless provider enter into bilateral roaming 
agreements with all other facilities-based mobile wireless providers 
from which it may foreseeably request roaming privileges, or that may 
foreseeably request roaming privileges from it, when the MDRI is 
active. The Commission clarified that roaming is foreseeable, without 
limitation, when two providers' geographic coverage areas overlap. The 
Commission set a compliance date for the rules at the later of (i) 30 
days after review of any new information collection requirements 
associated with the Report and Order by the Office of Management and 
Budget (OMB) or the Public Safety and Homeland Security Bureau (Bureau) 
determines that such review is not required, or (ii) March 30, 2023, 
for non-small providers and June 30, 2023, for small providers.
    2. Petitioners jointly filed a Petition for Clarification and 
Partial Reconsideration (CTIA and CCA Petition or Petition) of the 
Commission's Report and Order. In response to the Petition, the 
Commission issued an Order on Reconsideration extending the compliance 
deadline, determining that RuD arrangements would be treated as 
presumptively confidential, and otherwise declining to modify the 
Report and Order.

A. Modification of Compliance Implementation Timeline

    3. The CTIA and CCA Petition requests that the Commission 
``[p]rovide sufficient time for wireless providers--at least 12 months 
for non-small facilities-based mobile wireless providers and 18 months 
for small facilities-based mobile wireless providers--to achieve 
compliance with the new obligations.'' They further ask that those 
dates be calculated from the date of OMB approval of the rule for 
Paperwork Reduction Act (PRA) purposes. As described below, the Order 
on Reconsideration establishes a single date certain for compliance by 
all providers of May 1, 2024, that affords a reasonable extension by 
providing approximately 20 months for all providers from publication of 
the Report and Order in the Federal Register to achieve compliance. 
This will extend reasonable relief to providers, while preserving the 
benefits of the underlying rules for consumers relying on Petitioners' 
networks for connectivity and emergency communications access during 
disasters in advance of the 2024 hurricane and wildfire seasons. In 
doing so, the Order on Reconsideration also eliminates the need to 
continue to

[[Page 5106]]

distinguish between small and non-small providers under the MDRI.
    4. Background. In requesting an extended implementation timeframe, 
Petitioners argue that the Commission's estimate of 200 hours per 
provider for compliance is ``not aligned with the amount of work and 
resources that will be required to enter the multiple bilateral RuD and 
mutual aid arrangements and to complete roaming testing as required by 
the MDRI rules.'' They further argue that providers will need more time 
to (1) negotiate agreements and (2) complete an initial round of 
roaming testing. In addition, Petitioners indicate that ``[i]n some 
cases'' providers may not have existing agreements to leverage, raising 
the potential for unanticipated complexities, and may need to include 
``terms unique to the disaster context in which they will be invoked.'' 
In instituting a deadline for providers to enter into RuDs, they 
further assert that the Commission has ``effectively reverse[d] course 
on a decade of precedent regarding the timeframes for negotiating 
roaming arrangements.'' Petitioners also claim that the time allowed is 
insufficient for providers to enter into both RuDs and mutual aid 
agreements and to complete the technical and operational tasks 
necessary to support roaming testing. Finally, Petitioners argue that 
providers would need to negotiate agreements and conduct testing 
serially, rather than simultaneously, due to resource constraints for 
smaller providers.
    5. Relatedly, the Petition seeks clarification on three other 
issues impacting timeframes for compliance. First, the Petition recites 
that ``[t]he Commission should affirm that, like the Resilient Networks 
Order's approach to mutual aid arrangements, the small provider 
compliance date applies to both parties to a RuD arrangement, as well 
as roaming testing, when at least one party to an arrangement is a 
small provider.'' Second, the Petition requests that the Commission 
``[a]lign the definitions of `non-small facilities-based' and `small 
facilities-based' wireless providers with the FCC's existing 
definitions of `nationwide' and `non-nationwide' wireless providers 
applied in the 9-1-1 context.'' Third, the Petition asks the Commission 
to ``[a]ffirm that [OMB] review is required for all information 
collection obligations.'' Petitioners further argue that ``giving 
providers a mere 30 days after OMB approval to comply with Sec.  
4.17(a) and (b) is unworkable given the complexity of executing RuD and 
mutual aid agreements, as well as roaming testing.
    6. Comments. In support of the Petition, one commenter cites the 
``limited personnel and financial resources'' of small carriers as 
justification for providing at least an 18-month timeframe for 
compliance, suggesting that negotiating RuDs and mutual aid agreements 
with multiple parties and conducting testing of their roaming 
capabilities ``is likely to take longer than the 200 hour estimate,'' 
and argue that a longer timeframe would put smaller carriers on ``a 
more equal footing'' for negotiations. Others similarly assert that the 
Commission's compliance estimates for small providers is unrealistic 
and support an extended compliance timeframe of at least 18 months. A 
commenter also argues that small providers are less likely to have 
existing agreements to leverage, and echo the argument that truncated 
negotiations may negatively impact their ability to obtain reasonable 
terms and conditions. Another commenter also suggests that ``small 
rural wireless carriers will receive a lower priority from large 
carriers in conducting negotiations,'' and another similarly avers that 
``small, rural carriers will receive a lower priority than negotiations 
with larger providers'' impacting their ability to timely comply.
    7. One commenter in particular also emphasized the monetary impact 
on rural providers of the current compliance timeline, and argues 
extending the timeline for implementation would allow for more cost-
effective compliance. A commenter states many of the same concerns, and 
asserts that its own ongoing experience has yielded negotiation efforts 
that ``significantly exceed[ ] the Commission's . . . estimate'' and 
that implementation and testing ``requires tens of dozens of hours or 
more of dedicated network engineer time for each and every potential 
RuD partner.'' It also expresses concern that timely compliance may be 
a challenge, and perhaps contrary to national security considerations, 
where a provider with whom an RuD is to be negotiated is subject to 
``Rip and Replace'' obligations due to the presence of Chinese-
manufactured network equipment.
    8. As to the Report and Order's use of ``small'' and ``non-small'' 
designations to assign differing compliance timeframes, commenters 
support the Petition's request to replace these designations with ``the 
long-standing and well-understood definitions of `nationwide' and `non-
nationwide' wireless providers in the context of wireless 9-1-1 
accuracy.'' Others call the Commission's non-small and small 
distinctions of providers too ``narrow'' and do not find that the 
definitions can ``recognize the extent of the burden the new rules will 
place on small and regional providers that may have 1,500 or more 
employees . . . but [will still] be challenged to achieve compliance 
within the deadlines imposed by the [Report and Order].'' A commenter 
also asserts that companies like itself that have large employee counts 
across affiliated businesses may in reality only have small resources 
attached to their telecommunications-specific enterprises.
    9. Decision. The Order on Reconsideration agrees with Petitioners 
and commenters that an extension of time is warranted in order for 
providers to timely implement elements of the MDRI. For the reasons 
discussed below, the Order on Reconsidration establishes a single, date 
certain of May 1, 2024, for compliance with all elements of the MDRI 
regardless of the size of the provider (in the unlikely event that PRA 
review remains pending on May 1, 2024, set the compliance date for all 
elements of the MDRI will be 30 days following publication of an 
announcement that OMB review is completed).
    10. As the record reflects, some providers will likely need 
additional time to coordinate with other providers, conduct testing, 
and establish new mutual aid relationships. As Petitioners and 
commenters also note, certain elements of the MDRI require expenditure 
of more time and effort initially compared to later on when these 
agreements and arrangements will be more established and routine. As 
such, while the Commission is persuaded that a reasonable extension is 
appropriate to accommodate the concerns expressed by providers, we do 
not believe that the lengthy extension requested is justified or 
necessary, and may unreasonably delay the benefits of the MDRI. The 
Order on Reconsideration finds that a May 1, 2024 compliance date 
should afford providers more flexibility to allocate their resources to 
meet the MDRI's requirements while still supporting the need for prompt 
execution of these agreements and responsibilities in support of 
disaster response and preparedness.
    11. In particular, the Commission finds that the Petitioners' full 
requested timeframes would unreasonably delay the benefits of the MDRI, 
and would likely result in a compliance date more than two and a half 
years from the adoption of the Report and Order for most providers, 
eclipsing not only the 2023 hurricane season (defined as from June 1 to 
November 30) and the 2023

[[Page 5107]]

wildfire season (generally during the summer months, or later in 
Western states) but the entirety of hurricane and wildfire seasons in 
2024 as well. This would place wireless consumers impacted by these 
disaster scenarios at greater risk for being unable to reach 911, call 
for help, or receive emergency information and assistance. While there 
are costs associated with these obligations both in terms of monetary 
and other resource commitments for subject providers, the Commission 
continues to find that the benefits outweigh these costs. The timeframe 
requested by Petitioners, moreover, unreasonably dilutes those benefits 
in a context in which prompt action is likely to save lives and 
property.
    12. In setting a single deadline, the Order on Reconsideration 
further finds the distinction between small and non-small providers is 
no longer necessary to perpetuate for two reasons. First, whereas non-
small providers were originally afforded 6 months (March 30, 2023) and 
small providers were afforded 9 months (June 30, 2023) initially 
providing different compliance dates based on provider size, the Report 
and Order contemplated a singular date if OMB review were delayed 
beyond these timeframes. As OMB has not yet completed its review at the 
time of the Report and Order, the singular date contingency had 
materialized. Second, the Order on Reconsideration finds this outcome 
largely consistent with the ultimate outcome advocated by Petitioners 
when their requests are taken as a whole. That is, if one accepted 
Petitioners' request to use nationwide/non-nationwide distinctions for 
purposes of the MDRI and clarified that in all instances where a 
nationwide and non-nationwide provider were parties to a negotiation 
warranted a longer compliance timeframe, this would result in virtually 
all negotiations being subject to the longer timeframe except in those 
very few instances when a nationwide provider is negotiating with 
another nationwide provider. It is far simpler, and equally equitable, 
to provide a common timeframe across all scenarios.
    13. Commenters further note that additional time has been afforded 
to small providers for compliance in other contexts, e.g., with respect 
to certain E911 and Wireless Emergency Alert (WEA) obligations. The 
Order on Reconsideration finds those examples inapposite here. In the 
E911 and WEA context, newly required obligations involved the potential 
for network modifications and upgrades or equipment availability in a 
way that is not present or relevant here.
    14. The Petition and related comments further argue that the 200-
hour estimate provided by the Commission did not properly account for 
the amount of time and resources necessary for entering into multiple 
bilateral RuD and mutual aid arrangements and to complete roaming 
testing. In particular, Petitioners and commenters claim that the 
estimate does not properly account for the complexity of negotiating 
and executing the required arrangements for many regional and local 
providers, e.g., providers may have to negotiate arrangements and 
complete roaming testing with a large number of providers, some 
providers do not have existing agreements with other providers and may 
need to address unanticipated complexities or include terms unique to 
certain disaster contexts, and some providers lack the resources to 
negotiate agreements and conduct testing with multiple providers at the 
same time.
    15. The Order on Reconsideration disagrees with Petitioners' view 
that the Commission did not appropriately account for the level of 
likely burden on providers in the Report and Order. In reaching its 
conclusion, the Report and Order specifically took into account 
assertions by small and regional entities regarding actions already 
undertaken to engage in storm preparation, information and asset 
sharing as well as their assertions that many ``already abide'' by the 
principles on which the MDRI is based, concluding that setup costs 
would be limited, and otherwise noting examples in the record around 
existing efforts, time and resources expended in support of the 
activities codified in the MDRI. As such, it was reasonable to assume 
that providers existing engagements could be levied in support of these 
obligations, and accordingly providing a reasoned estimate associated 
with the actions required by regional and local providers to update or 
revise their existing administrative and technical processes to conform 
to processes required the MDRI. Further, the Report and Order noted the 
lack of record comment regarding recurring costs. As such, we do not 
believe the Report and Order erred in its conclusion.
    16. However, even taking as true Petitioners assertion that the 
Report and Order miscalculated the burden, and considering the 
additional arguments presented regarding complexity and limited 
resources and the possible need to negotiate serially, the Order on 
Reconsideration finds the extension granted accounts for the additional 
burdens that Petitioner and commenters have asserted (the date 
extension for implementation of the MDRI should address concerns 
surrounding small providers and the 200-hour estimated burden).
    17. Petitioners also argue that the Commission has departed from 
its own precedent by establishing a compliance deadline for entering 
into roaming agreements. The Order on Reconsideration disagrees and 
finds that there is a compelling public interest in ensuring the 
availability of networks during a disaster justifies the need for an 
established deadline. An open-ended timeframe in this regard also fails 
to take into account the need to enhance and improve disaster and 
recovery efforts on the ground in preparation for, during, and in the 
aftermath of disaster events, including by increasing predictability 
and streamlining coordination in recovery efforts among providers.
    18. Additional Small Provider Considerations. The Order on 
Reconsideration also finds that the bargaining inequity posited by 
smaller providers in their comments with respect to the roaming 
arrangements and mutual aid agreements is also mitigated by the 
extension granted. Moreover, RuDs and mutual aid agreements in this 
context are required to adhere to a reasonableness standard, with 
negotiations conducted in good faith, with disputes and enforcement 
provided for before the Commission. The Order on Reconsideration finds 
that these safeguards adequately address these concerns. With respect 
to the argument that small providers in particular may need to conduct 
negotiations serially rather than simultaneously due to resource 
constraints, the Commission does not find that this circumstance alone 
prevents timely compliance, and Petitioners and commenters do not 
provide sufficient evidence that sequential negotiations for some 
subset of providers requires industry-wide revisions of compliance 
timeframes. Moreover, the extension of time should accommodate the need 
for smaller providers to serially negotiate if necessary.
    19. Rip and Replace. As to the possibility that a provider's need 
to complete ``Rip and Replace'' activities prior to implementing or 
completing initial testing of RuD or mutual aid arrangements under the 
MDRI could delay timely compliance, the Commission expect that these 
instances are specific enough to be addressed in a petition for waiver, 
in response to which the Bureau could consider whether special 
circumstances justify an appropriate delay.

[[Page 5108]]

    20. Related Requests for Clarification. Finally, in establishing 
the singular compliance date for all facilities-based mobile wireless 
providers, it is unnecessary to address Petitioners' other requests. In 
particular, the Petitioners' request the Commission reconsider its use 
of ``small'' versus ``non-small'' delineations preferring the use of 
``nationwide'' and ``non-nationwide'' as used in the 911 context 
instead. However, the adoption of a unified implementation timeline for 
all providers makes differentiating between providers irrelevant. 
Similarly, their request for clarification as to the applicable 
timeframes when parties to an RuD arrangement or roaming testing 
include one small and one non-small provider is also unnecessary, as 
all providers are subject to the same revised compliance date. While 
the Commission also disagrees that the compliance timeframes adopted in 
the Report and Order are in any way unclear, and therefore that the 
Commission should ``reaffirm'' the applicability of the PRA timeframes 
to particular provisions of the rule, the Order on Reconsideration 
grants dispensation to all parties by extending the May 1, 2024, 
compliance date to all provisions of Sec.  4.17. (To the extent 
providers have professed disagreement or confusion as to the 
applicability of the PRA to a particular element of Sec.  4.17, we 
forbear from enforcement action for any violations that may have 
occurred during the pendency of the Petition and until the new 
compliance date occurs.) It should be noted that Sec.  4.17(e) 
previously set forth a separate compliance date for the requirement to 
enter into mutual aid arrangements, but in modifying the implementation 
timing and to provide clarity, the Commission finds it most logical for 
all elements of the MDRI to have the same timing (see para. 25, supra, 
``Providers must have mutual aid arrangements in place within 30 days 
of the compliance date of the MDRI''). In the Order on Reconsideration, 
the Commission eliminates the distinction between the mutual aid 
arrangement requirement and the other requirements under the MDRI to 
provide clarity and simplicity for implementation. In doing so, the 
Commission provides a clear date to eliminate confusion, give providers 
extra time for implementation and provide certainty not only to 
Petitioners and commenters as to the scope and timing of their 
obligations, but to the public safety and related incident planning and 
response organizations that support communities during disasters, and 
the public that relies on these networks. Petitioners' other argument 
that the entire rule implicates PRA shall be resolved through the PRA 
process.

B. List of Providers Subject to the MDRI

    21. The Petitioners ask that the Commission ``[p]rovide a list of 
potential facilities-based mobile wireless providers to which the MDRI 
may apply, so that providers can determine with more certainty the 
scope of their obligation to execute Roaming under Disaster (`RuD') 
arrangements with all `foreseeable' wireless providers.'' Further, 
Petitioners ask the Commission to ``publish the list on the FCC's 
website'' and request that they ``update the list on a regular basis.'' 
As detailed below, the existing public information published by the 
Commission in connection with its Form 477 information collections and 
available to Petitioners and other providers adequately identify those 
potentially subject to the MDRI. This resource coupled with other 
public information available to Petitioners, as well as the additional 
clarification we offer below on when roaming may be ``foreseeable'' for 
MDRI purposes, provides adequate clarity in the Commission's view for 
Petitioners to execute their obligations.
    22. Background. Petitioners argue that providers need a Commission-
generated list to ensure they are engaging with all other providers for 
required RuDs, mutual aid agreements, and testing of roaming under 
Sec.  4.17. The Petition states that a failure to do so frustrates both 
providers and the Commission's goals of the Report and Order and 
creates a challenge to determining whether providers have reached 
compliance with the MDRI. In particular, they assert that they have 
spent resources on determining foreseeable roaming partners using the 
Commission's estimated number of applicable providers as specified in 
the Report and Order, but were only able to identify fewer than half of 
the 63 providers referenced.
    23. Comments. In support the Petition, commenters contend that 
while roaming is foreseeable ``when two providers' geographic coverage 
areas overlap,'' there is an issue with small carriers who may know the 
``identity of competing service providers in their territory, [but] may 
not have an existing business relationship with them, and . . . may not 
know the appropriate legal and/or technical personnel who are 
responsible for implementing roaming and mutual aid discussions.'' 
Commenters agree that the list is necessary to ``avoid ambiguity when 
implementing the MDRI, streamline the initial contact process, [and] 
clarify regulatory obligations for large and small carriers alike.'' 
They recommend that the Commission compile the initial list and allow 
providers to identify appropriate points of contact and to update the 
list if providers implement new technology, merge with or are acquired 
by another service provider, or stop offering mobile wireless service. 
They further suggest that the Commission's Disaster Information 
Reporting System (DIRS) might serve as a model for collecting and 
maintaining contact information. In particular, DIRS, ``provides 
communications providers with a single, coordinated, consistent process 
to report their communications infrastructure status information during 
disasters and collects this information from wireline, wireless, 
broadcast, cable, interconnected VoIP and broadband service 
providers.'' Another commenter similarly concludes that an ``official 
and continually updated resource of contact information would 
streamline the process and clarify obligations for all providers.''
    24. Discussion. The Commission is not persuaded that a Commission-
maintained list specifically for this purpose is the most efficient and 
effective means for providers to identify those other facilities-based 
mobile wireless providers subject to the MDRI. Petitioners assert that 
they were unable to identify a full roster of facilities-based mobile 
providers based on the Commission's estimate that 63 facilities-based 
mobile wireless providers that are not signatories to the Wireless 
Resiliency Cooperative Framework would be required to undertake certain 
activities to comply with the new rule. Specifically, they assert that 
``several of the Petitioners' members have worked in good faith, and 
expended resources and time, through Petitioners and the companies' 
established business channels, to compile information on the relevant 
points of contact and subject matter experts for their respective 
companies and identify contact information for all providers subject to 
these new requirements'' but that they ``have been able to identify 
fewer than half of the 63 facilities-based providers that the Resilient 
Networks Order identifies as subject to the MDRI rules.'' Because they 
were unable to do so, they argue this should obligate the Commission to 
take on the responsibility of identifying and maintaining a list of 
providers subject to the MDRI. However, the information used to provide 
this estimate in the Report and Order is readily available to 
providers.

[[Page 5109]]

    25. In estimating the number of providers subject to the MDRI, the 
Report and Order relied on data on the number of entities derived from 
2022 Voice Telephone Services Report (VTSR). The information from the 
VTSR is derived from Form 477 filings made with Commission. The 
Commission already publishes the underlying list of Form 477 ``Filers 
by State'' and periodically updates this information. This pre-existing 
tool identifies, on a state-by-state basis, those filers subject to 
Form 477 filing obligations; those marked as ``mobile voice'' providers 
make up the total utilized by the Commission to estimate those subject 
to the MDRI. The Commission believes a simple sorting of this 
information, coupled with a provider's own knowledge of its particular 
service area, provides sufficient basis for a provider to (1) identify 
the providers subject to the MDRI; and (2) identify the relevant 
providers within this set with whom they should engage under the MDRI 
for establishing RuDs and mutual aid agreements. For example, the 
Report and Order makes clear that ``each facilities-based mobile 
wireless provider [shall] enter into mutual aid arrangements with all 
other facilities-based mobile wireless providers from which it may 
request, or receive a request for aid during emergencies.'' Utilizing 
the ``Filers by State'' tool, as well as their geographic knowledge of 
their own service area, past emergencies, and business relationships, 
it should be similarly clear to providers which other providers they 
could potentially receive or request aid from during an emergency.
    26. Foreseeability. To provide additional guidance, the Order on 
Reconsideration also delineates additional context for considering when 
it may be ``foreseeable'' for a provider to need to roam onto another 
provider's network under an RuD. In terms of foreseeability for RuD 
purposes, the Commission continues to find that a particular provider 
is in the best position to know with which other providers its coverage 
area overlaps. In identifying foreseeable roaming partners, a provider 
should be able to leverage the information about its own coverage to 
reasonably predict which other providers may wish to enter into 
bilateral roaming arrangements or mutual aid agreements from publicly 
available service area maps, information in the Commission's Universal 
Licensing System (ULS), utilizing an internet search or other research 
sources to identify local providers. Indeed, providers have clear 
competitive incentives to familiarize themselves with competing 
providers who cater to their geographic area and consumers. In this 
respect, providers subject to the MDRI could, by way of example, reach 
out to all providers who are within their geographic service area to 
help satisfy this obligation. Some commenters appear to concede that 
geographic overlap is sufficient to understand what constitutes 
``foreseeable'' roaming, only citing as an impediment to MDRI 
implementation that providers may not already have an existing 
relationship with each other.
    27. Contact information. With respect to the need to identify 
contacts and establish relationships, nothing in the Report and Order 
prevents providers from making such information available of their own 
accord on a website or other such resource. In this respect, the bi-
lateral nature of the roaming and mutual aid obligations also dictates 
that providers will be reaching out to each other, providing multiple 
avenues for mutual identification. As such, the Order on 
Reconsideration does not find that the Commission is in a better 
position than the individual providers to accumulate, collect, or 
maintain this information.
    28. Moreover, as the some commenters acknowledge, instituting a 
process for Commission collection and dissemination of this data may 
have PRA or other privacy implications. The Order on Reconsideration 
finds that this effort could unreasonably delay the MDRI's 
implementation, particularly when the alternative is achievable with 
little burden. It is simpler, more efficient and more logical that 
providers use existing knowledge of their geographic coverage area, 
geographic competitors, and existing business relationships to begin 
implementation immediately without the need for undue delay by waiting 
for the Commission to re-organize information on an industry-wide basis 
that already exists with the providers themselves.
    29. The Commission continues to find that the Report and Order 
requirement for each facilities-based mobile wireless provider to enter 
into bilateral roaming agreements with all other facilities-based 
mobile wireless providers from which it may foreseeably request roaming 
privileges, or that may foreseeably request roaming privileges from it, 
when the MDRI is active, to be a reasonable basis by which providers 
can identify potential RuD partners. And while the Report and Order is 
clear that roaming is foreseeable, without limitation, when two 
providers' geographic coverage areas overlap, we refine this 
explanation to acknowledge that radio frequency propagation may result 
in some variables as to coverage area contours. In this respect, 
coverage areas in this context overlap where a provider ``knows or 
reasonably should have known'' that its ``as-designed'' network service 
area overlaps with the service area of another provider. For instance, 
a provider should be able to reasonably predict which other providers 
may wish to enter into bilateral roaming agreements or mutual aid 
agreements from publicly available service area maps, information in 
the Commission's Universal Licensing System (ULS), utilizing an 
internet search or other research sources to identify local providers, 
being aware of competing providers who cater to their geographic area 
and consumers, or other similar engagements.

C. Notification of MDRI Activation

    30. The Petition requests that the Commission ``[e]stablish the 
process that [the Bureau] will use to inform facilities-based wireless 
providers that [the] MDRI is active, including by providing notice via 
email to facilities-based wireless providers.'' Petitioners argue that 
``it is critical that all facilities-based wireless providers are 
immediately aware of such an activation through automatic electronic 
notifications.'' They further state that the Commission already uses a 
similar process to notify providers of the activation of its Disaster 
Information Reporting System (DIRS). As described below, we decline to 
establish a specific mechanism to provide direct alerts for MDRI 
activation. Rather, the Order on Reconsideration finds the existing 
widely utilized and public notification mechanisms sufficient to afford 
prompt notice of MDRI activation.
    31. Background. The MDRI is activated when (i) any entity 
authorized to declare Emergency Support Function 2 (ESF-2) activates 
ESF-2 for a given emergency or disaster, (ii) the Commission activates 
the Disaster Information Reporting System (DIRS), or (iii) the 
Commission's Chief of the Public Safety and Homeland Security Bureau 
issues a Public Notice activating the Mandatory Disaster Response 
Initiative (MDRI) in response to a state request to do so, where the 
state has also either activated its Emergency Operations Center, 
activated mutual aid or proclaimed a local state of emergency. The 
Report and Order delegated authority to the Bureau to issue a Public 
Notice effectuating the MDRI under these circumstances but did not 
provide a specific manner in which the Commission might otherwise 
notify providers.

[[Page 5110]]

    32. Comments. Some commenters agree Petitioners' request for the 
Commission to base its notice procedures for the MDRI's activation ``on 
the practice currently used for activating the Disaster Information 
Reporting System [(DIRS)] . . . [citing the importance] that all 
facilities-based wireless providers are made aware of such an 
activation.'' One commenter further opines that small providers would 
have the flexibility to ``designate multiple points of contact to 
receive such notices,'' which would ensure that providers are aware of 
activation and could act accordingly. Another commenter is also in 
agreement, explaining that ``the FCC should . . . provide notice of 
activation . . . directly by email from [PSHSB] staff to designated 
carrier points of contact.''
    33. Discussion. The Petitioners claim that automatic electronic 
notification is necessary to (1) make sure that all facilities-based 
wireless providers are immediately aware of the MDRI activation and to 
(2) provide small wireless providers with the flexibility to designate 
multiple points of contact to receive notice of the MDRI activation, 
which will ensure the effectiveness of the system. The Commission is 
not persuaded that obligating the Commission to notify providers 
subject to the MDRI directly of its activation through electronic 
notification is necessary, and decline to modify the Report and Order 
in this regard.
    34. In so deciding, the Commission notes that the Petition's 
comparison to DIRS operating procedures is not applicable in this 
instance. Unlike MDRI activations, DIRS is a voluntary reporting system 
where the responsibility and decision to report information sits with 
the providers themselves and not the Commission. While the Bureau 
similarly issues a Public Notice when DIRS is activated, sharing DIRS 
activation status, like the email notification provided to DIRS 
registrants, is merely a courtesy incidental to the purpose of the 
system. The primary mechanism remains the Public Notice, and the 
various routine publication and distribution venues employed for all 
Commission documents such as the Daily Digest and the Commission 
website. While the Order on Reconsideration declines to require it 
here, the Commission fully anticipates that the Bureau would similarly 
employ additional methods when available and appropriate to the 
circumstance to widely disseminate information regarding MDRI 
activation.
    35. While the Commission agree that it is in the public interest to 
broadly publicize MDRI activation, existing pathways are sufficient as 
they are now and providers hold the primary responsibility to be aware 
of their obligations. As such, the Order on Reconsideration declines to 
revise our determination that a Public Notice issued by the Bureau is 
appropriate legal notice triggering MDRI obligations. However, to the 
extent that DIRS or NORS may be able to provide a relevant vehicle for 
the Bureau to provide courtesy MDRI activation notice, the Order on 
Reconsideration directs the Bureau to consider its feasibility.

D. Confidential Treatment of RuDs

    36. Background. The Petitioners ask the Commission to affirm that 
it ``will treat RuD arrangements provided under Sec.  4.17(d) as 
presumptively confidential.'' In particular, Petitioners claim that 
presumptive confidentiality for RuDs is appropriate because (1) the 
RuDs contain commercially sensitive and proprietary information that 
providers customarily treat as confidential; (2) the Commission treats 
roaming agreements as presumptively confidential under the existing 
data-roaming rules; and (3) the Commission treats analogous information 
submissions as presumptively confidential. Blooston Rural Carriers also 
favor a presumption of confidentiality. The Order on Reconsideration 
agrees, and clarifies that such submissions will be treated as 
presumptively confidential.
    37. Discussion. Under the Report and Order, RuDs are not routinely 
submitted and are provided to the Commission only on request. As such, 
the Commission found it sufficient to consider confidentiality of such 
submissions on an ad hoc basis when requested by a submitting party. 
Petitioners correctly point out, however, that submissions to the 
Commission of data roaming agreements are afforded presumptively 
confidential treatment, and they further argue that RuDs may be 
incorporated into broader roaming arrangements. (See Reexamination of 
Roaming Obligations of Commercial Mobile Radio Service Providers and 
Other Providers of Mobile Data Services, Second Report and Order, 26 
FCC Rcd 5411, 5450, para. 79 (2011) (``[I]f negotiations fail to 
produce a mutually acceptable set of terms and conditions, including 
rates, the Commission staff may require parties to submit on a 
confidential basis their final offers, including price, in the form of 
a proposed data roaming contract.'') They also assert that such 
treatment for both RuDs and mutual aid agreements would be consistent 
with the treatment for outage information supplied under other 
provisions of the Commission's part 4 rules. The Order on 
Reconsideration concurs that RuD submissions are likely to contain the 
same types of sensitive trade secret or commercial and financial 
information we have found in other contexts to merit such a 
presumption. As such, the Commission reconsiders its prior ad hoc 
approach, and will afford a presumption of confidentiality to RuDs 
filed with the Commission.

II. Procedural Matters

A. Paperwork Reduction Act

    38. This document does not contain new or substantively modified 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does 
not contain any new or modified information collection burden for small 
business concerns with fewer than 25 employees, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4). This document may contain a non-substantive and non-
material modification of information collection requirements that are 
currently pending review by the Office of Management and Budget (OMB). 
Any such modifications will be submitted to OMB for review pursuant to 
OMB's non-substantive modification process.

B. Congressional Review Act

    39. The Commission has determined, and the Administrator of the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), 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 the Report and Order to Congress and the Government 
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

C. Supplemental Final Regulatory Flexibility Analysis

    40. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (Resilient Networks 
Notice) released in October 2021. The Commission sought public comment 
on the proposals in these dockets in the Resilient Networks Notice. No 
comments were filed addressing the IRFA. In the Resilient Networks 
Report and Order and Further Notice of Proposed released in July 2022 
(Report and Order) the Commission prepared a Final Regulatory 
Flexibility Analysis (FRFA) and sought written

[[Page 5111]]

comments on the FRFA. No comments were filed addressing the FRFA. In 
October 2022, the Cellular Telecommunications and internet Association 
(CTIA) and the Competitive Carriers Association (CCA) (collectively, 
Petitioners) filed a Petition for Clarification and Partial 
Reconsideration (Petition) of the Report and Order which included 
issues impacting small entities. Several parties filed comments in 
response to the Petition. A summary of the relevant issues impacting 
small entities in the Petition, comments and addressed in the Order on 
Reconsideration are detailed below. This Supplemental Final Regulatory 
Flexibility Analysis (Supplemental FRFA) reflects actions taken in the 
Order on Reconsideration, supplements the FRFA included with the Report 
and Order, and conforms to the RFA.

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

    41. In the Report and Order, the Commission adopted rules that 
require all facilities-based mobile wireless providers to comply with 
the Mandatory Disaster Response Initiative (MDRI), which codified the 
Wireless Network Resiliency Cooperative Framework (Framework) agreement 
developed by the wireless industry in 2016 to provide mutual aid in the 
event of a disaster, and expand the events that trigger its activation. 
(The Framework commits its signatories to compliance with the following 
five prongs: (1) providing for reasonable roaming arrangements during 
disasters when technically feasible; (2) fostering mutual aid during 
emergencies; (3) enhancing municipal preparedness and restoration; (4) 
increasing consumer readiness and preparation, and (5) improving public 
awareness and stakeholder communications on service and restoration 
status. Under the Report and Order's amended rules, the Mandatory 
Disaster Response Initiative incorporates these elements, the new 
testing and reporting requirements and will be activated when any 
entity authorized to declare Emergency Support Function 2 (ESF-2) 
activates ESF-2 for a given emergency or disaster, the Commission 
activates the Disaster Information Reporting System (DIRS), or the 
Commission's Chief of Public Safety and Homeland Security issues a 
Public Notice activating the MDRI in response to a state request to do 
so, where the state has also either activated its Emergency Operations 
Center, activated mutual aid or proclaimed a local state of emergency.)
    42. The Report and Order also implemented new requirements for 
testing of roaming capabilities and MDRI performance reporting to the 
Commission. These actions were taken to improve the reliability, 
resiliency, and continuity of communications networks during 
emergencies. Further, the requirements uniformized the nation's 
response efforts among facilities-based mobile wireless providers who 
prior to the Report and Order, implemented the Framework on a voluntary 
basis. Recent weather events and other natural disasters such as 
Hurricane Ida, hurricanes and earthquakes in Puerto Rico, severe winter 
storms in Texas, and hurricane and wildfire seasons generally, continue 
to demonstrate the continued susceptibility of the United States' 
communications infrastructure to disruption during such events. 
Accordingly, the Commission's adoption of the MDRI requirements in the 
Report and Order sought to implement the appropriate tools to promote 
public safety, improve reliability of the telecommunications 
infrastructure during emergency events, improve provider accountability 
as well as increase Commission awareness.
    43. In the Order on Reconsideration, in response to Petitioners' 
and commenters' request for an extension of time for implementing 
roaming arrangements and mutual aid agreements, the Commission provided 
an extension for all providers, regardless of size, and implement a 
single, uniform compliance date of May 1, 2024, for all providers to 
comply with Sec.  4.17. With this extension the Commission eliminates 
the distinction between small and non-small providers as previously 
distinguished in the Report and Order. Whereas small providers had 
originally been granted a longer timeline of nine months for 
implementation in comparison to the six months granted for non-small 
providers in the Report and Order, on reconsideration the extension we 
grant will result in all providers having almost two years from the 
date of publication of Report and Order in the Federal Register to 
comply with the relevant MDRI requirements. Further, the extension 
should allow small providers the additional time to manage resources 
and take the other necessary steps to meet these requirements. 
Additionally, the Commission has and continues to encourage large 
providers to assist small providers with the implementation process, 
and believes the rules as clarified in the Order on Reconsideration 
continue to take into account the unique interests of small entities as 
required by the RFA.
    44. The Order on Reconsideration also furthers the Commission's 
efforts to address the findings of the Government Accountability Office 
(GAO) concerning wireless network resiliency. As we discussed in the 
Report and Order, in 2017, the GAO, in conjunction with its review of 
federal efforts to improve the resiliency of wireless networks during 
natural disasters and other physical incidents, released a report 
recommending that the Commission should improve its monitoring of 
industry efforts to strengthen wireless network resiliency. The GAO's 
conclusion that more robust measures and a better plan to monitor the 
Framework would help the FCC collect information on the Framework and 
evaluate its effectiveness resulted in several inquiries and 
investigations by the Bureau to better understand and track the output 
and effectiveness of the Framework, and other voluntary coordination 
efforts that promote wireless network resiliency and situational 
awareness during and after weather events and other emergencies. 
(Following Hurricane Michael, for example, the Bureau issued a report 
on the preparation and response of communications providers finding 
three key reasons for prolonged outages during that event: 
insufficiently resilient backhaul connectivity; inadequate reciprocal 
roaming arrangements; and lack of coordination between wireless service 
providers, power crews, and municipalities.) The Commission's actions 
on reconsideration to move forward with the MDRI requirements adopted 
the Report and Order continue to further the Commission's monitoring, 
oversight and efforts to improve wireless network resiliency by the 
industry.

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

    45. There were no comments filed that specifically address the 
proposed rules and policies in the IRFA. However, as we mention above, 
in response to the final rules adopted in the Report and Order, the 
CTIA and CCA Petition and comments were filed involving issues 
impacting small entities. Specifically, the Petitioners requested that 
the Commission align the definitions of `non-small facilities-based' 
and `small facilities-based' mobile wireless providers with the 
Commission's existing definitions of `nationwide' and `non-nationwide' 
wireless providers applied in the 9-1-1 context, clarify the small 
provider

[[Page 5112]]

compliance date applies when parties to a negotiation include one small 
and one non-small provider, and extend the deadline for implementing 
the new MDRI requirements for small and other wireless providers. 
Regarding these requests, the compliance deadline extension adopted in 
the Order on Reconsideration negated the need for the Commission to 
rule on the other two requests.
    46. Petitioners also requested that the Commission publish and 
maintain a list of providers subject to the MDRI, provide direct, 
individual notification to providers when the MDRI is activated, and 
treat as confidential on a presumptive basis provider Roaming under 
Disaster arrangements (RuDs). In the Order on Reconsideration, the 
Commission determined that only confidential treatment on a presumptive 
basis for provider RuDs is warranted and decline to adopt further 
revisions. Specifically, the Commission declined to adopt the 
Petitioners' and commenters' other requests first finding that having 
the Commission maintain and publish a list is neither an efficient or 
effective way for providers to identify other facilities-based wireless 
providers who are subject to the MDRI. Second, the COmmission continue 
to maintain the view that awareness of MDRI activation is the 
responsibility of providers, and having the Bureau issue notice via a 
Public Notice is sufficient.

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

    47. The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.

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

    48. 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.
    49. As noted above, a FRFA was incorporated in the Report and 
Order. In the FRFA, the Commission described in detail the small 
entities that might be significantly affected by the Report and Order. 
Accordingly, in this Supplemental FRFA, the Commission adopted by 
reference from the Report and Order the descriptions and estimates of 
the number of small entities that might be impacted by the Order on 
Reconsideration.

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

    50. The requirements from the Report and Order the Commission 
upholds on reconsideration in today's Order on Reconsideration will 
impose new or modified reporting, recordkeeping and/or other compliance 
obligations on small entities. The rules require all facilities-based 
mobile wireless providers to make adjustments to their restoration and 
recovery processes, including contractual arrangements and public 
outreach processes, to account for MDRI. The mutual aid, roaming, 
municipal preparedness and restoration, consumer readiness and 
preparation, and public awareness and stakeholder communications 
provisions codified and implement the flexible standard in voluntary 
Framework developed by the industry. In accordance with the Safe Harbor 
provision we adopted in the Report and Order, pursuant to Sec.  1.16 of 
the Commission's rules providers maintain the ability to file a letter 
in the any of dockets associated with this proceeding asserting that 
they are in compliance with the Framework's existing provisions, and 
have implemented internal procedures to ensure that it remains in 
compliance with the provisions. Further, small and other providers 
remain obligated to comply with the provision from the Report and Order 
that expands the events that trigger its activation and that require 
providers test and report on their roaming capabilities to ensure that 
the MDRI is implemented effectively and in accordance with the 
Commission's rules.
    51. On reconsideration, the modifications in the Order on 
Reconsideration did not impact or change the cost of compliance 
analysis and estimates for small and other providers made in the Report 
and Order and therefore, the Commission does not repeat them. As we 
discussed in the initial FRFA in this proceeding, the MDRI rules only 
apply to facilities-based mobile wireless providers, which included 
small entities as well as larger entities. The Commission has not 
developed a small business size standard directed specifically toward 
these entities. However, in our cost estimate discussion in the Report 
and Order, we estimated costs based on Commission data that there are 
approximately 63 small facilities-based mobile wireless providers and 
these entities fit into larger industry categories that provide these 
facilities or services for which the SBA has developed small business 
size standards.
    52. The Commission maintains its conclusion that the benefits of 
participation by small and other providers likely will exceed the costs 
for affected providers to comply with the rules adopted in the Report 
and Order. As recommended in the Report and Order, the Commission 
encourages non-small providers to assist smaller providers who may not 
have present aid and roaming arrangements. The Commission also 
acknowledges concerns commenters that smaller and more rural providers 
may not have the same resources or time to commit to implementation of 
the MDRI and the Petition's concern that smaller providers might need 
to hire additional staff or spend limited resources on external support 
to execute these arrangements and manage them in an ongoing manner, but 
the Commission believes granting an extension of time for compliance 
allows providers of all sizes the necessary timeline for achieving 
implementation, even on an individualized basis for each agreement that 
needs to be arranged. The Order on Reconsideration also maintains that 
the substantial benefits attributable to improving resiliency in 
emergency situations and the significant impact that is likely to 
result in the health and safety of the public during times of natural 
disasters, or other unanticipated events that could impair the 
telecommunications infrastructure and networks, cannot be overstated.

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

    53. The RFA requires an agency to provide, ``a description of the 
steps the agency has taken to minimize the significant economic impact 
on small entities . . . including a statement of the factual, policy, 
and legal reasons for selecting the alternative adopted in the final 
rule and why each one of the other significant alternatives to the rule 
considered by the agency which affect the impact on small entities was 
rejected.''
    54. The Commission took several steps in the Order on 
Reconsideration that should minimize the economic impact of compliance 
with the Report and Order for small entities. On

[[Page 5113]]

reconsideration the Commission granted an extension of time for small 
entities to comply with all of the provisions of the MDRI. The Order on 
Reconsideration adopted a uniform compliance date for all providers 
which results in approximately twenty months (almost two full years) 
from the Federal Register publication to implement the requirements. 
This extension accounts for the resource concerns expressed by 
Petitioners, while maintaining the important role the MDRI requirements 
play in facilitating the ability of the American public to call for 
help, and receive emergency information and/or assistance during 
natural disasters, and other emergency situations. The Commission also 
granted a presumption of confidentiality for filed RuDs which 
eliminates the additional step for small entities of having to submit a 
request for confidential treatment under Sec.  0.459 of the 
Commission's rules when filing an RuD with the Commission when 
requested. As discussed above, in the Order on Reconsideration the 
Commission considered the other alternatives in the Petitioners' 
request for clarification and/reconsideration and we declined to adopt 
any of those approaches. The Commission was not persuaded that the 
increased Commission involvement, expenditure of Commission resources, 
and the undue delay in implementing the MDRI which would have occurred 
had we adopted the alternatives requested by Petitioners and commenters 
was in the public interest, or outweighed the benefits of moving 
forward with the MDRI requirements as adopted in the Report and Order.

III. Ordering Clauses

    52. Accordingly, it is ordered, pursuant to sections 1, 4(i), 4(j), 
4(n), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 
309(a), 316, 332, 403, 405, 615a-1, and 615c of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 154(n), 201(b), 
214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 
332, 403, 405, 615a-1, and 615c, and Sec.  1.429 of the Commission's 
rules, 47 CFR 1.429, that this Order on Reconsideration is adopted.
    53. It is further ordered that Part 4 of the Commission's rules, 47 
CFR part 4, is amended as set forth in the Appendix, and that such rule 
amendments shall be effective 30 days after publication in the Federal 
Register.
    54. It is further ordered that the Office of the Managing Director, 
Performance Program Management, shall 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, 5 
U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 4

    Airports, Communications common carriers, Communications equipment, 
Reporting and recordkeeping requirements, 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 continues to read as follows:

    Authority: 47 U.S.C. 34-39, 151, 154, 155, 157, 201, 251, 307, 
316, 615a-1, 1302(a), and 1302(b); 5 U.S.C. 301, and Executive Order 
no. 10530.


0
2. Amend Sec.  4.17 by revising paragraph (e) to read as follows:


Sec.  4.17  Mandatory Disaster Response Initiative.

* * * * *
    (e) Compliance with the provisions of this section is required 
beginning May 1, 2024, or 30 days following publication of an 
announcement that OMB review is completed, whichever occurs later. The 
Commission will revise this section once the compliance date is 
established.

[FR Doc. 2023-28834 Filed 1-25-24; 8:45 am]
BILLING CODE 6712-01-P