Rule2022-19745
Disruptions to Communications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 30, 2022
Effective
October 31, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) takes steps to improve the reliability and resiliency of commercial wireless networks by codifying key provisions of the 2016 Wireless Resiliency Cooperative Framework (Framework). The Commission mandates key provisions of the Framework for all facilities- based wireless providers, expands the conditions that trigger its activation, adopts testing and reporting requirements, and codifies these modifications in a new "Mandatory Disaster Response Initiative" (MDRI).
Full Text
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[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Rules and Regulations]
[Pages 59329-59340]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19745]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 4
[PS Docket No. 21-346; PS Docket No. 15-80; ET Docket No. 04-35; FCC
22-50; FR ID 103483]
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) takes steps to improve the reliability and
resiliency of commercial wireless networks by codifying key provisions
of the 2016 Wireless Resiliency Cooperative Framework (Framework). The
Commission mandates key provisions of the Framework for all facilities-
based wireless providers, expands the conditions that trigger its
activation, adopts testing and reporting requirements, and codifies
these modifications in a new ``Mandatory Disaster Response Initiative''
(MDRI).
DATES: The final rule is effective October 31, 2022.
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 <a href="/cdn-cgi/l/email-protection#511423383a307f1e3d22343f113732327f363e27"><span class="__cf_email__" data-cfemail="8bcef9e2e0eaa5c4e7f8eee5cbede8e8a5ece4fd">[email protected]</span></a> or
Logan Bennett, Attorney-Advisor, Cybersecurity and Communications
Reliability Division, Public Safety and Homeland Security Bureau, (202)
418-7790 or via email at <a href="/cdn-cgi/l/email-protection#eaa6858d8b84c4a88f84848f9e9eaa8c8989c48d859c"><span class="__cf_email__" data-cfemail="7b37141c1a1555391e15151e0f0f3b1d1818551c140d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (RO), FCC 22-50, adopted June 27, 2022, and released July 6,
2022. The full text of this document is available by downloading the
text from the Commission's website at: <a href="https://docs.fcc.gov/public/attachments/FCC-22-50A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-50A1.pdf</a>. When the FCC Headquarters reopens to the
public, the full text of this document will also be available for
public inspection and copying during regular business hours in the FCC
Reference Center, 45 L Street NE, Washington, DC 20554.
Congressional Review Act: 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).
Synopsis
1. This document requires that all facilities-based mobile wireless
providers, including each such signatory to the Framework, comply with
the MDRI. As explained below, we find that the incremental costs
imposed on facilities-based mobile wireless providers by these new
requirements
[[Page 59330]]
will be minimal in many cases and, even when significant, will be far
outweighed by the nationwide benefits.
A. Mandating the Framework
2. The Resilient Networks notice of proposed rulemaking (Resilient
Networks NPRM) (86 FR 61103, November 5, 2021) sought comment on
whether providers should be required to implement the Framework's
provisions and, if so, which providers should be subject to the
requirements. We require that all facilities-based mobile wireless
providers comply with the MDRI, which, among other elements, codifies
the Framework's existing provisions. We defer for later consideration
whether some similar construct to the Mandatory Disaster Response
Initiative (MDRI) should be extended to entities outside of facilities-
based mobile wireless providers in the manner described in the
Resilient Networks NPRM. Many commenters address the merits and
drawbacks of mandating the Framework's provisions for entities beyond
the wireless industry, but this item addresses requirements for
facilities-based mobile wireless providers only. We also defer for
later consideration the proposals in the Resilient Networks NPRM
related to promoting situational awareness during disasters and
addressing power outages.
3. We find it appropriate to apply this requirement to all
facilities-based mobile wireless providers. We recognize the merits of
the current Framework and agree with the commenters who argue that its
provisions would be more effective if they were expanded to include
entities beyond the Framework's current signatories. We observe that
the existing Framework, which was developed specifically for use in
facilities-based mobile wireless networks, would be more effective and
valuable if extended to all providers operating those types of
networks.
4. We make these requirements mandatory for all facilities-based
mobile wireless providers. No commenter took issue with the
Commission's authority to require facilities-based mobile wireless
providers to implement the Framework. A number of commenters agree that
the Framework's requirements should be mandatory for current
signatories and other facilities-based mobile wireless providers. Our
approach in this document is consistent with Verizon's view that the
Framework ``could apply to all wireless providers,'' AT&T's observation
that the Framework could be applied to non-Framework signatories who
are capable of roaming, and Public Knowledge's view that the Framework
should be extended to at least the entire wireless industry. The
California Public Utilities Commission (CPUC) opines that a mandatory
approach would make reporting more effective and consistent,
incentivize action from those providers that currently do not undertake
Framework-like steps in the aftermath of disasters, create more
accountability, and close a disparity in service for customers based on
whether their provider follows Framework-like measures or not. Public
Knowledge believes that by mandating some of the Framework's
requirements, including those related to entering into roaming
agreements with other providers, the Commission would lower
transactional costs faced by small- and medium-size (e.g., regional)
providers, making their adoption of such requirements more viable. We
agree with these comments and find that mandating the Framework's
requirements for a broader segment of the wireless industry, as
provided by the MDRI we adopt in this document, will 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. We find this to be true even for providers
that already implement Framework-like steps. The efforts of all
facilities-based mobile wireless service providers will be standardized
based on a common set of required actions, thus better informing
further Commission actions, enhancing resiliency, and better serving
the public--particularly in times of need.
5. We reject the views of commenters who opine that codifying the
Framework's requirements (i.e., in the MDRI) would meaningfully limit
the variety of solutions providers may implement or investments they
may otherwise make in their network restoration and recovery efforts,
e.g., due to fears that the efforts would make them non-compliant with
these rules. These rules provide baseline actions and assurances that
facilities-based mobile wireless providers will undertake to ensure
effective coordination and planning to maintain and restore network
connectivity around disasters. Nothing in this rule prevents or
disincentivizes a provider from implementing additional measures that
exceed the requirements of the MDRI. The record does not identify
specific scenarios where taking additional steps beyond those required
by the MDRI would make a provider non-compliant with the rules adopted
in this document. Nevertheless, in the case that a provider desires to
implement practices that would improve network resiliency but that, in
some way, run counter to the rules we adopt in this document, a
provider may explain these considerations in detail pursuant to the
Commission's usual rule waiver procedures under 47 CFR 1.3.
6. In making the MDRI mandatory for all facilities-based mobile
wireless providers, regardless of their size, we reject the views of
the Competitive Carriers Association (CCA) and NTCA--The Rural
Broadband Association (NTCA) that smaller providers should be excepted
from these rules because they need to prioritize work on their own
networks or lack the resources required for compliance in the midst of
emergencies. We find that, as a practical matter, such concerns can be
mitigated. Each of the Framework's provisions involves significant
preparation and coordination steps to be taken well in advance of,
rather than in the midst of, an emergency. For example, establishing
mutual aid agreements, entering into appropriate contractual agreements
related to roaming, enhancing municipal preparedness, increasing
consumer readiness and preparing and improving public awareness are
steps that can be taken in advance of a disaster. Making these advance
preparations would reduce the resources needed to comply with these
requirements during an emergency. Moreover, as NTCA notes, small
wireless providers already generally abide by the underlying principles
of the Framework. Requiring small providers to take certain actions to
ensure that their networks remain operational during emergencies will
have the effect of streamlining and standardizing those efforts, thus
making coordination with other entities, including other providers,
more efficient than would be possible absent uniform rules. Indeed,
signatories to the Framework now have a commendable eight-year track
record demonstrating how the Framework operates and its benefits
before, during, and after disaster events, which offers lessons that
smaller providers can follow. Additionally, the provisions of the MDRI
are framed in terms of reasonableness and technical feasibility, which
further mitigates these concerns.
7. We note that these rules will require that providers negotiate
roaming agreements, including related testing arrangements, and mutual
aid provisions. We require that all such negotiations be conducted in
good faith and note that any disputes will be addressed by the
Commission on a case-by-case basis. We delegate authority to
[[Page 59331]]
the Enforcement Bureau to investigate and resolve such disputes.
8. This rule 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. We clarify that
roaming is foreseeable, without limitation, when two providers'
geographic coverage areas overlap. We agree with NTCA that roaming
agreements should be bilateral to ensure that roaming is implemented
across the nation on equitable terms and that no provider prevents its
subscribers from roaming onto the networks of other providers when it
would be technically feasible to do so during disasters and
emergencies. We also require that each bilateral roaming agreement be
executed and in place no later than the compliance date for the MDRI.
This advance planning will allow, for example, time for the providers
subject to the agreement to undertake initial testing and confirm that
the roaming functionality works as intended and/or take remediation
steps to address technical issues prior to the actual onset of a
disaster or emergency event, as well as to swiftly implement roaming
when the MDRI is triggered. Where a disaster can be reasonably
anticipated, such as in the case of a hurricane, this will also permit
advance coordination and planning among parties to the roaming under
disaster arrangement (RuD). It is our expectation that these bilateral
roaming requirements will increase consumer access to emergency
communications services in the direst of circumstances, and to the
maximum extent technically feasible, when life and property are at
stake.
9. We find strong support in the record for mandating the roaming
provision of the Framework in the MDRI. We agree with the Association
of Public-Safety Communications Officials (APCO) that mandatory roaming
is critical to ensuring that the public has access to 9-1-1 and other
avenues of emergency communications, such as web-based services, that
the public may rely upon for important information during an emergency,
and with T-Mobile's general view that roaming should be promptly and
broadly available to other providers on request absent extenuating
circumstances and that such provisions should be made in anticipation
of a disaster rather than only after a disaster has struck. We decline
to adopt at this time T-Mobile's view that roaming should be required
without permitting the host provider to perform a capacity evaluation.
Requiring that RuDs be executed prior to disaster provides some
assurance that issues can be identified and resolved prior to onset of
the actual disaster event, reducing the chance that consumers will lose
a life-saving lifeline when it is most needed. We also agree with
Public Knowledge that providers located in vulnerable areas with less
infrastructure are the least likely to have adequate roaming agreements
in place with their neighboring providers absent an appropriate
requirement.
10. We find that the roaming provision of the Framework has been
sufficiently refined through eight years of implementation to provide a
basis for its adoption in this document. CTIA--The Wireless Association
(CTIA) observes, for example, that ``[w]ireless stakeholders have been
developing new practices for enhancing the implementation and
effectiveness of the Framework's RuD tool based on lessons learned
during earlier disaster events.'' Further, CTIA offers as lessons
learned that parties to roaming agreements should use uniform
terminology throughout the RuD request process, establish provider
connectivity and roaming terms before disasters occur, and conduct
``blue skies'' exercises with potential roaming partners. We agree with
Verizon that roaming is workable, provided there is sufficient
flexibility in the rules to account for a provider's technical and
capacity issues, appropriate testing of capabilities, and safeguards to
prevent opportunistic ``free riding'' roaming from providers who
leverage another provider's more reliable network rather than invest in
improving the reliability of their own. Accordingly, we reject AT&T's
view that requiring roaming would necessarily be counterproductive or
impair access to emergency services.
11. The roaming requirement adopted in this document requires
facilities-based mobile wireless providers to provide for reasonable
roaming under disaster arrangements (RuDs) when technically feasible,
where: (i) a requesting provider's network has become inoperable and
the requesting provider has taken all appropriate steps to attempt to
restore its own network, and (ii) the provider receiving the request
(home provider) has determined that roaming is technically feasible and
will not adversely affect service to the home provider's own
subscribers, provided that existing roaming arrangements and call
processing methods do not already achieve these objectives and that any
new arrangements are limited in duration and contingent on the
requesting provider taking all possible steps to restore service on its
own network as quickly as possible. We note that this industry-
developed standard is a flexible one that allows providers to adapt to
the particular circumstances that each disaster or exigency presents on
a case-by-case basis. For example, what constitutes ``reasonable
roaming,'' ``technically feasib[ility]'' and ``adverse[] affect'' will
typically depend on facts and realities that cannot be determined
universally in advance of a situation that gives rise to a particular
MDRI activation. We find it useful, however, to provide clarification
and basic guidance that would help providers understand what activities
do meet this standard, where appropriate.
12. We clarify that ``reasonable roaming'' is roaming that does not
disturb, but includes compliance with, the Commission's existing
requirements that voice roaming arrangements be just, reasonable, and
non-discriminatory, and that data roaming arrangements be commercially
reasonable. We further clarify that ``technically feasible'' roaming
for purposes of the Commission's disaster roaming rules requires a host
provider to permit a requesting provider's customers to roam on the
host provider's network on all compatible generations of network
technology that it offers to its own customers. We note that requiring
that a host provider support roaming regardless of network generation
will contribute meaningfully to the Commission's objective of
increasing consumer access to emergency communications services in the
direst of circumstances, when life and property are at stake. Moreover,
we find this would provide some measure of technological neutrality, as
well account for the often-rapid evolution of wireless technology.
13. We also clarify that ``reasonable roaming'' would include
providing a means of denying a roaming request in writing to the
requesting provider, preferably with the specific reasons why roaming
is infeasible. We believe that this approach would allow the requesting
provider to evaluate the substance of the reasons so that it can make a
renewed request at an appropriate time later, if warranted, and will
create accountability on the part of requesting providers to ensure
that denials are only issued when the circumstances truly warrant.
Moreover, this approach, while optional, could help to provide insight
into modifications that would facilitate a future roaming agreement or
create a record in the event a dispute arises.
[[Page 59332]]
14. By way of example, we further clarify that an RuD that
specifies that a provider may make a network health assessment within
four hours post-disaster and activate its roaming functionality within
three hours of completing the health assessment would generally be
considered reasonable. In this respect, we agree with AT&T on the
practicality of these time frames as best practices and note that
appropriate time frames may depend on a specific scenarios and
circumstances involved.
15. We find that the Commission could effectively ensure
accountability on the part of providers and their compliance with this
roaming provision, and could do so at minimal cost to providers, if the
Commission had the ability to request copies of a provider's bilateral
roaming agreements. We thus require that a provider retain RuDs for a
period of at least one year after their expiration and supply copies of
such agreements to the Commission promptly upon Commission request. If
appropriate, such agreements may be submitted with a request for
confidential treatment under Sec. 0.459 of the Commission's rules.
16. This rule requires that each facilities-based mobile wireless
provider 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. Providers must have mutual aid
arrangements in place within 30 days of the compliance date of the
MDRI. This rule also requires providers to commit to engaging in
necessary consultation where feasible during and after disasters,
provided that the provider supplying the aid has reasonably first
managed its own network needs. We find that requiring providers to
coordinate and collaborate (e.g., to determine ways in which excess
equipment from one provider can be shared or exchanged with the other)
has been successful during past disasters and serves the public
interest during times of emergency. We find that, without this
provision in place, providers are less likely to fully engage in such
actions, particularly among providers that do not regularly collaborate
on other matters (e.g., between a large nationwide provider and
smaller, rural provider). In arriving at this rule, we note and commend
some of the nation's largest providers who already engage in this
coordination on some level among themselves, and we believe that the
public interest would greatly benefit from such commitments being
extended to all facilities-based mobile wireless providers.
17. The MDRI mutual aid requirement is a codification of the
flexible standard already developed by industry in proposing its
successful Framework. As such, AT&T's concern that this rule would
require a provider to grant mutual aid regardless of its own
circumstances and ATIS's concern that this provision would require a
provider to work to restore a competitor's network before its own are
unfounded. Rather, as indicated by the plain language of this rule, a
provider's obligations apply only if it has ``reasonably first managed
its own network needs.'' Similarly, because a provider supplying aid
under this provision would only do so after it has managed its own
needs, we find USTelecom's concerns that this provision would create
disincentives for a requesting provider to invest in its own resiliency
and restoration capabilities are countered by the language of the rule
itself, and further mitigated by the flexibility that the rules afford
providers in coming to a reasonable mutual agreement. We similarly
clarify that nothing in this rule requires that providers share their
limited fuel or other equipment when they do not have enough of these
resources to reasonably service their own subscribers' needs first.
18. Several other provisions of the MDRI track corresponding
elements of the existing Framework and require that each facilities-
based mobile wireless provider take reasonable measures to: (1) work to
enhance municipal preparedness and restoration, (2) increase consumer
readiness and preparation, and (3) improve public awareness and
stakeholder communications on service and restoration status. The
Commission declines to address at this time a provision similar to the
existing Framework's provision that a provider establish a provider/
public safety answering point (PSAP) contact database. The Commission
is currently examining these issues in its pending 911 Reliability
proceeding. We find that each of these provisions would enhance public
safety objectives by tracking the elements of the Framework. We find
that these actions, taken individually and as a whole, would provide
significant public safety benefits by reducing the costs borne by both
wireless providers and public safety entities in responding to and
recovering from a disaster and by creating information that can be used
by public officials, including first responders, to enable more
effective and efficient responses in an emergency. We find that the
MDRI, as a codification of successful provisions already implemented by
the nationwide and certain regional providers to date, allows the
needed flexibility to respond to the individual needs of providers and
the communities they serve.
19. We find it in the public interest to supply clarity and
assurance that providers have complied with as many of the MDRI's
provisions as practical if they implement, or continue their
implementation of, corresponding elements of the Framework.
Accordingly, a provider that files a letter in the dockets associated
with this proceeding truthfully and accurately asserting, pursuant to
Sec. 1.16 of the Commission's rules, that it complies with the
Framework's existing provisions, and has implemented internal
procedures to ensure that its remains in compliance with these
provisions, for (i) fostering mutual aid among wireless providers
during emergencies, (ii) enhancing municipal preparedness and
restoration by convening with local government public safety
representatives to develop best practices, and establishing a provider/
PSAP contact database, (iii) increasing consumer readiness and
preparation through development and dissemination with consumer groups
of a Consumer Readiness Checklist, and (iv) improving public awareness
and stakeholder communications on service and restoration status,
through Commission posting of data on cell site outages on an
aggregated, county-by-county basis in the relevant area through its
Disaster Information Reporting System (DIRS) will be presumed to have
complied with the MDRI counterpart provisions at Sec. 4.17(a)(3)(ii)
through (iv). We clarify that providers that rely on this safe harbor
provision are representing adherence to these elements of the Framework
as it was laid out and endorsed by the Commission in October 2016.
20. Given the new requirements related to testing roaming, however,
we do not extend this ``safe harbor'' mechanism to these rules
requiring that providers implement bilateral roaming arrangements
(Sec. 4.17(a)(3)(i)), test their roaming functionality (Sec.
4.17(b)), provide reports to the Commission (Sec. 4.17(c)) or retain
copied of RuDs (Sec. 4.17(d)). Nor we do extend safe harbor to Sec.
4.17(e), which summarizes an announcement of compliance dates for these
rules. These four provisions cover important aspects of the Framework
related to roaming (among other functionality), where there is some
evidence that the existing Framework has not performed as strongly as
[[Page 59333]]
possible or else new requirements that have no counterpart in the
existing Framework.
B. Implementing New Testing and Reporting Requirements
21. In the Resilient Networks NPRM, we sought comment on whether
each provider should be required to implement annual testing of their
roaming capabilities and related coordination processes. We adopt the
requirement that this testing must be performed bilaterally with other
providers that may foreseeably roam, or request roaming from, a given
provider including, without limitation, between providers whose
geographic coverage areas overlap. The first round of such testing,
i.e., with respect to all other foreseeable providers, must be
performed no later than the compliance date for the roaming provision
of the MDRI.
22. We agree with NTCA that providers should regularly test their
roaming capabilities and believe that the public interest would be
served if providers conducted bilateral roaming capabilities testing
with other providers to ensure that roaming will work expeditiously in
times of emergencies. We agree with Verizon that testing in advance of
an actual disaster event is necessary for a provider to best understand
its network capabilities and ensure that roaming is performed in a way
that does not compromise its service to its own customers. We find that
bilateral testing will ensure that providers spend time optimizing,
debugging and diagnosing their networks well advance of emergencies,
ensuring that these networks roam as effectively as possible when a
disaster strikes, ultimately saving lives and property. We find that by
requiring the testing to be bilateral, each provider will be
incentivized to take affirmative steps to ensure their own network can
handle demands indicative of emergency scenarios, diminishing the
possibility that such a provider would act as a ``free-rider'' when
disaster strikes.
23. In the Resilient Networks NPRM, we also sought comment on
whether providers should submit reports to the Commission, in real time
or in the aftermath of a disaster, detailing their implementation of
the Framework's provisions and whether the reports should include
information on the manner in which the provider adhered to the various
provisions of the Framework. We adopt this requirement and require that
providers submit a report detailing the timing, duration and
effectiveness of their implementation of the MDRI's provisions within
60 days of when the Bureau, under delegated authority which we grant in
this document, issues a Public Notice announcing such reports must be
filed for providers operating in a given geographic area in the
aftermath of a disaster.
24. We agree with Free Press that that it is in the public interest
for providers to submit an ``after-action'' report detailing how their
networks fared and whether their pre-disaster response plans adequately
prepared for a disaster and with Next Century Cities that requiring
providers to submit reports detailing implementation of the Framework's
provisions would help the Commission gauge the effectiveness of these
provisions and potential future improvements in furtherance of public
safety.
25. We reject the views of Verizon and other commenters who suggest
that such reports should be filed only annually. We find that such
reports would be most accurate and useful if they were provided shortly
after a disaster event has concluded (i.e., by a date specified in a
Bureau issued public notice). We find that such reports should be filed
shortly after a disaster event concludes, and not in real time, to
avoid consuming public safety resources during times of exigency.
C. Expanding Activation Triggers
26. In the Resilient Networks NPRM, the Commission recognized
circumstances where mutual aid or other support obligations could have
been implemented, but were not warranted or provided because the
Framework's activation triggers were not met. The Commission applauded
the Framework but sought to expand its reach by working with providers
to revisit the conditions that trigger activation of the Framework.
Commenters generally agreed that new triggers for Framework activation
are appropriate. Verizon identified that ``[a]uthorizing the Chief of
the Public Safety and Homeland Security Bureau to activate the
Framework based on [Emergency Support Function 2] ESF-2 or DIRS'' could
be the right approach.
27. We find that the public interest supports a rule that the MDRI
is triggered when either ESF-2 or DIRS is activated, or when the Chief
of the Public Safety and Homeland Security Bureau announces that the
MDRI is activated in response to a request received from a state in
conjunction with the state activating its Emergency Operations Center,
activating mutual aid, or proclaiming a local state of emergency. As
such, we delegate to the Chief, Public Safety and Homeland Security
Bureau the authority to issue a public notice effectuating the MDRI
under these circumstances, and to prescribe any mechanisms for
receiving such a request.
28. We agree with those commenters who argue that the Framework's
current activation criterion, which only applies when both ESF-2 and
DIRS are activated, is too narrow. CTIA and Verizon agree that
Framework elements could be helpful during events not currently covered
by the Framework and are open to considering other activation triggers
to help ensure cooperative efforts during disasters impacting
communications networks. (Knowledge and CTIA point out that the current
stringent activation requirements prevent consumers from receiving the
benefits of the Framework like mutual aid and roaming arrangements
because there are many disasters and events would not reach the dual
ESF-2/DIRS trigger, such as the recent California power shutoffs and
wildfires for which ESF-2 was not activated. CTIA states that they are
committed to working with the Commission to consider other objective
activation triggers.) Certain events like wildfires are not expressly
covered by the Framework and have the potential to occur more
frequently than other covered events like hurricanes. Next Century
Cities (NCC) explains that DIRS is typically activated before an
anticipated major emergency or following an unpredicted disaster but
ESF-2 is only activated under specific circumstances when the
Department of Homeland Security or FEMA has identified that a
significant impact to the nation's communications infrastructure has
occurred or is likely to occur. These two programs differ in activation
requirements, meaning that the Framework is not always activated even
during critical disaster events and the Commission is not always able
to collect vital communications outage data. We agree with NCC's and
Public Knowledge's recommendation that the Framework would be more
effective if it were activated when either DIRS or ESF-2 is activated
and if it remained active until the emergency has ceased and network
disruption has been resolved. Further, we agree with Verizon's
suggestion that the Chief of the Public Safety and Homeland Security
Bureau should be able to activate the Framework based on ESF-2 or DIRS,
or when a state experiences events such as FEMA-recognized or declared
disasters, events that could affect a significant geographic area, or
events that could result in outages for a
[[Page 59334]]
significant duration and have the potential to impact multiple
providers. The activation criteria for the MDRI incorporates these
views.
29. We disagree with those commenters, including the CCA and NTCA,
who think a codified version of the Framework cannot incorporate
remedies and procedures for a variety of differing disasters and
emergencies. We agree that the current Framework offers flexibility to
address various challenges brought on by differing disasters in
differing locations, and we note that the MDRI will allow for the same
flexibility and offer even more benefits and restorative efforts with a
wider range of activation triggers. CTIA argues that the beneficial
elements of the Framework outweigh the doubts and points out the
Framework's success in advancing wireless resiliency over the past few
years. Recognizing the merits of the Framework and building upon it in
the MDRI will also better incorporate the uniqueness of individual
disasters by offering additional circumstances in which the obligations
would be triggered.
D. Cost-Benefit Summary
30. In the Resilient Networks NPRM, the Commission generally sought
information on costs and benefits of requiring providers to implement
provisions of the Framework, including mandating some or all of the
Framework, and tentatively concluded that the benefits exceeded the
costs for doing so. We affirm that tentative conclusion as to
facilities-based mobile wireless providers.
31. No commenter provides a detailed quantitative analysis of costs
or benefits, though some commenters provide qualitative views. For
example, Public Knowledge opines that mandating the Framework,
particularly the roaming provision of the Framework, would lower
transaction costs for smaller providers while also providing benefits
to the nation's network resiliency and emergency response. CPUC notes
that the benefits of ensuring heightened network resiliency are likely
to increase in the coming years as the number of weather and climate
disaster events continues to increase. On the other hand, AT&T, CCA,
and USTelecom, among others, argue that mandating the Framework would
create harms, rather than benefits, because it would remove flexibility
in providers' disaster recovery approaches and, as a result, would lead
to worse public safety outcomes. CCA further argues that some
providers, including small providers, may lack the resources necessary
to adopt a mandatory regime. As discussed below, we find that the
incremental costs to the nation's facilities-based mobile wireless
providers for codifying the Framework in the MDRI rules will be minimal
in many cases and, even when significant, will be far outweighed by
nationwide benefits.
32. We find that Framework signatories are unlikely to incur
significant one-time implementation costs to comply with the MDRI
because they already implement actions aligned with the Framework's
steps and, in some cases, take significant additional actions as part
of their existing business practices. AT&T, for example, cites multiple
examples evidencing that it and other signatories commonly invoke the
Framework's provisions and notes it has extended roaming privileges to
other wireless providers during numerous events in which the
Framework's activation criteria were not triggered. AT&T notes that it
has universally allowed roaming on its network when it has had
capacity, including by non-Framework signatories, and believes the same
to be true of other signatories. Verizon notes that it has already
voluntarily entered into bilateral roaming agreements with AT&T, T-
Mobile, and some mid-sized and smaller providers that pertain to
disaster scenarios. Other wireless providers, or their industry groups,
provide numerous examples of how providers are already investing
significant time and resources into complying with the Framework
provisions, even when they are not signatories or bound to the
Framework's terms, to enhance their networks' resiliency. Given these
efforts, we find it reasonable to conclude that the one-time
implementation costs imposed on Framework signatories to implement
uniform procedures to comply with the MDRI will be minimal. We note for
clarity that any framework signatory that qualifies as a small entity
under the definition is afforded additional time for compliance with
these rules compared to non-small entities.
33. We find that regional and local entities will incur one-time
implementation costs to transition from their existing processes to new
processes to comply with the MDRI. As noted in the record, regional and
local facilities-based mobile wireless providers already accrue costs
to implement steps similar to those described in these rules. For
example, ACA Connects notes that its members (which are small regional
or local entities) have ``developed plans outlining specific actions to
be performed at specific preparatory stages (e.g., at 72, 48 or 24
hours in advance of an impending storm),'' including typically by
``identify[ing] service restoration priorities[,] coordinat[ing]
extensively within their companies to ensure all available resources
are brought to bear effectively and that customers (both residential
and enterprise) are kept informed of service impacts and progress in
restoring outages[,] and coordinat[ing] with first responders, power
companies, and fellow communications providers in their service area.''
ACA Connects notes that its members currently ``readily coordinate and
share information with local, State and Federal authorities, as well as
other communications providers and power companies.'' ACA Connects
further notes that this sort of information exchange ``allows for a
more efficient and coordinated restoration effort'' and enables
providers to ``continually update their plans based on `lessons
learned' from previous events.'' Similarly, NTCA notes that small
wireless providers ``certainly abide'' by the underlying principles of
the Framework--i.e., even if they do not follow the Framework's
specific requirements as mandated by these rules. Given these efforts,
we believe that the total setup costs for regional and local providers
to implement the MDRI will be limited.
34. Specifically, we estimate that the nation's regional and local
facilities-based mobile wireless providers that are not current
Framework signatories will incur total initial setup costs of
approximately $945,000 based on our estimate of 63 such providers each
spending 50 hours of time on legal services at $107/hour, 50 hours of
time on software development at $87/hour, and 100 hours of time on
public relations and outreach activities at $53/hour. These setup costs
enable the regional and local providers to update or revise their
existing administrative and technical processes to conform to processes
required by these rules, including those related to roaming
arrangements, fostering mutual aid, enhancing municipal preparedness,
increasing consumer readiness, and improving public awareness and
shareholder communications on service and restoration status.
35. Commenters have provided no evidence, as requested in the
Resilient Networks NPRM, of any significant additional recurring costs.
Nevertheless, the industry will incur an annual recurring cost, imposed
by the new testing and reporting requirements. We find, however, that
these costs are likely mitigated for a number of reasons. The
incremental costs of testing are lessened to the extent that
facilities-based
[[Page 59335]]
providers already engage in regular assessments of their roaming
capabilities with their roaming partners. Moreover, we find that these
cost increases will be substantially offset, over the long term, by the
lowering of transaction costs. Under our new rules, a provider's
bilateral roaming agreements with other providers will contain similar
elements in key provisions and these details will no longer need to be
determined on a partner-by-partner basis, thus reducing transaction
costs. The setup and recurring costs also will be substantially offset
by the network's increase in economic efficiency as providers start
sharing more of their unused capacity and idle equipment during
disasters and other emergencies. Finally, because our requirement for
providers to issue reports detailing the timing, duration and
effectiveness of their implementation of the MDRI first entails a
Public Notice specifying the providers and geographic area affected,
the recurring costs for reporting purposes will be limited to instances
where the Commission sees a legitimate need to require such reports.
36. We agree with Public Knowledge that there are significant
benefits in requiring providers to coordinate preparation for disasters
and with Telecommunications for the Deaf and Hard of Hearing, Inc.
(TDI) that the benefits of adopting a mandatory approach, as in this
rule, would be widespread, including by increasing access to critical
information by individuals in the deaf, hard of hearing, and deafblind
communities. Further, CTIA testified at the Commission's 2021 virtual
Field Hearing on improving the resiliency and recovery of
communications networks during disasters that the Framework is a
``collaborat[ive] . . . jumpstart[ ] [to] response and recovery'' and
allows for continuous growth through lessons learned during
``increasing severity and frequency of disasters'' allowing for the
development of ``best practices [to] strengthen our networks, our
response, and our performance for everyone who relies on wireless
during emergencies.'' Moreover, we find that the benefits attributable
to improving facilities-based mobile wireless network resiliency in the
context of emergency situations is substantial and will promote the
health and safety of residents during times of natural disaster or
other unanticipated events that impair telecommunications
infrastructure.
37. While it would be impossible to quantify the precise financial
value of these health and safety benefits, we note that the value of
these benefits would have to exceed the implementation cost of less
than $1 million, together with the annual recurring costs imposed by
the new testing and reporting requirements, to outweigh the total cost
of compliance. This reasoning is an example of a ``breakeven analysis''
recommended by the Office of Information and Regulatory Affairs (OIRA)
in cases where precise quantification and monetization of benefits is
not possible. In light of the record reflecting large benefits to
consumers and other communities, we find that the total incremental
costs imposed on the nation's facilities-based mobile wireless
providers by these new requirements will be minimal in many cases and,
even when significant, will be far outweighed by the nationwide
benefits.
E. Timelines for Compliance
38. We set a compliance date for these rules at the later of (i) 30
days after the Bureau issues a Public Notice announcing that OMB has
completed review of any new information collection requirements
associated with this document or (ii) nine months after the publication
of this document for small facilities-based mobile wireless providers
and six months after the publication of this document in the Federal
Register for all other (i.e., not small) facilities-based mobile
wireless providers. We adopt the Small Business Administration's (SBA)
standard, which classifies a provider in this industry as small if it
has 1,500 or fewer employees. We require a provider have each bilateral
roaming agreement, as described in Sec. 4.17(a)(3)(i), executed and in
place no later than its associated compliance date, have mutual aid
arrangements, as described in Sec. 4.17(a)(3)(ii), in place within 30
days of its associated compliance date, and perform a complete first
round of testing, as described in Sec. 4.17(b), no later than its
associated compliance date. We note for clarity that the compliance
date associated with a small facilities-based mobile wireless providers
applies for the requirements of Sec. 4.17(a)(3)(ii) when at least one
party to the mutual aid arrangement is a small facilities-based mobile
wireless provider. We further note that finalization of arrangements
under Sec. 4.17(a)(3)(ii) will be required 30 days after compliance
with the other provisions of Sec. 4.17. To the extent that a new
facilities-based mobile wireless service provider subsequently
commences service, it is required to comply with these provisions 30
days following commencement of service. As reflected at Sec. 4.17(e),
we direct the Bureau to issue a Public Notice that announces the
compliance dates for all facilities-based mobile wireless providers
upon obtaining OMB approval of the new information collection
requirements associated with this document.
39. These rules require that facilities-based mobile wireless
providers take steps to update their processes to implement our MDRI,
which codifies many of the Framework's provisions. We find that
providers will require only a modest amount of time to adjust their
processes to comply with these rules because, as noted above, they
already implement actions closely aligned with the Framework's steps
and, in some cases, take significant additional actions as part of
their existing practices. For instance, AT&T and a non-Framework
signatory roamed on each other's networks for months after disaster
Hurricane Maria. Signatories to the Wireless Network Resiliency
Cooperative Framework implemented it immediately and, when hurricane
season arrived six months later, the signatories demonstrated their
implementation by voluntarily reporting in DIRS. In addition, we find
that these changes must be made expeditiously given recent observations
of network failures during disasters. As small and large providers, or
their industry groups, have emphasized that they could implement the
Framework immediately, or else take Framework-like measures already, we
believe that this time range provides sufficient time for providers to
implement any changes and make any necessary arrangements.
I. Procedural Matters
40. Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the
Resilient Networks; Amendments to part 4 of the Commission's Rules
Concerning Disruptions to Communications; New part 4 of the
Commission's Rules Concerning Disruptions to Communications notice of
proposed rulemaking (Resilient Networks NPRM) released in October 2021.
The Commission sought written public comment on the proposals in the
Resilient Networks NPRM, including comment on the IRFA. No comments
were filed addressing the IRFA. This present Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.
41. Paperwork Reduction Act Analysis. These rules may constitute
new or modified information collection requirements. All such new or
modified information collection requirements will be submitted to the
Office of
[[Page 59336]]
Management and Budget (OMB) for review under section 3507(d) of the
Paperwork Reduction Act of 1995 (PRA). OMB, the general public, and
other Federal agencies will be invited to comment on any new or
modified information collection requirements contained in this
proceeding. In addition, we note that, pursuant to the Small Business
Paperwork Relief Act of 2002, the Commission previously sought, but did
not receive, specific comment on how the Commission might further
reduce the information collection burden for small business concerns
with fewer than 25 employees. The Commission does not believe that any
new information collection requirements will be unduly burdensome on
small businesses. Applying these new information collection
requirements will promote public safety response efforts, to the
benefit of all size governmental jurisdictions, businesses, equipment
manufacturers, and business associations by providing better
situational information related to the Nation's network outages and
infrastructure status.
A. Need for, and Objectives of, the Final Rules
42. In this document, the Commission adopts rules that require all
facilities-based mobile wireless providers to comply with the Mandatory
Disaster Response Initiative (MDRI), which codifies the Wireless
Network Resiliency Cooperative Framework (Framework), an agreement
developed by the wireless industry in 2016 to provide mutual aid in the
event of a disaster, and expands the events that trigger its
activation. The document also implements new requirements for testing
of roaming capabilities and MDRI performance reporting to the
Commission. These actions will improve the reliability, resiliency, and
continuity of communications networks during emergencies. This action
uniformizes the Nation's response efforts among facilities-based mobile
wireless providers who, prior to these rules, implemented the Framework
on a voluntary basis. 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 these 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.
43. The rules in this document also address findings of the
Government Accountability Office (GAO) concerning wireless network
resiliency. In 2017, the Government Accountability Office (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 found that the number of wireless
outages attributed to a physical incident--a natural disaster,
accident, or other manmade event, such as vandalism--increased from 189
in 2009 to 1,079 in 2016. The GAO concluded 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, and that
such steps could help the FCC decide if further action is needed. In
light of prolonged outages during several emergency events in 2017 and
2018, and in parallel with the GAO recommendations, the Public Safety
and Homeland Security Bureau (Bureau) conducted several inquiries and
investigations 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 these hurricanes and other emergencies.
B. Summary of Significant Issues Raised by Comments in Response to the
IRFA
44. There were no comments filed that specifically address the
proposed rules and policies in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
45. 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 Which the
Rules Will Apply
46. 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.
47. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. Our actions may, over time, affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the SBA's Office of
Advocacy, in general a small business is an independent business having
fewer than 500 employees. These types of small businesses represent
99.9% of all businesses in the United States which translates to 32.5
million businesses.
48. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or
less to delineate its annual electronic filing requirements for small
exempt organizations. Nationwide, for tax year 2020, there were
approximately 447,689 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
49. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate that there
were 90,056 local governmental jurisdictions consisting of general
purpose governments and special purpose
[[Page 59337]]
governments in the United States. Of this number there were 36,931
General purpose governments (county, municipal and town or township)
with populations of less than 50,000 and 12,040 special purpose
governments--independent school districts with enrollment of less than
50,000. Accordingly, based on the 2017 U.S. Census of Governments data,
we estimate that at least 48,971 entities fall into the category of
``small governmental jurisdictions.''
50. The rules adopted in this document apply only to facilities-
based mobile wireless providers, which include 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 below in section E, we estimate costs
based on Commission data that there are approximately 63 small
facilities-based mobile wireless providers. As described below, these
entities fit into larger industry categories that provide these
facilities or services for which the SBA has developed small business
size standards.
51. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2021 Universal
Service Monitoring Report, as of December 31, 2020, there were 797
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 715
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
52. We note that while facilities-based mobile wireless providers
fall into this industry description, in assessing whether a business
concern qualifies as ``small'' under the above SBA size standard,
business (control) affiliations must be included. Another element of
the definition of ``small business'' requires that an entity not be
dominant in its field of operation. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. The Commission notes that it is
difficult at times to assess these criteria and its estimates of small
businesses to which they apply may be over-inclusive to this extent. We
are unable at this time to define or quantify the criteria that would
establish whether a specific facilities-based mobile wireless provider
impacted by this document is dominant in its field of operation.
Accordingly, the estimate of small businesses to which rules may apply
for this industry description is therefore possibly over-inclusive and
thus may overstate the number of small entities that might be affected
by our action.
53. Wireless Communications Services. Wireless Communications
Services (WCS) can be used for a variety of fixed, mobile,
radiolocation, and digital audio broadcasting satellite services.
Wireless spectrum is made available and licensed for the provision of
wireless communications services in several frequency bands subject to
part 27 of the Commission's rules. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with a SBA small business
size standard applicable to these services. The SBA small business size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
there were 2,893 firms that operated in this industry for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
Thus under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
54. The Commission's small business size standards with respect to
WCS involve eligibility for bidding credits and installment payments in
the auction of licenses for the various frequency bands included in
WCS. When bidding credits are adopted for the auction of licenses in
WCS frequency bands, such credits may be available to several types of
small businesses based average gross revenues (small, very small, and
entrepreneur) pursuant to the competitive bidding rules adopted in
conjunction with the requirements for the auction and/or as identified
in the designated entities section in part 27 of the Commission's rules
for the specific WCS frequency bands.
55. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
56. The requirements in this document will impose new or modified
reporting, recordkeeping and/or other compliance obligations on small
entities. The rules adopted in this document 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 adopted in the Order are a codification of the flexible
standard already developed by the industry in proposing its voluntary
Framework. The new provision that expands the events that trigger its
activation and that require providers test and report on their roaming
capabilities will ensure that the MDRI is implemental effectively and
in accordance with the Commission's rules, and the new requirements
related to testing and reporting will ensure that roaming is performed
effectively with the aim of saving life and property.
57. The roaming requirement adopted by the Commission requires
facilities-based mobile wireless providers to provide for reasonable
roaming under disaster arrangements (RuDs) when technically feasible,
where: (i) a requesting provider's network has become inoperable and
the requesting provider has taken all appropriate steps to attempt to
restore its own network, and (ii) the provider receiving the request
(home provider) has determined that roaming is technically feasible and
will not adversely affect service to the home provider's own
subscribers, provided that existing roaming arrangements and call
processing methods do not already achieve these objectives and that any
new arrangements are limited in duration
[[Page 59338]]
and contingent on the requesting provider taking all possible steps to
restore service on its own network as quickly as possible. In this
document, we also require facilities-based mobile wireless providers
to: (1) 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, (2) have each
bilateral roaming agreement executed and in place no later than the
compliance date for the roaming provision of the MDRI, and (3) make
copies their bilateral roaming agreements available to the Commission
promptly upon Commission request.
58. Pursuant to the ``safe harbor'' provision we adopt in this
document, a provider may file a letter in the dockets associated with
this proceeding which truthfully and accurately asserts pursuant to
Sec. 1.16 of the Commission's rules, that the provider is in
compliance with the Framework's existing provisions, and has
implemented internal procedures to ensure that it remains in compliance
with the provisions for: (i) fostering mutual aid among wireless
providers during emergencies, (ii) enhancing municipal preparedness and
restoration by convening with local government public safety
representatives to develop best practices, and establishing a provider/
PSAP contact database, (iii) increasing consumer readiness and
preparation through development and dissemination with consumer groups
of a Consumer Readiness Checklist, and (iv) improving public awareness
and stakeholder communications on service and restoration status,
through Commission posting of data on cell site outages on an
aggregated, county-by-county basis in the relevant area through its
DIRS will be presumed to have complied with the MDRI counterpart
provisions at Sec. 4.17(a)(3)(ii) through (iv). The ``safe harbor''
mechanism adopted in the rules does not apply to the requirements that
providers implement bilateral roaming arrangements (Sec.
4.17(a)(3)(i)), test their roaming functionality (Sec. 4.17(b))
provide reports to the Commission (Sec. 4.17(c)), or retain RuDs
(Sec. 4.17(d)). Providers that make a ``safe harbor'' filing are
representing adherence to these elements of the Framework as laid out
and endorsed by the Commission in October 2016.
59. Small and other regional and local facilities-based mobile
wireless providers that are not current Framework signatories will
incur one-time implementation costs to transition from their existing
processes to new processes to comply with the MDRI. The Commission
estimates that the Nation's regional and local facilities-based mobile
wireless providers as a whole will incur one-time total initial setup
costs of $945,000 to implement the requirements of this document and
may require professionals in order to comply. We base our estimate on
63 such providers each spending 50 hours of time on legal services at
$107/hour, 50 hours of time on software development at $87/hour, and
100 hours of time on public relations and outreach activities at $53/
hour, to update or revise their existing administrative and technical
processes to conform, to processes their record keeping and other
compliance requirements to those required by this rule, including those
related to roaming arrangements, fostering mutual aid, enhancing
municipal preparedness, increasing consumer readiness and improving
public awareness and shareholder communications on service and
restoration status.
60. Facilities-based providers in the industry may also incur an
annual recurring cost, imposed by the new testing and reporting
requirements and determined that these costs are likely to be mitigated
for a number of reasons. The incremental costs of testing are lessened
to the extent that facilities-based providers already engage in regular
assessments of their roaming capabilities with their roaming partners.
Moreover, these cost increases will be substantially offset, over the
long term, by the lowering of transaction costs. Under our new rules, a
provider's bilateral roaming agreements with other providers will
contain similar elements in key provisions and these details will no
longer need to be determined on a partner-by-partner basis, thus
reducing transaction costs. The setup and recurring costs also will be
substantially offset by the network's increase in economic efficiency
as providers start sharing more of their unused capacity and idle
equipment during disasters and other emergencies.
61. Finally, because our requirement for providers to issue reports
detailing the timing, duration and effectiveness of their
implementation of the MDRI first entails a Public Notice specifying the
providers and geographic area affected, we anticipate recurring costs
to be limited to instances where the Commission sees a legitimate need
to require such reports. We set compliances dates for these rules as
the later of (1) 30 days after the Office of Management and Budget
completes review of such requirements pursuant to the Paperwork
Reduction Act or the Public Safety and Homeland Security Bureau
determines that such review is not required, or (2) nine months after
publication of this document in the Federal Register for facilities-
based mobile wireless service providers with 1,500 or fewer employees
and six months after publication of this document in the Federal
Register for all other facilities-based mobile wireless service
providers, except that compliance with paragraph (a)(3)(ii) of Sec.
4.17 will not be required until 30 days after the compliance date for
the other provisions of the section. The Commission has directed the
Public Safety and Homeland Security Bureau to announce the compliance
dates Sec. 4.17 by subsequent Public Notice and to cause the section
to be revised accordingly.
62. We conclude that the benefits of participation by small
entities and other providers likely will exceed the costs for affected
providers to comply with the rules adopted in this document. The
benefits attributable to improving resiliency in the context of
emergency situations is substantial and may have significant positive
effects on the abilities of these entities to promote the health and
safety of residents during times of natural disaster or other
unanticipated events that impair telecommunications infrastructure.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
63. 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.''
64. The actions taken by the Commission in this document were
considered to be the least costly and minimally burdensome for small
and other entities impacted by the rules. The Commission took a number
of actions in this document to minimize any significant economic impact
on small entities and considered several alternatives. For example,
this document's requirements are only applicable to facilities-based
mobile wireless providers and thus other small entity providers that
may be capable of roaming are not subject to the adopted provisions. In
addition, several of the adopted requirements are based on or
[[Page 59339]]
incorporate industry-developed standards, and utilize and are
consistent with existing Commission requirements. In developing the
requirement that facilities-based mobile wireless providers provide
reasonable roaming under disaster arrangements (RuDs) when technically
feasible, for instance, we define ``reasonable roaming'' as roaming
that does not disturb, but includes compliance with, the Commission's
existing requirements that voice roaming arrangements be just,
reasonable, and non-discriminatory, and that data roaming arrangements
be commercially reasonable. Consistency with existing industry
standards and Commission requirements increase the likelihood that
small entities already have processes and procedures in place to
facilitate compliance with the rules we adopt in this document and may
only incur increment costs which will minimize the impact for these
entities.
65. Some commenters supported an alternative view that all small
providers should be excepted from the rules adopted in this document
because they need to prioritize work on their own networks or else
generally lack the resources required for compliance in the midst of
emergencies. Upon consideration of this position the Commission
determined that these concerns can be mitigated because the Framework's
provisions such as establishing mutual aid agreements, enhancing
municipal preparedness, increasing consumer readiness and preparing and
improving public awareness are preparation and coordination can and
should be taken well in advance of, rather than in the midst of an
emergency. Likewise, securing the appropriate contractual agreements
related to roaming is an obligation that should be completed prior to
an emergency event. Further and notably, some commenters indicated that
small mobile wireless providers already generally abide by the
underlying principles of the Framework. Given that such efforts are
already in place or in progress, we believe that the total setup costs
for small regional and local providers to implement the MDRI will be
limited. Moreover, requiring small providers to take actions adopted in
this document to ensure their networks remain operational during
emergencies will have the effect of streamlining and standardizing
those efforts, thereby making coordination with other entities,
including other providers, more efficient than would be possible if
small providers were not subject to uniform rules. Small providers are
also affording an additional measure of time to comply with adopted
rules, requiring compliance within nine months (rather than the six
month afforded other providers).
66. Lastly, we considered whether providers should submit reports
to the Commission, in real time or in the aftermath of a disaster
detailing their implementation of the Framework's provisions and
whether the reports should include information on the manner in which
the provider adhered to the various provisions of the Framework. We
declined to adopt a real-time submission reporting requirement, and
instead required that providers submit a report detailing the timing,
duration and effectiveness of their implementation of the MDRI's
provisions within 60 days of when the Bureau, under delegated
authority, issues a Public Notice announcing such reports must be filed
for providers operating in a given geographic area in the aftermath of
a disaster. In light of our decision to examine ways to standardize and
streamline the reporting processes for providers in the further notice
of proposed rulemaking (FNPRM), published elsewhere in this issue of
the Federal Register, we did not mandate a timeline for compliance with
the reporting requirements, therefore small entities will not be
immediately impacted by the requirements.
II. Ordering Clauses
67. Accordingly it is ordered that, pursuant to the authority
contained in Sections 1, 4(i), 4(j), 4(o), 201(b), 214(d), 218,
251(e)(3), 301, 303(b), 303(g), 303(j), 303(r), 307, 309(a), 309(j),
316, 332, 403, 615a-1, and 615c of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i)-(j) & (o), 201(b), 214(d), 218,
251(e)(3), 301, 303(b), 303(g), 303(j), 303(r), 307, 309(a), 309(j),
316, 332, 403, 615a-1, and 615c, the Report and Order and Further
Notice of Proposed Rulemaking in PS Docket Nos. 21-346 and 15-80 and ET
Docket No. 04-35 is hereby adopted.
68. It is further ordered that the amended Commission rules as set
forth in Sec. 4.17 Are Adopted, effective 30 days after publication in
the Federal Register. Compliance with the rules adopted in document
will not be required until the later of (i) 30 days after the Public
Safety and Homeland Security Bureau issues a Public Notice announcing
completion of Office of Management and Budget (OMB) review of any new
information collection requirements associated with this document or
(ii) nine months after the publication of this document in the Federal
Register for facilities-based mobile wireless providers with 1500 or
fewer employees and six months after the publication of this document
in the Federal Register for all other facilities-based mobile wireless
providers. For the purposes of the provisions of Sec. 4.17(a)(3)(ii),
compliance will be required 30 days after the compliance date for all
other provisions, and the compliance date for a small facilities
facilities-based mobile wireless provider will apply when at least one
party to the mutual aid arrangement is a small facilities-based mobile
wireless provider. The Commission directs the Public Safety and
Homeland Security Bureau to announce the compliance dates by subsequent
Public Notice and to cause 47 CFR 4.17 to be revised accordingly.
69. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of the Report and Order and Further Notice of Proposed Rulemaking,
including the Final Regulatory Flexibility Analysis and Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
70. It is further ordered that the Office of Managing Director,
Performance Evaluation and Records Management, shall send a copy of the
Report and Order and Further Notice of Proposed Rulemaking 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 Regulations
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. Add Sec. 4.17 to read as follows:
[[Page 59340]]
Sec. 4.17 Mandatory Disaster Response Initiative.
(a) Facilities-based mobile wireless providers are required to
perform, or have established, the following procedures when:
(1) Any entity authorized to declare Emergency Support Function 2
(ESF-2) activates ESF-2 for a given emergency or disaster;
(2) The Commission activates the Disaster Information Reporting
System (DIRS); or
(3) The Commission's Chief of the Public Safety and Homeland
Security Bureau issues a Public Notice activating the Mandatory
Disaster Response Initiative 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:
(i) Provide for reasonable roaming under disaster arrangements
(RuDs) when technically feasible, where:
(A) A requesting provider's network has become inoperable and the
requesting provider has taken all appropriate steps to attempt to
restore its own network; and
(B) The provider receiving the request (home provider) has
determined that roaming is technically feasible and will not adversely
affect service to the home provider's own subscribers, provided that
existing roaming arrangements and call processing methods do not
already achieve these objectives and that any new arrangements are
limited in duration and contingent on the requesting provider taking
all possible steps to restore service on its own network as quickly as
possible;
(ii) Establish mutual aid arrangements with other facilities-based
mobile wireless providers for providing aid upon request to those
providers during emergencies, where such agreements address the sharing
of physical assets and commit to engaging in necessary consultation
where feasible during and after disasters, provided that the provider
supplying the aid has reasonably first managed its own network needs;
(iii) Take reasonable measures to enhance municipal preparedness
and restoration;
(iv) Take reasonable measures to increase consumer readiness and
preparation; and
(v) Take reasonable measures to improve public awareness and
stakeholder communications on service and restoration status.
(b) Providers subject to the requirements of paragraph (a) of this
section are required to perform annual testing of their roaming
capabilities and related coordination processes, with such testing
performed bilaterally with other providers that may foreseeably roam,
or request roaming from, the provider during times of disaster or other
exigency.
(c) Providers subject to the requirements of paragraph (a) of this
section are required to submit reports to the Commission detailing the
timing, duration, and effectiveness of their implementation of the
Mandatory Disaster Response Initiative's provisions in this section
within 60 days of when the Public Safety and Homeland Security Bureau
issues a Public Notice announcing such reports must be filed for
providers operating in a certain geographic area in the aftermath of a
disaster.
(d) Providers subject to the requirements of paragraph (a) of this
section are required retain RuDs for a period of at least one year
after their expiration and supply copies of such agreements to the
Commission promptly upon Commission request.
(e)(1) This section may contain information collection and/or
recordkeeping requirements. Compliance with this section will not be
required until this paragraph (e) is removed or contains compliance
dates, which will not occur until the later of:
(i) 30 days after the Office of Management and Budget completes
review of such requirements pursuant to the Paperwork Reduction Act or
the Public Safety and Homeland Security Bureau determines that such
review is not required; or
(ii) June 30, 2023 for facilities-based mobile wireless service
providers with 1,500 or fewer employees and March 30, 2023 for all
other facilities-based mobile wireless service providers, except that
compliance with paragraph (a)(3)(ii) of this section will not be
required until 30 days after the compliance date for the other
provisions of this section.
(2) The Commission directs the Public Safety and Homeland Security
Bureau to announce the compliance dates for this section by subsequent
Public Notice and notification in the Federal Register and to cause
this section to be revised accordingly.
[FR Doc. 2022-19745 Filed 9-29-22; 8:45 am]
BILLING CODE 6712-01-P
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