Rule2023-28834
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
January 26, 2024
Effective
May 1, 2024
Issuing agencies
Federal Communications Commission
Abstract
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.
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<title>Federal Register, Volume 89 Issue 18 (Friday, January 26, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="/cdn-cgi/l/email-protection#5b1e2932303a751437283e351b3d3838753c342d"><span class="__cf_email__" data-cfemail="d396a1bab8b2fd9cbfa0b6bd93b5b0b0fdb4bca5">[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#276b4840464909654249494253536741444409404851"><span class="__cf_email__" data-cfemail="703c1f17111e5e32151e1e150404301613135e171f06">[email protected]</span></a>.
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: <a href="https://docs.fcc.gov/public/attachments/FCC-23-71A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-71A1.pdf</a>.
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
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