By Laura H. Phillips and Patrick R. McFadden

The Federal Communications Commission has launched a proceeding to examine possible new requirements on carriers' networks in the wake of widespread problems reported regarding the availability of E-911 communications in the event of a major disaster such as the June 2012 “derecho” storm, which severely disrupted 911 systems and communications in the Mid-Atlantic and Midwest.  A January report issued by the FCC’s Public Safety and Homeland Security Bureau set forth findings and recommendations based on the loss of service from that storm, which rendered several 911 systems in three states inoperable, leaving two million residents unable to reach 911 services.  An additional 3.6 million people reportedly lost some degree of network connectivity during and after the storm.

One of the key elements of the Notice concerns how broadly any new requirements would apply if adopted.  The Notice and the underlying Bureau report are focused on network resiliency and, as a result, any future rules will most likely be directed to network owners.  In the first instance, the rules will most obviously apply to facilities-based Local Exchange Carriers.  However, as Next Generation 911, with an IP-based architecture that allows transmission of texts, data, video and photos to Public Safety Answering Points (PSAPs) is implemented, the types of networks delivering transmissions to PSAPs will expand.  Accordingly, the FCC proposes defining the term “911 service provider,” to which any new rules will apply, to include all entities that provide 911 call routing, automatic location information, emergency services IP networks, and similar services directly to a PSAP.  The FCC asks whether this class of entities may include wireless carriers, interconnected VoIP service providers, or other potential service provider paths for reaching PSAPs.  Additionally, depending on how the FCC elects to allow cost recovery for costs associated with coming into compliance with any rules that are adopted, entities, including resellers, wireless carriers and VoIP service providers, that rely on traditional ILEC or IP-based networks as critical inputs for the services they provide may face higher costs associated with those inputs.   

The Notice seeks comment on four Bureau recommendations of additional requirements to be placed on covered service providers and their networks and seeks input on whether enforcement of voluntary best practices via FCC rules would be the best means of implementation:

  • Routine 911 Circuit Auditing – regular auditing of the physical routes of 911 circuits and automatic location identification links to identify single points of failure that could disrupt 911 communications and services.  Physical diversity, i.e., physical separation of circuit paths, can help prevent a single failure from causing multiple circuits to fail.  The Bureau report recommends regular auditing in order to maintain physical diversity.
  • Adequate “Central Office” Backup Power – because backup power failures can disable 911 services, the Bureau recommends requiring service providers to maintain resilient backup power in central offices, supported by testing, maintenance and record retention.  The FCC acknowledges that what may constitute a “central office” may vary by service provider, and seeks comment on how the level of backup power required may vary according to type of facility.  It is unclear how broadly the FCC might seek to extend this requirement, but this certainly suggests that the FCC could extend backup power requirements beyond traditional ILEC central offices, to include certain wireless carrier or VoIP service provider facilities – such as wireless carrier towers or consolidated data centers used by VoIP providers.  The Notice seeks comment on whether the FCC should impose specific minimum standards for backup power, e.g., backup power sufficient to last a specific number of hours.  It also seeks comment on costs and burdens associated with different possible requirements including having generators in all central offices, battery testing, generator testing, and other proposals. 
  • Physical Diversity of Monitor and Control Links – to ensure that service providers maintain awareness of outages and can speed recovery from any outages, the Bureau recommends that service providers maintain physically diverse monitor and control links.  In particular, the Notice observes that, during the derecho, two LECs lost network monitoring capabilities through a single point of failure, depriving them of visibility into the operation of their networks and complicating recovery efforts. 
  • Improved Public Safety Answering Point (PSAP) Notification of Outages –The Notice suggests adoption of more specific requirements on carriers regarding acceptable methods of PSAP notification and a minimum level of detail service providers must provide when reporting 911 outages.

The Notice seeks comment on rules that could implement these recommendations, which could range from specific standards adopted by the FCC to certification of compliance with industry best practices. 

The Notice identifies four unique approaches for implementing any requirements it adopts and suggests the agency may choose to use two or more approaches, or one approach alone, to enforce any new rules implementing the Bureau’s recommendations – i.e., individual approaches or combinations could be used to enforce different aspects of any new rules.  They are:

  • Reporting – requiring service providers to periodically report on their implementation of best practices or compliance with specific standards adopted by the FCC.  The FCC seeks comment on the scope, frequency and detail of any reporting requirements, as well as on the extent to which reporting obligations alone would be effective.
  • Certification – requiring service providers (possibly an officer of the company) to certify that their networks comply with industry best practices and any specific reliability requirements imposed by the FCC.
  • Reliability Requirements – under this approach, the FCC would specify minimum standards for 911 communications reliability.
  • Compliance Reviews and Inspections – institute periodic reviews or site inspections by the FCC of service provider facilities at multiple central offices.

The costs and complications of implementing backup power resources, for example, are not insignificant.  To the extent that recommendations to the FCC are substantive and recognize the legitimate public safety imperatives of enhancing network resilience and uninterrupted 911 service, they could influence the FCC's ultimate rules in this area.  

Comments will be due 30 days after the Notice is published in the Federal Register, with Reply Comments due 15 days thereafter. 

Source: Client Alert