FCC Considers Extending "Network Outage Reporting" Requirements to Broadband and VoIP Providers; Warns Telecom Carriers of Substantial Fines for Noncompliance
The Federal Communications Commission’s (FCC’s) “network outage reporting” rules require telecommunications carriers to report any outage lasting 30 minutes or longer that has a significant impact on the network, including any outage that potentially affects at least 900,000 minutes of either telephony or paging usage. Upon discovery of such an outage, the carrier must make three filings with the Commission: (1) an electronic notification within 120 minutes; (2) an initial outage report within 72 hours; and (3) a final report within 30 days.
On July 6, 2010, the FCC asked for comment on a proposal in the National Broadband Plan to extend these reporting requirements to broadband and voice over Internet protocol (VoIP) service providers. On the same day, the FCC issued a notice of apparent liability against a carrier for violating the network outage reporting rules.
On July 6, the FCC proposed a $60,000 forfeiture against a competitive telephone company that filed reports late after an outage that the FCC itself indicates had "a relatively limited impact in comparison to other network outages." The FCC’s decision pointedly warns carriers that this $60,000 would likely be the base amount for any future violations and that fines could be higher for more consequential outages or repeated violations.
On the same day, the FCC’s Public Safety and Homeland Security Bureau issued a notice seeking comment on whether these reporting requirements should be extended to broadband Internet service providers (ISPs) and VoIP providers. The Bureau seeks comments on whether and how these providers should be subject to network outage reporting requirements, including what would constitute an “outage” for reporting purposes, what should trigger a reporting obligation, and the timing and content of any such reports.
In addition, the Bureau seeks comment on the strongest sources of authority, if any, for imposing network outage reporting requirements on broadband ISPs and VoIP providers. It is likely that the Bureau expects that new rules would not be adopted until after the Commission completes the proceedings on reclassification of broadband as a Title II telecommunications service. (Please see our June 17, 2010, advisory.) Broadband service providers have feared that reclassification would lead to a creep of additional regulation, and so it is possibly telling that the Commission is considering new regulations even before any reclassification order is even released.
The FCC has stated that the purpose of these rules is to ensure that it has prompt access to information that is crucial to its ability to prevent and mitigate disruptions in service that could potentially threaten homeland security, public health and safety, and the nation’s economic well-being. The notice observes that Americans are increasingly relying on broadband and IP-based communications, and the National Broadband Plan recommends that the FCC initiate a proceeding to apply the Commission’s network outage reporting rules to broadband ISPs and VoIP providers.
Initial comments are due Aug. 2, 2010, and reply comments are due on Aug. 16, 2010. We are currently advising clients on this matter and would be happy to discuss potential comments or any questions you may have.