February 28, 2012 | Kelley Drye Client Advisory
On February 21, 2012, the Federal Communications Commission issued a Report and Order ("Order") adopting outage reporting requirements for both facilities-based and non-facilities-based interconnected Voice over Internet Protocol ("VoIP") service providers on a mandatory basis in order to further ensure reliable 9-1-1 service. Outage notification and reporting requirements currently apply to a variety of voice providers, including wireline carriers, CMRS providers, cable companies, and satellite providers. The Commission's final action was narrower than had been first suggested in 2011, when the FCC also proposed to extend outage reporting requirements to providers of broadband Internet services. In short, interconnected VoIP providers will be subject to notification and reporting requirements only in the event of complete loss of service. Their reporting obligations do not extend to situations where service is technically available but technical conditions effectively prevent communication. Rather, the FCC deferred action on performance degradation thresholds for measuring an outage of interconnected VoIP service and all action relative to outages of broadband Internet services. Finally, the Commission clarified that Part 4 of its rules relating to outage reporting applies to voice services provided using new wireless spectrum bands.
Effectiveness of the New Outage Reporting Rules
The new rules go into effect ninety (90) days after the Office of Management and Budget ("OMB") approves the information collection required by the Order. The Commission plans to issue a Public Notice specifying the exact date of effectiveness after receiving OMB approval.
Scope of the New Rules
The Order and amended rules apply to (1) both facilities-based and non-facilities-based interconnected VoIP providers and (2) to affiliated or non-affiliated entities that maintain or provide communications networks or facilities used by the interconnected VoIP providers in providing their interconnected VoIP communications. The Commission declined to apply any portion of its outage reporting requirements at this time to broadband Internet service providers.
Outages that Trigger Interconnected VoIP Providers' Reporting Obligations
The new rules apply only where customers of interconnected VoIP service lose service and/or connectivity and, as a result, the ability to access9-1-1 service. The Commission concluded that imposing the requirements would not be burdensome based on its belief that "every such provider is already tracking this information in some manner," specifically by monitoring whether VoIP-enabled end-user devices are enjoying connectivity.
The Order applies the same definition of "outage" that already exists in Part 4 of its rules to interconnected VoIP providers. Specifically, an outage of interconnected VoIP service is "a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of failure or degradation in the performance of a communications provider's network." The FCC excluded the concept of a "loss of generally-useful availability and connectivity" as measured by packet loss, jitter, or latency standards that it had proposed to include in its NPRM, noting that the Commission could revisit that issue in the future should it determine a more nuanced definition of outage is necessary. So, for the time being, for interconnected VoIP providers, a "significant degradation" resulting in "the complete loss of service or connectivity to customers" is a reportable outage if it otherwise meets the reporting criteria and thresholds as outlined below. The Commission declined to require reporting for all failures of an interconnected VoIP provider's Call Agent, Session Border controller, Signaling Gateway, Call Session Control Function, or Home Subscriber Server, underscoring the trigger to be analyzed in the case of such failures is "the complete loss of service or connectivity to customers."
Notification and Reporting Triggers, Obligations, and Deadlines
Under the new rules, an interconnected VoIP provider must provide an initial notification within either four (4) or twenty-four (24) hours of discovering the outage depending on the type of outage. A final report, in either case, must be submitted within thirty (30) days following the discovery of the outage. (Unlike wireline and wireless communications carriers, interconnected VoIP providers need not submit an initial report within three days of the discovery of the outage.)
Four Hour Deadline: An interconnected VoIP provider must submit an electronic notification to the FCC within four hours after discovering an outage of at least thirty (30) minutes duration on any facilities that they "own, operate, lease, or otherwise utilize" that potentially affects a 9-1-1 special facility (as defined in section 4.5(e) of the FCC's Rules). This would include, for example, the loss of all facilities, no rerouting, connecting a selective router to a Public Safety Answering Point, or the complete loss of the ability to provide location information for interconnected VoIP calls. Additionally, "as soon as possible" after discovery of such an outage, an interconnected VoIP provider must notify by telephone or other electronic means any official designated by the management of the affected9-1-1 facility as the provider's contact person for communications outages affecting that facility. Such notice must include all available information that may be useful to the management of the affected facility in mitigating the inability to communicate with the affected facility.
Twenty-Four Deadline: By contrast, within twenty-four (24) hours after interconnected VoIP providers discover an outage of at least thirty (30) minutes duration on any facilities that they "own, operate, lease, or otherwise utilize" that potentially affects at least 900,000 user minutes of interconnected VoIP service or that potentially affects any special offices or facilities (as defined in sections 4.5(b) of the FCC's Rules, including major military installations, key government facilities, nuclear power plants, and certain airports), interconnected VoIP providers must give electronic notice to the Commission. Thus, for example, an interconnected VoIP provider must submit a notification within 24 hours when there is complete loss of an access router or loss of all facilities connecting the access router to the backbone network.
Final Report after Thirty Days: Whether notification is required in four or twenty-four hours, an interconnected VoIP provider must submit a final report to the FCC no later than thirty (30) days after discovery of the outage. The period for the final report is the same that applies to telecommunications carriers under the existing rules.
Note re Non-Facilities-Based Interconnected VoIP Providers: Non-facilities-based interconnected VoIP providers are to report outages that meet the above triggers "to the extent they have access to information on service outages affecting their customers." The Commission acknowledged that non-facilities-based interconnected VoIP providers may need to report that certain failures are outside their control. In the Order, the Commission explained that both facilities-based and non-facilities based interconnected VoIP providers have the same means to determine the connectivity of customers' end user devices, such as the Network Management System and polling with Internet Control Message Protocol, among other methods.
Presumed Confidentiality of Outage Reports and Associated Records
The Order explained that the outage reports and related records of interconnected VoIP providers submitted to the Commission would be treated on a presumptively confidential basis which status would travel with the reports and records should the Commission share them with other Federal agencies. Further, while the Commission will allow public reporting of aggregated outage information across providers, it will not allow the public reporting in unredacted form of data providers have submitted in complying with their outage reporting obligations.
Clarification of Outage Reporting Rules as They Apply to CMRS Providers
The Order clarified the applicability of its existing wireless outage reporting requirements to all non-wireline commercial mobile radio service ("CMRS") providers. While the Commission stated in the Order that the reporting requirements apply to providers in the new Advanced Wireless Services and 700 MHz spectrum bands, among other examples, it emphasized that these were just examples and that the requirements apply to all non-wireline providers of voice services. The Rules also provide that entities that maintain or provide communications networks or services used by CMRS providers in offering commercial mobile radio communications are subject to the same outage reporting requirements as the CMRS providers.
Please be advised that attorneys in Kelley Drye & Warren's Telecommunications practice group are experienced in addressing issues related to the hearing aid compatibility handset reports. For more information regarding this client advisory, please contact your usual Kelley Drye attorney or any member of the Telecommunications practice group.