Federal Communications Commission Seeks Comment on Proposed Imposition of Mandatory Network Outage Reporting Requirements for Submarine Cable Licensees

On Friday, September 18, 2015, the Federal Communications Commission (FCC) released its proposed rules that would require submarine cable licensees to submit reports of network outages. The proposed submarine cable outage reporting framework -- requiring submission of a series of reports within specified timeframes once a reportable outage occurs -- mirrors that of the existing network outage reporting requirement for other communications providers. However, the FCC tried to tailor the reporting trigger and report submission timeframes in its proposal specifically to submarine cable systems.

The FCC’s Notice of Proposed Rulemaking (NPRM), in GN Docket No. 15-206, comprehensively sets forth the proposed submarine cable outage reporting regime and seeks comment on it. The FCC also seeks comment on other issues related to submarine cable system deployment. Consequently, cable system operators and other interested parties have the opportunity to impact the final reporting rules and cable system deployment issues by expressing their ideas and concerns during the comment and reply comment cycle. Comments will be due within thirty (30) days after the NPRM is published in the Federal Register and reply comments will be due within 45 days of that publication date.

In its NPRM, the FCC emphasized the critical nature of submarine cable systems to the U.S. domestic and international communications markets. In particular, the FCC noted that cable systems carry the vast majority of civilian and military U.S. government traffic and estimated that transactions over submarine cables account for $10 trillion per day. The FCC expressed a need for agency visibility into undersea cable operational status and explained that the necessary information is not being provided on a voluntary basis through the FCC’s Undersea Cable Information System (UCIS). UCIS enables submarine cable licensees to provide, among other data, general information regarding post-incident restoration and system restoration notices. However, the information reported in UCIS is not standardized, there is no established trigger for reporting cable system outage events, and information has been reported through UCIS for only a quarter of current submarine cable systems over the past seven (7) years. Consequently, the FCC proposes the new mandatory submarine cable outage reporting rules to obtain the information necessary for the FCC to understand and identify systemic issues related to submarine cable network outages.

Proposed Submarine Cable Network Outage Reporting Rules

We provide below a general overview of the proposed network outage reporting requirements as well as key issues for which the FCC is seeking comment. Interested parties should assess the extent to which they could be impacted by the FCC’s proposals and consider participating in the comment cycle.

In many respects, the proposed reporting requirements are similar to the existing rules applicable to other communications providers. In particular, the proposed definition of an ​“outage”, the timeframe for initial notifications, and the reporting process do not differ significantly from those aspects of the existing network outage reporting rules. In other cases, such as the interim and final reporting timeframes, the Commission has suggested requirements that reflect the differing nature of submarine cable systems.

Who Would Be Required to Report?

The FCC seeks to ensure the resiliency of submarine cable systems and intends to collect information necessary to analyze network outages. Accordingly, the proposed submarine cable outage reporting requirements would apply to all submarine cable licensees, regardless of whether the system is used for international or domestic voice or data. The network outage reporting requirement would explicitly be included as one of the general regulatory conditions that the FCC applies to all submarine cable licensees. The NPRM seeks comment on whether additional entities, even if not cable system licensees themselves, should be subject to the outage reporting requirements. This might include holders of indefeasible rights of use (IRUs) and lessees of circuits or half circuits, among others. Accordingly, all entities that are subject to FCC jurisdiction and that utilize submarine cable systems, even if they are not cable system licensees, should evaluate the potential risks of being subject to some aspect of the submarine cable outage reporting requirements.

The NPRM addresses cable systems that involve a consortium of owners, a model of investment which has become more and more common. Members of submarine cable consortia may each own equity or a specific number of fiber pairs on the system and, typically, each is an FCC licensee on the system. Under the FCC’s proposed rules, each licensee of a cable system would be subject to the network outage reporting requirement. To minimize the burden, for the FCC and consortium member licensees, associated with outage reporting, the FCC is considering permitting or requiring a designated ​“Responsible Licensee,” selected by the consortium members from among their number, to submit the outage report on behalf of the consortium. The FCC questions whether this reporting model would be workable and, recognizing that implementation could be difficult, the NPRM seeks comment on this proposal. In particular, the FCC identifies concerns such as: will the Responsible Licensee be able to easily obtain required outage report information from other consortium licensees?; should consortium licensees be required to formally designate a single Responsible Licensee that will submit all outage reports for a cable system?; what party should be subject to enforcement action if an outage is not timely reported or is inaccurate due to the Responsible Licensee’s inability to obtain the required reporting information from consortium members?; and should each licensee by jointly and severally liable for resulting forfeitures when a report is not provided with regard to a system outage?

What Is a Reportable Outage for Submarine Cable Systems?

The FCC’s proposed definition of a reportable submarine cable ​“outage” builds upon the definition of outage applicable to other communications providers and signifies a ​“failure or degradation in the performance of a communications provider’s cable regardless of whether the traffic can be rerouted to an alternate cable.” However, not all ​“outages” are subject to reporting – the FCC proposes that an outage rises to the level of a ​“reportable” outage if one of two proposed thresholds is met:

1. the outage results in a loss of connectivity, in either transit mode or receive mode, for a period of thirty (30) minutes or more; or
2. the outage results in the loss of fifty percent (50%) or more of the capacity of the submarine cable, in either transit mode or receive mode, for a period of thirty (30) minutes or more.

The FCC points out that connectivity refers to the ability to transmit a signal whereas capacity addresses the cable’s bandwidth or throughput that can be transmitted at any one time.

As with other aspects of the outage reporting proposals, the FCC seeks comment on these reporting thresholds and other related questions: what percentage of capacity degradation should trigger outage reporting?; should cable capacity be measured using the same definition as is used in annual submarine cable capacity reports?; should a degradation threshold apply to the entire cable capacity or be applied separately to smaller system links?; for cable systems with a U.S. end point and multiple links, including those which do not touch the U.S., should licensees be required to report on all segments of the system? The final resolution of these questions will be a key determinant of the scope of the reporting obligation and interested parties should participate in the comment cycle to ensure their concerns are heard.

Proposed Reporting Formats and Schedules

Under the FCC’s proposed rules, a submarine cable licensee would have to submit three (3) reports - a Notification, Interim Report and Final Report - within specific timeframes. The initial Notification would be due within 120 minutes of the submarine cable licensee determining there was a reportable outage. The FCC acknowledges that submarine cable licensees may not have useful information regarding an outage until after the cable system repairs are scheduled. Accordingly, the FCC proposes the Interim report be submitted within one hundred and twenty (120) minutes of the licensee scheduling a repair to the cable. The Final Outage Report would be due, under the proposed framework, within seven (7) days after the cable repair is completed.

For each report under the proposal, the cable licensee would have to submit a variety of information including, but not limited to:

• Name of reporting licensee and cable system
• Brief description of the event including the root cause
• Date and time of the onset of the outage
• The approximate location of the outage, in nautical miles from the nearest cable landing station or in latitude and longitude
• Licensee contact information for questions about the outage

Depending on the particular report -- initial Notification, Interim Report, or Final Report -- the NPRM proposes that the licensee would be required to include additional information such as the approximate date and arrival time of the repair ship and the duration of the outage. The FCC seeks comment on whether the required report information likely will be available at the time each of the three reports is due and, if not, when would the information be available. In addition, the FCC inquires what, if any, additional information should be collected to enable the FCC to effectively analyze network outages.

Other Issues

In addition to seeking comment on the details of the proposed submarine cable network outage reporting rules, the FCC is also considering in the rulemaking proceeding matters regarding cable system deployment and related interagency coordination. In particular, the FCC noted the complex federal agency coordination involved in cable system deployment and the need for cable operators to obtain permits and authorizations from numerous agencies. The FCC stated its International Bureau and Public Safety and Homeland Security Bureau would be reaching out to relevant government agencies, as a part of the FCC’s general review of the submarine cable deployment process, to try to develop and implement best practices to increase transparency and information sharing among government agencies. While the FCC does not provide further detail regarding the interagency coordination, it is possible the FCC would welcome comments regarding steps it can take to facilitate coordination with the agencies that make up ​“Team Telecom” as well as the U.S. Department of State, U.S. Department of Commerce and Defense Information Systems Agency. (These latter agencies receive a copy of any submarine cable system application filed with the Commission.) The FCC also seeks comment on what other measures can be taken to speed the cable system deployment process.

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