In a first, the FCC is proposing to set the triggers based on packet loss, average round-trip latency and average jitter measurements. This proposal essentially would set minimum service quality standards for IP-enabled services -- another first for the FCC.

Specifically, the Commission is proposing to require outage reports when an event affects at least 900,000 user minutes and involves any of the following:

1. a complete loss of service;
2. an average packet loss of 1 percent or greater;
3. an average round-trip latency of 100ms or greater; or
4. an average jitter of 4 ms or greater.

Each of these measurements must be taken over a period of at least 6 consecutive 5 minute intervals.

This proposal essentially sets a service quality floor for IP-enabled services. Any service that falls below these times would be deemed an "outage" and would trigger reporting obligations. Of course, the proposal also would require service providers to track these metrics, which they may not track today.

The Commission is not likely to impose these new obligations this calendar year: Comments will be due in 60 days from the Federal Register publication; replies in 120 days.

5/16 UPDATE: The FCC released the text of its proposal, which would set a service quality standard for IP-enabled services for the first time.

Unfortunately, the presentation was short on specifics, and the FCC did not release the text of its NPRM today. (The Bureau asked for "editorial privileges" on the item). Only the Press Release was made available yesterday. So far, here is what we know:

• Providers will be required to file outage reports as provided in Section 4 of the Commission's rules already. Generally, this requires an Electronic Notification, an Initial Outage Report and a Final Outage Report for each incident above the threshold levels.
• The rules will apply to interconnected VoIP providers, broadband Internet service providers and to broadband backbone providers.
• Both facilities-based and resale providers will be obligated to make reports of outages.
• The threshold level of outage that triggers a report has not been determined. This will be the primary area of comment on the rules.

In addition, because the classification of both interconnected VoIP and broadband-based services is in doubt, the FCC's authority to apply the rules also is an issue. The NPRM proposes to use the FCC's ancillary authority under Title I. Commissioner Copps agreed with this approach, but reiterated his view that the services are Title II telecommunications services, and said that proceeding under Title II would be his preference. Commissioner McDowell, on the other hand, refused to join this portion of the NPRM, saying only that he welcomed a discussion of the Commission's authority in response to the rulemaking proposal. Welcome to "Comcast Junior."

Meanwhile, interconnected VoIP and broadband service providers should take note of these rules. In the past, the FCC has set significant fines for failing to file the required outage reports. It has proposed a base forfeiture of $40,000 for failing to file the Electronic Notification, $20,000 for failing to file the subsequent Outage Reports and $25,000 for filing incomplete or inaccurate reports. (All of this was determined with a base forfeiture of $3,000 for failing to file a required report, an inconsistency we've commented upon before.)

This item has been moving forward under the radar of most VoIP and broadband providers. As we told you back in July, the Public Safety Bureau sought comment on how to apply its outage reporting obligations to interconnected VoIP services and broadband Internet access services. The Public Notice produced only a handful of comments and replies. Even in the few days before the FCC announced its meeting agenda -- typically a very busy time for those with an interest in an order -- only three ex parte notices were filed on the proposal. The minimal level of interest won't last long, however. Once the NPRM is released this week, a much larger universe of interested parties is likely to appear.

Note: Also on the May 12th agenda are proposed revisions to two international service compliance obligations -- the FCC's settlements policy and its Part 43 reporting requirements for international traffic. International carriers should pay close attention to both items.

In addition to general questions about whether the rules should be applied to broadband or interconnected VoIP providers, the Public Notice seeks comment on a number of specific questions, including:

Interconnected VoIP

• What constitutes outages for a service provided by an interconnected VoIP provider? For example, we know anecdotally that interconnected VoIP service users can collectively experience an outright loss of service comparable to the loss of service experienced by traditional time division multiplex (TDM)-based users. Are there also levels of service degradation specific to interconnected VoIP service that should be considered?
• Would an outage reporting requirement based on some threshold [as applies to telecom providers] also be appropriate for interconnected VoIP service providers? If so, what would be a reasonable reporting threshold?

Broadband Internet Access

• How should the differences between traditional networks and the packet switched Internet alter what constitutes a reportable ISP outage in the Commission’s Part 4 rules? Should the Commission alter its view of a reportable outage to include events that result in significant degradations to performance as perceived by end-users?
• What special considerations should be given to services provided via Internet access to Public Safety Answering Points (PSAPs)?
• If the Commission were to determine significant performance degradations to be outages that should be reported by broadband ISPs, how should the Commission define a significant degradation so as to trigger the reporting requirement? For example, would a threshold for Internet service based on “generally useful connectivity” be an appropriate construct? If so, how should the Commission define “generally useful connectivity” so that an objective reporting threshold can be established?