Improving Outage Reporting for Submarine Cables and Enhanced Submarine Cable Outage Data
| Published date | 19 March 2020 |
| Citation | 85 FR 15733 |
| Record Number | 2020-03397 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
Federal Register, Volume 85 Issue 54 (Thursday, March 19, 2020)
[Federal Register Volume 85, Number 54 (Thursday, March 19, 2020)]
[Rules and Regulations]
[Pages 15733-15741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03397]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 4
[GN Docket No. 15-206; FCC 19-138; FRS 16474]
Improving Outage Reporting for Submarine Cables and Enhanced
Submarine Cable Outage Data
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) modifies a requirement for submarine cable licensees to
report outages to the Commission. This Order on Reconsideration
addresses two petitions submitted and refocuses the reporting
requirements to capture significant disruptions to submarine cable
communications, including outages with national security implications.
DATES: Effective April 20, 2020. The final rule amending 47 CFR 4.1,
published August 8, 2016, at 81 FR 52362, is effective April 20, 2020.
Compliance will not be required for 47 CFR 4.15 until the Commission
publishes a document in the Federal Register announcing the compliance
date.
ADDRESSES: The complete text of this document is available for
inspection and copying during normal business hours in the FCC
Reference Information Center, Portals II, 445 12th Street SW, Room CY-
A257, Washington, DC 20554, or at the following internet address:
https://docs.fcc.gov/public/attachments/FCC-19-138A1.pdf.
FOR FURTHER INFORMATION CONTACT: For further information, contact
Brenda D. Villanueva, Attorney-Advisor, Cybersecurity and
Communications Reliability Division, Public Safety and Homeland
Security Bureau, (202) 418-7005 or via email at
[email protected]; or Suzon Cameron, Senior Attorney,
Cybersecurity and Communications Reliability Division, Public Safety
and Homeland Security Bureau, (202) 418-1916 or via email at
[email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration, FCC 19-138, adopted on December 20, 2019, and
released on December 27, 2019. To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (TTY). The complete text of the order also is available on the
Commission's website at http://www.fcc.gov.
Synopsis
I. Introduction
1. In the Submarine Cable Outage Reporting Order (Order) 81 FR
52354 (Aug. 8, 2016), the Commission mandated reporting obligations for
certain disruptions of submarine cable communications. The Commission
uses outage reporting primarily to aid government-wide incident
response, public safety and national security efforts, and the analysis
of network reliability trends. Two associations representing submarine
cable providers, the North American Submarine Cable Association (NASCA)
and the Submarine Cable Coalition (SCC), separately petitioned the
Commission to reconsider certain aspects of the Order.
2. This Order on Reconsideration reexamines and amends certain
aspects of the required reporting of submarine cable infrastructure
outages to better conform them to their expected uses. In doing so, we
seek to preserve the benefits while minimizing the costs and
administrative burdens of reporting by refocusing the submarine cable
outage rules on significant disruptions to submarine cable
communications and those outages that have national security
implications.
II. Background
3. Historically, the Commission employed a voluntary reporting
regime for submarine cables through the Undersea Cable Information
System (UCIS). That system provides a web portal for licensees to
submit information about submarine cable operational status, including
outages, on an ad hoc basis, 80 FR 67689 (Nov. 3, 2015). In contrast,
communications providers covered by the Commission's mandatory
reporting rules report outages through the Network Outage Reporting
System (NORS), a web-based filing system that uses an electronic
template to promote ease of reporting and encryption technology to
ensure the security of the information filed.
4. In 2016, the Commission observed that UCIS was largely
ineffective, failed to provide visibility into the operational status
of the majority of submarine cables, and failed to collect data in a
uniform or timely manner necessary for the Commission's purposes.
Accordingly, the Commission in the Submarine Cable Outage Reporting
Order, 81 FR 52354 (Aug. 8, 2016) established mandatory reporting for
submarine cables through NORS and decided to retire the Undersea Cable
Information System. As the Order noted, ``[t]he operational status of
submarine cables carries commercial, economic, social, financial, and
national security implications.''
5. The Order defines a submarine cable ``outage'' as ``a failure or
significant degradation in the performance of a licensee's cable
service, regardless of whether the traffic can be re-routed to an
alternate path.'' The Order requires submarine cable licensees to
report outages that last more than 30 minutes, or that implicate the
loss of any fiber pair for four hours or more. The Order requires that
licensees submit such outage reports as a ``Notification'' within eight
hours of a licensee's determination that there has
[[Page 15734]]
been a reportable event, which would transition to a four-hour
requirement three years after the rules' effective date. The Order also
requires an ``Interim Report'' within 24 hours of licensees receiving a
Plan of Work for any repair, and a ``Final Report'' within seven days
of completing any repair. The Order requires licensees to begin
complying with the rules within six months after approval of the
information collection requirements by the Office of Management and
Budget (OMB). As the Commission has not to date submitted these
requirements to OMB for such approval, the rules are not currently in
effect.
6. Two entities, the North American Submarine Cable Coalition
(NASCA) and the Submarine Cable Coalition (SCC) (collectively,
Petitioners), filed separate timely Petitions for Reconsideration
(``Petitions''), requesting that the Commission reconsider certain
aspects of the Order. The Petitions requested that the Commission: (1)
Clarify an inconsistency in the definition of an outage between the
narrative text of the Order and the Final Rules; (2) exclude outages
due to planned maintenance from the scope of the rules; (3) grant
licensees more than six months for compliance following OMB approval of
the information collection; (4) exclude outages that involve rerouted
traffic from the scope of the rules; and (5) raise the minimum duration
for a reportable outage from 30 minutes. NASCA further requested that
the Commission give licensees more than eight hours to file the
Notification, which is the first filing required. Finally, Petitioners
disputed the cost-benefit analysis that the Commission conducted in
adopting the Order and the rules.
7. NASCA further filed a late supplement to its Petition,
accompanied by a motion requesting that the Commission accept the
supplement. In the supplement, NASCA asserted that the Commission
should rescind the prospective submarine cable outage reporting rules
altogether because of its view that (1) it is too difficult for
submarine cable licensees to determine whether an outage impacts
customer communications and connectivity; (2) the passage of time has
shown few reportable outages in general; (3) the outage reporting
obligations are duplicative of NORS reporting and Department of
Homeland Security regulatory mechanisms; and (4) the Order's cost-
benefit analysis is deficient.
8. The Commission sought comment on these petitions on October 31,
2016. The public had 15 days to file oppositions to the Petitions and
then ten days to reply to those oppositions. Latam Telecommunications
was the only entity that responded to the Public Notice, and it
supported both Petitions.
III. Discussion
9. Refocusing our efforts on the substantial submarine cable
communications disruptions, where the benefits of our reporting regime
will be most meaningful, we now refine the reporting rules adopted in
the Order. In this Order on Reconsideration, we grant in part and deny
in part the requests in the Petitions. Specifically, we narrow the
scope of reportable outages to reduce the potential for reporting of
mundane events and to ease reporting obligations on affected entities
for outages involving planned maintenance that is announced to
customers. We also clarify the definition of ``outage'' in our rules to
reconcile an inconsistency with the intent of the Order, and we address
the substantial savings in compliance costs afforded by these changes.
However, we decline to further extend the time before the obligations
become effective, to extend the time after discovering a reportable
outage that a licensee must submit a Notification, to exclude from the
reporting obligation all outages that are mitigated by rerouting, or to
raise the minimum duration for a reportable outage. In addition, we
deny NASCA's request to rescind the submarine cable outage reporting
rules altogether.
10. Before considering the merits, we first address a procedural
issue. In general, the Commission will not consider a supplement filed
after the 30-day period, 47 CFR 1.429(d). Although NASCA filed its
Supplement outside the 30-day period normally required, the Supplement
raised new facts ``[b]ased on NASCA members' experience in preparing to
implement the Commission's prospective rules,'' over a 12-month period.
Specifically, NASCA determined that, contrary to statements in its
petition, ``an outage definition based on customer impact is
unworkable.'' In light of this changed circumstance, we find that it is
in the public interest to consider the NASCA Supplement and its
statements about how our new submarine cable outage reporting rules
would work in practice. Accordingly, the Commission will grant leave to
file based on NASCA's separate pleading stating the grounds for
acceptance of the supplement.
A. Reporting Outages Due to Planned Maintenance
11. The Order requires submarine cable licensees experiencing an
outage of greater than 30 minutes on a portion of a submarine cable
system between submarine line terminal equipment (SLTE), or greater
than four hours affecting a fiber pair, to report the outage to the
Commission, including when an outage is caused by planned maintenance.
The Order reasoned that planned maintenance outages nevertheless affect
the submarine cable ecosystem and that planned maintenance outages are
covered by the part 4 reporting requirements for other types of
facilities. The Order stated that there is ``no unique, compelling
reason that would cause the Commission to depart from its past part 4
practice of requiring reports on planned maintenance events that meet
the reporting triggers.''
12. In view of the record before us, we grant in part Petitioners'
request that the Commission exclude planned maintenance from the outage
reporting requirements. Because submarine cable outage reporting is
partly motivated by national security concerns and partly by impact to
customers, and not planned service disruptions, we deem it reasonable
to exclude outages that result from planned maintenance as follows. In
recognition that many submarine cable operators already notify
customers (including national security agencies running traffic over a
provider's cable) well in advance of routine maintenance, we grant this
exemption on the condition that submarine cable operators continue to
provide such advance notification to customers in these circumstances.
13. When submarine cable operators provide advance notification to
customers of planned outages, the reporting obligation is revised such
that it will be limited to planned outages where (1) service is
affected for an additional period of time that exceeds the announced
scope of the planned maintenance, and (2) this additional period of
time, standing alone, would otherwise trigger the outage reporting
requirements. The Submarine Cable Coalition states that ``multiple
submarine cable operators already notify customers (including national
security agencies running traffic over a provider's cable) well in
advance of routine maintenance.'' In other words, we modify the rules
so that reporting for planned outages is necessary only if no advance
notification to a customer is provided, or, if the planned maintenance
event turns into an unplanned outage in which the duration of the
unplanned portion is sufficient in and of itself to trigger the outage
reporting threshold. For example, the Submarine Cable Coalition
describes a situation in which a shunt fault may
[[Page 15735]]
develop into a ``major outage actually disrupting communications for a
meaningful amount of time.'' If cable operators send different planned
maintenance announcements to different classes of customers, the
reporting requirement will be triggered after the event surpasses the
shortest announced duration for the planned maintenance.
14. We believe that this refinement to our rules more accurately
reflects the realities of submarine cable system operations, by
acknowledging that planned outages are ``a routine and necessary part
of submarine cable maintenance and [are] already accounted for in
wholesale customer agreements.'' Our change does not burden appropriate
maintenance work, which by itself does not reflect the kinds of outages
that warrant Commission concern. We also believe that any impact to
national security from a planned outage is likely to be mitigated by
advance notification from submarine cable operators to their customers,
which include national security agencies. This refinement will also
help to ensure that licensees are not burdened by compliance costs
associated with reporting outages caused by planned maintenance.
15. In the event that a licensee determines that a Notification,
Interim Report, or Final Report filed for an outage was not required
because the licensee later determines that the event does not meet the
outage definition in 47 CFR 4.15(a), the licensee may withdraw the
filing.
B. Reporting Outages for Rerouted Traffic
16. The Order defined a submarine cable ``outage'' as ``a failure
or significant degradation in the performance of a licensee's cable
service regardless of whether the traffic can be re-routed to an
alternate path.'' The Order explained that by requiring outage
reporting even in instances in which traffic is rerouted, the
Commission would be better able to promote and advance national
security and public safety interests. In addition, the Order explained
that reporting outages in which traffic is rerouted would provide the
Commission with situational awareness regarding possible over-
utilization of redundant paths, and would offer insight into the
operability of submarine cables, enabling the Commission to better
safeguard their reliability.
17. In their petitions, Submarine Cable Coalition and NASCA both
presented arguments to exclude outages from reporting where traffic is
rerouted based on the fact that there would be no customer impact.
Although NASCA later withdrew its original customer impact-based outage
proposal, it makes an important observation about customer impact in
general by explaining that for the definition to work, cable operators
would need access to real-time information regarding end-to-end
communications. Further, NASCA explains that such access is unavailable
even to networks and submarine cables owned by the same provider. NASCA
argues that this leaves submarine cable operators without the ability
to determine that an outage would produce no customer impact.
Similarly, Submarine Cable Coalition argues that such reporting of
outages even where rerouting occurs ``expend[s] funds and resources
reporting an `outage' that has no effect on traffic viability,'' and
that providers have already invested in making sure that outages do not
have a ``meaningful effect on its customers or the nation's security.''
18. As described above, we exempt from reporting those outages that
are for planned maintenance purposes where the operator notified
customers in advance of the outage. In this respect, we also recognize
that these planned outages may involve planned remediation efforts such
as rerouting and, because customers are notified, have less of an
impact on customers. As such, we clarify that where a planned outage
includes rerouting the outage need not be reported. For outages outside
of planned maintenance, we will maintain the reporting requirement. In
the case of unplanned outages, customers are not notified ahead of time
that there will be an outage or the approximate duration of the outage
in order to make the necessary preparations for their networks. In
addition, as NASCA explained, submarine cable operators, even those on
networks owned by the same provider, do not have the real time
information about communications delivery to end-users to be confident
that rerouting has been successful and that there has been no customer
impact. Furthermore, unplanned outages also constitute a heightened
national security concern, especially when the cause or the origin of
the outage is unclear. Therefore, we remain concerned about unplanned
outages even when traffic is rerouted and will require reporting as
described below.
19. Accordingly, we deny Submarine Cable Coalition's request to
limit outage reporting for events involving rerouted traffic. We exempt
reporting as described above for planned maintenance events, including
those events involving rerouted traffic, but deny the request to alter
the outage reporting requirement and therefore, maintain the reporting
requirement for unplanned outages even when traffic is rerouted. First,
we concur with NASCA's assertion that parsing from submarine cable
outage reporting those outages with consumer impact would be too
difficult and burdensome for providers due to the lack of information
submarine cable operators have about customer communication delivery to
end users, including for those on the networks owned by the same
provider. Second, although Submarine Cable Coalition argues that
providers have already invested in making sure that outages do not have
a meaningful effect on the nation's security, we retain a modified
reporting obligation in light of heightened concerns regarding the
impact certain unplanned outages would have for national security
interests, specifically those outages outside the planned maintenance
exception discussed above. As explained in the Order, in ``promoting
and advancing the national security and public safety interests served
by U.S.-based landings and connections as a whole,'' the Commission
aims to assess vulnerabilities of the ``total undersea cable
environment serving the United States.'' In this respect, we find that
the Commission and its national security partners, not the industry,
are in the best position to determine when national security is
implicated. Accordingly, except for outages due to planned maintenance
as discussed above, submarine cable providers must report outages to
the Commission when the outage is unplanned regardless of whether
traffic is rerouted, meaning customers have not been notified in
advance of the outage and of its expected duration as described in the
previous section.
20. Therefore, the outage reporting requirement and the planned
maintenance exemption now focus the reporting rule to capture outages
with the highest probability of customer impact, thus retaining
significant reporting benefits while reducing the burden on providers.
In particular, we anticipate that modifying our original outage
reporting requirement, by exempting planned maintenance events
announced to the customer, will considerably decrease the number of
outages that will need to be reported. Accordingly, when considering
the costs and benefits associated with continued reporting as modified
today, we find that that the national security
[[Page 15736]]
and other benefits associated with this modified requirement, and the
lighter burden associated with the modified reporting obligation,
justify requiring that outages be reported even when all traffic is
rerouted.
21. In reaching this decision, we acknowledge Petitioners'
arguments that when submarine cable traffic is rerouted during outages,
that outage reporting is of less value than in other situations because
of the limited effect on end users. However, while this may be true for
some rerouted traffic events, such as with planned maintenance outages
previously announced to customers, in other instances, such as with
unplanned outages, customers are not notified in advance and at least
some submarine cable operators are unable to determine that there was a
limited effect on end users. Moreover, unplanned outages, even where
traffic is rerouted, may raise national security concerns.
C. Minimum Duration of Reportable Outages
22. The Order requires reporting of an outage that meets the
requirements and lasts 30 minutes or more. The Order explained that 30
minutes, not three hours, is an appropriate timeframe because ``damage
or repair to facilities between the SLTE likely indicates a long-term
problem that will not be cleared quickly, so there is no benefit to
further delaying reporting.''
23. In light of our decision to grant in part the Petitioners'
request for relief with respect to outages for planned maintenance, we
do not find the Petitioners' arguments here persuasive. We reject
Petitioners' suggestion for a minimum threshold of ``four or more
hours'' or even three hours. Outages of less than three hours may still
have significant impact on communications networks and remain of
interest to both the Commission and other government agencies with
national security responsibilities. Reporting of these outages provides
value to our incident response and national security considerations.
The threshold sought by Petitioners could impair the government's
ability to gather facts and discern patterns with respect to multiple
short-term outages across submarine cable licensees that may be related
to a single source or issue--e.g., a malicious actor leveling attacks
in bursts over time; or a technical defect or vulnerability that begins
to manifest in short, seemingly minor submarine cable outages.
24. We also believe that this decision, coupled with our assessment
in Section III.F., infra, to provide flexibility in the definition of
an outage affecting a fiber pair as codified in section 4.15(a)(2)(ii)
serves to alleviate any concerns that this requirement is ``too
stringent and will capture mundane events.'' Therefore, we retain the
30-minute outage duration threshold. Even short outages may have a
significant cumulative effect if they occur simultaneously due to an
emergency or other incident. We therefore deny Petitioners' request.
D. Notification Timeframe
25. The Order provided that licensees submit notifications to the
Commission within eight hours after discovering a reportable outage,
phasing down to four hours after a three-year period. The Commission
reasoned that the phased-in structure would ``give licensees ample time
to hone their reporting structure while still achieving . . . prompt
situational awareness.'' The Order noted that reporting entities ``need
not provide substantive detail on the root cause, location, or duration
of the outage if unavailable at that time,'' and explained the need for
timely notification. As appropriate based on such notifications, the
Commission may then take actions such as providing continuity
assistance, coordinating with other government agencies, and helping
manage the public information aspect of major outages.
26. We deny Petitioners' request to extend the Notification
reporting timeframe and retain the phased-in requirement of eight hours
followed by four hours. We believe that the adopted notification
timeframe strikes a reasonable balance between the need of licensees to
identify and promptly respond to outages and the Commission's need for
timely information.
27. Notifications must be reasonably timely in order for the
Commission to help protect national security, including by sharing
information as appropriate with federal partners, aiding restoration
efforts as appropriate, and analyzing data where possible to anticipate
potential future outages. While we believe that proposals such as
Notifications in 48 hours are insufficient to enable the Commission
actions described above, we note that Notifications are now limited due
to the other changes adopted in this Order on Reconsideration, and
continue to call for an abbreviated set of information--not the more
extensive data associated with the later reporting obligations--that
the Commission needs on a timely basis.
28. Furthermore, for other types of outages currently reported in
NORS, 47 CFR 4.9, reporting often serves as the trigger for Commission
personnel to engage with communications providers and other parties. We
anticipate that Commission personnel would similarly engage as
appropriate with submarine cable operators based on the new reporting
requirements. This engagement is often facilitated, especially when
outages occur and are reported in NORS outside of normal business
hours, by the FCC Operations Center, which operates 24 hours a day,
seven days a week, including holidays. The phased-in timeframe will
enable reasonably prompt Notification to the Commission. This, in turn,
will improve the Commission's situational awareness and increase the
ability of both the Commission and other government agencies to respond
as necessary to outages, including those ``that could affect homeland
security, public health or safety, and the economic well-being of our
Nation.'' We believe that this decision will enable the Commission to
help facilitate communication and coordination between the submarine
cable operator and both federal and local government officials in a
reasonably timely manner, so that the Commission does not need to rely
on happenstance to initiate its response. Information regarding such
outages could also help the Commission inform the public as appropriate
about major outages based on more accurate and timely information.
E. Compliance Timeframe
29. In the Order, the Commission determined that the reporting
rules would become effective six months following approval of the
information collection by OMB. The Order observed that six months
represented ``a balance between industry's needs to adequately prepare
for these reporting requirements and the Commission's need to obtain
timely situational awareness of the operational status of the nation's
submarine cable infrastructure.'' Under the current voluntary reporting
regime, only some submarine cable licensees report outages in UCIS, and
even those licensees which report do so with varying types of
information and in varying formats, so an implementation period of some
duration was warranted to enable all licensees to prepare their systems
to comply with the new rules.
30. We disagree that additional time after OMB approval from six
months to 12-18 months (NASCA) or 12-15 months (SCC) is warranted, and
instead conclude that these rules, as modified today, should still
become effective 6 months following approval by OMB. We find this
shorter phase in period is appropriate because, as the Order noted,
many providers are already providing
[[Page 15737]]
some level of outage notification. Moreover, because of the significant
changes to the outage reporting regime in this Order on
Reconsideration, the number of reportable outages will be significantly
smaller now. Finally, the final rules, as modified in this Order on
Reconsideration, have not yet taken effect and still require OMB
approval, thus affected parties have still more time to prepare, which
may alleviate the likelihood that some licensees will need to file
extension or waiver requests due to an inability to comply.
F. Definition of an ``Outage''
31. In the Order, the Commission defined an outage in pertinent
part as ``a failure or significant degradation in the performance of a
licensee's cable service.'' The term ``significant'' degradation, as
opposed to all instances of degraded service, was designed to focus on
major disruptions--including ones for which ``some traffic might be
getting through during a period of massive disruption.'' The Order
further stated that the ``failure or significant degradation of any
fiber pair'' may also constitute a reportable outage.
32. We grant the request to amend section 4.15(a)(2)(ii), and agree
with NASCA that there is a discrepancy between the narrative text of
the Order and the Final Rules in the Order's Appendix B. The text of
the Order defines an outage affecting a fiber pair as a ``failure or
significant degradation.'' The Final Rules, however, state that an
outage affecting a fiber pair is a ``loss of a fiber pair,'' and omits
the ``failure or significant degradation'' language. The text of the
Order consistently uses the phrase ``failure or significant
degradation'' to describe an outage, including in the discussion of an
outage affecting fiber pairs for four hours or more. The Order's
Appendix B contains the same definition of an ``outage'' at section
4.15(a)(1), and then accurately defines an ``outage'' affecting
portions of the submarine cable system between submarine line terminal
equipment (SLTE) at section 4.15(a)(2)(i). NASCA correctly notes that
in section 4.15(a)(2)(ii), however, the Final Rules refer to an outage
affecting a fiber pair simply as a ``loss,'' rather than as the
narrative text stated, as a ``failure or significant degradation.''. We
therefore amend section 4.15(a)(2)(ii) to clarify that an outage that
affects a fiber pair occurs not when there is a ``loss'' but rather
when there is an ``outage,'' which is in turn correctly defined in
section 4.15(a)(1) as a ``failure or significant degradation.''
33. This modification makes the section consistent with the
narrative text of the Order, which stated that an outage affecting a
fiber pair is to act as a ``reporting backstop'' for the connectivity
reporting requirement, which accounts for performance failures and loss
of service. Also, the modification is consistent with the definition of
an ``outage'' contained in section 4.15(a)(1) of the Final Rules of the
Order. Further, this modification aligns the outage definition here
with the outage definition in another outage reporting rule, section
4.5(a), and follows the ``long established outage reporting requirement
that an outage includes events where even `some traffic might be
getting through during a period of massive disruption.' ''
IV. Summary of Impact on Costs
34. The Petitioners are of course correct that new reporting rules
will require licensees to incur compliance costs. However, those costs
are limited by various factors. First, the changes adopted in this
Order on Reconsideration reduce overall reporting requirements.
Although we lack specific data on the exact magnitude of the reduction
in reporting, as a general matter we expect that these changes will
generate fewer reports than the number of reports originally
contemplated by the Order, which will lower reporting costs without
significantly reducing the benefits. In addition, we are requiring
licensees to report only information that they routinely either have or
must obtain to restore service. Indeed, many of the reporting
requirements, as modified herein, only require reporting of information
``if known.'' We therefore anticipate that the reporting requirements,
as modified herein, are unlikely to result in substantial additional
information gathering costs to licensees. We also consider that some
licensees may incur one-time costs associated with the modified outage
reporting obligations, but we anticipate that any such costs will be
mitigated in part by the fact that, due to consortium agreements
associated with submarine cables, not all licensees will incur the full
scope of review costs. As many cables are jointly-owned by consortia of
different licensees, these licensees may choose to register a
Responsible Licensee with the Commission for reporting purposes with
respect to the jointly-owned cable. Accordingly, not all licensees will
incur the full scope of one-time review costs.
35. The changes adopted today reduce less useful reporting
elements, such as the change to limit the reporting obligation for
outages involving planned maintenance announced to customers, but keep
essential components, and therefore the benefits are not adversely
affected to a significant degree. Although the benefits under the
modified submarine cable outage reporting regime are significant,
especially for national security and public safety purposes, it is not
possible to estimate with precision the dollar value of these benefits.
The analysis of submarine cable outage reporting benefits must consider
the integral and indispensable role that submarine cables serve in the
national and international communications infrastructure, including
their impact on national security and public safety interests.
Submarine cable outages do not occur with the same frequency as
terrestrial outages, but when they do occur they may have a much higher
impact due to the volume and the nature of communications carried over
such cables. For example, in addition to outages caused by weather or
inadvertent damage, we must also consider the potential for malicious
damage by an adversary that could impair a significant amount of
submarine cable traffic and severely degrade both government and non-
government communications.
36. In these cases, mandatory and consistent outage reporting will
deliver greater benefits than the previous voluntary reporting regime,
because based on more than a decade of experience in outage reporting,
if we were to rely on obtaining information from voluntary outage
reporting and press reports, it might take days or weeks for the
Commission to identify the occurrence of an outage, not to mention its
cause and or scope. The voluntary reporting regime does not collect
uniform and timely data, whereas consistent mandatory outage reporting
will collect such data and provide the Commission with a visibility
into the reliability of the submarine cable ecosystem as a whole, which
is necessary to serve the government's missions described herein. For
example, although some operators may provide information to DHS in
certain circumstances, that reporting does not replicate the scope of
the data that would be generated by our reporting requirements.
Furthermore, individual cable operators generally have visibility only
into their own cables, and indeed some of them may have limited
visibility, as in the cases of consortiums or joint build systems.
Targeted outage reporting will: (1) Speed up the process of identifying
the cause and scope of outages; (2) enable the Commission and its
government
[[Page 15738]]
partners to maintain situational awareness of outages and respond to
them as needed; and (3) equip the Commission to promptly alert and
coordinate response with national defense and other authorities, as
necessary. These benefits may help reduce the extent of the damage or
mitigate its effects on end users in support of maintaining national
security. In addition to providing insight into specific incidents,
this information will further enable the Commission to perform long
term outage trend analysis, and help facilitate the Commission's
interagency coordination processes in support of the ongoing resilience
of the submarine cable ecosystem, which is vital to the national
security and economic strength of the country. For all of these
reasons, we conclude that the benefits of the targeted outage reporting
requirement, as modified by this Order on Reconsideration, are
significant and can reasonably be expected to exceed their cost.
V. Procedural Matters
37. Regulatory Flexibility Act. Pursuant to the Regulatory
Flexibility Act of 1980, as amended, the Commission has prepared a
Supplemental Final Regulatory Flexibility Analysis (``Supplemental
FRFA'') of the possible significant economic impact on small entities
of the policies and rules adopted in this Order on Reconsideration. The
Supplemental FRFA is attached as Appendix B.
38. Paperwork Reduction Act Analysis. This document contains
modified information collection requirements. The Commission, as part
of its continuing effort to reduce paperwork burdens, will invite the
public to comment on the information collection requirements contained
in this Order on Reconsideration as required by the Paperwork Reduction
Act of 1995, Public Law 104-13. In addition, the Commission notes that
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought
specific comment on how the Commission might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
39. In this present document, we have assessed the effects of the
modifications of the rules herein, which require submarine cable
licensees to report when they experience outages of certain durations
and causes, on small business concerns and find that the rules modified
here reduce the information collection burden on such entities.
40. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this rule is non-major
under the Congressional Review Act, 5 U.S.C. 804(2). The Commission
will send a copy of this Order on Reconsideration to Congress and the
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
VI. Supplemental Final Regulatory Flexibility Analysis
41. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Submarine Cable Notice of Proposed Rulemaking
(Submarine Cable NPRM) adopted in September of 2015, 80 FR 67689 (Nov.
3, 2015). The Commission sought written public comment on the proposals
in Submarine Cable NPRM including comments on the IRFA. The Commission
included a Final Regulatory Flexibility Analysis (FRFA) in Appendix C
of the Submarine Cable Outage Reporting Order, 81 FR 52354 (Aug. 8,
2016), in this proceeding. This Supplemental Final Regulatory
Flexibility Analysis (Supplemental FRFA) supplements the FRFA in the
Submarine Cable Outage Reporting Order to reflect the actions taken in
the Order on Reconsideration and conforms to the RFA.
A. Need for, and Objectives of, the Order on Reconsideration
42. In the Order on Reconsideration the Commission reexamined the
required reporting of submarine cable infrastructure outages and
addressed the issues raised by parties in their petitions for
reconsideration of the Submarine Cable Outage Reporting Order adopting
mandatory reporting requirements for submarine cable licensees. After
considering the petitions, the Commission granted the request to exempt
reporting of outages due to planned maintenance on the condition that
submarine cable operators continue to provide customers with advance
notification of the outage (including the duration) and any additional
time beyond the announced duration of the outage does not exceed the
amount of time that would otherwise trigger the outage reporting
requirements. The Commission also granted the request to amend the
rules to eliminate the inconsistency between the rule defining a
submarine cable ``outage'' and the Order's characterization of that
definition. However, the Commission denied the requests to raise the
minimum duration for an outage, to extend the time to file a
Notification, to eliminate reporting of outages when all traffic on a
submarine cable is rerouted, and to extend the timeframe to begin
compliance with the new rules.
43. The Order on Reconsideration preserved the underlying value of
reporting outages to aid in the analysis of network reliability trends
and issues, situational awareness and incident response, and national
security efforts while it narrowed associated reporting costs and
administrative burdens.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
44. There were no comments filed that specifically addressed the
proposed rules and policies presented in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
45. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.
46. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
47. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act.'' A ``small business concern'' is one which: (1) Is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
48. As noted above, the FRFA was incorporated into the Submarine
Cable Outage Reporting Order. In that analysis, we described in detail
the small entities that might be significantly affected by the rules
adopted in the
[[Page 15739]]
proceeding. In this Supplemental FRFA we hereby incorporate by
reference from the FRFA in the Submarine Cable Outage Reporting Order,
the descriptions and estimates of the number of small entities that
might be significantly affected by the rules modified and/or adopted
herein.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
49. The actions taken in the Order on Reconsideration amended rules
in the Submarine Cable Outage Reporting Order and modified the
recordkeeping, reporting or other compliance obligations on small
entities as described below, and reduced their costs.
50. To reduce confusion and the possibility that unnecessary outage
reports will be filed, we clarified that the definition of an outage
that affects a fiber pair occurs when there is a ``failure or
significant degradation,'' rather than merely a ``loss.'' This
modification eliminates the inconsistency between the rule defining
submarine cable ``outage'' in Sec. 4.15(a)(1) of the Final Rules
attached to the Submarine Cable Outage Reporting Order, and the
Submarine Cable Outage Reporting Order's characterization of that
definition.
51. We reduced the reportable outages by exempting outages due to
planned maintenance from the reporting requirement on the condition
that the licensee has provided its customers with advance notification
of the outage (including the duration). Reporting to the Commission is
required if the cable operator planning the maintenance outage does not
provide advance notification of the outage to its customers, or if the
announced planned maintenance event turns into an unplanned outage in
which the duration of the unplanned portion is sufficient in and of
itself to trigger the outage reporting threshold.
52. In the Submarine Cable Outage Reporting Order, we required an
outage Notification notwithstanding whether the traffic was rerouted.
Accordingly, to provide flexibility to licensees, when the outage is a
planned maintenance outage as described above, the outage need not be
reported to the Commission. Conversely, if the outage is unplanned or
is planned but the customer is not notified in advanced of the event,
the licensee must file a Notification. Additionally, if a licensee
determines that a Notification, an Interim Report, or a Final Report
filed for an outage is no longer required because the event no longer
meets the outage definition in 47 CFR 4.15(a), the licensee may
withdraw the filing.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
53. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): ``(1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) and
exemption from coverage of the rule, or any part thereof, for small
entities.''
54. The Commission took steps that will minimize the economic
impact on small entities and other licensees by reducing certain
requirements and adding additional discretion to other requirements. In
general, the reporting rules as modified by the Order on
Reconsideration will generate fewer reports than the number of reports
estimated in the Submarine Cable Outage Reporting Order, which will
lower costs for small entities and other licensees who experience an
outage that triggers reporting. Specifically, and as discussed in the
previous section, we have limited certain reporting obligations for
outages involving planned maintenance. This alternative is a change
from the existing rule in the Submarine Cable Outage Reporting Order,
which included a reporting obligation for all outages involving planned
maintenance.
55. In light of these modified reporting requirements, small
entities and other licensees are able to negotiate with their partners
and plan for planned maintenance notifications ahead of any outages
which may limit outage reporting associated costs.
56. The Order on Reconsideration significantly reduced the scope of
required reporting, but the Commission does not have specific data on
the magnitude of the reduction in reporting that would result from the
changes announced today. As a general matter we expect that these
changes will generate fewer reports than the number of reports
indicated by the Submarine Cable Outage Reporting Order, which will
lower reporting costs for small entities and other licensees without
significantly reducing the benefits. In addition, because these changes
limit reporting to outages for which licensees must generally take
action to restore service, we anticipate that the information required
to be reported will likely be information that licensees routinely
either have or must obtain to restore service. We note that many of the
reporting requirements, as modified herein, only require reporting of
information ``if known.'' We therefore anticipate that the reporting
requirements, as modified herein, are unlikely to result in substantial
additional information gathering costs to licensees. We also consider
that some licensees may incur one-time costs associated with the
modified outage reporting obligations, but we anticipate that any such
costs are mitigated in part by the fact that, due to consortium
agreements associated with submarine cables, not all licensees will
incur the full scope of review costs.
57. The Commission believes in this instance that applying the same
rules equally to all entities is necessary to ensure consistent outage
reporting covering all licensed cables in order to provide the
Commission with a holistic picture of the resilience of the submarine
cable ecosystem, which will enable outage trend analysis over the
longer term. Mandatory, targeted outage reporting will (1) speed up the
process of identifying the cause and scope of such outages; (2) enable
the Commission and its government partners to maintain situational
awareness of outages and respond to them as needed; and (3) equip the
Commission to promptly alert and coordinate response with national
defense and other authorities, as necessary. Among other benefits, this
may help reduce the extent of the damage from outages or mitigate its
effects on end users in support of maintaining national security.
Further, outage reporting and the subsequent trend analysis from the
information collected will assist the Commission as it works towards
mitigating threats to undersea cables through trend analysis, which
will help facilitate the agency's interagency coordination processes
related to submarine cable deployment.
Report to Congress
58. The Commission will send a copy of the Order on
Reconsideration, including this Supplemental FRFA, in a report to
Congress pursuant to the Congressional Review Act. In addition, the
Commission will send a copy of the Order on Reconsideration, including
this Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA. A
copy of the Order on Reconsideration and Supplemental FRFA (or
summaries
[[Page 15740]]
thereof) will also be published in the Federal Register.
VII. Ordering Clauses
59. Accordingly, it is ordered pursuant to sections 1, 4(i), 4(j),
4(o), and 405 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i)-(j) & (o), 405, and the Cable Landing License Act of 1921,
47 U.S.C. 34-39, and 3 U.S.C. 301, that this Order on Reconsideration
is adopted.
60. It is further ordered that part 4 of the Commission's rules, 47
CFR part 4, is amended as set forth in Appendix A, and that such rule
amendments will become effective 30 days after publication of a summary
of this Order on Reconsideration in the Federal Register. Section 4.15
contains new or modified information-collection requirements that
require review by the OMB under the PRA. For reasons discussed above,
compliance with such rule amendments and with other changes to the
Commission's rules announced in the Submarine Cable Outage Reporting
Order, FCC 16-81, 81 FR 52354, will not be required until six months
after the Commission publishes a notice in the Federal Register
announcing OMB approval. The Commission directs the Public Safety and
Homeland Security Bureau to announce the compliance date for those
information collections in a document published in the Federal Register
after OMB approval and to cause Sec. 4.15 to be revised accordingly.
It is further ordered that the Commission shall send a copy of this
Order on Reconsideration to Congress and the Government Accountability
Office pursuant to the Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
61. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order on Reconsideration, including the Supplemental Final
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
62. It is further ordered that, for reasons discussed herein,
pursuant to section 1.429(d) of the Commission's rules, the motion for
leave to supplement its petition for reconsideration submitted by the
North American Submarine Cable Association on September 1, 2017, is
Granted.
63. It is further ordered that, pursuant to Sec. 1.429 of the
Commission's rules, 47 CFR 1.429, the Petition for Reconsideration
filed by North American Submarine Cable Association on September 8,
2016 is granted in part and denied in part to the extent described
herein.
64. It is further ordered that, pursuant to section 1.429 of the
Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed
by Submarine Cable Coalition on August 11. 2016, is granted in part and
denied in part to the extent described herein.
List of Subjects in 47 CFR Part 4
Communications equipment, Reporting and recordkeeping requirements,
Submarine cable, Telecommunications.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 4 as follows:
PART 4--DISRUPTIONS TO COMMUNICATIONS
0
1. The authority citation for part 4 is revised to read as follows:
Authority: 47 U.S.C. 34-39, 151, 154, 155, 157, 201, 251, 254,
301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403,
615a-1, 615c, 1302(a), and 1302(b); 5 U.S.C. 301, and Executive
Order no. 10530.
0
2. Section 4.15 is amended by revising paragraphs (a) and (b) and
adding paragraph (d) to read as follows:
Sec. 4.15 Submarine cable outage reporting.
(a) Definitions. (1) For purposes of this section, ``outage'' is
defined as a failure or significant degradation in the performance of a
licensee's cable service regardless of whether the traffic can be re-
routed to an alternate path, where:
(i) An outage of a portion of submarine cable system between
submarine line terminal equipment (SLTE) at one end of the system and
SLTE at another end of the system occurs for 30 minutes or more; or
(ii) An outage of any fiber pair, including due to terminal
equipment, on a cable segment occurs for four hours or more, regardless
of the number of fiber pairs that comprise the total capacity of the
cable segment.
(2) An ``outage'' does not require reporting under this section if
the outage is caused by announced planned maintenance and the licensee
notified its customers in advance of the planned maintenance and its
expected duration, except that if the planned maintenance duration
surpasses the shortest announced duration for the planned maintenance
and this additional time triggers the requirements in paragraph (a)(1)
of this section, the outage becomes reportable as of the time the
maintenance exceeds the shortest announced duration for the planned
maintenance.
(b) Outage reporting. (1) For each outage that requires reporting
under this section, the licensee (or Responsible Licensee as designated
by a Consortium) shall provide the Commission with a Notification,
Interim Report, and a Final Outage Report.
(i) For a submarine cable that is jointly owned and operated by
multiple licensees, the licensees of that cable may designate a
Responsible Licensee that files outage reports under this rule on
behalf of all licensees on the affected cable.
(ii) Licensees opting to designate a Responsible Licensee must
jointly notify the Chief of the Public Safety and Homeland Security
Bureau's Cybersecurity and Communications Reliability Division of this
decision in writing. Such Notification shall include the name of the
submarine cable at issue; and contact information for all licensees on
the submarine cable at issue, including the Responsible Licensee.
(2) Notification, Interim, and Final Outage Reports shall be
submitted by a person authorized by the licensee to submit such reports
to the Commission.
(i) The person submitting the Final Outage Report to the Commission
shall also be authorized by the licensee to legally bind the provider
to the truth, completeness, and accuracy of the information contained
in the report. Each Final report shall be attested by the person
submitting the report that he/she has read the report prior to
submitting it and on oath deposes and states that the information
contained therein is true, correct, and accurate to the best of his/her
knowledge and belief and that the licensee on oath deposes and states
that this information is true, complete, and accurate.
(ii) The Notification is due within 480 minutes (8 hours) of the
time of determining that an event is reportable for the first three
years from the effective date of these rules. After three years from
the effective date of the rules, Notifications shall be due within 240
minutes (4 hours). The Notification shall be submitted in good faith.
Licensees shall provide: The name of the reporting entity; the name of
the cable and a list of all licensees for that cable; the date and time
of onset of the outage, if known (for planned events as defined in
paragraph (a)(2) of this section, this is the estimated start time/date
of the repair); a brief description of the event, including root cause
if
[[Page 15741]]
known; nearest cable landing station; best estimate of approximate
location of the event, if known (expressed in either nautical miles and
the direction from the nearest cable landing station or in latitude and
longitude coordinates); best estimate of the duration of the event, if
known; whether the event is related to planned maintenance; and a
contact name, contact email address, and contact telephone number by
which the Commission's technical staff may contact the reporting
entity.
(iii) The Interim Report is due within 24 hours of receiving the
Plan of Work. The Interim Report shall be submitted in good faith.
Licensees shall provide: The name of the reporting entity; the name of
the cable; a brief description of the event, including root cause, if
known; the date and time of onset of the outage; nearest cable landing
station; approximate location of the event (expressed in either
nautical miles and the direction from the nearest cable landing station
or in latitude and longitude); best estimate of when the cable is
scheduled to be repaired, including approximate arrival time and date
of the repair ship, if applicable; a contact name, contact email
address, and contact telephone number by which the Commission's
technical staff may contact the reporting entity.
(iv) The Final Outage Report is due seven (7) days after the repair
is completed. The Final Outage Report shall be submitted in good faith.
Licensees shall provide: The name of the reporting entity; the name of
the cable; the date and time of onset of the outage (for planned events
as defined in paragraph (a)(2) of this section, this is the start date
and time of the repair); a brief description of the event, including
the root cause if known; nearest cable landing station; approximate
location of the event (expressed either in nautical miles and the
direction from the nearest cable landing station or in latitude and
longitude coordinates); duration of the event, as defined in paragraph
(a) of this section; the restoration method; and a contact name,
contact email address, and contact telephone number by which the
Commission's technical staff may contact the reporting entity. If any
required information is unknown at the time of submission of the Final
Report but later becomes known, licensees should amend their report to
reflect this knowledge. The Final Report must also contain an
attestation as described in paragraph (b)(2)(i) of this section.
(v) The Notification, Interim Report, and Final Outage Reports are
to be submitted electronically to the Commission. ``Submitted
electronically'' refers to submission of the information using
Commission-approved Web-based outage report templates. If there are
technical impediments to using the Web-based system during the
Notification stage, then a written Notification to the Commission by
email to the Chief, Public Safety and Homeland Security Bureau is
permitted; such Notification shall contain the information required.
Electronic filing shall be effectuated in accordance with procedures
that are specified by the Commission by public notice. Notifications,
Interim reports, and Final Reports may be withdrawn under legitimate
circumstances, e.g., when the filing was made under the mistaken
assumption that an outage was required to be reported.
* * * * *
(d) Compliance date. This section contains new or modified
information-collection and recordkeeping requirements. Compliance with
these information-collection and recordkeeping requirements will not be
required until six months after the Commission publishes a document in
the Federal Register announcing approval by the Office of Management
and Budget and the compliance date. Following such approval, the
Commission will publish a document in the Federal Register announcing
that compliance date and removing or revising this paragraph.
[FR Doc. 2020-03397 Filed 3-18-20; 8:45 am]
BILLING CODE 6712-01-P
