The Federal Communications Commission (Commission) today adopted mandatory network outage reporting requirements for submarine cable licensees less than a year after proposing to do so. This mandatory reporting reflects a significant change from the voluntary submarine cable outage reporting system currently in place. The new rules will apply to all submarine cable licensees, regardless of when they obtained their licenses, and licensees potentially will have only a six (6) month transition period before the reporting requirements take effect. Therefore, every any submarine cable license holder should be sure to familiarize itself with the new rules and implement compliance procedures.

The text of the Order has not yet been released - so any information will be preliminary pending issuance of the Order and rules - but the discussion at today’s Commission Open Meeting provides insight into some of the new rules. Industry advocacy appears to have been influential in convincing the FCC to soften some of the more burdensome reporting timelines although it is uncertain if efforts to reduce onerous report contents were equally successful. In addition, the Commission stated it will open a proceeding, in three years, to revisit the reporting requirements. Accordingly, licensees may have another opportunity to make their views known and possibly to shape the reporting requirements going forward.

Reportable Outage Threshold Extended – In Part

As proposed, licensees will have to report network outages, possibly including planned outages, of a qualifying portion of a cable system lasting more than thirty (30) minutes regardless of whether traffic can be rerouted. The trigger for reporting failure or significant degradation of a cable lasting at least four hours will trigger a reporting obligation. However, whether the final definitions of “outage,” “failure,” and “degradation” reflect the NPRM’s proposed definitions will remain unknown until the Order is released.

Increased Reporting Deadlines

The Commission has retained the proposed three-part reporting structure similar to existing network outage reporting regime for other communications providers.

For outages occurring during the first three (3) years after the rules take effect, initial reports must be submitted within eight (8) hours of the licensee identifying a reportable outage event. This timeframe marks a significant increase in time from the NPRM’s proposed two (2) hour initial report deadline. After the first three (3) years, the time to file the initial report will be halved to four (4) hours.
Interim reports will be due within 24 hours of the licensee receiving a cable repair plan providing the projected cable restoration timeline and identifying any logistical challenges. This interim reporting schedule represents a substantial increase from the Commission’s initially proposed two (2) hour interim reporting timeline.

The final report due date remains unchanged from the NPRM proposal and will be due within seven (7) calendar days after the cable is repaired.

The enlargement of the initial and interim reporting deadlines appears to address, to some extent, licensee concerns that they simply would not have all of the proposed outage report information, such as the root cause of the outage, within the proposed shorter deadlines. However, until the final rules are released, it is not certain exactly what information will be required for each of the reports. The Commissioners and the Chairman generally noted the critical importance of submarine cable systems to issues such as communications, national security and the global economy, , however, the 3-2 split with Commissioner’s Pai and O’Rielly dissenting, was not unexpected. Both Pai and O’Rielly strongly criticized various aspects of the Order with Commissioner Pai detailing numerous errors in the cost benefit analysis of the new rules and Commissioner O’Rielly questioning the reporting trigger timeframes.

The Order should be released in the near future and Kelley Drye will provide a more detailed review once the text is available.

FCC Imposes Mandatory Network Outage Reporting Requirements on Submarine Cable Licenses