2024-06092. Resilient Networks; Disruptions to Communications

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; withdrawal; re-issuance; announcement of compliance date.

SUMMARY:

The Federal Communications Commission (Commission or FCC) published a document in the Federal Register on January 26, 2024, concerning an Order on Reconsideration that addresses the Petition for Clarification and Partial Reconsideration (Petition) filed by CTIA and the Competitive Carriers Association (CCA) (collectively, Petitioners) of the Commission's Report and Order regarding the “Mandatory Disaster Response Initiative” (MDRI) by extending the compliance deadline to implement elements of the MDRI to May 1, 2024. In its Order on Reconsideration, the Commission also agrees with the request to treat Roaming under Disaster arrangements (RuDs) as presumptively confidential when filed with the Commission. In this document, the Commission is withdrawing its previous Federal Register publication of the Order on Reconsideration and substituting the present document to correct certain information regarding the compliance date and effective date. In addition, this document announces that, on October 27, 2023, the Office of Management and Budget (OMB) approved, for a period of three years, the information collection requirements associated with the rules adopted in the Report and Order. The OMB Control Number is 3060–1317. The Commission also announces that compliance with the rules will be required, and revises its rules to specify this date and to remove text advising that compliance was not required until OMB review was completed. This action is consistent with the 2023 Order on Reconsideration, which stated that the Commission would publish a document in the Federal Register announcing a compliance date and revise the rule accordingly.

DATES:

Withdrawal date: The rule published at 89 FR 5105, January 26, 2024, is withdrawn March 26, 2024.

Effective date: This rule is effective April 25, 2024.

Compliance date: Compliance with the provisions of 47 CFR 4.17 is required beginning May 1, 2024.

FOR FURTHER INFORMATION CONTACT:

For additional information on this proceeding, contact James Wiley, Deputy Division Chief, Cybersecurity and Communications Reliability Division, Public Safety and Homeland Security Bureau, (202) 418–1678 or via email at [e-mail] or Logan Bennett, Attorney-Advisor, Cybersecurity and Communications Reliability Division, Public Safety and Homeland Security Bureau, (202) 418–7790 or via email at [e-mail]. If you have any comments on the information collection burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, via email to [e-mail] and to [e-mail].

SUPPLEMENTARY INFORMATION:

This is an updated summary of the Commission's Order on Reconsideration, FCC 23–71, adopted September 14, 2023, and released September 15, 2023. The full text of this document remains available by downloading the text from the Commission's website at: https://docs.fcc.gov/​public/​attachments/​FCC-23-71A1.pdf. This document also announces that OMB approved the information collection requirements in § 4.17 on October 27, 2023. The Commission publishes this document as an announcement of the compliance date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554, regarding OMB Control Number 3060–1317. Please include the applicable OMB Control Number in your correspondence. The Commission will also accept your comments via email at [e-mail]. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [e-mail] or call the Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY).

Congressional Review Act

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission has sent a copy of the Order on Reconsideration to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

Paperwork Reduction Act

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on October 27, 2023, for the information collection requirements contained in § 4.17.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104–13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060–1317.

OMB Approval Date: October 27, 2023.

OMB Expiration Date: October 31, 2026.

Title: Resilient Networks.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 75 respondents; 1,725 responses.

Estimated Time per Response: 1 hour–20 hours.

Frequency of Response: One-time, on occasion reporting and annual reporting requirements.

Obligation to Respond: Mandatory. Statutory authority for this information collection is contained in sections 1, 4(i), 4(j), 4(o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(j), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a–1, and 615c of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)–(j) & (o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(j), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a–1, and 615c.

Total Annual Burden: 4,575 hours.

Total Annual Cost: No Cost.

Needs and Uses: The nation's communications networks provide a significant lifeline for those in need during disasters and other emergencies. Recent events, including Hurricane Ida, earthquakes in Puerto Rico, severe winter storms in Texas, and active hurricane and wildfire seasons, have demonstrated however that the United States' communications infrastructure is susceptible to disruption during disaster events. To address this issue, the Federal Communications Commission adopted a Report and Order in June 2022 to improve the reliability and resiliency of mobile wireless networks. See 87 FR 59329 (2022). In the Report and Order, the Commission introduced the Mandatory Disaster Response Initiative (MDRI) and set forth requirements that the nation's facilities-based mobile wireless providers must take to ensure their compliance the MDRI. Pursuant to the MDRI, these providers must take action related to roaming with other providers, mutual aid agreements, municipal preparedness and restoration and consumer readiness and preparation. These providers must also submit reports to the Commission detailing the timing, duration, and effectiveness of their implementation of the MDRI's provisions on request, perform annual testing of their roaming capabilities and related coordination processes, and issue written denials of roaming requests, among other requirements.

The Commission submits this information collection, which seeks to have collected information described in the Report and Order, to support its adoption of the MDRI. The collected information will be used by the Commission, consumers and consumer groups, service providers to realize significant public safety benefits. For example, consumers and consumer groups will use the information to increase consumer education and improve consumer preparedness for disasters and other emergencies. Further, providers will use the information to ensure that roaming will work expeditiously in times of emergencies and to better understand their network capabilities related to roaming and ensure their networks roam as effectively as possible when a disaster strikes. Further, the Commission will use information as a basis for potential future improvements to the MDRI and other programs in furtherance of public safety, including by gauging providers' compliance with the MDRI's roaming provision, ensuring accountability by providers who fail to comply and for resolving disputes related to roaming agreements. Thus, the information sought in this collection is necessary and vital to ensuring that the MDRI is effective at protecting the life and property of the public.

Synopsis

I. Introduction

The Report and Order adopted the Mandatory Disaster Response Initiative (MDRI) to improve network resilience during disasters, aligning with the industry-developed Wireless Network Resiliency Cooperative Framework. It mandated five provisions for facilities-based mobile wireless providers, including bilateral Roaming under Disaster arrangements (RuDs), mutual aid agreements, municipal preparedness, consumer readiness, and public communication. In particular, the Report and Order requires that each facilities-based mobile wireless provider enter into bilateral roaming agreements with all other facilities-based mobile wireless providers from which it may foreseeably request roaming privileges, or that may foreseeably request roaming privileges from it, when the MDRI is active. The Commission clarified that roaming is foreseeable, without limitation, when two providers' geographic coverage areas overlap. The Commission originally set a compliance date for the rules at the later of (i) 30 days after review of any new information collection requirements associated with the Report and Order by the Office of Management and Budget (OMB) or the Public Safety and Homeland Security Bureau's (Bureau) determination that such review is not required, or (ii) March 30, 2023, for non-small providers and June 30, 2023, for small providers.

Petitioners jointly filed a Petition for Clarification and Partial Reconsideration (CTIA and CCA Petition or Petition) of the Commission's Report and Order. In response to the Petition, the Commission issued an Order on Reconsideration extending the compliance deadline, determining that RuD arrangements would be treated as presumptively confidential, and otherwise declining to modify the Report and Order.

Modification of Compliance Implementation Timeline

The CTIA and CCA Petition requests that the Commission “[p]rovide sufficient time for wireless providers—at least 12 months for non-small facilities-based mobile wireless providers and 18 months for small facilities-based mobile wireless providers—to achieve compliance with the new obligations.” They further ask that those dates be calculated from the date of OMB approval of the rule for Paperwork Reduction Act (PRA) purposes. As described below, the Order on Reconsideration establishes a single date certain for compliance by all providers of May 1, 2024 that affords a reasonable extension by providing approximately 20 months for all providers from publication of the Report and Order in the Federal Register to achieve compliance. This will extend reasonable relief to providers, while preserving the benefits of the underlying rules for consumers relying on Petitioners' networks for connectivity and emergency communications access during disasters in advance of the 2024 hurricane and wildfire seasons. In doing so, the Order on Reconsideration also eliminates the need to continue to distinguish between small and non-small providers under the MDRI.

Background. In requesting an extended implementation timeframe, Petitioners argue that the Commission's estimate of 200 hours per provider for compliance is “not aligned with the amount of work and resources that will be required to enter the multiple bilateral RuD and mutual aid arrangements and to complete roaming testing as required by the MDRI rules.” They further argue that providers will need more time to (1) negotiate agreements and (2) complete an initial round of roaming testing. In addition, Petitioners indicate that “[i]n some cases” providers may not have existing agreements to leverage, raising the potential for unanticipated complexities, and may need to include “terms unique to the disaster context in which they will be invoked.” In instituting a deadline for providers to enter into RuDs, they further assert that the Commission has “effectively reverse[d] course on a decade of precedent regarding the timeframes for negotiating roaming arrangements.” Petitioners also claim that the time allowed is insufficient for providers to enter into both RuDs and mutual aid agreements and to complete the technical and operational tasks necessary to support roaming testing. Finally, Petitioners argue that providers would need to negotiate agreements and conduct testing serially, rather than simultaneously, due to resource constraints for smaller providers.

Relatedly, the Petition seeks clarification on three other issues impacting timeframes for compliance. First, the Petition recites that “[t]he Commission should affirm that, like the Resilient Networks Order's approach to mutual aid arrangements, the small provider compliance date applies to both parties to a RuD arrangement, as well as roaming testing, when at least one party to an arrangement is a small provider.” Second, the Petition requests that the Commission “[a]lign the definitions of `non-small facilities-based' and `small facilities-based' wireless providers with the FCC's existing definitions of `nationwide' and `non-nationwide' wireless providers applied in the 9–1–1 context.” Third, the Petition asks the Commission to “[a]ffirm that [OMB] review is required for all information collection obligations.” Petitioners further argue that “giving providers a mere 30 days after OMB approval to comply with § 4.17(a) and (b) is unworkable given the complexity of executing RuD and mutual aid agreements, as well as roaming testing.

Comments. In support of the Petition, one commenter cites the “limited personnel and financial resources” of small carriers as justification for providing at least an 18-month timeframe for compliance, suggesting that negotiating RuDs and mutual aid agreements with multiple parties and conducting testing of their roaming capabilities “is likely to take longer than the 200 hour estimate,” and argue that a longer timeframe would put smaller carriers on “a more equal footing” for negotiations. Others similarly assert that the Commission's compliance estimates for small providers is unrealistic and support an extended compliance timeframe of at least 18 months. A commenter also argues that small providers are less likely to have existing agreements to leverage, and echo the argument that truncated negotiations may negatively impact their ability to obtain reasonable terms and conditions. Another commenter also suggests that “small rural wireless carriers will receive a lower priority from large carriers in conducting negotiations,” and another similarly avers that “small, rural carriers will receive a lower priority than negotiations with larger providers” impacting their ability to timely comply.

One commenter in particular also emphasized the monetary impact on rural providers of the current compliance timeline, and argues extending the timeline for implementation would allow for more cost-effective compliance. A commenter states many of the same concerns, and asserts that its own ongoing experience has yielded negotiation efforts that “significantly exceed[ ] the Commission's . . . estimate” and that implementation and testing “requires tens of dozens of hours or more of dedicated network engineer time for each and every potential RuD partner.” It also expresses concern that timely compliance may be a challenge, and perhaps contrary to national security considerations, where a provider with whom an RuD is to be negotiated is subject to “Rip and Replace” obligations due to the presence of Chinese-manufactured network equipment.

As to the Report and Order's use of “small” and “non-small” designations to assign differing compliance timeframes, commenters support the Petition's request to replace these designations with “the long-standing and well-understood definitions of `nationwide' and `non-nationwide' wireless providers in the context of wireless 9–1–1 accuracy.” Others call the Commission's non-small and small distinctions of providers too “narrow” and do not find that the definitions can “recognize the extent of the burden the new rules will place on small and regional providers that may have 1,500 or more employees . . . but [will still] be challenged to achieve compliance within the deadlines imposed by the [Report and Order].” A commenter also asserts that companies like itself that have large employee counts across affiliated businesses may in reality only have small resources attached to their telecommunications-specific enterprises.

Decision. The Order on Reconsideration agrees with Petitioners and commenters that an extension of time is warranted in order for providers to timely implement elements of the MDRI. For the reasons discussed below, the Order on Reconsideration establishes a single, date certain of May 1, 2024 for compliance with all elements of the MDRI regardless of the size of the provider (in the unlikely event that PRA review remains pending on May 1, 2024, set the compliance date for all elements of the MDRI will be 30 days following publication of an announcement that OMB review is completed).

As the record reflects, some providers will likely need additional time to coordinate with other providers, conduct testing, and establish new mutual aid relationships. As Petitioners and commenters also note, certain elements of the MDRI require expenditure of more time and effort initially compared to later on when these agreements and arrangements will be more established and routine. As such, while the Commission is persuaded that a reasonable extension is appropriate to accommodate the concerns expressed by providers, we do not believe that the lengthy extension requested is justified or necessary, and may unreasonably delay the benefits of the MDRI. The Order on Reconsideration finds that a May 1, 2024, compliance date should afford providers more flexibility to allocate their resources to meet the MDRI's requirements while still supporting the need for prompt execution of these agreements and responsibilities in support of disaster response and preparedness.

In particular, the Commission finds that the Petitioners' full requested timeframes would unreasonably delay the benefits of the MDRI, and would likely result in a compliance date more than two and a half years from the adoption of the Report and Order for most providers, eclipsing not only the 2023 hurricane season (defined as from June 1 to November 30) and the 2023 wildfire season (generally during the summer months, or later in Western states) but the entirety of hurricane and wildfire seasons in 2024 as well. This would place wireless consumers impacted by these disaster scenarios at greater risk for being unable to reach 911, call for help, or receive emergency information and assistance. While there are costs associated with these obligations both in terms of monetary and other resource commitments for subject providers, the Commission continues to find that the benefits outweigh these costs. The timeframe requested by Petitioners, moreover, unreasonably dilutes those benefits in a context in which prompt action is likely to save lives and property.

In setting a single deadline, the Order on Reconsideration further finds the distinction between small and non-small providers is no longer necessary to perpetuate for two reasons. First, whereas non-small providers were originally afforded 6 months (March 30, 2023) and small providers were afforded 9 months (June 30, 2023) initially providing different compliance dates based on provider size, the Report and Order contemplated a singular date if OMB review were delayed beyond these timeframes. As OMB has not yet completed its review at the time of the Report and Order, the singular date contingency had materialized. Second, the Order on Reconsideration finds this outcome largely consistent with the ultimate outcome advocated by Petitioners when their requests are taken as a whole. That is, if one accepted Petitioners' request to use nationwide/non-nationwide distinctions for purposes of the MDRI, and clarified that in all instances where a nationwide and non-nationwide provider were parties to a negotiation warranted a longer compliance timeframe, this would result in virtually all negotiations being subject to the longer timeframe except in those very few instances when a nationwide provider is negotiating with another nationwide provider. It is far simpler, and equally equitable, to provide a common timeframe across all scenarios.

Commenters further note that additional time has been afforded to small providers for compliance in other contexts, e.g., with respect to certain E911 and Wireless Emergency Alert (WEA) obligations. The Order on Reconsideration finds those examples inapposite here. In the E911 and WEA context, newly required obligations involved the potential for network modifications and upgrades or equipment availability in a way that is not present or relevant here.

The Petition and related comments further argue that the 200-hour estimate provided by the Commission did not properly account for the amount of time and resources necessary for entering into multiple bilateral RuD and mutual aid arrangements and to complete roaming testing. In particular, Petitioners and commenters claim that the estimate does not properly account for the complexity of negotiating and executing the required arrangements for many regional and local providers, e.g., providers may have to negotiate arrangements and complete roaming testing with a large number of providers, some providers do not have existing agreements with other providers and may need to address unanticipated complexities or include terms unique to certain disaster contexts, and some providers lack the resources to negotiate agreements and conduct testing with multiple providers at the same time.

The Order on Reconsideration disagrees with Petitioners' view that the Commission did not appropriately account for the level of likely burden on providers in the Report and Order. In reaching its conclusion, the Report and Order specifically took into account assertions by small and regional entities regarding actions already undertaken to engage in storm preparation, information and asset sharing as well as their assertions that many “already abide” by the principles on which the MDRI is based, concluding that setup costs would be limited, and otherwise noting examples in the record around existing efforts, time and resources expended in support of the activities codified in the MDRI. As such, it was reasonable to assume that providers existing engagements could be levied in support of these obligations, and accordingly providing a reasoned estimate associated with the actions required by regional and local providers to update or revise their existing administrative and technical processes to conform to processes required the MDRI. Further, the Report and Order noted the lack of record comment regarding recurring costs. As such, we do not believe the Report and Order erred in its conclusion.

However, even taking as true Petitioners assertion that the Report and Order miscalculated the burden, and considering the additional arguments presented regarding complexity and limited resources and the possible need to negotiate serially, the Order on Reconsideration finds the extension granted accounts for the additional burdens that Petitioner and commenters have asserted (the date extension for implementation of the MDRI should address concerns surrounding small providers and the 200-hour estimated burden).

Petitioners also argue that the Commission has departed from its own precedent by establishing a compliance deadline for entering into roaming agreements. The Order on Reconsideration disagrees and finds that there is a compelling public interest in ensuring the availability of networks during a disaster justifies the need for an established deadline. An open ended timeframe in this regard also fails to take into account the need to enhance and improve disaster and recovery efforts on the ground in preparation for, during, and in the aftermath of disaster events, including by increasing predictability and streamlining coordination in recovery efforts among providers.

Additional Small Provider Considerations. The Order on Reconsideration also finds that the bargaining inequity posited by smaller providers in their comments with respect to the roaming arrangements and mutual aid agreements is also mitigated by the extension granted. Moreover, RuDs and mutual aid agreements in this context are required to adhere to a reasonableness standard, with negotiations conducted in good faith, with disputes and enforcement provided for before the Commission. The Order on Reconsideration finds that these safeguards adequately address these concerns. With respect to the argument that small providers in particular may need to conduct negotiations serially rather than simultaneously due to resource constraints, the Commission does not find that this circumstance alone prevents timely compliance, and Petitioners and commenters do not provide sufficient evidence that sequential negotiations for some subset of providers requires industry-wide revisions of compliance timeframes. Moreover, the extension of time should accommodate the need for smaller providers to serially negotiate if necessary.

Rip and Replace. As to the possibility that a provider's need to complete “Rip and Replace” activities prior to implementing or completing initial testing of RuD or mutual aid arrangements under the MDRI could delay timely compliance, the Commission expect that these instances are specific enough to be addressed in a petition for waiver, in response to which the Bureau could consider whether special circumstances justify an appropriate delay.

Related Requests for Clarification. Finally, in establishing the singular compliance date for all facilities-based mobile wireless providers, it is unnecessary to address Petitioners' other requests. In particular, the Petitioners' request the Commission reconsider its use of “small” versus “non-small” delineations preferring the use of “nationwide” and “non-nationwide” as used in the 911 context instead. However, the adoption of a unified implementation timeline for all providers makes differentiating between providers irrelevant. Similarly, their request for clarification as to the applicable timeframes when parties to an RuD arrangement or roaming testing include one small and one non-small provider is also unnecessary, as all providers are subject to the same revised compliance date. While the Commission also disagrees that the compliance timeframes adopted in the Report and Order are in any way unclear, and therefore that the Commission should “reaffirm” the applicability of the PRA timeframes to particular provisions of the rule, the Order on Reconsideration grant dispensation to all parties by extending the May 1, 2024 compliance date to all provisions of § 4.17. (To the extent providers have professed disagreement or confusion as to the applicability of the PRA to a particular element of § 4.17, we forbear from enforcement action for any violations that may have occurred during the pendency of the Petition and until the new compliance date occurs.) It should be noted that § 4.17(e) previously set forth a separate compliance date for the requirement to enter into mutual aid arrangements, but in modifying the implementation timing and to provide clarity, the Commission finds it most logical for all elements of the MDRI to have the same timing (see para. 25, supra, “Providers must have mutual aid arrangements in place within 30 days of the compliance date of the MDRI”). In the Order on Reconsideration, the Commission eliminates the distinction between the mutual aid arrangement requirement and the other requirements under the MDRI to provide clarity and simplicity for implementation. In doing so, the Commission provides a clear date to eliminate confusion, give providers extra time for implementation and provide certainty not only to Petitioners and commenters as to the scope and timing of their obligations, but to the public safety and related incident planning and response organizations that support communities during disasters, and the public that relies on these networks. Petitioners' other argument that the entire rule implicates PRA shall be resolved through the PRA process.

List of Providers Subject to the MDRI

The Petitioners ask that the Commission “[p]rovide a list of potential facilities-based mobile wireless providers to which the MDRI may apply, so that providers can determine with more certainty the scope of their obligation to execute Roaming under Disaster (`RuD') arrangements with all `foreseeable' wireless providers.” Further, Petitioners ask the Commission to “publish the list on the FCC's website” and request that they “update the list on a regular basis.” As detailed below, the existing public information published by the Commission in connection with its Form 477 information collections and available to Petitioners and other providers adequately identify those potentially subject to the MDRI. This resource coupled with other public information available to Petitioners, as well as the additional clarification we offer below on when roaming may be “foreseeable” for MDRI purposes, provides adequate clarity in the Commission's view for Petitioners to execute their obligations.

Background. Petitioners argue that providers need a Commission-generated list to ensure they are engaging with all other providers for required RuDs, mutual aid agreements, and testing of roaming under § 4.17. The Petition states that a failure to do so frustrates both providers and the Commission's goals of the Report and Order and creates a challenge to determining whether providers have reached compliance with the MDRI. In particular, they assert that they have spent resources on determining foreseeable roaming partners using the Commission's estimated number of applicable providers as specified in the Report and Order, but were only able to identify fewer than half of the 63 providers referenced.

Comments. In support the Petition, commenters contend that while roaming is foreseeable “when two providers' geographic coverage areas overlap,” there is an issue with small carriers who may know the “identity of competing service providers in their territory, [but] may not have an existing business relationship with them, and . . . may not know the appropriate legal and/or technical personnel who are responsible for implementing roaming and mutual aid discussions.” Commenters agree that the list is necessary to “avoid ambiguity when implementing the MDRI, streamline the initial contact process, [and] clarify regulatory obligations for large and small carriers alike.” They recommend that the Commission compile the initial list and allow providers to identify appropriate points of contact and to update the list if providers implement new technology, merge with or are acquired by another service provider, or stop offering mobile wireless service. They further suggest that the Commission's Disaster Information Reporting System (DIRS) might serve as a model for collecting and maintaining contact information. In particular, DIRS, “provides communications providers with a single, coordinated, consistent process to report their communications infrastructure status information during disasters and collects this information from wireline, wireless, broadcast, cable, interconnected VoIP and broadband service providers.” Another commenter similarly concludes that an “official and continually updated resource of contact information would streamline the process and clarify obligations for all providers.”

Discussion. The Commission is not persuaded that a Commission-maintained list specifically for this purpose is the most efficient and effective means for providers to identify those other facilities-based mobile wireless providers subject to the MDRI. Petitioners assert that they were unable to identify a full roster of facilities-based mobile providers based on the Commission's estimate that 63 facilities-based mobile wireless providers that are not signatories to the Wireless Resiliency Cooperative Framework would be required to undertake certain activities to comply with the new rule. Specifically, they assert that “several of the Petitioners' members have worked in good faith, and expended resources and time, through Petitioners and the companies' established business channels, to compile information on the relevant points of contact and subject matter experts for their respective companies and identify contact information for all providers subject to these new requirements” but that they “have been able to identify fewer than half of the 63 facilities-based providers that the Resilient Networks Order identifies as subject to the MDRI rules.” Because they were unable to do so, they argue this should obligate the Commission to take on the responsibility of identifying and maintaining a list of providers subject to the MDRI. However, the information used to provide this estimate in the Report and Order is readily available to providers.

In estimating the number of providers subject to the MDRI, the Report and Order relied on data on the number of entities derived from 2022 Voice Telephone Services Report (VTSR). The information from the VTSR is derived from Form 477 filings made with Commission. The Commission already publishes the underlying list of Form 477 “Filers by State” and periodically updates this information. This pre-existing tool identifies, on a state-by-state basis, those filers subject to Form 477 filing obligations; those marked as “mobile voice” providers make up the total utilized by the Commission to estimate those subject to the MDRI. The Commission believes a simple sorting of this information, coupled with a provider's own knowledge of its particular service area, provides sufficient basis for a provider to (1) identify the providers subject to the MDRI; and (2) identify the relevant providers within this set with whom they should engage under the MDRI for establishing RuDs and mutual aid agreements. For example, the Report and Order makes clear that “each facilities-based mobile wireless provider [shall] enter into mutual aid arrangements with all other facilities-based mobile wireless providers from which it may request, or receive a request for aid during emergencies.” Utilizing the “Filers by State” tool, as well as their geographic knowledge of their own service area, past emergencies, and business relationships, it should be similarly clear to providers which other providers they could potentially receive or request aid from during an emergency.

Foreseeability. To provide additional guidance, the Order on Reconsideration also delineates additional context for considering when it may be “foreseeable” for a provider to need to roam onto another provider's network under an RuD. In terms of foreseeability for RuD purposes, the Commission continues to find that a particular provider is in the best position to know with which other providers its coverage area overlaps. In identifying foreseeable roaming partners, a provider should be able to leverage the information about its own coverage to reasonably predict which other providers may wish to enter into bilateral roaming arrangements or mutual aid agreements from publicly available service area maps, information in the Commission's Universal Licensing System (ULS), utilizing an internet search or other research sources to identify local providers. Indeed, providers have clear competitive incentives to familiarize themselves with competing providers who cater to their geographic area and consumers. In this respect, providers subject to the MDRI could, by way of example, reach out to all providers who are within their geographic service area to help satisfy this obligation. Some commenters appear to concede that geographic overlap is sufficient to understand what constitutes “foreseeable” roaming, only citing as an impediment to MDRI implementation that providers may not already have an existing relationship with each other.

Contact information. With respect to the need to identify contacts and establish relationships, nothing in the Report and Order prevents providers from making such information available of their own accord on a website or other such resource. In this respect, the bi-lateral nature of the roaming and mutual aid obligations also dictates that providers will be reaching out to each other, providing multiple avenues for mutual identification. As such, the Order on Reconsideration does not find that the Commission is in a better position than the individual providers to accumulate, collect, or maintain this information.

Moreover, as the same commenters acknowledge, instituting a process for Commission collection and dissemination of this data may have PRA or other privacy implications. The Order on Reconsideration finds that this effort could unreasonably delay the MDRI's implementation, particularly when the alternative is achievable with little burden. It is simpler, more efficient and more logical that providers use existing knowledge of their geographic coverage area, geographic competitors, and existing business relationships to begin implementation immediately without the need for undue delay by waiting for the Commission to re-organize information on an industry-wide basis that already exists with the providers themselves.

The Commission continues to find that the Report and Order requirement for each facilities-based mobile wireless provider to enter into bilateral roaming agreements with all other facilities-based mobile wireless providers from which it may foreseeably request roaming privileges, or that may foreseeably request roaming privileges from it, when the MDRI is active, to be a reasonable basis by which providers can identify potential RuD partners. And while the Report and Order is clear that roaming is foreseeable, without limitation, when two providers' geographic coverage areas overlap, we refine this explanation to acknowledge that radio frequency propagation may result in some variables as to coverage area contours. In this respect, coverage areas in this context overlap where a provider “knows or reasonably should have known” that its “as-designed” network service area overlaps with the service area of another provider. For instance, a provider should be able to reasonably predict which other providers may wish to enter into bilateral roaming agreements or mutual aid agreements from publicly available service area maps, information in the Commission's Universal Licensing System (ULS), utilizing an internet search or other research sources to identify local providers, being aware of competing providers who cater to their geographic area and consumers, or other similar engagements.

Notification of MDRI Activation

The Petition requests that the Commission “[e]stablish the process that [the Bureau] will use to inform facilities-based wireless providers that [the] MDRI is active, including by providing notice via email to facilities-based wireless providers.” Petitioners argue that “it is critical that all facilities-based wireless providers are immediately aware of such an activation through automatic electronic notifications.” They further state that the Commission already uses a similar process to notify providers of the activation of its Disaster Information Reporting System (DIRS). As described below, we decline to establish a specific mechanism to provide direct alerts for MDRI activation. Rather, the Order on Reconsideration finds the existing widely utilized and public notification mechanisms sufficient to afford prompt notice of MDRI activation.

Background. The MDRI is activated when (i) any entity authorized to declare Emergency Support Function 2 (ESF–2) activates ESF–2 for a given emergency or disaster, (ii) the Commission activates the Disaster Information Reporting System (DIRS), or (iii) the Commission's Chief of the Public Safety and Homeland Security Bureau issues a Public Notice activating the Mandatory Disaster Response Initiative (MDRI) in response to a state request to do so, where the state has also either activated its Emergency Operations Center, activated mutual aid or proclaimed a local state of emergency. The Report and Order delegated authority to the Bureau to issue a Public Notice effectuating the MDRI under these circumstances but did not provide a specific manner in which the Commission might otherwise notify providers.

Comments. Some commenters agree Petitioners' request for the Commission to base its notice procedures for the MDRI's activation “on the practice currently used for activating the Disaster Information Reporting System [(DIRS)] . . . [citing the importance] that all facilities-based wireless providers are made aware of such an activation.” One commenter further opines that small providers would have the flexibility to “designate multiple points of contact to receive such notices,” which would ensure that providers are aware of activation and could act accordingly. Another commenter is also in agreement, explaining that “the FCC should . . . provide notice of activation . . . directly by email from [PSHSB] staff to designated carrier points of contact.”

Discussion. The Petitioners claim that automatic electronic notification is necessary to (1) make sure that all facilities-based wireless providers are immediately aware of the MDRI activation and to (2) provide small wireless providers with the flexibility to designate multiple points of contact to receive notice of the MDRI activation, which will ensure the effectiveness of the system. The Commission is not persuaded that obligating the Commission to notify providers subject to the MDRI directly of its activation through electronic notification is necessary, and decline to modify the Report and Order in this regard.

In so deciding, the Commission notes that the Petition's comparison to DIRS operating procedures is not applicable in this instance. Unlike MDRI activations, DIRS is a voluntary reporting system where the responsibility and decision to report information sits with the providers themselves and not the Commission. While the Bureau similarly issues a Public Notice when DIRS is activated, sharing DIRS activation status, like the email notification provided to DIRS registrants, is merely a courtesy incidental to the purpose of the system. The primary mechanism remains the Public Notice, and the various routine publication and distribution venues employed for all Commission documents such as the Daily Digest and the Commission website. While the Order on Reconsideration declines to require it here, the Commission fully anticipates that the Bureau would similarly employ additional methods when available and appropriate to the circumstance to widely disseminate information regarding MDRI activation.

While the Commission agree that it is in the public interest to broadly publicize MDRI activation, existing pathways are sufficient as they are now and providers hold the primary responsibility to be aware of their obligations. As such, the Order on Reconsideration declines to revise our determination that a Public Notice issued by the Bureau is appropriate legal notice triggering MDRI obligations. However, to the extent that DIRS or NORS may be able to provide a relevant vehicle for the Bureau to provide courtesy MDRI activation notice, the Order on Reconsideration directs the Bureau to consider its feasibility.

Confidential Treatment of RuDs

Background. The Petitioners ask the Commission to affirm that it “will treat RuD arrangements provided under § 4.17(d) as presumptively confidential.” In particular, Petitioners claim that presumptive confidentiality for RuDs is appropriate because (1) the RuDs contain commercially sensitive and proprietary information that providers customarily treat as confidential; (2) the Commission treats roaming agreements as presumptively confidential under the existing data-roaming rules; and (3) the Commission treats analogous information submissions as presumptively confidential. Blooston Rural Carriers also favor a presumption of confidentiality. The Order on Reconsideration agrees, and clarifies that such submissions will be treated as presumptively confidential.

Discussion. Under the Report and Order, RuDs are not routinely submitted and are provided to the Commission only on request. As such, the Commission found it sufficient to consider confidentiality of such submissions on an ad hoc basis when requested by a submitting party. Petitioners correctly point out, however, that submissions to the Commission of data roaming agreements are afforded presumptively confidential treatment, and they further argue that RuDs may be incorporated into broader roaming arrangements. (See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, Second Report and Order, 26 FCC Rcd 5411, 5450, para. 79 (2011) (“[I]f negotiations fail to produce a mutually acceptable set of terms and conditions, including rates, the Commission staff may require parties to submit on a confidential basis their final offers, including price, in the form of a proposed data roaming contract.”) They also assert that such treatment for both RuDs and mutual aid agreements would be consistent with the treatment for outage information supplied under other provisions of the Commission's part 4 rules. The Order on Reconsideration concurs that RuD submissions are likely to contain the same types of sensitive trade secret or commercial and financial information we have found in other contexts to merit such a presumption. As such, the Commission reconsiders its prior ad hoc approach, and will afford a presumption of confidentiality to RuDs filed with the Commission.

II. Procedural Matters

A. Paperwork Reduction Act

The Order on Reconsideration does not contain new or substantively modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4). This document may contain a non-substantive and non-material modification of information collection requirements that are currently pending review by the Office of Management and Budget (OMB). Any such modifications will be submitted to OMB for review pursuant to OMB's non-substantive modification process.

B. Supplemental Final Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (Resilient Networks Notice) released in October 2021. The Commission sought public comment on the proposals in these dockets in the Resilient Networks Notice. No comments were filed addressing the IRFA. In the Resilient Networks Report and Order and Further Notice of Proposed released in July 2022 (Report and Order) the Commission prepared a Final Regulatory Flexibility Analysis (FRFA) and sought written comments on the FRFA. No comments were filed addressing the FRFA. In October 2022, the Cellular Telecommunications and Internet Association (CTIA) and the Competitive Carriers Association (CCA) (collectively, Petitioners) filed a Petition for Clarification and Partial Reconsideration (Petition) of the Report and Order which included issues impacting small entities. Several parties filed comments in response to the Petition. A summary of the relevant issues impacting small entities in the Petition, comments and addressed in the Order on Reconsideration are detailed below. This Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) reflects actions taken in the Order on Reconsideration, supplements the FRFA included with the Report and Order, and conforms to the RFA.

C. Need for, and Objectives of, the Order on Reconsideration

In the Report and Order, the Commission adopted rules that require all facilities-based mobile wireless providers to comply with the Mandatory Disaster Response Initiative (MDRI), which codified the Wireless Network Resiliency Cooperative Framework (Framework) agreement developed by the wireless industry in 2016 to provide mutual aid in the event of a disaster, and expand the events that trigger its activation. (The Framework commits its signatories to compliance with the following five prongs: (1) providing for reasonable roaming arrangements during disasters when technically feasible; (2) fostering mutual aid during emergencies; (3) enhancing municipal preparedness and restoration; (4) increasing consumer readiness and preparation, and (5) improving public awareness and stakeholder communications on service and restoration status. Under the Report and Order's amended rules, the Mandatory Disaster Response Initiative incorporates these elements, the new testing and reporting requirements and will be activated when any entity authorized to declare Emergency Support Function 2 (ESF–2) activates ESF–2 for a given emergency or disaster, the Commission activates the Disaster Information Reporting System (DIRS), or the Commission's Chief of Public Safety and Homeland Security issues a Public Notice activating the MDRI in response to a state request to do so, where the state has also either activated its Emergency Operations Center, activated mutual aid or proclaimed a local state of emergency.)

The Report and Order also implemented new requirements for testing of roaming capabilities and MDRI performance reporting to the Commission. These actions were taken to improve the reliability, resiliency, and continuity of communications networks during emergencies. Further, the requirements uniformized the nation's response efforts among facilities-based mobile wireless providers who prior to the Report and Order, implemented the Framework on a voluntary basis. Recent weather events and other natural disasters such as Hurricane Ida, hurricanes and earthquakes in Puerto Rico, severe winter storms in Texas, and hurricane and wildfire seasons generally, continue to demonstrate the continued susceptibility of the United States' communications infrastructure to disruption during such events. Accordingly, the Commission's adoption of the MDRI requirements in the Report and Order sought to implement the appropriate tools to promote public safety, improve reliability of the telecommunications infrastructure during emergency events, improve provider accountability as well as increase Commission awareness.

In the Order on Reconsideration, in response to Petitioners' and commenters' request for an extension of time for implementing roaming arrangements and mutual aid agreements, the Commission provided an extension for all providers, regardless of size, and implement a single, uniform compliance date of May 1, 2024 for all providers to comply with § 4.17. With this extension the Commission eliminates the distinction between small and non-small providers as previously distinguished in the Report and Order. Whereas small providers had originally been granted a longer timeline of nine months for implementation in comparison to the six months granted for non-small providers in the Report and Order, on reconsideration the extension we grant will result in all providers having almost two years from the date of publication of Report and Order in the Federal Register to comply with the relevant MDRI requirements. Further, the extension should allow small providers the additional time to manage resources and take the other necessary steps to meet these requirements. Additionally, the Commission has and continues to encourage large providers to assist small providers with the implementation process, and believes the rules as clarified in the Order on Reconsideration continue to take into account the unique interests of small entities as required by the RFA.

The Order on Reconsideration also furthers the Commission's efforts to address the findings of the Government Accountability Office (GAO) concerning wireless network resiliency. As we discussed in the Report and Order, in 2017, the GAO, in conjunction with its review of federal efforts to improve the resiliency of wireless networks during natural disasters and other physical incidents, released a report recommending that the Commission should improve its monitoring of industry efforts to strengthen wireless network resiliency. The GAO's conclusion that more robust measures and a better plan to monitor the Framework would help the FCC collect information on the Framework and evaluate its effectiveness resulted in several inquiries and investigations by the Bureau to better understand and track the output and effectiveness of the Framework, and other voluntary coordination efforts that promote wireless network resiliency and situational awareness during and after weather events and other emergencies. (Following Hurricane Michael, for example, the Bureau issued a report on the preparation and response of communications providers finding three key reasons for prolonged outages during that event: insufficiently resilient backhaul connectivity; inadequate reciprocal roaming arrangements; and lack of coordination between wireless service providers, power crews, and municipalities.) The Commission's actions on reconsideration to move forward with the MDRI requirements adopted the Report and Order continue to further the Commission's monitoring, oversight and efforts to improve wireless network resiliency by the industry.

D. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

There were no comments filed that specifically address the proposed rules and policies in the IRFA. However, as we mention above, in response to the final rules adopted in the Report and Order, the CTIA and CCA Petition and comments were filed involving issues impacting small entities. Specifically, the Petitioners requested that the Commission align the definitions of `non-small facilities-based' and `small facilities-based' mobile wireless providers with the Commission's existing definitions of `nationwide' and `non-nationwide' wireless providers applied in the 9–1–1 context, clarify the small provider compliance date applies when parties to a negotiation include one small and one non-small provider, and extend the deadline for implementing the new MDRI requirements for small and other wireless providers. Regarding these requests, the compliance deadline extension adopted in the Order on Reconsideration negated the need for the Commission to rule on the other two requests.

Petitioners also requested that the Commission publish and maintain a list of providers subject to the MDRI, provide direct, individual notification to providers when the MDRI is activated, and treat as confidential on a presumptive basis provider Roaming under Disaster arrangements (RuDs). In the Order on Reconsideration, the Commission determined that only confidential treatment on a presumptive basis for provider RuDs is warranted and decline to adopt further revisions. Specifically, the Commission declined to adopt the Petitioners' and commenters' other requests first finding that having the Commission maintain and publish a list is neither an efficient or effective way for providers to identify other facilities-based wireless providers who are subject to the MDRI. Second, the Commission continue to maintain the view that awareness of MDRI activation is the responsibility of providers, and having the Bureau issue notice via a Public Notice is sufficient.

E. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration

The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

F. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply

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.

As noted above, a FRFA was incorporated in the Report and Order. In the FRFA, the Commission described in detail the small entities that might be significantly affected by the Report and Order. Accordingly, in this Supplemental FRFA, the Commission incorporated by reference from the Report and Order the descriptions and estimates of the number of small entities that might be impacted by the Order on Reconsideration.

G. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

The requirements from the Report and Order the Commission upholds on reconsideration in today's Order on Reconsideration will impose new or modified reporting, recordkeeping and/or other compliance obligations on small entities. The rules require all facilities-based mobile wireless providers to make adjustments to their restoration and recovery processes, including contractual arrangements and public outreach processes, to account for MDRI. The mutual aid, roaming, municipal preparedness and restoration, consumer readiness and preparation, and public awareness and stakeholder communications provisions codified and implement the flexible standard in voluntary Framework developed by the industry. In accordance with the Safe Harbor provision we adopted in the Report and Order, pursuant to § 1.16 of the Commission's rules providers maintain the ability to file a letter in the any of dockets associated with this proceeding asserting that they are in compliance with the Framework's existing provisions, and have implemented internal procedures to ensure that it remains in compliance with the provisions. Further, small and other providers remain obligated to comply with the provision from the Report and Order that expands the events that trigger its activation and that require providers test and report on their roaming capabilities to ensure that the MDRI is implemented effectively and in accordance with the Commission's rules.

On reconsideration, the modifications in the Order on Reconsideration did not impact or change the cost of compliance analysis and estimates for small and other providers made in the Report and Order and therefore, the Commission does not repeat them. As we discussed in the initial FRFA in this proceeding, the MDRI rules only apply to facilities-based mobile wireless providers, which included small entities as well as larger entities. The Commission has not developed a small business size standard directed specifically toward these entities. However, in our cost estimate discussion in the Report and Order, we estimated costs based on Commission data that there are approximately 63 small facilities-based mobile wireless providers and these entities fit into larger industry categories that provide these facilities or services for which the SBA has developed small business size standards.

The Commission maintains its conclusion that the benefits of participation by small and other providers likely will exceed the costs for affected providers to comply with the rules adopted in the Report and Order. As recommended in the Report and Order, the Commission encourages non-small providers to assist smaller providers who may not have present aid and roaming arrangements. The Commission also acknowledges concerns commenters that smaller and more rural providers may not have the same resources or time to commit to implementation of the MDRI and the Petition's concern that smaller providers might need to hire additional staff or spend limited resources on external support to execute these arrangements and manage them in an ongoing manner, but the Commission believes granting an extension of time for compliance allows providers of all sizes the necessary timeline for achieving implementation, even on an individualized basis for each agreement that needs to be arranged. The Order on Reconsideration also maintains that the substantial benefits attributable to improving resiliency in emergency situations and the significant impact that is likely to result in the health and safety of the public during times of natural disasters, or other unanticipated events that could impair the telecommunications infrastructure and networks, cannot be overstated.

H. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”

The Commission took several steps in the Order on Reconsideration that should minimize the economic impact of compliance with the Report and Order for small entities. On reconsideration the Commission granted an extension of time for small entities to comply with all of the provisions of the MDRI. The Order on Reconsideration adopted a uniform compliance date for all providers which results in approximately twenty months (almost two full years) from the Federal Register publication to implement the requirements. This extension accounts for the resource concerns expressed by Petitioners, while maintaining the important role the MDRI requirements play in facilitating the ability of the American public to call for help, and receive emergency information and/or assistance during natural disasters, and other emergency situations. The Commission also granted a presumption of confidentiality for filed RuDs which eliminates the additional step for small entities of having to submit a request for confidential treatment under § 0.459 of the Commission's rules when filing an RuD with the Commission when requested. As discussed above, in the Order on Reconsideration the Commission considered the other alternatives in the Petitioners' request for clarification and/reconsideration and we declined to adopt any of those approaches. The Commission was not persuaded that the increased Commission involvement, expenditure of Commission resources, and the undue delay in implementing the MDRI which would have occurred had we adopted the alternatives requested by Petitioners and commenters was in the public interest, or outweighed the benefits of moving forward with the MDRI requirements as adopted in the Report and Order.

III. Ordering Clauses

Accordingly, it is ordered, pursuant to sections 1, 4(i), 4(j), 4(n), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 332, 403, 405, 615a–1, and 615c of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)–(j) & (n), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 332, 403, 405, 615a–1, and 615c, and § 1.429 of the Commission's rules, 47 CFR 1.429, that this Order on Reconsideration is adopted.

It is further ordered that part 4 of the Commission's rules, 47 CFR part 4, is amended as set forth in the Appendix of the Order on Reconsideration, and that such rule amendments shall be effective 30 days after publication in the Federal Register .

It is further ordered that the Office of the Managing Director, Performance Program Management, shall send a copy of this Order on Reconsideration in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 4

• Communications equipment
• Reporting and recordkeeping requirements
• 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

1. The authority citation for part 4 continues to read as follows:

Authority: 47 U.S.C. 34–39, 151, 154, 155, 157, 201, 251, 307, 316, 615a–1, 1302(a), and 1302(b); 5 U.S.C. 301, and Executive Order no. 10530.

2. Amend § 4.17 by revising paragraph (e) to read as follows:

§ 4.17

Mandatory Disaster Response Initiative.

* * * * *

(e) Compliance with the provisions of this section is required beginning May 1, 2024.