Proposed extension of outage reporting requirements beyond traditional wireline and wireless providers underscores increasing significance of VoIP and Internet providers.

When communications systems go down, bad things can happen. Network system outages – be they wireless, wireline, satellite or cable – are more than an inconvenience. Those systems provide a vital link between consumers and the public safety services they depend on, particularly in emergencies.  Largely because of that, the Commission has, for nearly 20 years, sought to stay informed about network system outages. Starting with wireline carriers (in 1992) and expanding to include wireless, satellite and cable folks 12 years later, the Commission has required carriers to report network outages that reach certain levels of seriousness. According to the Commission, these reports permit the Commission to “address communication system vulnerabilities and help prevent future outages.” (The reporting requirements are set out in Part 4 of the FCC’s rules.)

As a further indication of the increasing significance of VoIP on the communications landscape — and, consequently, VoIP’s increased potential exposure to regulation — the Commission has issued a Notice of Proposed Rulemaking (NPRM) which would extend its Part 4 outage reporting requirements to interconnected VoIP and broadband Internet access service providers (including Internet backbone network providers). The Part 4 rules require providers to report outages or serious degradations that last 30 minutes or longer and meet certain other thresholds (such as number of calling minutes affected).

The FCC sees this move as necessary because of the increasing number of people who depend on VoIP for all voice service, including 911 calls.  According to the Commission, market forces and network design have not been enough to ensure network reliability or prevent significant outages.  Rather, the Commission figures that intervention by the Commission itself affords the most effective means of reducing outages – and mandatory outage reporting gives it essential information in that mission.

To support this theory, the Commission offers the following: “[T]he frequency of wireline outages, which had spiked in 2008, has dramatically decreased since the issue was identified through the Commission’s ongoing, systematic analyses of monthly wireline outages.” That observation, while arguably true, is not necessarily persuasive. The wireline reporting rule, after all, has been in effect since 1992 – so it’s not clear how a spike in outages in 2008 and subsequent decrease can be said to demonstrate the rule’s effectiveness.   Likewise, the Commission’s claim that, in 2010, Commission staff finally discerned that outages were being caused by a relatively small number of factors – each of which could be addressed by applying a known best practice – suggests that the FCC may have fallen victim to the correlation/causation fallacy. (Wiki refers to that as “cum hoc ergo propter hoc”, which may thrill Latin scholars everywhere – but we prefer the XKCD illustration of the same phenomenon.)

While the NPRM seeks input on many particulars, the proposed new rules would essentially require both facilities-based and non-facilities-based VoIP providers, as well as broadband Internet access service providers, to report outages of at least 30 minutes or more that also meet certain other criteria. In keeping with the current rules, the FCC proposes to include degrees of degradation based on latency, jitter, and the like in the definition of “outage.” Timing would track the existing rules: a first report within 120 minutes of discovering the outage, with follow-up reports at 72 hours and 30 days. Reports are to be made electronically, through the Commission’s “Network Outage Reporting System” (NORS).

Commissioner McDowell concurred with the NPRM generally, even though he disagreed with his colleagues on the fundamental issue of whether the Commission has authority to do what it’s trying to do. In McDowell’s view, the FCC simply doesn’t have the authority to impose outage reporting rules on broadband Internet service providers. The majority, on the other hand, point to the FCC’s direct statutory authority to “protect and promote the availability of 9-1-1 services for customers of interconnected VoIP service,” noting that unless the FCC can guarantee the reliability of the underlying networks carrying VoIP service, it cannot fulfill its statutory mandate of ensuring that VoIP 911 calls will get through.   Despite his misgivings on this issue, McDowell was willing to open the question up for discussion, which is all the NPRM does at this point. Whether the ensuing discussion will persuade him that Congressional authority really is there remains to be seen.

Comments are due by August 8, 2011 and reply comments are due by October 7, 2011.