[Federal Register: October 11, 2007 (Volume 72, Number 196)]
[Rules and Regulations]
[Page 57879-57888]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11oc07-15]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 12
[EB Docket No. 06-119; WC Docket No. 06-63; FCC 07-177]
Recommendations of the Independent Panel Reviewing the Impact of
Hurricane Katrina on Communications Networks
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) considers petitions for reconsideration and/or
clarification (Petitions) of the Order that adopted the Commission's
rule, which required that certain local exchange carriers (LECs) and
commercial mobile radio service (CMRS) providers have an emergency
backup power source for all assets that are normally powered from local
AC commercial power. The Commission modifies its rules to address
several meritorious issues raised in the petitions. These modifications
will facilitate carrier compliance and reduce the burden on LECs and
CMRS providers, while continuing to further important homeland security
and public safety goals.
DATES: The rules in 47 CFR 12.2 contains information collection
requirements that have not been approved by the Office of Management
and Budget (OMB). The Federal Communications Commission will publish a
document in the Federal Register announcing the effective date.
FOR FURTHER INFORMATION CONTACT: Jean Ann Collins, Deputy Division
Chief, Communications Systems Analysis Division, Public Safety and
Homeland Security Bureau, Federal Communications Commission at (202)
418-2792. For additional information concerning the Paperwork Reduction
Act information collection requirements contained in this document,
send an e-mail to PRA@fcc.gov or contact Judith B. Herman at (202) 418-
0214.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration in EB Docket No. 06-119 and WC Docket No. 06-63, FCC
07-177, adopted October 2, 2007, and released October 4, 2007. The full
text of this document is available for public inspection and copying on
the Commission's Internet site at http://www.fcc.gov. It is also
available for inspection and copying during regular business hours in
the FCC Reference Center, Room CY-A257, 445 12th Street, SW.,
Washington, DC 20554. This document may also be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc., Room
CY-B402, 445 12th Street, SW., Washington, DC 20554, telephone (202)
488-5300, fax (202) 488-5563; or via e-mail FCC@BCPIWEWEB.COM.
Alternative formats (computer diskette, large print, audio cassette,
and Braille) are available to persons with disabilities by sending an
e-mail to FCC504@fcc.gov or calling the Consumer and Governmental
Affairs Bureau at (202) 418-0530, TTY (202) 418-0432.
Synopsis of the Order on Reconsideration
Background
In January 2006, Chairman Kevin J. Martin established the Katrina
Panel pursuant to the Federal Advisory Committee Act, Public Law 92-
463, as amended. The mission of the Katrina Panel was to review the
impact of Hurricane Katrina on communications infrastructure in the
areas affected by the hurricane and to make recommendations to the
Commission regarding ways to improve disaster preparedness, network
reliability and communications among first responders such as police,
fire fighters, and emergency medical personnel. The Katrina Panel
submitted its report on June 12, 2006. The Katrina Panel's report
described the impact of the worst natural disaster in the Nation's
history, as well as the overall public and private response and
recovery efforts. The Commission's goal is to take the lessons learned
from that disaster and build upon them to promote more effective,
efficient response and recovery efforts, as well as heightened
readiness and preparedness.
The Commission issued a Notice of Proposed Rulemaking (NPRM) on
June 19, 2006 inviting comment on what actions the Commission should
take to address the Katrina Panel's recommendations. On July 26, 2006,
the Commission issued a public notice asking commenters to address the
applicability of the Katrina Panel's recommendations to all types of
natural disasters (e.g., earthquakes, tornadoes, hurricanes, forest
fires) as well as other types of incidents (e.g., terrorist attacks,
influenza pandemic, industrial accidents). The public notice also asked
parties to address whether the panel's recommendations are broad enough
to take into account the diverse topography of our Nation, the
susceptibility of a region to a particular type of disaster, and the
multitude of communications capabilities a region may possess. The
Commission received over 100 comments and reply comments in response to
the NPRM. In June 2007, the Commission released the Katrina Panel Order
directing the Public Safety and Homeland Security Bureau (PSHSB) to
implement several of the recommendations made by the Independent Panel
Reviewing the Impact of Hurricane Katrina on Communications Networks
(Katrina Panel). Among other things, the Commission adopted a rule
requiring some communications providers to have emergency/backup power.
The backup power rule adopted specifically states:
Local exchange carriers (LECs), including incumbent LECs (ILECs)
and competitive LECs (CLECs), and commercial mobile radio service
(CMRS) providers must have an emergency backup power source for all
assets that are normally powered from local AC commercial power,
including those inside central offices, cell sites, remote switches and
digital loop carrier system remote terminals. LECs and CMRS providers
should maintain emergency backup power for a minimum of 24 hours for
assets inside central offices and eight hours for cell sites, remote
switches and digital loop carrier system remote terminals that are
normally powered from local AC
[[Page 57880]]
commercial power. LECs that meet the definition of a Class B company as
set forth in Sec. 32.11(b)(2) of the Commission's rules and non-
nationwide CMRS providers with no more than 500,000 subscribers are
exempt from this rule.
On August 2, 2007, the Commission released an Order that extended
the effective date of Sec. 12.2 of the Commission's rules, the backup
power rule adopted in the Katrina Panel Order, to October 9, 2007. The
Commission did so on its own motion in order to provide additional time
to consider the issues raised by CTIA in its Motion for Administrative
Stay and to hear from other concerned parties on the issues raised in
that motion.
As indicated above, seven petitions were filed seeking
reconsideration and/or clarification of the backup power rule adopted
by the Commission in the Katrina Panel Order. The petitioners assert
that the Commission should rescind, modify and/or clarify the backup
power rule adopted in the Katrina Panel Order. The Commission also
received five timely comments to these petitions and several additional
ex parte comments.
Discussion
Petitioners argue that the Commission should rescind or
substantially modify the backup power rule. Among other things, several
petitioners assert that the rule should be modified to implement the
Network Reliability and Interoperability Council (NRIC) best practice
as recommended by the Katrina Panel and that the Commission should
clarify that the rule applies only to assets directly related to the
provision of critical communications services. Finally, some
petitioners argue that, if the Commission wants to pursue
implementation of a backup power rule, it should issue a Notice of
Inquiry or Notice of Proposed Rulemaking.
Administrative Procedure Act (APA) Notice and Comment. Several
petitioners contend that the Commission's adoption of the backup power
rule violated the Administrative Procedure Act (APA) by failing to
provide adequate notice that it was considering the adoption of that
rule and failing to provide opportunity to comment. They argue that the
NPRM was too general to adequately support the backup power rule
ultimately adopted and that the final rule deviates too sharply from
the initial proposals to satisfy the notice and comment requirements.
Petitioners contend that the NPRM never discussed the backup power
issue in terms of a potential mandate and only asked how the Commission
could best encourage implementation of the Katrina Panel's backup power
recommendation that the Commission encourage the implementation of NRIC
VII Recommendation 7-7-5204. Petitioners also assert that the NPRM did
not suggest that the physical scope of the backup power recommendation
might extend to all cell sites other remote assets or that the
Commission intended to select a specific durational requirement for
emergency power, let alone an eight- or twenty-four hour standard.
Section 553(b) and (c) of the APA requires agencies to give public
notice of a proposed rule making that includes ``either the terms or
substance of the proposed rule or a description of the subjects and
issues involved'' and to give interested parties an opportunity to
submit comments on the proposal. The notice ``need not specify every
precise proposal which [the agency] may ultimately adopt as a rule'';
it need only ``be sufficient to fairly apprise interested parties of
the issues involved.'' In particular, the APA's notice requirements are
satisfied where the final rule is a ``logical outgrowth'' of the
actions proposed.
In this instance, the Commission provided adequate notice in
compliance with the APA regarding the backup power rule. The Katrina
Panel Report repeatedly stated that the lack of adequate backup power
for communications facilities was a critical problem after Katrina that
caused communications network interruptions and hampered recovery
efforts. These findings provided the context for the Report's
recommendation that the Commission encourage the NRIC best practice
that states: ``[s]ervice providers, network operators and property
managers should ensure availability of emergency/backup power (e.g.,
batteries, generators, fuel cells) to maintain critical communications
services during times of commercial power failures. * * *'' In the
NPRM, the Commission noted that the Katrina Panel observed significant
challenges to maintenance and restoration of communications services
after Hurricane Katrina, due in part to problems with access to key
resources such as power and/or generator fuel. The Commission also
noted that the Katrina Panel recommended that the Commission encourage
the implementation of certain NRIC best practices intended to promote
the reliability and resiliency of the 911 and E911 architecture,
including a recommendation that service providers and network operators
should ``ensure'' availability of emergency backup power capabilities
(located on-site, when appropriate). The Commission sought comment on
how the Commission can best encourage implementation of these
recommendations consistent with its statutory authority and
jurisdiction and welcomed further suggestions on measures that could be
taken to strengthen 911 and E911 infrastructure and architecture. The
Commission also invited ``broad comment on the Independent Panel's
recommendations and on the measures the Commission should take to
address the problems identified'' and to build upon the lessons learned
from Hurricane Katrina and promote greater resiliency and reliability
of communications infrastructure, heightened readiness and
preparedness, and more effective, efficient response and recovery
efforts, in the future.
Further, in the NPRM, the Commission sought comment on whether it
should rely on voluntary consensus recommendations or whether it should
rely on other measures for enhancing readiness and promoting more
effective response efforts. The NPRM also invited comment on whether
the Katrina Panel's observations warranted additional measures or steps
beyond the report's specific recommendations and welcomed suggestions
and recommendations of different actions or additional measures beyond
the Katrina Panel's recommendations. In its report and recommendations,
the Katrina Panel found that the lack of power and/or fuel was one of
three main problems that caused the majority of communications network
interruptions and significant impediments to the recovery effort in the
aftermath of Hurricane Katrina. The Katrina Panel Report also noted
that during and after the hurricane, the power needed to support the
communications networks was generally unavailable throughout the region
and that backup batteries and generators were required for
communications systems to continue to operate. The Katrina Panel
further noted that ``the majority of the adverse effects and outages
encountered by wireless providers were due to a lack of commercial
power or a lack of transport connectivity to the wireless switch.''
Additionally, the Katrina Panel Report stated that ``[w]ireless
providers cited security for their personnel, access and fuel as the
most pressing needs and problems affecting restoration of wireless
service'' and that the loss of power in the wireline telephone network
also had a huge impact on the
[[Page 57881]]
ability of public safety systems to function. The Katrina Panel noted
that electric utility networks had a high rate of survivability
following Hurricane Katrina due, in part, to the fact that they were
built with significant onsite backup power supplies (batteries and
generators). Although the Katrina Panel found that ``the communications
industry has generally been diligent in deploying backup batteries and
generators and ensuring that these systems have one to two days of fuel
or charge,'' it also noted that not all locations had such backup
batteries or generators installed and that, because all locations were
not able to exercise and test the backup equipment in any systemic
fashion, some generators and batteries did not function during the
crisis. Although the power outages during and after Hurricane Katrina
were exceptionally long, the Panel's observations clearly emphasized
the importance of power supply to resiliency of communications
networks.
Taken together, the questions raised in the NPRM as well as the
Katrina Panel Report's findings regarding the lack of emergency power
were sufficient to put interested parties on notice that the Commission
was considering how to address the lack of emergency backup power,
including through the possible adoption of an emergency backup power
rule. Specifically, the NPRM sought comment on how the Commission could
best encourage implementation of various NRIC best practices, including
ensuring the availability of emergency backup power. Even if that
language were not read to propose a mandatory rule, the NPRM still gave
ample notice that this was a possibility. The NPRM specifically
inquired about ``whether [the Commission] should rely on voluntary
consensus recommendations, as advocated by the [Katrina] Panel, or
whether [it] should rely on other measures for enhancing readiness and
promoting more effective response efforts,'' a line of inquiry that the
Commission reiterated in the July 26 public notice. Moreover, the DC
Circuit has held that the ultimate adoption of a mandatory rule can
constitute the logical outgrowth of a voluntary standard. Thus, because
parties could have anticipated that the rule ultimately adopted was
``possible,'' it is considered a ``logical outgrowth'' of the original
proposal, and there is no violation of the APA's notice requirements.
Indeed, the Commission notes that the National Emergency Number
Association (NENA) did propose a backup power requirement in response
to the NPRM. In addition, St. Tammany Parish Communications District 1
told the Commission that ``[v]oluntary consensus measures * * * have
fallen short many times'' and that ``it is imperative that [wireline]
and wireless telephone providers be required to demonstrate they have
adequate backup procedures in place.'' Carriers also commented on the
importance of having backup power. CTIA observed that wireless carriers
``must ensure network reliability and reliance'' and that, to do so,
they ``provision their cell sites and switches with batteries to power
them when electrical grids fail'' and ``maintain permanent generators
at all of the switches and critical cell sites, as well as an inventory
of backup power generators to recharge the batteries during extended
commercial power failures.'' USTA likewise gave examples of telephone
companies that had already deployed backup power capabilities that
enabled their cell networks to remain in operation for several days
after a loss of main power. In light of these comments, the Commission
does not find credible the argument that the NPRM failed to apprise
parties that the Commission would address the issue of backup power in
this proceeding.
Petitioners' argument that the Commission did not give adequate
notice that it might select a specific durational requirement for
emergency power, such as twenty-four or eight hours, also lacks merit.
Had the Commission adopted a general backup power requirement that did
not require a minimum amount of backup power, it would have risked
creating an illogical and meaningless requirement that would have
allowed providers to have only one minute of backup power. Thus,
parties should have realized that an emergency backup power mandate
would inevitably include a specific durational requirement.
Statutory Authority. PCIA asserts that section 1 of the
Communications Act, the statutory authority upon which the Commission
adopted the backup power rule, is patently inadequate statutory
authority. PCIA contends that section 1 of the Communications Act, as
amended, (the ``Act'') is only a general grant of jurisdiction that,
absent other specific authority, does not authorize the Commission to
impose requirements to maintain backup power at cell sites. PCIA argues
that the Commission's ancillary authority under section 1 of the Act
does not empower it to act where such action would be ``ancillary to
nothing.''
The Commission's section 1 ancillary jurisdiction covers
circumstances where: (1) The Commission's general jurisdictional grant
under Title I covers the subject of the regulations, and (2) the
regulations are reasonably ancillary to the Commission's effective
performance of its statutorily mandated responsibilities. This two-part
test for ancillary jurisdiction was developed by the Supreme Court in
Southwestern Cable.
To fulfill the first prong of the ancillary jurisdiction test, the
subject of the regulation must be covered by the Commission's general
grant of jurisdiction under Title I of the Communications Act, which
encompasses ``all interstate and foreign Communication by wire or
radio.'' In the instant rule making, this first prong of the ancillary
jurisdiction test is met because the backup power rule adopted by the
Commission in the Katrina Panel Order pertains to the provisioning of
``interstate and foreign commerce in communication by wire and radio.''
The second prong of the ancillary jurisdiction test requires that the
subject of the regulation must be reasonably ancillary to the
Commission's effective performance of its statutorily mandated
responsibilities. It cannot seriously be disputed that the backup power
requirement is ``reasonably ancillary to the effective performance'' of
the Commission's responsibilities to promote public safety. Section 1
itself makes clear that one of the Commission's missions is to ``make
available * * * [a] wire and radio communication service with adequate
facilities * * * for the purpose of promoting safety of life and
property through the use of wire and radio communications.'' 47 U.S.C.
151 (emphasis added). Section 1 thus requires the Commission to
``consider public safety'' and to ``take into account its duty to
protect the public.'' Nuvio Corp. v. FCC, 473 F.3d 302, 307 (2006); see
also id. at 311 (Kavanaugh, J., concurring) (``the FCC possesses
statutory authority * * * to address the public safety threat by
banning providers from selling voice services until the providers can
ensure adequate 911 connections''). And as this Court has recognized,
it is well ``within the Commission's statutory authority'' to `` `make
such rules and regulations * * * as may be necessary in the execution'
'' of its section 1 responsibilities.'' Section 303(r) also provides
ample authority to support the Commission's action here. Section 303(r)
provides that the Commission may ``[m]ake such rules and regulations *
* * as may be necessary to carry out the provisions of this Act.
The presence of a backup power source installed by all local
exchange carriers (LECs), including incumbent LECs (ILECs) and
competitive LECs
[[Page 57882]]
(CLECs), as well as commercial mobile radio service (CMRS) providers
for all assets that are normally powered from local commercial power
including those inside central offices, cell sites, remote switches and
digital loop carrier system remote terminals will facilitate
communication for the purposes of national defense and the promotion of
``safety of life and property'' during emergencies. Communications
networks cannot operate without a power source. The Commission must
therefore be mindful of an adequate power supply, particularly in
emergencies, if it is to discharge its core responsibilities under
section 1 of the Communications Act to regulate communications for the
promotion of national defense, public safety and the protection of
property. If commercially supplied power is incapacitated, the
communications network will also fail. The backup power rule adopted by
the Commission is a short-term attempt to sustain communication in a
severe emergency for the purposes of promoting the Commission's salient
purpose pursuant to section 1 to regulate interstate communications by
wire and radio.
PCIA's reliance on the broadcast flag ruling by the U.S. Court of
Appeals for the District of Columbia (Court) is misplaced. In that
case, the Court found that the Commission had not satisfied the second
prong of the ancillary jurisdiction test because the restriction on
recording digital television programs that were transmitted by cable or
over-the-air broadcast exceeded the Commission's authority to regulate
the transmission of communications by wire and radio given that the
restriction pertained to a regulation imposed outside the course of the
act of transmitting the communication. In this case, by contrast,
backup power is necessary for the communication to be transmitted at
all.
Arguments Regarding Lack of Record Support, Consideration of
Important Factors or Reasoned Basis for Rule. Petitioners contend that
the backup power rule is arbitrary and capricious because the
Commission failed to explain why a mandatory obligation including an
inflexible minimum 8 or 24 hour period was necessary and why it
rejected less restrictive alternatives to the rule, such as a voluntary
best practices regime as recommended by the Katrina Panel. Several
petitioners also allege that the Commission failed to consider the
impact of the rule, failed to consider important aspects of the very
problem it sought to redress, and failed to explain why present carrier
preparedness plans are inadequate. Additionally, several petitioners
argue that the backup power rule adopted lacks record support.
Petitioners argue that there is no record evidence to support the
backup power mandate in general, or the eight or 24-hour minimum in
particular. Some petitioners note that the comments described in the
Order when discussing the backup power rule do not concern CMRS
providers at all, do not suggest any mandatory minimum standard, or
have nothing to do with backup power. However, the rule adopted by the
Commission enjoyed strong factual support. First, as described supra,
the Katrina Panel repeatedly emphasized the importance of power supply
to resiliency of communications networks. Further, it noted that backup
generators and batteries were not present at all facilities.
Additionally, the Katrina Panel Report stated that power for radio base
stations and battery/chargers for portable radio devices are carefully
planned for public safety systems; however, ``generators are typically
designed to keep base stations operating for 24 to 48 hours.'' This
language, along with the Katrina Panel's recognition that 24-48 hours
is generally a sufficient time to permit the restoration of power in
most situations, clearly provides support for requiring LECs and CMRS
providers to maintain backup power for a minimum of 24 hours for assets
located inside central offices. The 24 hour requirement imposes
relatively less burden while still generally providing sufficient time
for restoration of commercial power or for carriers to allocate
additional power sources. Further, the Commission recognized the
burdens of ensuring longer durations of backup power at other
locations, which have subsequently been detailed by petitioners, and
reasonably required only 8 hours of backup power for such locations,
including, but not limited to, cell sites, remote switches and digital
loop carrier system remote terminals. This will provide at least eight
hours for commercial power restoration or carrier actions to obtain
additional backup power sources.
Additionally, the Katrina Panel's recommendation was that the
Commission encourage the implementation of the NRIC VII Recommendation
7-7-5204. That recommendation states that ``[s]ervice providers,
network operators and property managers should ensure availability of
emergency/backup power * * *'' The terms ``service providers'' and
``network operators'' clearly include CMRS providers. In the Katrina
Panel Order, the Commission noted that NENA recommended that ``the FCC
or state commissions, as appropriate, require all telephone central
offices to have an emergency backup power source.'' NENA states that,
in its comments in the Katrina Panel Docket, it chose to mention
telephone central offices as emblematic, not exhaustive, of critical
switching points in wire and wireless networks, and it also endorsed
the broader scope of NRIC Recommendation 7-7-5204.
The Commission determined that a mandatory backup power requirement
would be in the public interest. Although several carriers described
their backup power plans, the Katrina Panel Report made clear the
importance of backup power for resilient communications and restoration
of communications services that have been disrupted. The report further
made clear that, although many carriers do have backup power or backup
power plans, not all locations have backup power. The Katrina Panel
also noted that because those communications providers did not
necessarily test and exercise their backup power sources in a
systematic fashion, generators and batteries might not function during
the crisis. Imposing a backup power rule would ensure that more
communications assets have backup power and that providers ensure the
availability of this power. Access to communications technologies
during times of emergency is critical to the public, public safety
personnel, hospitals, and schools, among others. Therefore, because the
benefits of ensuring resilient communications during times of crises
are so great, the Commission determined that a backup power rule was in
the public interest. Moreover, it is important that both LEC and CMRS
providers have backup power, because the public, public safety
personnel, and hospitals, among others, rely heavily on both types of
providers. In fact, many Americans now rely on only a wireless phone
and public safety entities, hospitals and others are increasingly
relying on wireless technologies. As the Katrina Panel Report and
commenters note, lack of commercial power was one of the main causes of
wireless outages during Hurricane Katrina, access to fuel was one of
the wireless providers' most pressing needs during that catastrophe,
and it is important that both wireless and wireline carriers ensure
network reliability and resiliency by provisioning their sites with
back up power.
Petitioners also allege that the Commission failed to consider
burdens and important matters, some of which affect the ability of
carriers to comply
[[Page 57883]]
with the rule. They contend that legal impediments, including
contractual obligations and inconsistency with federal, state and local
environmental, safety, building and zoning laws will make compliance
with the rule difficult, if not impossible and could result in
preemption issues regarding state and local laws. Petitioners note that
carriers have site leases with contractual obligations that regulate
the placement, installation and operation of power sources.
Additionally, petitioners assert that compliance with the backup power
rule could result in threats to public health and safety. For instance,
petitioners state that the installation of a generator and its
combustible fuel on the roof of a school or public building, where many
transmitters are located, may pose a risk to public health and safety
even when in compliance with law. Further, petitioners assert that the
Commission failed to properly consider the length of time it would
reasonably take for providers to comply with the rule. They contend
that compliance will take a significant amount of time and the time
allowed by the Katrina Panel Order is insufficient, because providers
must obtain permits, do site inspections, conduct structural
engineering analysis, renegotiate leases, obtain permits, ensure
compliance with legal requirements, evaluate backup power needs, and
order and install the necessary equipment. Petitioners also assert that
compliance will take time because thousands of ``non-critical'' sites
do not have backup power and many of the sites that do have backup
power do not have the amount required. As discussed in greater detail
below, petitioners also argue that physical and other practical
limitations make it difficult or impossible to comply with the backup
power rule. Finally, petitioners argue that the Commission did not
adequately consider the economic burden the rule will impose.
The Commission finds that Petitioners' arguments regarding legal
impediments and threat to public health and safety to be compelling and
modify Sec. 12.2 to state that LECs and CMRS providers are not
required to meet the backup power requirement if they demonstrate,
through the reporting requirement described below, that such compliance
is precluded by: (1) Federal, state, tribal or local law; (2) risk to
safety of life or health; or (3) private legal obligation or agreement.
With respect to private legal obligations or agreements, LECs and CMRS
providers should make efforts to revise agreements to enable rule
compliance where possible, for example through renegotiations or
renewals. Obviously, the Commission will disapprove of attempts to
circumvent the rule through private agreements. The Commission believes
such exemptions are warranted because those impediments create a
substantial burden for LECs and CMRS providers to overcome in order to
comply with the rule that in some cases may be insurmountable. In the
case of risk to safety of life or health, such an exemption is
obviously in the public interest. As noted, supra, some petitioners
assert that the Commission should clarify that the backup power rule
applies only to assets directly related to the provision of critical
communications services. The Commission agrees that the requirement
should be clarified to apply only to assets necessary to the provision
of communications services and modify the rule accordingly. The
Commission declines, however, to limit the rule to ``critical''
communications services, because, although that term was included in
the NRIC best practice recommended by the Katrina Panel, it is not well
defined and the Commission believes, for public safety and public
interest reasons, all assets necessary to the provision of
communications services should have backup power. The Commission also
agrees with AT&T that on-site power sources satisfy the requirement of
this rule if such sources were originally designed to provide the
minimum backup power capacity level required herein and the provider
has implemented reasonable methods and procedures to ensure that
batteries are regularly checked and replaced when they deteriorate.
Finally, the Commission finds that the requirement should not be
limited to assets normally powered from local ``AC'' commercial power.
Regardless of the type of commercial power used, assets necessary to
maintain communications should have backup power and be as reliable and
resilient as possible. The Commission also notes that the NRIC best
practice recommended by the Katrina Panel did not limit its
recommendation in this way. Accordingly, the Commission deletes the
reference to ``AC'' in the rule.
While today the Commission addresses concerns raised by LECs and
CMRS providers regarding their obligation to ensure emergency backup
power, given the importance of backup power reserves during times of
emergency, the Commission will seek information regarding the extent to
which LECs and CMRS providers are in compliance with this rule.
Accordingly, the Commission also modifies Sec. 12.2 to require LECs
and CMRS providers to file reports with the Commission that identify
the following information: (1) An inventory listing of each asset that
was designed to comply with the backup power mandate; (2) an inventory
listing of each asset where compliance is precluded due to risk to
safety or life or health; (3) an inventory listing of each asset where
compliance is precluded by private legal obligation or agreement; (4)
an inventory listing of each asset where compliance is precluded by
Federal, state, tribal or local law; and (5) an inventory listing of
each asset designed with less than the required emergency backup power
capacity and that is not otherwise precluded from compliance for one of
the three reasons identified above. LECs and CMRS providers must file
these reports within six months of the effective date of this
requirement, and must include a description of facts supporting the
basis of the LEs or CMRS provider's claim of preclusion from
compliance. For example, claims that a LEC or CMRS provider cannot
comply with the backup power mandate due to a legal constraint must
include the citation(s) to the relevant laws and, in order to be deemed
precluded from compliance, the law or other legal constraint must
prohibit the LEC or CMRS provider from complying with the backup power
requirement. The mere need to obtain a permit or other approval will
not be deemed to preclude compliance with the backup power requirement.
Claims that a LEC or CMRS provider cannot comply with the backup power
mandate with respect to a particular asset due to a private legal
obligation or agreement must include the relevant terms of the
obligation or agreement and the dates on which the relevant terms of
the agreement became effective and are scheduled to expire. Claims that
a LEC or CMRS provider cannot comply with the backup power mandate with
respect to a particular asset due to risk to safety of life or health
must include a description of the particular public safety risk and
sufficient facts to demonstrate substantial risk of harm. The
Commission directs the Public Safety and Homeland Security Bureau to
develop an appropriate auditing program to ensure that carriers'
exclusion filings are reasonable and accurate.
LECs or CMRS providers identifying assets designed with less than
the required emergency backup power capacity and not otherwise
precluded from compliance for one of the three reasons listed above
must comply with
[[Page 57884]]
the backup power requirement or file, within 12 months from the
effective date of the rule, a certified emergency backup power
compliance plan that is subject to Commission review. That plan must
describe how, in the event of a commercial power failure, the LEC or
CMRS provider intends to provide emergency backup power to 100 percent
of the area covered by any non-compliant asset, relying on on-site and/
or portable backup power sources or other sources as appropriate. The
emergency backup power must be sufficient for service coverage as
follows: A minimum 24 hours of emergency backup power for assets inside
central offices and eight hours for other assets such as cell sites,
remote switches, and digital loop carrier system remote terminals. The
provider must be able to ensure backup power is available for 100
percent of the area covered by any non-compliant asset pursuant to the
emergency backup power compliance plan on the date that the plan is
filed. All reports and plans required by Sec. 12.2 of the Commission's
rules will be automatically afforded confidentiality, because the
information in those reports and plans is sensitive, for both national
security and/or commercial reasons. This reporting requirement should
not be burdensome in light of many LEC and CMRS provider arguments that
they already have business continuity plans that address the issue of
backup power and in light of the fact that the plan is not due until 12
months after the effective date of the modified rule which will require
Office of Management and Budget approval before going into effect. In
any event such burdens are outweighed by the importance of having
backup power for communications assets.
Petitioners argue that the Commission failed to consider the length
of time it would reasonably take for CLECs and CMRS providers to comply
with the rule and that it will take significant time to evaluate backup
power needs, conduct structural engineering analyses, renegotiate
leases if needed, prepare necessary applications for permits and other
authorizations, ensure compliance with all applicable building codes
and environmental regulations, coordinate with counsel, architects,
construction personnel and government officials, order and receive the
necessary equipment, and properly install the backup power source. The
Commission notes that the Katrina Panel Order was released on June 8,
2007, almost four months ago, and LECs and CMRS providers have known of
the backup power requirement since that time. Further, the modified
backup power rule adopted in the Order on Reconsideration will not go
into effect until OMB approves the new information collection, giving
providers additional time to come into compliance. To the extent LECs
and CMRS providers identify non-compliant assets, they will receive
even more time to file emergency backup power compliance plans. In
addition, the modifications to the rule mitigate these concerns by
exempting assets from compliance when precluded by law, private legal
obligation or agreement, or risk to safety of life or health and by
allowing an emergency backup power compliance plan in cases where
assets do not comply with the 8-24 hour rule and are not subject to the
exceptions. As such, the Commission believes that it will be feasible
for providers to comply with the rule.
Several petitioners argue that compliance with the backup power
rule is burdensome due to physical and other practical limitations,
that the required space might not be available at many sites, and that
providers may be forced to modify structures containing cell
transmitters or to build new structures. They assert, for example, that
roofs and floors need to be designed to support the weight of power
sources, that many rooftop cell sites were not engineered with the
additional weight requirements made necessary by the backup power rule,
and that many of those structures may simply not be able to physically
support the weight of additional batteries or a generator. Petitioners
also argue that there is not enough space at many cell sites to add
additional backup power sources and note that cell transmitters are
often placed in locations with limited room, such as building rooftops,
church steeples and inside buildings. USTelecom notes that some remote
terminals are physically too small to support a backup battery or a
battery over a certain size. T-Mobile reports that, in the case of
liquid propane-fueled generators, Occupational Safety and Health
Administration requirements mandate a 10-foot radius clearance between
the liquid propane fuel tank and its ignition source. T-Mobile argues
that this could substantially increase the amount of space needed to
install a backup power source.
The Commission is not convinced that LECs and CMRS providers should
be excused from having emergency backup power solely because they have
chosen to place their assets at locations with limited weight or space
capacities. The ultimate goal of this rule is to ensure that carriers
have sufficient emergency backup power, particularly during times of
emergencies. The Commission recognizes that, in order to comply with
the rule, some carriers may have to modify sites to accommodate
additional equipment or, in some cases, find other, more suitable,
locations for their assets. The Commission believes, however, that any
such burdens are far outweighed by the ultimate goal of this rule. For
similar reasons, the Commission also rejects the notion that carriers
should be excused from complying with the rule for vague ``practical''
reasons. Having said this, however, a carrier could be excused from the
rule to the extent that the carrier can demonstrate that an asset with
purported physical constraints fall into one of the three exceptions
listed above. Additionally, where assets do not comply with the 8-24
hour rule and are not subject to the exceptions, the Commission now
allows an emergency backup power compliance plan.
Although petitioners argue that the economic burden that the backup
power rule will impose is substantial, the record before the Commission
showed that several carriers have already deployed back-power power
capabilities, some of which allow them to remain in operation for
several days in the event of a loss of main power. In any event, the
Commission finds that the benefits of ensuring sufficient emergency
backup power, especially in times of crisis involving possible loss of
life or injury, outweighs the fact that carriers may have to spend
resources, perhaps even significant resources, to comply with the rule.
Petitioners assert that compliance may be costly; however, the record
does not show that it is ``cost-prohibitive'' for carriers. Moreover,
the rule modifications, including new exemptions described above and
the provision that providers file an emergency backup power compliance
plan to ensure 100 percent coverage in areas covered by non-compliant
assets, will decrease any economic burden substantially. Finally, the
Commission finds that the goal of ensuring that carriers' networks have
sufficient emergency backup power outweighs the economic burden
described by petitioners and particularly the reduced economic burden
in light of the rule modifications adopted herein. The need for backup
power in the event of emergencies has been made abundantly clear by
recent events, and the cost of failing to have such power may be
measured in lives lost.
Some Petitioners argue that, contrary to the ultimate goal of
protecting the
[[Page 57885]]
provision of services, the backup power rule will not advance, but will
actually risk undermining, carriers' emergency preparedness goals and
efforts to achieve important business continuity and disaster recovery
goals. Petitioners contend that the rule deprives carriers of the
flexibility necessary to make intelligent and efficient plans for
network resiliency as well as giving carriers the flexibility to
respond to disasters in real time while remaining in compliance with
the Commissions rules. Petitioners assert that, by diverting manpower
and resources away from more appropriate efforts to tailor emergency
communications plans, and by denying carriers the ability to move
resources away from areas not impacted to those that have been
impacted, the rule undermines rather than promotes the important goal
of public safety.
The Commission recognizes that carriers need some level of
flexibility in the design and deployment of their networks. This need,
however, must be balanced with the critical goal of ensuring that
communications networks has sufficient backup power, particularly
during times of disaster. The modifications made today strike a fair
and equitable balance of these two interests. The modified rule adopted
today will ensure that LECs, including ILECs and CLECs, as well as CMRS
providers maintain sufficient level of emergency backup power for
assets that are necessary to maintain communications and that are
normally maintained by commercial power. At the same time, the
modifications adopted in the Order on Reconsideration provide some
level flexibility, both in terms of the exceptions provided and the
requirements for submission of an emergency backup power compliance
plan in cases where providers are not compliant. Moreover, inclusion of
on-site back up power does not preclude the ability of carriers to
maintain strategic stores of fuel, batteries or other backup equipment
in other localities as a further layer of redundancy. Petitioners argue
that enforcement could also lead to the termination or disruption of
wireless cell sites, threatening the availability of service, including
E-911 service. Petitioners further contend that carriers may have
little choice but to shut down or move certain transmitters rather than
risk operating in violation of the new rule or endangering public
health and safety. NENA disagrees and contends that these arguments
suggest that cellular providers should be immune from any disruptive
regulatory discipline. The Commission believes that the exemptions now
provided along with the requirement to develop an emergency backup
power compliance plan in cases where assets do not comply with the 8-24
hour rule and are not subject to the exceptions described herein will
mitigate these concerns.
Paging Carriers. The American Association of Paging Carriers (AAPC)
argues that the Commission did not intend to apply the backup power
rule to paging carriers and should so clarify. Alternatively, AAPC
asserts that, if the Commission did intend for this rule to apply to
paging carriers, the Commission should reconsider and exclude paging
carriers or instead adopt the Katrina Panel's actual recommendation on
this issue, as set forth in the Katrina Panel Report. The backup power
rule adopted in the Katrina Panel Order requires commercial mobile
radio service (CMRS) providers to have emergency backup power. CMRS
providers that have no more than 500,000 subscribers are exempt from
this rule. Therefore, paging carriers that are CMRS providers with more
than 500,000 subscribers must comply with the rule. Paging services are
a critical part of emergency response. Many first responders, hospitals
and critical infrastructure providers rely on paging services during
emergencies. Therefore, it is critical that these services be available
during crises. Backup power at paging carrier facilities will help
ensure the availability of these services. The importance of paging
services is further demonstrated by the fact that paging carriers
participate in the Commercial Mobile Service Alert Advisory Committee
and are subject to the Commission's part 4 outage reporting rules. For
these reasons and those set forth below, the Commission modifies Sec.
12.2 to clarify that the rule applies to CMRS providers, as defined in
Section 20.9 of the Commission's rules.
AAPC argues that the Commission intended to exclude paging carriers
from this backup power rule. AAPC asserts that the Katrina Panel Order
bases the CMRS classification in Sec. 12.2 on a definition developed
for the E-911 Proceeding and, because paging carriers do not provide E-
911 service, the inference is that the Commission intended to exclude
paging carriers from this rule. The parts of the Katrina Panel Order
cited by AAPC, however, do not define CMRS providers, but instead
provide an exemption for non-nationwide CMRS providers with no more
than 500,000 subscribers. In a footnote, the Commission merely stated
that this exemption is based on the Tier III CMRS definition. AAPC
contends that the etymology of the backup power rule supports a finding
that the Commission intended to exclude paging carriers and to apply
the rule only to entities that are required to provide E-911 service as
defined in Section 20.18 of the Commission's rules. AAPC notes that the
Katrina Panel made its backup power recommendation ``in order to ensure
a more robust E-911 service'' and that, when requesting public comment
on this recommendation, the Commission explained that the Panel
``recommends that the Commission encourage the implementation of
certain NRIC best practices intended to promote the reliability and
resiliency of the 911 and E911 architecture.'' However, the backup
power rule includes no such limitations and, in the NPRM, the
Commission specifically sought comment on whether the Katrina Panel's
observations warranted additional measures or steps beyond the report's
specific recommendations and welcomed suggestions and recommendations
regarding additional measures or actions beyond the Panel's
recommendations. The Commission also sought comment on whether it
should rely on voluntary consensus recommendations, as advocated by the
Katrina Panel, or whether it should rely on other measures for
enhancing readiness and promoting more effective response efforts.
Further, AAPC argues that the deliberate use of the term ``cell sites''
in the rule supports the conclusion that the Commission did not intend
that the rule apply to paging carriers because paging carriers do not
operate cell sites in their networks. The reference to cell sites,
however, is only one example of an asset that is normally powered from
local commercial power and the assets identified in the rule are not an
exhaustive list.
AAPC requests, in the event that the Commission did intend to apply
the backup power rule to paging carriers, that the rule be modified to
ensure that it does not apply to paging carriers. AAPC argues that it
is unreasonable to lump paging networks together with other types of
CMRS networks for purposes of this rule without considering the
particular engineering and cost characteristics of paging networks
themselves. Although AAPC argues that applying the requirement to all
paging base stations and terminals would be particularly troubling for
paging carriers, the burden will be mitigated by the rule modifications
adopted herein. Additionally, the burden for paging carriers would not
necessarily be any more onerous for
[[Page 57886]]
paging carriers than for other CMRS providers. Paging providers use a
variety of facilities to provide coverage which are, in most cases not
that different from the facilities of other CMRS providers. The fill-in
facilities employed by paging providers are similar in size and power
requirements as those used by other CMRS providers. In many instances,
paging providers use high-powered transmitters that are located in
multiple transmitter sites. While there may be challenges to overcome
such as space, zoning and structural limitations for these facilities,
they are no more onerous than those faced by other CMRS providers. In
addition, the backup power rule might be less burdensome for paging
carriers than for other CMRS providers, because the number of fill-in
paging sites that paging carriers deploy is likely less than the more
extensive deployment of assets required by other CMRS providers. AAPC
asserts that the Commission should define CMRS as those services that
are identified in Sec. 20.18(a) of the Commission's rules, as it did
for purposes of section 605(a) of the WARN Act, where the Commission
defined the statutory phrase ``commercial mobile service.'' That
definition, however was limited to section 605(a) of the WARN Act and
was done for specific purposes of that section of the Act that are not
relevant to the backup power rule. Further, the membership of the
Commercial Mobile Service Alert Advisory Committee established pursuant
to the WARN Act includes paging carriers. In light of these factors,
the Commission declines to modify the rule as suggested by AAPC, and
clarify that paging carriers are required to comply.
Distributed Antenna System (DAS) Nodes and other non-traditional
sites. NextG, MetroPCS and other petitioners ask the Commission to
clarify that DAS Nodes and other ``non-traditional'' sites, such as
cellular repeater sites, micro-cell and pico-cell locations, electric
poles, light poles, and flagpoles, are not ``cell sites'' as the term
is used in the Commission's new backup power rule. In the alternative,
these petitioners request that the Commission reconsider and amend the
rule to eliminate the backup power requirement for DAS Nodes and other
``non-traditional'' sites. Other petitioners make similar arguments for
``non-traditional'' sites and emphasize the burden of complying with
the backup power rule due to physical constraints and economic
resources. NextG explains that it provides telecommunications services
to wireless carriers via a network architecture that uses fiber-optic
cable and small antennas mounted in the public rights-of-way on
infrastructure such as utility poles, street lights and traffic signal
poles. NextG argues that DAS Nodes should not be treated as a cell site
because the DAS Node does not include some of the features typically
associated with a cell site. The antenna is not associated with a base
station or network switching equipment at the DAS Node site. NextG and
MetroPCS maintain that even if the Commission does treat the DAS Node
as a cell site this equipment should be exempt from the backup power
rule because it is ``technologically, financially, and politically
infeasible'' to install eight hours of backup power. DAS Forum argues
that the impact due to the loss of power to a portion of a DAS network
is far less than the loss of power to a traditional cell site because
the balance of the DAS network continues to function when one node is
damaged.
The Commission declines to exempt DAS Nodes or other sites from the
emergency backup power rule. Rather, the Commission believes that to
the extent these systems are necessary to provide communications
services, they should be treated similarly to other types of assets
that are subject to the rule. The Commission notes that many of the
arguments made by petitioners are similar to the physical constraint
arguments raised by other parties. As stated earlier, the Commission
sees no reason why LECs and CMRS providers who choose to place assets
at locations with limited physical capacities should generally be
excused from compliance with the rule. The Commission realizes that
many providers have begun to use DAS and other small antenna systems as
part of their communications networks. That fact alone, however, is far
outweighed by the need to ensure a reliable communications network. To
the extent petitioners raise concerns regarding legal impediments,
private agreement constraints and safety risk issues, the Commission
notes that the modifications to the rule made today should address
those concerns. DAS Forum and PCIA argue that the backup power rule
will adversely impact the public interest and Commission policy goals,
because the increased expense of compliance will prevent wireless
carriers from further deploying their networks in this manner and that
this will decrease capacity, coverage and reliability and affect
emergency communications and wireless E911 coverage. Petitioners have
not presented sufficient evidence that the backup power rule will
prevent wireless carriers from deploying their networks, particularly
in light of the reduced burden of compliance that will result from the
rule modifications the Commission adopts in the Order on
Reconsideration. Moreover, as noted above, the Commission finds that
the benefits of ensuring backup power for communications assets
outweighs any economic burden that LECs and CMRS providers may incur as
a result of this rule.
Conclusion
For the reason stated above, the Commission denies petitioners'
requests that it rescind Sec. 12.2 of the Commission's rules, but find
that the petitioners have presented an adequate basis for modifying
this backup power rule as detailed above and in Appendix B of the
Order.
Procedural Matters
Supplemental Final Regulatory Flexibility Analysis. As required by
section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, the
Commission has prepared a Supplemental Final Regulatory Flexibility
Analysis of the possible impact of the rule changes contained in this
Order on Reconsideration on small entities. The Supplemental Final
Regulatory Flexibility Act analysis is set forth in Appendix C of the
Order. The Commission's Consumer & Government Affairs Bureau, Reference
Information Center, will send a copy of this Order, including the
Supplemental Final Regulatory Flexibility Act Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
Final Paperwork Reduction Act of 1995 Analysis. The rules in 47 CFR
12.2 contains information collection requirements that have not been
approved by the Office of Management and Budget (OMB). The Federal
Communications Commission will publish a document in the Federal
Register announcing the effective date.
Congressional Review Act Analysis. The Commission will 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, see 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
Accordingly, it is ordered, pursuant to sections 1, 4(i)-(k), 4(o),
201, 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 405, 621(b)(3)
and 621(d) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i)-(k), 154(o), 201, 218, 219, 301, 303(g), 303(j), 303(r),
332, 403, 405, 541(b)(3), and
[[Page 57887]]
541(d), and Sec. Sec. 1.3 and 1.106 of the Commission's rules, 47 CFR
1.3, 1.106, that this Order on Reconsideration in EB Docket No. 06-119
and WC Docket No. 06-63 is adopted.
It is further ordered, that the Petitions for Reconsideration filed
by The American Association of Paging Carriers, the DAS Forum, MetroPCS
Communications, Inc., NextG Networks, Inc., PCIA--The Wireless
Infrastructure Association (PCIA), and The United States Telecom
Association are granted to the extent discussed above, and the
remainder of those petitions are denied.
It is further ordered that Sec. 12.2 of the Commission's rules is
amended as specified in Appendix B of the Order, and that Sec. 12.2
shall be effective on the date of Federal Register notice announcing
OMB approval of the information collection requirements contained in
that rule.
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.
List of Subjects in 47 CFR Part 12
Communications, Reporting and recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 12 as follows:
PART 12--REDUNDANCY OF COMMUNICATIONS SYSTEMS
0
1. The authority citation for part 12 continues to read:
Authority: 47 U.S.C. 151, 154(i)-(k), 154(o), 201, 218, 219,
301, 303(g), 303(j), 303(r), 332, 403, 405, 541(b)(3), and 541(d).
0
2. Revise Sec. 12.2 to read as follows:
Sec. 12.2 Backup power.
(a) Except to the extent set forth in 12.2(b) and 12.2(c)(4) of the
Commission's rules, local exchange carriers, including incumbent local
exchange carriers and competitive local exchange carriers
(collectively, LECs), and commercial mobile radio service (CMRS)
providers, as defined in Sec. 20.9 of this chapter, must have an
emergency backup power source (e.g., batteries, generators, fuel cells)
for all assets necessary to maintain communications that are normally
powered from local commercial power, including those assets located
inside central offices, cell sites, remote switches and digital loop
carrier system remote terminals. LECs and CMRS providers must maintain
emergency backup power for a minimum of twenty-four hours for assets
that are normally powered from local commercial power and located
inside central offices, and eight hours for assets that are normally
powered from local commercial power and at other locations, including
cell sites, remote switches and digital loop carrier system remote
terminals. Power sources satisfy this requirement if they were
originally designed to provide the minimum backup power capacity level
required herein and the provider has implemented reasonable methods and
procedures to ensure that the power sources are regularly checked and
replaced when they deteriorate. LECs that meet the definition of a
Class B company as set forth in Sec. 32.11(b)(2) of this chapter and
non-nationwide CMRS providers with no more than 500,000 subscribers are
exempt from this rule.
(b) LECs and CMRS providers are not required to comply with
paragraph (a) of this section for assets as described in paragraph (a)
of this section where the LEC or CMRS provider demonstrates, through
the reporting requirement as described in paragraph (c) of this
section, that such compliance is precluded by:
(1) Federal, state, tribal or local law;
(2) Risk to safety of life or health; or
(3) Private legal obligation or agreement.
(c) Within six months of the effective date of this requirement,
LECs and CMRS providers subject to this section must file reports with
the Chief of the Public Safety & Homeland Security Bureau.
(1) Each report must list the following:
(i) Each asset that was designed to comply with the applicable
backup power requirement as defined in paragraph (a) of this section;
(ii) Each asset where compliance with paragraph (a) of this section
is precluded due to risk to safety of life or health;
(iii) Each asset where compliance with paragraph (a) of this
section is precluded by a private legal obligation or agreement;
(iv) Each asset where compliance with paragraph (a) of this section
is precluded by Federal, state, tribal or local law; and
(v) Each asset that was designed with less than the emergency
backup power capacity specified in paragraph (a) of this section and
that is not precluded from compliance under paragraph (b) of this
section.
(2) Reports listing assets falling within the categories identified
in paragraphs (c)(1)(ii) through (iv) of this section must include a
description of facts supporting the basis of the LEC's or CMRS
provider's claim of preclusion from compliance. For example, claims
that a LEC or CMRS provider cannot comply with this section due to a
legal constraint must include the citation(s) to the relevant law(s)
and, in order to demonstrate that it is precluded from compliance, the
provider must show that the legal constraint prohibits the provider
from compliance. Claims that a LEC or CMRS provider cannot comply with
this section with respect to a particular asset due to a private legal
obligation or agreement must include a description of the relevant
terms of the obligation or agreement and the dates on which the
relevant terms of the agreement became effective and are set to expire.
Claims that a LEC or CMRS provider cannot comply with this section with
respect to a particular asset due to risk to safety of life or health
must include a description of the safety of life or health risk and
facts that demonstrate a substantial risk of harm.
(3) For purposes of complying with the reporting requirements set
forth in paragraphs (c)(1)(i) through (v) of this section, in cases
where more than one asset necessary to maintain communications that are
normally powered from local commercial power are located at a single
site (i.e., within one central office), the reporting entity may
identify all of such assets by the name of the site.
(4) In cases where a LEC or CMRS provider identifies assets
pursuant to paragraph (c)(1)(v) of this section, such LEC or CMRS
provider must comply with the backup power requirement in paragraph (a)
of this section or, within 12 months from the effective date of this
rule, file with the Commission a certified emergency backup power
compliance plan. That plan must certify that and describe how the LEC
or CMRS provider will provide emergency backup power to 100 percent of
the area covered by any non-compliant asset in the event of a
commercial power failure. For purposes of the plan, a provider may rely
on on-site and/or portable backup power sources or other sources, as
appropriate, sufficient for service coverage as follows: a minimum of
24 hours of service for assets inside central offices and eight hours
for other assets, including cell sites, remote switches, and digital
loop carrier system remote
[[Page 57888]]
terminals. The emergency backup power compliance plans submitted are
subject to Commission review.
(5) Reports submitted pursuant to this paragraph must be supported
by an affidavit or declaration under penalty of perjury and signed and
dated by a duly authorized representative of the LEC or CMRS provider
with personal knowledge of the facts contained therein.
(6) Information filed with the Commission pursuant to paragraph (c)
of this section shall be automatically afforded confidentiality in
accordance with the Commission's rules.
(7) LECs that meet the definition of a Class B company as set forth
in Sec. 32.11(b)(2) of this chapter and non-nationwide CMRS providers
with no more than 500,000 subscribers are exempt from this reporting
requirement.
[FR Doc. E7-20061 Filed 10-10-07; 8:45 am]
BILLING CODE 6712-01-P