[Federal Register Volume 80, Number 200 (Friday, October 16, 2015)]
[Rules and Regulations]
[Pages 62470-62486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24845]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 12
[PS Docket No. 14-174; FCC 15-98]
Ensuring Continuity of 911 Communications
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document the Federal Communications Commission (FCC or
Commission) adopts rules to promote continued access to 911 during
commercial power outages by requiring providers of facilities-based,
fixed residential voice services, which are not line powered, to offer
subscribers the option to purchase a backup solution capable of 8 hours
of standby power, and within three years, an additional solution
capable of 24 hours of standby power. The item also promotes consumer
education and choice by requiring providers of covered services to
disclose to subscribers the following information: availability of
backup power sources; service limitations with and without backup power
during a power outage; purchase and replacement options; expected
backup power duration;) proper usage and storage conditions for the
backup power source; subscriber backup power self-testing and
monitoring instructions; and backup power warranty details, if any.
DATES: Effective dates: This rule is effective October 16, 2015, except
for Sec. 12.5(b)(1), which is effective February 16, 2016; Sec.
12.5(b)(2), which is effective February 13, 2019; and Sec. 12.5(d),
which is effective 120 days after date the Commission announces
approval from the Office of Management and Budget. The Commission will
announce the effective date for Sec. 12.5(d) with a document in the
Federal Register.
Compliance dates: Section 12.5(b)(1), for providers with fewer than
100,000 domestic retail subscriber lines on August 11, 2016; and Sec.
12.5(d), for providers with fewer than 100,000 domestic retail
subscriber lines 300 days after date the Commission announces approval
from the Office of Management and Budget. The Commission will announce
the compliance date for Sec. 12.5(d) with a document in the Federal
Register.
FOR FURTHER INFORMATION CONTACT: Public Safety and Homeland Security
Bureau, Linda M. Pintro, at (202) 418-7490 or [email protected]. For
additional information concerning the Paperwork Reduction Act
information collection requirements contained in this document, contact
Nicole Ongele at (202) 418-2991 or send an email to [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (R&O) in PS Docket No. 14-174, released on August 7, 2015.
The full text of this document is available for public inspection
during regular business hours in the FCC Reference Center, Room CY-
A257, 445 12th Street SW., Washington, DC 20554, or online
[[Page 62471]]
at https://www.fcc.gov/document/ensuring-continuity-911-communications-report-and-order.
I. Introduction
1. In this Report and Order, the Federal Communications Commission
(FCC or Commission) takes important steps to ensure continued public
confidence in the availability of 911 service by providers of
facilities-based fixed, residential voice services in the event of
power outages.
2. For over one hundred years, consumers have trusted that they
will hear a dial tone in an emergency even when the power is out. Now,
as networks transition away from copper-based, line-powered technology,
many are aware of the innovation this transition has spurred in
emergency services, but many consumers, remain unaware that they must
take action to ensure that dial tone's availability in the event of a
commercial power outage. The Commission's own consumer complaints
portal reveals frustration over the failure of service providers to
adequately inform subscribers about how to self-provision backup power
in order to access 911 services in a power outage. This period of
transition has the potential to create a widespread public safety issue
if unaddressed.
3. Accordingly, we create new section 12.5 of our rules to place
limited backup power obligations on providers of facilities-based
fixed, residential voice services that are not line-powered to ensure
that such service providers meet their obligation to provide access to
911 service during a power outage, and to provide clarity for the role
of consumers and their communities should they elect not to purchase
backup power. To be sure, many providers of residential voice
communications already offer some level of backup power to consumers.
However, the vital importance of the continuity of 911 communications,
and the Commission's duty to promote ``safety of life and property
through the use of wire and radio communication,'' favor action to
ensure that all consumers understand the risks associated with non-
line-powered 911 service, know how to protect themselves from such
risks, and have a meaningful opportunity to do so. Specifically, we
require all providers of facilities-based, fixed, voice residential
service that is not line powered--including those fixed applications of
wireless service offered as a ``plain old telephone service'' (POTS)
replacement--to offer new subscribers the option to purchase a backup
solution that provides consumers with at least 8 hours of standby power
during a commercial power outage, which will enable calls to 911. In
addition, we require these providers to offer, within three years of
the effective date of the eight hour obligation, at least one option
that provides a minimum of 24 hours of 911 service.
4. Additionally, we require all providers of facilities-based,
fixed, voice residential service that is not line-powered to notify
subscribers, at the point of sale and annually thereafter until
September 1, 2025, of the availability of backup power purchasing
options, use conditions and effect on power source effectiveness, power
source duration and service limitations, testing and monitoring, and
replacement details. Additionally, we direct the PSHSB to work with CGB
to develop, prior to the implementation date of these rules for smaller
providers, as herein defined, non-binding guidance with respect to the
required notifications to subscribers. We limit these obligations to
ten years as that should be enough time to ensure that overall consumer
expectations regarding residential voice communications are aligned
with ongoing technology transitions.
5. Finally, we encourage covered providers to conduct tailored
outreach to state and local disaster preparedness entities to ensure
that consumables and rechargeable elements associated with backup power
technical solutions deployed in their area are well understood so that
communities may prioritize restocking and/or recharging in response to
extended power outages.
II. Background
6. Our Nation's communications infrastructure and the services
available to consumers are undergoing technology transitions. The
Commission has recognized that these transitions will bring enormous
benefits to consumers, but also that they raise important questions
about how to appropriately carry out our obligations set forth in the
Communications Act, including promoting public safety and national
security, and protecting consumers.
7. To further these statutory objectives, in November 2014, the
Commission adopted a Notice of Proposed Rulemaking (NPRM) seeking to
ensure reliable backup power for consumers . . . Specifically, the
Commission sought comment on the ``communications services we should
include within the scope of any backup power requirements we may
adopt'' and ``propose[d] that any potential requirements would apply to
facilities-based, fixed voice residential services, such as
interconnected Voice over Internet Protocol (VoIP), that are not line-
powered by the provider.'' The Commission proposed that ``providers
should assume responsibility for provisioning backup power that is
capable of powering network equipment at the subscriber premises during
the first 8 hours of an outage'' but sought comment on what should
happen in the event of an extended commercial power outage. The
Commission also recognized the importance of outreach to consumers on
the effect of commercial power outages to their communications services
and sought comment on effective consumer notification.
III. Discussion
8. Communications services play an essential role in the delivery
of public safety services, particularly 911, and that role is
especially prominent during emergencies that lead to power outages. In
the NPRM in this proceeding, we sought comment on the means to ensure
that consumers have access to minimally essential communications,
including 911 calls and telephone-based alerts and warnings, during a
loss of commercial power. In this Report & Order, we take steps toward
that goal by establishing clear lines of responsibility for ensuring
continued 911 service during such commercial power outages and by: (1)
Establishing a phased-in obligation for the offering of backup power
solutions to consumers; and (2) requiring covered providers to engage
in disclosure of the risks associated with these outages and steps
consumers may take to address those risks.
9. As discussed in greater detail below, we require that providers
of non-line-powered facilities-based, fixed, voice residential service,
including fixed wireless service intended as POTS replacement, offer,
at the subscriber's option and expense, a backup power solution that
provides 911 access for 8 hours in the event of commercial power loss.
Within three years, providers must also offer a 24-hour backup power
solution. We also require covered providers to explain at point of sale
how the subscriber may extend the provision of backup power during
longer, multi-day outages through devices such as solar chargers, car
chargers or mobile charging stations and to direct customers to sources
of such equipment. No provider will be required to install backup power
unless requested by, and at the expense of, the subscriber, and no
subscriber will be forced to purchase unwanted equipment. Rather, our
rules will ensure that subscribers who so elect can obtain backup power
simply and conveniently when activating a covered
[[Page 62472]]
service. In addition, in order to ensure that consumers are adequately
informed in determining whether to make this election, we adopt
disclosure requirements designed to ensure that subscribers are aware
of the backup power options available for their service, including
installation and other usage instructions. We also encourage, but do
not require, providers to conduct tailored outreach to state and local
disaster preparedness entities to ensure that consumables associated
with their backup power technical solutions are well understood so that
communities may prioritize restocking and/or recharging in support of
extended power outages.
A. Need for Line Powering or an Alternative Source of Power During
Outages
10. In the NPRM, we noted that, in the past, consumers have relied
upon service providers for backup power for their residential landline
phones. That is, equipment on the subscriber premises of those still
served by copper networks continued to work during commercial power
outages as long as the handset or other subscriber premises equipment
did not need to be plugged into an electrical outlet to function. We
proposed and sought comment on steps we could take to safeguard
continuity of communications throughout a power outage across networks
that provide residential fixed voice service used to dial 911,
including the possible adoption of new rules. Based on the record of
this proceeding, we conclude that in order to ensure the availability
of 911 service in the provision of facilities-based, fixed, voice
residential services during power outages, we must adopt rules to
require, among other things, either line powering or (at the
subscriber's option and expense) an alternative means of maintaining
911 access during commercial power outages.
11. During a power outage, many subscribers must rely on a battery
back-up, or an uninterruptible power supply (UPS), to ensure that their
service will continue to operate. That is, many subscribers cannot rely
on the availability of continuous power that is sufficient to provide
basic telephony indefinitely in their homes. Specifically, modern fiber
and cable networks do not provide power to operate necessary equipment
at the subscriber location, including network devices (e.g., cable
modems, optical network terminals) and telephones. The deployment of a
VoIP service requires that analog voice signals be converted to IP,
using a voice codec. The most commonly deployed model for VoIP services
in the United States places the Analog Telephone Adapter (ATA) in a
network device that is installed inside of the living unit. This ATA
function is commonly used in hybrid fiber coax cable networks that use
embedded multimedia terminal adapters (eMTA), twisted pair telephone
(DSL) networks and increasingly Fiber-to-the-Home (FTTH) Optical
Network Units (ONUs), also called Optical Network Terminals (ONTs).
Voice codecs support voice, fax, and other legacy TDM services over IP,
and their function is sometimes referred to as the ATA. Network devices
with the embedded ATA function are powered directly by AC power or
through a UPS that converts AC to DC power. According to the CSRIC
report, in other use cases, the ATA function is being placed in
consumer owned devices, creating more challenges for battery backup of
VoIP services.
12. Given that consumers are increasingly relying on new types of
service for residential voice communications, and that in many areas
traditional line-powered 911 service is now, or is soon likely to be,
no longer be available, the NPRM asked whether it was reasonable for
providers to continue to bear primary responsibility for backup power,
and if so, to what extent. We also stated that it was our intention to:
(1) Establish clear expectations for both providers and subscribers as
to their responsibilities throughout the course of an outage; and (2)
minimize potential for lapses in service because of subscriber
confusion or undue reliance on the provider with respect to backup
power for equipment at the subscriber premises. The NPRM communicated a
desire to adopt baseline requirements for ensuring continuity of power
for devices at the subscriber location during commercial power outages.
We acknowledged that backup power is not solely a copper retirement
issue. Thus, we intended to address backup power at the subscriber
premises also for those who have already migrated or been transitioned
to an IP-based network.
13. We adopt the rules that follow because we believe that it is
essential for all consumers to be able to access 911 emergency services
during commercial power outages, especially those outages caused by
catastrophic storms or other unpredictable events, and to understand
how to do so. Ensuring the ability to maintain such service is a vital
part of our statutory mandate to preserve reliable 911 service, and
more generally, our statutory goal to promote ``safety of life and
property through the use of wire and radio communication.'' We agree
with the National Association of State Utility Consumer Advocates
(NASUCA) that it is unlikely that our concerns would be adequately
addressed without the adoption of regulatory requirements. We are
supported in our conclusion by commenters such as the Pennsylvania
Public Utility Commission (PA PUC), which urges the Commission to adopt
baseline requirements for ensuring continuity of power during
commercial power outages applicable to providers of interconnected
VoIP-based services that do not provide line power at their central
office, but rather rely on backup power.
14. Specifically, we find that public safety officers, first
responders and other public officials have a need to communicate with
citizens through whatever means possible, and 911 service plays an
important role in this regard. Indeed, consumer advocates and 911
providers emphasize the need to adopt robust backup power requirements
to ensure public safety. For example, Public Knowledge notes that right
now consumers of traditional landline service are ``guaranteed backup
power during power outages'' and ``many consumers keep their landline
service specifically to retain this feature.'' Public Knowledge further
states that, ``[w]ith the advent of cordless phones the only time the
consumer worried about backup batteries was for their cordless phone or
they simply retained a traditional phone to use during emergencies.''
15. NASUCA and many other commenters agree that Commission action
will help preserve consumers' ability to access 911 service.
Specifically, NASUCA ``fully supports the Commission's determination to
ensure reliable backup power for consumers of IP-based voice and data
services across networks that provide residential, fixed service that
substitutes for and improves upon the kind of traditional telephony
used by people to dial 911.'' According to NASUCA, ``[b]ackup power
requirements will help ensure that service will continue in a power
outage.'' The National Association of State 911 Administrators (NASNA)
similarly observes that ``[t]he transition from legacy copper loops to
other network technologies means that an important safety net--Central
Office provisioning of line power to the subscriber premises--will
disappear unless the Commission takes action to mitigate it.'' The
Communications Workers of America (CWA) asserts that CWA, consumer
organizations, state regulatory commissions, and public safety
associations ``support Commission proposals to facilitate the
[[Page 62473]]
transition to high-speed broadband networks, protect consumers and
promote public safety by upgrading Commission rules regarding back-up
power, network changes, and service discontinuance.''
16. We agree that this period of transition gives rise to the need
for ``upgrading Commission rules.'' We observe that the consumers most
at risk of losing continuity of 911 communications during commercial
power outages are those in the midst of transitioning from legacy
copper, or that are new to non-copper media, because they may currently
assume they will be able to reach 911 during a power outage. For
example, Public Knowledge asserts that ``the new technologies with
which AT&T and Verizon propose to replace traditional POTS are not
self-powered, do not work with vital devices on which consumers rely,
and are not available in every community.'' Public Knowledge further
argues that, ``[w]hile technology transitions hold tremendous promise
for a state-of-the-art communications network, the loss of guaranteed
backup power or shifting backup power responsibility to the consumer
are serious changes that could end up creating a network that serves
some and not others.''
17. We agree with the commenters who assert that transitions to new
technology should not result in 911 service being more vulnerable than
when consumers used the legacy network. As we stated in the NPRM, the
absence of line powering for some voice services (such as those
provided by cable companies) was not an issue that needed to be
addressed when legacy line-powered network options were widely
available, but it must be addressed as more and more residential
subscribers are faced with only VoIP and other residential IP-based
services (or legacy services delivered over fiber) as options, because
these services typically will require a backup power source to function
during power outages. Accordingly, we focus our requirements to support
the continued transmission of 911 communications for service that will
no longer have line powering capabilities. Because of the importance of
the continuity of 911 communications, we also include under the new
requirement providers that may have never provided line powering, but
that provide services intended to replace traditional POTS services on
which consumers have relied for continuous access. With the
accelerating transition to new technologies, consumers of these
services will no longer have competitive alternatives that come with
line-powering capabilities.
18. We reiterate our observation in the NPRM that adequate and
reliable access to 911 services and functionalities during emergency
conditions is a long-standing public policy objective. Although we
recognize that we are in the midst of sweeping change, we believe that
voice communications continue to play an essential and central role in
the delivery of public safety services, and that this role does not
diminish during events that cause power outages. Indeed, it is at these
times that consumers most need to know that they will be able to use
their home telephone to get help through 911.
19. We recognize that, as noted by some commenters, many users of
interconnected VoIP service may well be unconcerned about backup power,
choosing instead to rely on their mobile phones or alternative backup
sources. Nonetheless, because of the critical nature of 911
communications, we are not persuaded by the argument that there is no
need for action to ensure the continuity of 911 communications to homes
across the country. Nor are we convinced that we should abandon this
effort because of claims that consumer expectations, which have
developed over decades, are already reset such that they no longer
expect their home phone to work during power outages. Consumers who
have yet to abandon (or who have only recently abandoned) line-powered
service may not have had their expectations ``reset.'' At this time of
transition, it is these consumers who are more likely to mistakenly
believe that they can access emergency services during a power outage
when the line power option had already been eliminated.
20. We find merit in NASUCA's argument that the public interest
requires the industry to be responsible for ensuring that its
subscribers at least have some option to purchase backup power, either
from the service provider or a third party. Therefore, as more fully
discussed below, we conclude that the public interest would be best
served by ensuring the option for continued access to backup power to
maintain continuity of 911 communications during a loss of commercial
power.
21. We have previously recognized that the benefits associated with
reliable 911 service are substantial. The provision of backup power for
network equipment at the subscriber premises promotes the ``safety of
life and property through the use of wire and radio communication,'' by
enabling 911 calls for subscribers of the covered services, when the
power is out. Specifically, the rules we adopt today will preserve
safety of life by enabling the use of VoIP and other non-line powered
services to contact 911 in a commercial power outage, which is what
millions of Americans have come to expect from their ``home phone.'' We
expect that providing the option for at least 8 hours of backup power
would ensure the ability to make many life-saving 911 calls during
commercial power outages. Therefore, we find, as we have before, that
``[r]eliable 911 service provides public safety benefits that, while
sometimes difficult to quantify, are enormously valuable to individual
callers and to the nation as a whole.''
22. We have also previously found that greater access to 911
enables other public safety-related benefits as well. The Commission's
``Text-to-911'' proceeding concluded that increasing access to 911
``could yield other benefits, such as reduced property losses and
increased probability of apprehending criminal suspects. Also, the
increased ability to place 911 calls necessarily means that there is an
increased ability to receive calls in an emergency, including calls
from public entities attempting to disseminate important information
during widespread emergencies (such as evacuation notices). Many
communities have installed such a function that ``has proven to be
effective in other counties and cities, such as San Diego during the
fires of 2007.''
B. Covered Services
23. In the NPRM, we sought comment to help identify the most
essential communications services that a customer would need to get
emergency help during a power outage. We referred to this in the NPRM
as ``minimally essential'' communications. We intended to afford
sufficient power for minimally essential communications, including and
especially 911 calls and the receipt of emergency alerts and warnings.
24. We also noted that voice services historically have been the
primary means of contacting 911 for emergency help. Moreover, we
observed that line-powered service can operate continuously and
indefinitely during a commercial power failure, and does not require a
backup power source to maintain continuity of communications for access
to 911. Thus, we proposed that any rules apply ``to facilities-based,
fixed voice services, such as interconnected VoIP, that are not line-
powered by the provider.''
25. Consistent with this proposal, we conclude that it would be in
the best interest of the public to apply our rules
[[Page 62474]]
to facilities-based, fixed voice services, such as interconnected VoIP,
that are not line-powered by the provider. Our conclusion is based on
the fact that, as we stated in the NPRM, voice service is still the
primary means of reaching help through 911. We clarify that a wireless
voice service is ``fixed'' for purposes of our rules if it is marketed
as a replacement for line-powered telephone service and is intended
primarily for use at a fixed location. We further clarify that whether
a wireless service is ``fixed'' does not depend on the regulatory
classification of the service under Federal or state law, or on the
mobile capabilities of the service. Similarly, the use of a femtocell
or similar equipment in a residential setting does not automatically
convert a mobile service into a fixed service. The decisive factor is
whether the service is intended to function as or substitute for a
``fixed'' voice service.
26. Although the rule we adopt today would allow for calls other
than to or from 911, we find there is not currently a means to
prioritize the provision of power for only some voice calls (such as
911 calls) over other communications (such as calls to friends and
family). Many commenters generally agree that there is no practical way
to maintain power for only some calls. For example, according to
Verizon, calibrating a provider's battery backup obligations and
capabilities based upon essential versus non-essential calls would be
inconsistent with consumer's expectations, and unnecessarily complex.
ITTA, the Alarm Industry Communications Committee (AICC), NASUCA, and
others argue that it would be technically difficult, if not impossible,
to distinguish among certain types of calls or functions in a way that
would allow rapid load-shedding of non-essential communications to
conserve backup power, if minimally essential communications were
defined as only 911 or emergency communications.
27. Some commenters argue for an even broader definition of covered
services, citing various examples. Although we recognize that limiting
the definition as we have done omits some services on which consumers
currently rely in emergencies, we expect that both the consumer backup
power needs and our rules will evolve. More importantly, we do not more
broadly define covered services because we find that at this time it
would be in the best interests of the public to limit application of
our rules to discharge our statutory duty to ensure the continued
viability of 911. Imposing specific obligations on providers to support
other communications could introduce confusion and impose costs on
providers that may well exceed the incremental benefits. This is
particularly true given the many backup power solutions on the market
today that are capable of supporting both essential and non-essential
communications.
28. We reject the argument of NCTA and others that adopting backup
power rules exclusively for fixed services unduly favors competing
mobile services. The rules we adopt herein are intended to clarify the
obligations of providers and the expectations of consumers in the
provision of services that a customer would perceive as replacing line-
powered telephone service. Mobile wireless services increasingly
compete with fixed services, but they function differently in multiple
respects. Perhaps most significantly, mobile wireless devices are
battery-powered in their normal mode of operation. Thus, we do not
believe that consumers would reasonably expect such devices to draw
line power during a commercial power failure. Moreover, the battery
that powers a mobile device provides an inherent source of ``backup
power'' that is often capable of providing far more than 8 hours of
service per charge, and often may be charged through additional means,
such as a car charger.
29. Therefore, we conclude that, at this time, the appropriate
services that should be subject to backup power requirements for
effective 911 service during power outages are facilities-based, fixed
voice service that is not line-powered by the providers, and is offered
as a residential service.
C. Responsibilities of Providers of Covered Services
30. To promote clear expectations and customer choice, we adopt a
combination of performance and disclosure requirements to empower
consumers to understand the backup power options available to maintain
continuity of 911 service and to obtain the equipment necessary to
provide such service, if they wish, at the point of sale. Providers of
covered services must offer at least one technical solution capable of
supporting at least 8 hours of uninterrupted 911 service and install
such equipment, at the subscriber's option and expense, as part its
installation of service. Within three years, providers of covered
services also must offer new subscribers at the point of sale and
install, at the subscriber's option and expense, a 24-hour backup power
solution if a subscriber desires additional protection. We also adopt a
disclosure requirement designed to ensure that both current and new
subscribers understand their options with respect to backup power and
are aware of the consequences of their decisions whether, and to what
extent, to purchase backup power. Finally, we encourage providers of
covered services to engage in targeted outreach to the communities they
serve to ensure that local emergency managers are aware of the
limitations inherent in various fixed, residential voice service
technologies commonly used in their areas, as well as backup power
options for individuals and communities more broadly to maintain
continuity of communications in an emergency.
1. Performance Requirements
a. Duration
31. We adopt backup power requirements that offer consumers
meaningful alternatives to address their individualized needs,
recognizing that consumers may have different preferences for backup
power. Comments in response to the NPRM confirm that ``a one-size fits
all solution is inappropriate and would disserve customer interests.''
Accordingly, we adopt a phased-in approach that will provide consumers
with multiple options. As an initial baseline, we will require
providers of covered services to offer, at the point of sale, to
install a technical solution capable of supporting at least 8 hours of
uninterrupted 911 service during a power outage. Within three years,
providers must also offer, at the point of sale, a technical solution
capable of supporting 24 hours of uninterrupted 911 service if the
subscriber desires additional backup power. To minimize costs and
provide flexibility, we do not specify the means by which providers of
covered services offer to supply these amounts of backup power;
instead, providers are free to develop individual technical solutions.
To plan for longer power outages, we strongly encourage providers to
inform subscribers of options to extend such uninterrupted service over
multiple days and direct subscribers to sources of known compatible
accessories such as home, car, or solar chargers. For longer power
outages, we do not require providers to offer or install any particular
solution, but we strongly encourage providers to inform subscribers at
the point of sale, and through annual disclosures to existing and new
subscribers discussed below, about known options to ensure
uninterrupted 911 service and provide examples of retail sources for
associated equipment, which may include third-
[[Page 62475]]
party vendor sources if providers do not offer such equipment
themselves.
32. In the NPRM, we observed that 8 hours of backup power for
network equipment at the subscriber premises appears to be consistent
with a number of VoIP deployment models already in practice, though
some providers have deployed backup power capabilities for up to 24
hours. We find that 8 hours of backup power is the appropriate amount
of time to afford consumers with continuity of power in the critical
hours immediately after a power outage, and is a backup power duration
that is technically feasible today. The record reflects that the option
to receive 8 hours of backup power is already an industry norm, as well
as a reasonable baseline for the amount of standby time that is likely
to be useful to consumers during emergencies. The United States Telecom
Association (US Telecom), for example, states that ``provisioning eight
hours of backup power is consistent with industry standards and
reflects what VoIP providers currently employ.'' Verizon offers
subscribers a 12-volt battery that provides up to 8 hours of backup for
voice services and also observes that ``[c]ompanies such as Comcast,
Cablevision, and Cox offer a battery with eight hours of backup, and
Time Warner offers a battery with a choice of eight or twelve hours.''
The Electronic Security Association (ESA) and the Alarm Industry
Communications Committee (AICC) urge the Commission to promote
adherence to the National Fire Protection Association (NFPA) minimum
standard on battery backup, which also is 8 hours. In light of this
broad consensus, and based on the fact that 8 hours of backup power is
already being provisioned today by some providers, we disagree with
commenters who suggest that 8 hours is not an appropriate standard for
backup power offerings. We find that it is technically feasible for
providers of covered services to offer subscribers the option of at
least 8 hours of backup power through provider-supplied backup power
equipment or by offering compatible third-party equipment. While many
providers already offer their subscribers an 8-hour backup power
capability, the rule we adopt today establishes a common baseline that
will ensure that consumers have access to backup power options
regardless of their provider. This will promote public safety and
emergency preparedness by allowing subscribers to reach 911 and receive
telephone-based alerts and warnings in the critical hours immediately
following a commercial power failure. We emphasize that the
requirements we adopt today do not place any obligation on the consumer
to purchase backup power; the obligation is placed on the provider not
providing line-powered service, to make backup power available to the
consumer, and to install appropriate backup power upon initial
installation of service if requested by the consumer. To that end, we
expect that installers should be able to answer questions about backup
power.
33. While we believe that 8 hours of backup power would address the
need for continuity of communications immediately after a power outage,
we recognize that, in some cases, 8 hours of backup power may not be
enough for subscribers to reach critical emergency services during an
extended loss of power. AARP urges the Commission to require providers
to be ``responsible for the deployment and maintenance of voice-
enabling CPE that delivers at least 12 hours of standby time.'' NASUCA
and the Communications Workers of America (CWA) also suggest that a
longer time period, such as 12 or 24 hours, would be more useful for
subscribers who need a longer duration to attend to other time
sensitive matters that arise during the course of a natural disaster or
other emergency. While industry commenters oppose a mandate to provide
more than 8 hours of backup power to every subscriber, service
providers note existing solutions, as well as innovative new solutions,
that are capable of supporting longer standby times. Along similar
lines, NASUCA urges the Commission to monitor advances in battery
technology, and as soon as such technology is available at a reasonable
cost, to require providers to furnish backup batteries with 7-day
standby time and 24-hour talk time.
34. In light of the critical need for maintaining 911 service
during more severe and long-lasting power failures, we will require
providers to offer subscribers a 24-hour backup power solution within
three years. The record indicates that the provision of 24 hours of
backup power is at least technically feasible today. ACA has
``determined that batteries with 24 hour stand by capability can be
ordered from at least one vendor but are not immediately available
because they are not widely used.'' As explained below, we do not
require providers to offer technologically distinct 8-hour and 24-hour
solutions, so a 24-hour solution could consist simply of three 8-hour
batteries. Many providers that offer an 8-hour solution are therefore
likely to be capable of offering a 24-hour solution with minimal
additional difficulty. That said, we want to encourage continued
innovation in the development of 24-hour and longer term backup power
solutions and avoid locking in solutions that are minimally compliant
but that may not provide the best value to consumers. We will therefore
phase-in the 24-hour requirement over three years, during which time we
expect providers to work diligently to implement innovative solutions
for providing at least 24 hours of backup power that improve upon
current offerings in terms of cost, reliability and ease of use. This
is consistent with ACA's recommendation for a phase-in of the 24-hour
battery requirement for smaller providers; however, we find that given
the overall market conditions for 24-hour battery supplies, including
questions about immediate availability, it is appropriate to phase in
the requirements for all providers, regardless of size. While NASUCA
recommends that the Commission monitor battery backup power
developments and phase in the requirements as soon as the market will
allow, we find that providing a date certain both allows the market
sufficient time to develop, and places a backstop for development,
thereby spurring innovation in a reasonable timeframe. In the meantime,
we encourage but do not require providers to offer a 24-hour solution
using available technologies.
35. As commenters note, the need for continued access to 911 during
an extended power outage does not end after 8, or even 24, hours. For
example, Public Knowledge argues that ``a minimum time of seven days
backup power is a reasonable requirement that will keep consumers safe
before, during, and after a natural disaster, and allow them to rebuild
their communities.'' Based on a study by the Environmental and Energy
Study Institute, Public Knowledge observes that restoring power after
Hurricane Sandy and Hurricane Katrina took 12 and 15 days respectively,
and on average takes 7 to 23 days. To address such extended losses of
commercial power Public Knowledge asserts that ``carriers must
prioritize the adoption of devices that use batteries that can last
days and are not proprietary.'' Other commenters argue that ``Americans
have come to trust and expect basic telephone service to work
indefinitely, particularly during power outages caused by natural
disasters and public safety emergencies'' and urge us to adopt even
longer backup power requirements, ranging from seven days to two weeks.
36. We are not persuaded that a requirement for providers of
covered services to offer or install more than 24 hours of backup power
is necessary at
[[Page 62476]]
this time. All things equal, we would prefer access to 911 during a
loss of commercial power to last indefinitely, as consumers have come
to expect with line-powered services. We recognize, however, that there
are technical, operational, and cost considerations that must be
balanced against this theoretical desire. For reasons discussed above,
we believe that it is both technically feasible and consistent with
current business models for covered services to require providers to
offer options for 8 and 24 hours of backup power on the timelines
specified in our rules. We agree, however, with commenters who suggest
that a mandate to offer backup power for multi-day outages could impose
unnecessary burdens on service providers and excessive costs on
consumers for comparatively little public safety benefit. As CSRIC has
observed, backup power technologies are evolving, and the cost of more
advanced batteries such as lithium-ion cells is likely to decrease over
time as other options such as power-over-Ethernet become more
widespread. We will continue to monitor these developments to ensure
that our rules keep pace. Moreover, power outages of extended duration
allow well-informed consumers time to recharge their existing batteries
or make other arrangements to reach emergency assistance until power is
restored. We therefore strongly encourage providers to inform
subscribers, both at the point of sale and annually thereafter, of
known ways consumers can maintain connectivity during extended power
outages. As an example, this could include guidance on restocking or
recharging a power supply used to provide 8- or 24-hour capability.
Providers could also give information on purchasing other accessories
such as solar, home or car chargers that may allow exhausted batteries
to be recharged and that are compatible with the provider's equipment.
Providers need not offer such accessories themselves or endorse
particular third-party suppliers, but they should provide sufficient
information, including technical specifications when necessary, for
subscribers to obtain compatible accessories from commercial sources.
Such information may be provided through welcome kits, brochures,
emails to subscribers, or any other means reasonably calculated to
reach each subscriber, as discussed below, while providing due
consideration for any preference expressed by the customer. Providers
sometimes deploy mobile charging stations to areas affected by an
extended outage, and may inform subscribers when such mobile charging
stations are made available.
37. In adopting these requirements, we acknowledge observations
that ``[n]otwithstanding the availability of backup batteries, many
customers today choose not to obtain a battery, given the growing
reliance on wireless or the customers' use of handsets or other devices
that themselves require commercial power to operate.'' We also agree
with commenters such as Verizon that ``[c]ustomers should be free to
decline [a backup] battery, depending on their personal preference.''
We further acknowledge that comments in the record indicate that, when
it is offered, consumers often may not choose to avail themselves of
options to purchase backup power. Commenters note, for example, that
many subscribers of fixed, residential VoIP service also purchase
mobile voice service that provides an alternate means of reaching 911
in an emergency, and that others prefer cordless phones that require
backup power beyond that supplied by service provider networks.
Nevertheless, some consumers--particularly the elderly and other
populations that are at the greatest risk during an emergency--may not
subscribe to mobile wireless service and may rely solely on the
continued functionality of their residential voice service to reach
911. Furthermore, mobile networks are not designed in the same manner
as wireline networks and may become overloaded in times of extreme use
in an emergency situation, and thus be unavailable for use to reach
911. We emphasize that nothing in our rules forces consumers to
purchase backup power they do not want. We require only that consumers
who want service that will work during power outages and have not
otherwise provided for such uninterrupted service have the option of
obtaining that capability, and that they have sufficient information to
make an informed decision.
38. In the NPRM, we discussed the duration of backup power in terms
of ``the availability of standby backup power, not actual talk time.''
Commenters differ on whether backup power should be measured in terms
of standby time, talk time, or some other metric that takes into
account variations in battery life under different conditions. NASUCA,
for example, questions provider assertions about backup battery life on
the grounds that 8 hours of battery life yields far less actual talk
time, and because batteries deteriorate as they age. Public Knowledge
observes that the actual duration of a battery depends on its use, and
that the more calls are placed, the more quickly backup power is
depleted. In light of these potential discrepancies, we believe that
adopting a uniform definition of ``backup power'' is necessary to avoid
potential consumer confusion. Therefore, we base our backup power
requirements on the amount of time a technical solution can maintain a
covered service in standby mode, i.e., able to provide a dial tone and
to initiate and receive voice calls, but not necessarily in continuous
use. We believe that standby time is an appropriate metric, because our
rules are premised on the need for covered services to be available to
dial 911 or receive incoming communications such as emergency alerts
and warnings during emergencies, not necessarily on the need for
extended talk time when commercial power fails. We recognize that
actual battery life may vary depending on how often subscribers place
calls and how long such calls last, but we conclude it would not be
practical to account for such situation-specific variations in our
rules and that standby time is a more consistent and useful point of
comparison. Accordingly, we require providers of covered services to
offer subscribers the option to obtain backup power for 8 hours
(effective 120 days after publication of this Report and Order in the
Federal Register) or 24 hours (effective within three years thereafter)
of standby time, measured at rated specifications, without a duration
requirement for actual talk time.
b. Methods of Provisioning Backup Power
39. We agree with commenters who advocate flexibility in how
providers achieve continuity of 911 access for the time periods
discussed above. The record reflects that providers currently employ a
variety of backup power technologies and that a range of backup power
options are also available direct-to-consumer from third-party sources.
CSRIC, for example, identifies nine ``use cases'' for residential VoIP
deployment, with a range of equipment functioning as an analog
telephone adaptor (ATA) with varying levels of battery backup. CSRIC
observes that ``[t]he most commonly deployed model for VoIP services in
the United States is to locate the ATA function in a network device,
installed inside the living unit.'' In addition, as NCTA states,
uninterruptible power supplies (UPS) that can power multiple devices
during a power outage are already widely available at national
retailers. Bright House also describes ``numerous retail options
available to subscribers like UPS, portable power packs, solar, and
[[Page 62477]]
manual cranks that power multiple devices during an outage and offer a
more compelling and flexible solution to subscribers at comparable
prices'' Some parties also comment that subscribers who use more
versatile power options such as UPS should not have to also pay for the
duplicative cost of an additional limited-function battery; nor should
the Commission require consumers to pay for a backup power option that
does not work in their situation.
40. We do not require use of a specific technical solution or
combination of solutions. Providers, which are not providing line-
powered service, have flexibility to develop and offer their own backup
power solutions, as long as those solutions comply with the rules we
adopt today. In addition, we expect that installers should be able to
answer questions about backup power. For example, a provider could
offer a solution with a single, internal battery delivering 8 hours of
backup power. With respect to the 24-hour option required within three
years, providers may choose to offer consumers a single 24-hour battery
(or battery tray as offered by Verizon), three 8-hour batteries, or
some other combination of installed and spare batteries, UPS systems or
other technologies to provide 24 hours total. If the solution requires
a proprietary battery or other equipment that is not widely available
in retail stores, the equipment should be provided as part of the
installation of service. If, however, the solution accepts commonly
available equipment such as D-Cell batteries, providers need not supply
such equipment themselves, as long as they notify subscribers at the
point of sale that it is not included and must be supplied by the
subscriber for the solution to function properly. In cases involving
spare batteries that are not widely available at retail stores, the
solution offered to subscribers should also include a charger or some
other method of ensuring that such batteries are stored in a charged
state.
c. Battery Monitoring and Maintenance
41. In the NPRM, we sought comment on whether the provider should
have any responsibility to monitor backup power status to determine
whether the battery had degraded run time or performance. Generally,
the comments of individual consumers and consumer advocacy
organizations support requiring providers either to maintain and
monitor the backup power or to provide subscribers with the means to do
such monitoring. For example, AARP urges the Commission to adopt as a
rule the CSRIC recommendation that service providers work with their
vendors to provide a mechanism to monitor battery status, and determine
whether the battery is degraded. AARP states that this can be done
through remote monitoring of batteries as part of the service offered
to subscribers, or through LEDs visible to subscribers. Other
commenters suggest that the backup power system contain a self-
monitoring feature that notifies subscribers audibly and visually when
the backup power system is in use, and when it is running low. ESA
notes, however, that some subscribers may not pay attention to these
warnings, and that it may require personal interaction with subscribers
to assist with upgrading or changing a battery that needs attention. On
the other hand, service providers generally argue that requiring remote
monitoring of backup power is either impractical with current
technology or, even if technically feasible, of limited use to
subscribers or providers. AT&T contends that ``IP-based voice service
providers generally do not assume responsibility for monitoring their
customers' backup batteries,'' and that ``[r]elying on customers,
rather than service providers, to monitor and maintain battery backup
power for network equipment at the subscriber premises makes eminent
sense given technological and marketplace changes.''
42. We do not believe it would serve the public interest to require
providers of covered services to remotely monitor backup power status
at this time. Similarly, we decline to adopt any requirement that
providers inspect or test backup power equipment after fulfilling their
initial responsibility under our rules to offer subscribers the option,
at the point of sale, for backup power to be installed as part of the
initiation of service. This is consistent with CSRIC's observations
that ``[i]ncreasingly, battery backup is being offered as an optional
accessory to the consumer, which they can control and manage
themselves.'' While we believe service providers are in the best
position to identify and make available backup power solutions
compatible with and appropriately sized for specific covered services,
we agree with commenters who believe subscribers are in the best
position to monitor backup power once installed, and in light of the
disclosure requirements we are implementing designed to ensure they are
adequately informed on how to do so. With respect to batteries, we are
not persuaded that battery monitoring technology has evolved to the
point of allowing service providers to conduct useful remote monitoring
of battery status without raising costs to consumers or diverting
resources away from more important network reliability issues through
an increase in false failure alarms. We observe, however, that our
allocation of monitoring responsibility to consumers is based on the
expectation that service providers offer adequate information for
subscribers to understand when their equipment is functioning properly
and when it may require maintenance or replacement. Service providers
should also inform subscribers of the potential for batteries to
degrade over time and either make replacement batteries available for
self-installation at the subscriber's expense or provide sufficient
information for subscribers to obtain replacement batteries from third
parties.
d. No Obligation to Retrofit
43. Some service providers express concerns about the cost and
complexity of any obligation to retrofit currently installed equipment
to comply with any backup power requirements the Commission adopts.
AT&T, for example, states that ``[i]f service providers were required
to provide CPE backup power, the Commission should require only
prospective implementation in order to avoid the technological pitfalls
of retrofitting prior deployments.'' ITTA argues that ``[r]etrofitting
existing service deployments for customers who are not interested in
battery backup power would divert resources from new deployments, thus
slowing the expansion of services to customers who desire advanced
broadband capabilities.'' We agree and decline to adopt any obligation
that providers of covered services retrofit currently-deployed
equipment to accommodate the amount of backup power specified in our
rules for new installations. The record reflects that some covered
services are currently deployed without backup power and that consumers
may prefer to continue using their existing equipment. Accordingly, we
require only that backup power options be offered at the point of sale.
Providers may continue offering retrofit options for backup power
upgrades to existing customers or those who decline the option at the
point of sale, but they are under no obligation to do so. We note,
however, that even service providers that do not currently offer backup
power acknowledge that third-party UPS units may allow subscribers to
maintain communications capabilities without the need to retrofit
existing equipment. Therefore, we conclude that providers' obligations
to current subscribers
[[Page 62478]]
should include the disclosure requirements discussed below and the
option for subscribers to self-install commercially available backup
power solutions that are compatible with existing equipment.
e. Compensation and Costs for Providing Backup Power
44. In the NPRM, we proposed that any requirement for service
providers to ensure a substitute for line power would be premised on
the condition that such providers ``would be entitled to commercially
reasonable compensation in exchange for providing this service.'' In
response, Public Knowledge asserts that the Commission should use
legacy POTS as a baseline and require providers to furnish backup power
without an additional fee because, until the transition to IP-based
services, reliability has always been paid for as part of a
subscriber's phone bill, and allowing providers to charge for backup
power for the same service via new technology would be a step backward.
However, this argument disregards the record evidence that batteries or
other potential substitutes for line powering carry a not insignificant
additional cost over an entire network, and that it is not unreasonable
to permit providers to recoup those additional costs from those
subscribers who have need for the additional coverage. We also note
that it is current practice among many interconnected VoIP providers to
charge an extra fee for batteries or other backup power capabilities,
suggesting that the expectations Public Knowledge cites may be changing
as consumers increasingly adopt VoIP services. As CSRIC has observed,
``[o]ne clear trend across all VoIP use cases is that battery backup is
increasingly being offered as an option to the consumer, with the cost
and maintenance of the UPS and batteries being the consumer's
responsibility.'' Ultimately, we are persuaded that subscribers should
not have to pay for backup power they do not want. As discussed above,
consumers may desire different amounts of backup power--or none at
all--depending on their individual circumstances.
45. Accordingly, we conclude that providers of covered services may
charge subscribers for the backup power capabilities provided under our
rules, if subscribers wish to purchase such capabilities. We emphasize
that we do not specify the rates at which providers of covered services
may offer backup power or related accessories, we expect market forces
to ensure that backup power is offered at competitive prices. A service
provider can receive compensation for all aspects of implementing the
rules we adopt today, including the backup power installation, and
costs of equipment and labor, from the consumer that elects to have
backup power installed. And we do not preclude service providers from
including backup power capabilities without separate charge, if they
choose to do so for competitive or other reasons.
46. By requiring only that service providers provision backup power
upon subscriber request at point of sale, and at the requesting
subscriber's expense, we have effectively negated the argument that
these rules will substantially increase costs to providers. The
majority of commenters who raise issues related to costs base their
arguments on the assumption that the Commission would mandate a
universal backup power solution across all subscribers, including
retrofitting existing subscribers. The action we take today will
substantially limit the providers' costs by requiring backup power
installations only for customers that request backup power at the point
of sale, and at those customers' expense. Fiber to the Home Council
Americas states that ``while the industry has generally supplied backup
batteries to all subscribers, it would make a material difference to
the cost of a build, enabling expansion into less dense areas, if it
could supply battery backup only to those subscribers that expressly
want it--a number all-fiber service providers has determined is not
great.'' Similarly, NCTA stated that in their experience only a small
number of customers have purchased backup power. We also find concerns
about the environmental effects of requiring all consumers to obtain
backup power are inapplicable because we do not make such a
requirement.
47. There are additional factors that minimize the costs associated
with compliance for the covered providers. First, as noted previously,
the record indicates that numerous entities comprising a significant
share of the IP voice services market are already offering their
customers 8 hours of backup power; for those entities no additional
costs are necessary. To the extent that a service provider is not
currently offering the requisite 8 hours of backup power, the fact that
numerous providers are currently offering such a solution indicates
that solutions exist and are widely available. Accordingly, there is
little need to custom-design a solution when many of the solutions can
be used universally. Indeed, providers may avoid the costs of supplying
or installing a proprietary solution. This also saves providers the
costs of supplying batteries directly. The same cost-mitigating
principles apply to the discussion of 24-hour and extended duration
backup power; the commercial market for this solution already exists
and even the smaller providers are confident in their ability to
provide this level of backup power if provided ample transition. The
record also indicates that many providers already offer some form of
backup power, even if it is not an 8-hour solution, and therefore would
be familiar with the practice of installing backup power solutions for
their customers. Because the cost to providers of complying with this
rule should be minimal both at the outset as well as when the 24-hour
requirement takes effect, and the particular benefit to the public of
enhanced continuity of communications to reach help through 911 during
power outages is substantial, we conclude that our action today
produces a net public benefit.
2. Subscriber Disclosure Obligations
a. Need for Subscriber Disclosure Obligations
48. In the NPRM, we sought comment on whether we should require
providers to develop and implement consumer education plans regarding
the availability of backup power, and noted our belief that such plans
``would be critical to consumers' ability to successfully self-
provision.''
49. Commenters representing government stakeholders and consumers
support such a requirement. For example, PA PUC states that, if
providers require their customers to be responsible for purchasing or
replacing backup power batteries, providers ``must develop and
implement outreach and education programs to ensure customers are aware
that [customers] are responsible for providing their own backup
power.'' The New York Public Service Commission indicates that it is
``critical that information about the consumer's role in maintaining
continuity of power is transmitted to the customer by the service
provider,'' and that providers need to develop programs to ``ensure
consumers are aware that [they] are responsible for providing their own
backup power.'' The Attorneys General for the Peoples of the States of
Illinois and New York state that, because of the reluctance to
advertise a diminished service, ``carriers may not emphasize the need
for backup power disclosures.'' The FCC's Intergovernmental Advisory
Committee asserts that ``providers should be required to communicate
effectively and accurately the services that may no
[[Page 62479]]
longer be available and options for consumers to obtain comparable
services, including options with respect to backup power supplies.''
50. Industry stakeholders, on the other hand, oppose such a
requirement. The Independent Telephone & Telecommunications Alliance
(ITTA) states that there is ``no evidence that additional consumer
education would be helpful or necessary, and argues that a requirement
is ``unwarranted and a waste of resources.'' AT&T recommends that the
Commission refrain from imposing a consumer education requirement, and
instead work with providers to review backup power best practices for
consumer education. Others, such as CenturyLink, Hawaiian Telcom, NCTA,
and Verizon, suggest that the Commission support the implementation of
CSRIC recommendations regarding consumer notification. They argue that
this would give providers the flexibility to implement consumer
education measures as their networks and business models warrant.
51. Others argue that a requirement is unnecessary because
providers already give consumers information related to backup power.
For example, NCTA argues that the Commission's existing rules already
``ensure that consumers are made aware of the backup power
ramifications of choosing a VoIP service,'' and require providers at
the initiation of interconnected VoIP service to ``inform consumers of
the `circumstances under which E911 service may not be available,' . .
. includ[ing] `loss of electrical power.' '' ITTA notes that it is
``standard industry practice for interconnected VoIP providers to
notify consumers regarding the potential limitations of IP-enabled
voice services and equipment during a power outage.'' Fiber to the Home
Council Americas (FTTH Council) also asserts that industry efforts to
notify consumers about battery backup availability are effective based
on assumptions regarding consumer adoption of wireless and VoIP
services.
52. AT&T states that providers of IP-based voice service already
educate consumers on the necessity of a backup battery during a power
outage and provide information about the backup battery, including
practices for prolonging battery life, where to purchase battery
replacement, and replacement instructions. CenturyLink indicates that
it plans to provide information regarding ``sample batteries that would
work with [CenturyLink] equipment as well as suppliers of such
equipment for those customers wishing to provide their own backup
power.'' Charter and Cablevision state that they are making
``significant efforts to educate their customers about the VoIP
services they offer, including that such service will not work during a
power outage without a backup battery.''
53. We find that the lack of uniformity in providers' backup power
information, and as commenters present, lack of consumer awareness at a
time of technological transition, may lead to consumer confusion about
consumer expectations and responsibilities in the access of 911 service
during power outages. While some providers already offer or plan to
make available information to consumers in the near future, it appears
from comments submitted and providers' Web sites that the information
provided to consumers is not consistent across the industry. This lack
of uniformity may lead to consumer confusion at a time of technological
transition from services provided over copper networks to services
provided over IP-based networks, and agree with commenters that there
are consumers who ``may not be aware that VoIP and wireless service
operate differently from traditional landline telephony in a commercial
power outage.'' We acknowledge the concerns of commenters representing
unique populations, such as AARP, which states that ``[g]iven the
diversity of service provider practices . . . the level of consumer
understanding of CPE battery backup issues is certainly not uniform.''
Further, subscriber complaints reveal that current disclosure practices
are likely insufficient. For example, the Commission's consumer
complaints portal reveals that some subscribers are frustrated by VoIP
service providers' failure to inform subscribers about the need to
self-provision a battery to operate backup power in order to access 911
services. Based on the record, while we acknowledge that there are some
disclosures already mandated and some additional information provided
voluntarily, we are not convinced disclosures currently required only
for interconnected VoIP providers, are of sufficient scope or
uniformity across all covered providers, to satisfy the Commission's
obligation to promote the safety of life and property and ensure
consistent 911 services. Although not all subscribers may receive
backup power information from more than one provider in a given year,
we acknowledge that backup power information may be confusing
especially for unique populations struggling during the technology
transition, or those who may need to switch providers often, such as
military families needing to relocate. We find that it is in the public
interest for the Commission to establish a uniform requirement to
provide minimum information as described below in order to ensure that
all subscribers of covered services are equipped with necessary
information to access 911 services during power outages regardless of
provider or technology used.
54. Adoption of best practices established by CSRIC, as recommended
by some industry commenters, may help, and we do not intend to
discourage adoption of these practices. However, we are not convinced
that the voluntary adoption of these practices without a standard,
mandatory baseline will eliminate consumer confusion. We therefore
address these concerns by requiring minimum subscriber disclosure
obligations, while at the same time encouraging providers to
voluntarily follow additional CSRIC best practices regarding backup
power.
55. As NCTA discussed, current Commission rules require a limited
customer notification for interconnected VoIP service providers. This
requirement, however, is only for a subset of covered providers
considered in this Report and Order, and we find that the information
currently required is too limited to fully inform consumers about
backup power. Specifically, section 9.5(e)(1) of the Commission rules
requires customer notifications for circumstances such as ``loss of
electrical power,'' ``under which E911 service may not be available
through the interconnected VoIP service or may be in some way limited
by comparison to traditional E911 service.'' Informing consumers of the
circumstances under which their E911 service is not available does not
adequately inform a consumer on how to purchase, efficiently use,
monitor, or replace backup power at the consumer's premises.
56. We conclude that requiring providers to develop and implement
subscriber disclosures regarding backup power with minimum baseline
disclosures serves the public interest and will promote access to 911
while being of minimal cost to the providers. As CenturyLink notes,
there is a clear public benefit in promoting consumers' awareness of
the need for affirmative action to acquire and maintain backup power.
According to the Communications Workers of America (CWA), ``Commission
oversight is essential to encourage . . . consumer education about the
time limits and capabilities of battery-provided backup power.''
Attorneys General state that ``enabling consumers to prepare
[[Page 62480]]
themselves for emergencies and avoiding public confusion should be
fundamental Commission goals.'' We agree with these commenters, and
others, who recognize the importance of consumer information in
managing the historical consumer expectations regarding continuity of
communications. As described in detail below, we also find the costs to
providers in making the required disclosure to be minimal.
b. Minimum Information Elements
57. The disclosure requirements adopted today are intended to equip
subscribers with necessary information to purchase and maintain a
source of backup power to enhance their ability to maintain access to
reliable 911 service from their homes. Several parties commented on
what information should be included in the disclosures. For example,
some commenters strongly support including information about battery
life spans, procedures for ordering, installing, replacing, and
extending battery life during a power outage. The City of New York
recommends that we require providers to furnish information to assist
in extending the ``useful life of battery backup'' such as powering off
the system or closing applications. APCO suggests that a public
education requirement include information on ``any impact to 9-1-1
services.'' The respective Attorneys General for the State of Illinois
and the State of New York strongly support consumer education
addressing the many factors that can affect the amount of ``stand-by
time'' a backup power solution provides. The California PUC urges the
Commission ``to mandate that service providers give customers
educational materials consistent with California's existing
requirements,'' which include, for example, requiring providers to tell
their customers that their services require backup power on the
customer's premises, limitations of service, and potential service
failure during power outages. The California PUC also requires
providers to tell consumers about how to best ``maximize the ability to
make or receive necessary phone calls during an outage.''
58. In addition to commenting on the appropriate level of
disclosure in any Commission requirements, some commented on the
opportunity for states to require more extensive disclosure. For
example, the California PUC requests that the Commission allow the
states to ``adopt more extensive backup power requirements.''
Similarly, NARUC suggested that the Commission establish ``a floor''
that does not impact more protective state-level measures.
59. Several industry commenters identified information that is
currently included in some backup power notifications to subscribers.
For example, ACA asserts that providers inform potential and current
subscribers that their voice service is not powered by the network, and
during a power outage, without battery backup, the subscriber may lose
access to 911. ACA explains that this notice also alerts customers
about specific backup power capabilities of the equipment.
60. We agree with the commenters who suggest that the Commission
adopt minimal requirements for the types of information that service
providers must give subscribers, regarding backup power. This will
decrease the likelihood of consumer confusion, and ensure that all
subscribers have access to basic information about the need for, and
how to acquire and conserve, backup power. In this respect, we observe
that several providers already give relevant information to their
customers; however, the amount and type of information given varies
greatly from one provider to another, and thus gives rise to the
potential for consumer confusion. This confusion may lead the consumer
to fail to take proper precautions to acquire and maintain backup
power, and ultimately result in the inability to access 911 at a
critical moment during a power outage. Thus, we find it in the public
interest to identify minimum information that must be communicated to
consumers regarding backup power. In this respect, we require providers
to disclose to subscribers the following information: (1) Availability
of backup power sources; (2) service limitations with and without
backup power during a power outage; (3) purchase and replacement
options; (4) expected backup power duration; (5) proper usage and
storage conditions for the backup power source; (6) subscriber backup
power self-testing and monitoring instructions; and (7) backup power
warranty details, if any. In order to minimize the burden on smaller
providers, we direct the PSHSB to work with CGB to develop such forms
or other documents, prior to the implementation date of these rules for
smaller providers, as herein defined, for the use of smaller providers
in disclosing the required notifications to their subscribers,
including subscribers with disabilities.
61. Availability of Backup Power Sources. Subscribers must be made
aware whether their service is capable of accepting backup power and,
after the initiation of service, whether they may obtain backup power
from the provider or from a third party. Some providers post this
information online, but we find that the posted information is both too
limited and not readily accessible by all subscribers. Therefore, it is
insufficient notice to subscribers of a critical piece of information
that they need to ensure continuity of access to critical 911 services
during a power outage. Accordingly, we require providers to inform new
and existing subscribers about the availability of compatible backup
power sources for their service, as outlined below. Again, we emphasize
that providers are not required to research and/or provide information
on every possible backup power source that could potentially be
compatible with a Covered Service; disclosure obligations under our
rules are limited to basic information allowing consumers to make
informed choices about their purchase and use of backup power to
maintain continuity of access to 911.
62. Service Limitations With and Without Backup Power. We require
providers of Covered Service to notify subscribers about the service
limitations with and without the use of a backup power source. As we
stated in the NPRM, consumers of wireline telephony may expect their
plug-in phones to work during a power outage without any further action
on their part. Non-copper based networks and services not based on TDM
may not support these traditional wireline functionalities, or may not
support them in the ways consumers have come to expect. We are
persuaded by commenters who support more fulsome disclosures of service
limitations. Accordingly, we require providers of Covered Service to
inform subscribers about the impact of power outages on the use of 911
services and the type of service that will continue to work with backup
power. For example, the obligation may be satisfied by notifying
subscribers that voice service will be unavailable during a power
outage without backup power, and that this backup power will not also
power services other than voice. Further, to the extent the provider
has information about other services at the subscriber premises--for
example, home security, medical monitoring devices, or other similar
equipment--the provider should notify the subscriber that these
services will not be powered by the backup power source for voice
service.
63. At this time, we decline to require providers of a Covered
Service to disclose the limitations of cordless handsets during power
outages. Commenters such as US Telecom and California PUC note that
cordless
[[Page 62481]]
phones rely on commercial power, and will not function during a power
outage. Accordingly, the California PUC supports a requirement that
providers tell consumers that ``cordless phones will not work in power
outage.'' However, we observe that the concern about cordless phones
not functioning during a power outage exists regardless of the
underlying network providing service to a subscriber; that is, it is an
equipment issue that does not depend on the type of underlying
network--copper, fiber, or cable. Accordingly, we do not believe it is
imperative to impose such an obligation here on the service provider.
64. Purchasing and Replacement Options. Providers of Covered
Service must inform subscribers about backup power purchasing and
replacement options to enable subscribers to make informed decisions
regarding whether to purchase backup power and how to find backup power
that is compatible with the service. If, after the initiation of
service, the provider does not sell a backup power source directly to
subscribers, the provider must give subscribers enough identification
information about what type of power source is compatible as well as
purchasing options. Such identifying information must, at a minimum,
include where to purchase a power source, the approximate cost, and the
voltage and type of battery that is compatible with the service. That
many providers currently make this information available suggests that
the burden of doing so is not unreasonable.
65. Backup Power Duration. Providers of Covered Service must inform
subscribers about the expected duration of the backup power source and
factors that impact duration, e.g., usage and storage conditions. We
agree with the commenters who argue that standby time can be affected
by many factors. Therefore, in addition to explaining the length of
time the provider's backup power source is expected to power the
service in standby mode and, to the extent possible, the expected
amount of talk time, providers of Covered Service must notify
subscribers of the proper backup power usage and storage conditions,
and how these affect the backup power source operation during a power
outage. This obligation includes identifying how subscribers may limit
and conserve backup power both before and during a power outage. We
agree with the suggestion of the City of New York that providers
furnish ``information to assist the [subscriber] in extending the
useful life of battery backup.'' Accordingly, providers of Covered
Service must advise subscribers of the proper backup power storage and
charging conditions so that subscribers know, for example, whether
battery power life, capacity, or run time will decline, whether the
batteries must be replaced after a certain amount of time, and the
proper storage temperatures. That is, the information provided must at
a minimum clearly inform subscribers about the impact of environmental
factors.
66. We strongly encourage providers to assist subscribers in
developing a plan for extended backup power by notifying them of
options to extend backup power beyond the life of the battery. For
example, providers could inform subscribers that they could purchase
several backup power units for use during prolonged outages, and
provide directions for rotating these as required to keep the units
charged. We also strongly encourage providers to inform subscribers of
any available accessories such as solar or car chargers, which may be
able to recharge a depleted backup power unit. And, when applicable,
providers should inform subscribers of the availability of deployed
mobile charging stations. This information will arm subscribers with
the knowledge necessary to be prepared for extended power outages and
to take steps to mitigate disruption to their 911 communications.
67. Testing and Monitoring. Although we do not require providers to
monitor backup power sources, when the subscriber purchases backup
power directly from the provider, the provider must inform and instruct
subscribers about how to self-monitor and self-test the backup power
source. Several commenters support such a requirement, and we find the
analogy in the comments of MDTC to be appropriate: ``like smoke alarms,
IP equipment have similar importance to personal and public safety and
is usually dependent upon the user for periodic testing and battery
replacement.'' We are persuaded by these commenters that providers must
clearly explain how a subscriber may test, monitor, and maintain the
backup power source. We observe that several providers are currently
effectively providing pictorial or other detailed explanations about
subscriber self-testing and self-monitoring of backup power. Given
their ongoing relationship with their subscribers, we find that
providers are in the best position to notify and remind subscribers
about how to test and monitor backup power. By furnishing specific
instructions to subscribers on how to self-monitor and test backup
power sources, providers will decrease consumer confusion, and greatly
enhance the public's ability to maintain critical communications during
power outages.
68. Warranty. If the subscriber acquires the backup power from the
provider, the provider must explain the elements of the warranty, if
any, such as the warranty expiration date, and under what circumstances
a replacement would be provided. We note that several providers already
effectively offer online information regarding replacement procedures,
which suggests that this is information that is helpful to consumers in
preserving their ability to reach 911.
c. Availability of Required Information
69. Each element of the information described above must be given
to subscribers both at the point of sale and annually thereafter, as
described below. This information will help subscribers plan in advance
to extend the effectiveness of their backup power and ultimately, as we
stated in the NPRM, count on the continued availability of 911 service
in harsh weather conditions or other emergencies when consumers are
most vulnerable.
70. We sought comment in the NPRM on when providers should make
information available regarding backup power. For example, we asked
whether the information should be made available at the point of sale,
at the initial set up of service, or at some other point in the
process. We also asked whether providers should make detailed backup
power information available prior to a predicted extreme weather event
or other anticipated emergency.
71. Commenters support disclosure of backup power information to
subscribers at various points in time. For example, the Attorneys
General argue that the Commission should inform subscribers ``when new
service requires additional equipment to access emergency services in a
power outage.'' The CPUC supports providing information upon ``service
initiation and annually thereafter regarding backup power,'' as well as
sending ``an annual reminder to customers to check the status of their
battery.'' On the other hand, providers such as CenturyLink see value
in asking ``at the point-of-sale'' if their customers want backup
power, at which time consumers will be assessed a ``one-time, non-
recurring charge.''
72. We are persuaded by comments supporting an initial disclosure
at the point of sale for the new service and an annual disclosure for
all subscribers, both new and existing. We agree with AT&T that
subscribers should have the information they need to ``shop among
[[Page 62482]]
competitive alternatives for backup power, including the alternative of
opting out of backup power altogether.'' As commenters note, service
providers have an important role in disseminating information to their
subscribers. AARP states that the ``availability and distribution of
accurate information related to CPE backup power from reliable sources
is an important means to empower consumers.'' Equipped with initial and
annual notifications, including the disclosures and information as
described above, all subscribers, both new and existing, will be in a
better position to make backup power purchase decisions and conduct
regular maintenance in order to ensure access to 911 services during
power outages.
73. We also sought comment on how providers should make backup
power information available to consumers. Commenters suggest that
providers should offer information on Web sites, and in individual
electronic and paper billing materials. ACA, for example, states that
its members use a variety of approaches, such as posting information on
the operator's Web site, to inform subscribers about backup power
supplies for CPE. CenturyLink states that ``service providers are
increasingly communicating with customers about the issue of backup
power,'' and supplementing brochures provided to customers with
information on the company Web site. ESA raises concerns that there may
be scenarios, for example with the elderly, requiring ``personal
interaction with consumers to assist with upgrading or changing a
battery.'' NTCA, GVNW, and Vantage Point Solutions suggest that
consumers that ``utilize an assistive device in connection with a
disability'' should be part of the consumer education process.
74. We seek to provide flexibility regarding the manner in which
providers inform their subscribers, while also honoring any preferences
expressed by customers. We thus permit providers to convey both the
initial and annual disclosures and information described above by any
means reasonably calculated to reach the individual subscriber. For
example, a provider may meet this obligation through a combination of
disclosures via email, an online billing statement, or other digital or
electronic means for subscribers that communicate with the provider
through these means. For a subscriber that does not communicate with
the provider through email and/or online billing statements--such as
someone who ordered service on the phone or in a physical store and
receives a paper bill by regular mail--email would not be a means
reasonably calculated to reach that subscriber.
75. We observe that many providers use a variety of methods to
offer backup power source information on their Web sites as well as in
welcome kits, including charts, pictorial explanations, and links to
backup power source manufacturers. We encourage providers to continue
to do this, as long as required disclosures are reasonably calculated
to reach each subscriber. Posting information on a Web site may be
helpful but, by itself, would not satisfy our requirement that
notifications be reasonably calculated to reach individual subscribers,
even for those subscribers that communicate with the provider via
online means. Further, we are persuaded by commenters that there are
populations, such as the elderly or individuals with disabilities, who
have no or a very limited online relationship with the provider or
otherwise may need more targeted consumer education outreach beyond
posting online information.
76. We believe that the cost of these backup power disclosure
requirements will be minimal and, thus, will be exceeded by the
significant benefits we expect to result from this subscriber
disclosure, such as enhanced subscriber access to 911 services. Among
other things, we note that the vast majority of providers already
furnish subscribers with some backup power information. As a result of
current disclosure practices, we expect that only a small share of the
providers will need to take additional steps to comply with these rules
beyond modifications to existing disclosures. Similarly, providers
already furnish subscribers with information upon initiation of
service, and are free to include the information we require herein with
the other materials, removing the need for a special cost of
distribution. Also, in order to limit costs to providers, we make clear
above that a service provider may fulfill its disclosure obligation via
any means reasonably calculated to reach the consumer, while also
honoring any preference expressed by the customer. Such methods may
include electronic outreach, including email notification and paperless
billing statements; paper copies are not required for subscribers who
access and receive information through those means. The annual
notification associated with this requirement gives service providers
ample time to plan, for example including the appropriate notifications
in normally-distributed billing statements in a manner that does not
serve to increase the number of printed pages distributed. As noted
above, the Commission will further reduce compliance costs by providing
guidance as to the required notifications to subscribers. Accordingly,
the costs of satisfying the notification requirement should be minimal
for service providers, and the benefits of informing consumers of
backup power solutions in order to reach 911 service from the
subscriber premises during power outages, far outweighs any such
minimal costs.
77. As with the rules obligating providers to offer backup power
solutions, there are numerous benefits associated with the disclosure
requirements on how commercial power outages affects VoIP service.
Millions of Americans have come to rely on their TDM voice service
working during a commercial power outage to call 911. With this
backdrop, educating consumers that their phones will not work in a
commercial power outage absent backup power is essential even if the
consumer opts not to purchase backup power. At a minimum, an educated
consumer will not have the expectation of relying on a VoIP service
only to have it fail to operate when the consumer tries to make a 911
call, wasting valuable time in the process. In this way the consumer
notifications not only promote the availability of 911 service in power
outages, pursuant to our statutory mandate governing IP transitions,
but also promote the ``safety of life and property through the use of
wire and radio communication,'' the Commission's statutory charge, by
enabling customers to know the limitations of their service in an power
outage situation and to make alternate arrangements--either via a
backup power solution or alternate means of communication--to ensure
the 911 call can go through. This is consistent with our findings with
respect to requiring minimum wireless location accuracy where we found
that the rules ``will improve emergency response times, which, in turn,
will improve patient outcomes, and save lives.'' We find, therefore,
that it is reasonable to expect that the rules we adopt today will save
lives and result in numerous other benefits that are less quantifiable
but still advance important public interest objectives. Given that the
notification requirements contained herein have minimal associated
costs, we find that the benefits of these rules far exceed the costs.
3. Community Outreach
78. In the NPRM, we sought comment on whether we should require
providers to develop and implement consumer education plans regarding
the availability of backup power. We also
[[Page 62483]]
inquired whether there is a need for measures beyond written notice to
customers. The few commenters that addressed this issue see a need for
outreach beyond written disclosures to subscribers for the Nation to
make the transition to an all-IP environment effectively and with the
least amount of consumer confusion. We agree with NASUCA that a backup
requirement without a comprehensive consumer education plan would be of
limited value, and we find that a truly comprehensive plan should
contain an outreach component. That is, as noted by the Massachusetts
Department of Telecommunications and Cable (MDTC), written notice to
subscribers is only a portion of the consumer outreach and education
that is necessary during these times of technology transitions.
79. We agree with MDTC that to provide for flexibility in the
delivery of technology transition information, while ensuring its
accuracy and effectiveness, providers should develop outreach and
education plans in coordination with state, local, and tribal agencies
and community organizations. Our Intergovernmental Advisory Committee
(IAC) notes that ``education efforts must include all levels of
governments that interact with consumers. In this manner, state, local
and tribal governments will be able to assist consumers in making
informed choices that satisfy their communications needs.'' However,
the IAC further believes that providers instead of the FCC, state,
local or tribal governments should have the primary responsibility to
do consumer outreach on technology transitions. Thus, the IAC asserts
that the FCC should ``require [ ] providers to inform consumers of
their options well before actual transition occurs.'' For example, the
IAC recommends that ``providers should have dedicated phone, Web site
and email contacts for consumers to report issues, and to obtain
information. The objective of such outreach should be to provide
information and answer questions, rather than market new services to
consumers.''
80. We recognize that many providers already offer consumer
education beyond providing mere written notice, and they already engage
in community outreach as well. We see great value in providers forging
closer relationships with communities, so that local officials can know
and understand the likelihood that their residents will be able to
summon help, or communicate the status of their welfare in an extended
power outage. Community outreach can also help ensure the best possible
outcome before disaster strikes (for example, by encouraging
communities to maintain sufficient supplies of batteries and other UPS
equipment).
81. We also note that many communities have a robust telephone-
based alert capability to warn residents of emergencies in their area.
For this reason, and for the great value in being able to receive
incoming calls from emergency services personnel, providers of covered
services should organize their outreach to subscribers pursuant to this
Report and Order around the goal of sustaining continuous
communications availability.
82. In order to minimize cost and provide maximum flexibility, at
this time, we encourage, but do not require, all providers to engage in
the type of community outreach that would be required for a consumer
education plan to truly be considered comprehensive.
D. Legal Authority
83. Today we adopt rules to educate and empower consumers to take
necessary steps to ensure that their ``home phone'' is capable of
making 911 calls during a power outage. These rules are well-grounded
in the ``broad public safety and 911 authority Congress has granted the
FCC.'' Congress created the Commission, in part, ``for the purpose of
promoting safety of life and property through the use of wire and radio
communications.'' Congress specifically directed the Commission to
``designate 911 as the universal emergency telephone number within the
United States for reporting an emergency to appropriate authorities and
requesting assistance,'' in legislation the purpose of which was to
``encourage and facilitate the prompt deployment through the United
States of a seamless, ubiquitous, and reliable end-to-end
infrastructure for communications . . . to meet the Nation's public
safety and other communications needs.'' The DC Circuit has also
specifically upheld the Commission's extension to interconnected VoIP
providers of the obligation ``already required of providers of
traditional telephone service [to] transmit 911 calls to a local
emergency authority.'' In 2008, Congress expressly confirmed that
authority to adopt rules that ``promote and enhance public safety by
facilitating the rapid deployment of IP-enabled 911 and E-911
services.'' Congress has also charged the Commission with promulgating
``regulations, technical standards, protocols, and procedures as are
necessary to achieve reliable, interoperable communication that ensures
access by individuals with disabilities to an Internet protocol-enabled
emergency network, where achievable and technically feasible.''
84. In this Report and Order, we exercise this broad and
longstanding authority over 911 to impose requirements on residential
facilities-based voice service providers in their provision of 911
service. Our adoption of rules to enable the continued provision of 911
service during power outages--a logical component of the larger duty to
provide 911 service in general--lies clearly within this authority. The
Commission's ``broad authority'' over 911 is grounded in multiple
statutory provisions, as discussed above, that work together to promote
universal access to 911. The rules we adopt today contribute to the
implementation of this statutory scheme by facilitating the provision
of 911 service under specific circumstances: when a customer is relying
on a residential voice service that is not line-powered to place a 911
call during a power outage. These rules will ensure that customers who
may face such circumstances are aware of the limitations of their
service and empowered with options for maintaining 911 access in the
event of power loss, closing a potential gap in the provision of 911
service. This Report and Order further advances the Commission's
statutorily mandated responsibilities over 911 by promoting the
availability of 911 service during times when reports of emergencies
and requests for assistance may be particularly urgent, as well as by
enabling persons with disabilities to maintain 911 access during such
periods. The rules will thus help the Commission more effectively
implement Congress's statutory goals of ubiquitous and reliable 911
service for all Americans.
85. Many commenters agree that our adoption of requirements to
promote continuity of access to 911 during power outages is an
appropriate--and necessary--exercise of our statutory public safety
authority. Communications Workers of America states that ``[t]he
Commission has the statutory obligation to promote public safety
through our nation's communications networks'' and affirms our view
that ``protecting public safety is one of the core principles that must
guide [the Commission's] policies during the technology transition.''
The Alarm Industry Communications Committee (AICC) also contends that
``[b]ackup power requirements should be adopted to protect consumers
and to meet the Commission's mandate to promote the national defense
and the safety of life and property'' under Title I. Similarly, the PA
PUC ``believes that
[[Page 62484]]
the [FCC] has the statutory authority to address this issue and require
that providers have sufficient backup power to maintain 911/E911
connectivity during commercial power outages so long as the federal
rules do not preempt more stringent state rules.'' AARP comments that
``[w]ith regard to the NPRM's questions regarding whether the
Commission has sufficient authority, the answer is an unequivocal
yes.''
86. Commenters also cite the importance of safeguarding 911 service
in particular as a basis for our adoption of rules proposed in the
NPRM. The Electronic Security Association notes that ``[n]ot only is
standby power for communications important for life safety systems, but
it is also critical in allowing the consumer to dial 911 during [power]
outages.'' AARP similarly observes that ``[t]he issue of CPE backup
power also overlaps the 911 reliability issue'' and suggests that
backup power requirements would fill an existing gap because the
Commission's 911 reliability rules ``do not address the reliability of
access network components that are associated with the origination of
911 calls.''
87. We disagree with Corning's suggestion that the rules we adopt
today contravene the holding of American Library. That court's
statement that the Commission's ``general jurisdictional grant does not
encompass the regulation of consumer electronics products . . . when
those devices are not engaged in the process of radio or wire
transmission'' is inapposite: the rules we adopt govern the provision
of 911 service--which is either ``radio or wire transmission''--during
power outages. These rules grant providers maximum flexibility to
define the technical parameters of backup power solutions they offer to
achieve that goal. In the absence of line powering, these solutions may
incorporate any number of proprietary and competitively sourced inputs,
including D-Cell, lead-acid or lithium-ion batteries, UPS, solar
panels, power over Ethernet or other technologies, including
combinations thereof, provided that the solution on ``offer'' can
support the required continuity of 911 service during a power failure.
This service-oriented requirement is thus far different from the
``broadcast flag'' rule struck down in American Library. The court held
that the latter rule impermissibly ``impose[d] regulations on devices
that receive communications after those communications have occurred''
rather than on ``communications themselves.'' The requirements we adopt
are obligations with respect to radio and wire communications. Indeed,
the purpose of these requirements is to promote access to and awareness
of solutions that enable 911 calls to be originated during a power
outage. The requirements therefore cannot be said to apply ``after . .
. communications have occurred.'' The fact that devices or equipment
operating on backup power may remain in standby mode when not in use,
or that our performance rule is defined in terms of ``standby time,''
does not change this analysis. Defining the rule in terms of ``standby
time'' is simply a means of specifying the period of time in which the
rule requires 911 service be provided--e.g., during the first 8 hours
of an outage. Backup power solutions offered under our rules are not
required to meet any performance standards that apply while a device is
in standby mode, except that the solution must make 911 calling
``available'' throughout the standby period.
88. For similar reasons, we find unavailing AT&T's comment that
``[b]ecause the Commission has deregulated CPE, it has disclaimed any
authority to impose CPE backup power requirements.'' The rules we adopt
today do not apply to CPE or regulate CPE. Rather, those rules govern
the obligations of service providers to provide access to 911 service
during a commercial power outage in the absence of line powering. While
solutions offered under our flexible performance rule may encompass--
solely at such providers' option--the backup of some devices or
equipment that might be classified as deregulated CPE, that does not
mean that our rules cannot encompass such equipment when powering such
equipment (which is located on a customer's premises) is part of the
solution chosen by the service provider. As discussed above, there is
no general requirement to provide backup power for all equipment that
might be located at the customer's premises. Rather, the requirement is
that, in lieu of line powering provided as a part of traditional POTS
service, a covered service provider must offer a backup power solution
that provides the customer with 911 access during a commercial power
outage.
89. First Amendment. The disclosure obligations we adopt today are
permissible under the First Amendment of the U.S. Constitution. No
commenter asserts otherwise. In general, government regulation of
commercial speech will be found compatible with the First Amendment if
it meets the criteria laid out in Central Hudson: (1) There is a
substantial government interest; (2) the regulation directly advances
the substantial government interest; and (3) the proposed regulation is
not more extensive than necessary to serve that interest. As we have
noted, the government has a substantial interest, enshrined in Section
1 of the Communications Act, in protecting the safety of the public
through the use of wire and radio communications. The Commission has
also long observed that ``the government has a substantial interest in
ensuring that consumers are able to make intelligent and well-informed
commercial decisions in an increasingly competitive marketplace.'' The
disclosures here directly advance that government interest by warning
consumers of the potential loss of access to 911 during commercial
power failures and informing consumers of backup power options to
maintain continuity of such communications. Like the ``anti-cramming''
rules the Commission adopted in 2012, we conclude that the disclosure
requirements adopted here withstand Constitutional scrutiny, in that
they advance the substantial government interests of protecting public
safety and ensuring that consumers are able to make informed choices
about uninterrupted access to 911 through networks that lack line power
without requiring any more extensive disclosure than necessary to serve
those interests.
90. Moreover, under the standard set forth in Zauderer, compelled
disclosure of ``purely factual and uncontroversial'' information is
permissible if ``reasonably related to the State's interest in
preventing deception of consumers.'' Courts have also recognized that
other government interests beyond preventing consumer deception--here,
the public safety interest in uninterrupted access to 911--may be
invoked to sustain a disclosure mandate under Zauderer. The information
about backup power disclosed to subscribers under our rules consists of
factual information regarding the limitations of networks not equipped
with line powering, and it is not disputed that this limitation exists
or affects the provision of 911 service during power outages. This
information plays an important role in preventing consumer confusion by
setting clear and consistent expectations about subscribers' ability to
reach 911 in an emergency. It also allows consumers to make informed
decisions about the amount and type of backup power they purchase,
further reducing consumer confusion and preserving public trust in the
911 system as a means of reaching emergency assistance.
E. Sunset Date
91. The rules we adopt today ensure that consumers are adequately
informed
[[Page 62485]]
about the role of backup power in the technology transitions and that
they have the ability to purchase backup power for their service.
Clearly delineating the respective roles of the provider and the
consumer during this period of transition minimizes the potential for
confusion or for unforeseen lapses in 911 service availability during
power outages, and creates baseline expectations. Over time, we expect
that both the marketplace and consumer expectations will evolve along
with advances in technology so that adequate backup power solutions and
availability will become commonplace. In light of this prediction, we
will sunset the requirements adopted in this Report and Order on
September 1, 2025. We anticipate that this ten-year period will allow
sufficient time for a ``cultural and educational shift'' in consumer
expectations, along with marketplace and technological development.
Consumers will then be empowered to assume primary responsibility over
their backup power, similar to the responsibility consumers now bear
for mobile devices they may rely on for 911 access during an emergency.
If, however, we determine after ten years that the marketplace and
expectations have not evolved in the predicted manner we may take
appropriate action designed to extend and/or modify the requirements
contained herein.
IV. Procedural Matters
A. Final Regulatory Flexibility Act Analysis
92. Pursuant to the Regulatory Flexibility Act of 1980, as amended
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included
in the NPRM in PS Docket No. 14-174. The Commission sought written
comment on the proposals in this docket, including comment on the IRFA.
This Final Regulatory Flexibility Analysis conforms to the RFA.
B. Paperwork Reduction Act Analysis
93. This document contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB)
for review under Section 3507(d) of the PRA. OMB, the general public,
and other Federal agencies are invited to comment on the new or
modified information collection requirements adopted in this Report and
Order.
94. In addition, we note that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we previously sought comment on how the Commission might
further reduce the information collection burden for small business
concerns with fewer than 25 employees, in the FRFA in Appendix B of the
full Report and Order, paragraphs 19-23. In this document, we have
assessed the effects of the new rules adopted herein on small business
concerns and find that the rules adopted here minimize the information
collection burden on such entities.
C. Congressional Review Act
95. The Commission will send a copy of this Report and Order to
Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
D. Implementation
96. In this Report and Order, we require that providers of non-
line-powered, facilities-based, fixed, voice residential service,
including fixed wireless service intended as POTS replacement, offer
new subscribers at the point of sale, at the subscriber's option and
expense, a backup power solution that provides 911 access for 8 hours
during a commercial power loss. Except as noted below, this provision
of our rules will become effective 120 days after publication of this
Report and Order in the Federal Register. Within three years of the
foregoing effective date of the 8-hour obligation, providers must also
offer a 24-hour backup power solution. We seek to ensure that the
measures we adopt are timely implemented so that consumers can begin to
realize the benefits as soon as feasible, while allowing a reasonable
time for providers to prepare. Except as noted below, the disclosure
provisions of the rules will become effective 120 days after the
Commission notifies the public that approval has been received from the
Office of Management and Budget.
97. We delay the effective date of two of the rules we adopt herein
for providers that have fewer than 100,000 domestic retail subscriber
lines for an additional 180 days to afford ample time to modify their
current practices as necessary to come into compliance with our rules.
The obligation of these providers to offer 8 hours of backup power will
become effective 300 days after publication of this Report and Order in
the Federal Register. The disclosure obligations for these providers
will become effective 300 days after the Commission notifies the public
that approval has been received from the Office of Management and
Budget. The obligation of such providers to offer 24 hours of backup
power will become effective on the same extended three-year schedule as
for all other providers.
98. Such an accommodation addresses the concerns of some commenters
that adopting mandatory backup power obligations for all customers will
be particularly burdensome for providers with a small number of lines,
and is in line with Commission precedent. While we do not think that
the more limited backup power obligations that we adopt herein will be
overly burdensome for any provider, we agree with ACA's suggestion that
providers with a small number of lines are more resource-constrained
and would benefit from additional time to obtain any necessary
equipment and prepare materials and processes for disclosure, and
prepare materials and processes for disclosure. We note that ACA
asserts that smaller operators should be defined as those with fewer
than 100,000 voice service customers, and cites the Rural Call
Completion Report and Order in support of its position. However, we
observe that the Rural Call Completion Report and Order did not define
smaller providers in terms of the number of customers, but subscriber
lines. We find that providing an accommodation to providers on the
basis of subscriber lines, rather than subscribers, is reasonably
designed to minimize burdens on smaller providers without compromising
the effectiveness of the rules. The number of lines better reflects a
provider's size and share of traffic than does the number of
subscribers. We find that limited, additional time to comply with these
aspects of our rules strikes the right balance between the particular
circumstances and resource constraints of providers that serve fewer
customers and ensuring that consumers have backup power options
available in a timely manner.
99. For this purpose, we rely on the standard adopted in the 2013
Rural Call Completion proceeding. In the Rural Call Completion Report
and Order, the Commission applied the requirements to providers of
long-distance voice service who make the initial long-distance call
path choice for more than 100,000 domestic retail subscriber lines.
Accordingly, in this proceeding, in an effort to ensure a reasonable
burden of compliance, we give providers with fewer than 100,000
domestic retail subscriber lines an additional 180 days to comply with
the obligations adopted in this Report and Order
V. Ordering Clauses
100. Accordingly, it is ordered, pursuant to sections 1, 4(i), and
[[Page 62486]]
251(e)(3) of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154(i), 251(e)(3); section 101 of the NET 911 Improvement Act of 2008,
Public Law 110-283, 47 U.S.C. 615a-1; and section 106 of the Twenty-
First Century Communications and Video Accessibility Act of 2010,
Public Law 111-260, 47 U.S.C. 615c, that this Report and Order in PS
Docket No. 14-174 is adopted.
101. It is further ordered that part 12 of the Commission's Rules,
47 CFR part 12, is hereby amended as set forth in Appendix C of the
full Report and Order.
102. It is further ordered that the requirements of this Report and
Order will become effective as specified in paragraphs 96-99 herein.
103. It is further ordered that, pursuant to Section 801(a)(1)(A)
of the Congressional Review Act, the Commission shall send a copy of
this Report and Order to Congress and to the Government Accountability
Office.
104. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects 47 CFR Part 12
Communications equipment, Security measures.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons set forth in the preamble, the Federal
Communications Commission amends 47 CFR part 12 as follows:
PART 12--RESILIENCY, REDUNDANCY AND RELIABILITY OF COMMUNICATIONS
0
1. The authority citation for part 12 is revised to read as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 154(o), 155(c), 218,
219, 251(e)(3), 301, 303(g), 303(j), 303(r), 332, 403, 621(b)(3),
621(d); 47 U.S.C. 615a-1; and 47 U.S.C. 615c, unless otherwise
noted.
0
2. Section 12.5 is added to read as follows:
Sec. 12.5 Backup power obligations.
(a) Covered service. For purposes of this section, a Covered
Service is any facilities-based, fixed voice service offered as
residential service, including fixed applications of wireless service
offered as a residential service, that is not line powered.
(b) Obligations of providers of a Covered Service to offer backup
power. Providers of a Covered Service shall, at the point of sale for a
Covered Service, offer subscribers the option to purchase backup power
for the Covered Service as follows:
(1) Eight hours. Providers shall offer for sale at least one option
with a minimum of eight hours of standby backup power.
(2) Twenty-four hours. By February 13, 2019, providers of a Covered
Service shall offer for sale also at least one option that provides a
minimum of twenty-four hours of standby backup power.
(3) At the provider's discretion, the options in paragraphs (b)(1)
and (2) of this section may be either:
(i) A complete solution including battery or other power source; or
(ii) Installation by the provider of a component that accepts or
enables the use of a battery or other backup power source that the
subscriber obtains separately. If the provider does not offer a
complete solution, the provider shall install a compatible battery or
other power source if the subscriber makes it available at the time of
installation and so requests. After service has been initiated, the
provider may, but is not required to, offer to sell any such options
directly to subscribers.
(c) Backup power required. The backup power offered for purchase
under paragraph (b) of this section must include power for all
provider-furnished equipment and devices installed and operated on the
customer premises that must remain powered in order for the service to
provide 911 access.
(d) Subscriber disclosure. (1) The provider of a Covered Service
shall disclose to each new subscriber at the point of sale and to all
subscribers to a Covered Service annually thereafter:
(i) Capability of the service to accept backup power, and if so,
the availability of at least one backup power solution available
directly from the provider, or after the initiation of service,
available from either the provider or a third party. After the
obligation to offer for purchase a solution for twenty-four hours of
standby backup power becomes effective, providers must disclose this
information also for the twenty-four-hour solution;
(ii) Service limitations with and without backup power;
(iii) Purchase and replacement information, including cost;
(iv) Expected backup power duration;
(v) Proper usage and storage conditions, including the impact on
duration of failing to adhere to proper usage and storage;
(vi) Subscriber backup power self-testing and -monitoring
instructions; and
(vii) Backup power warranty details, if any.
(2) Disclosure reasonably calculated to reach each subscriber. A
provider of a Covered Service shall make disclosures required by this
rule in a manner reasonably calculated to reach individual subscribers,
with due consideration for subscriber preferences. Information posted
on a provider's public Web site and/or within a subscriber portal
accessed by logging through the provider's Web site are not sufficient
to comply with these requirements.
(3) The disclosures required under this paragraph are in addition
to, but may be combined with, any disclosures required under Sec.
9.5(e) of this chapter.
(e) Obligation with respect to existing subscribers. Providers are
not obligated to offer for sale backup power options to or retrofit
equipment for those who are subscribers as of the effective date listed
in paragraph (f) of this section for the obligations in paragraph
(b)(1) of this section, but shall provide such subscribers with the
annual disclosures required by paragraph (d) of this section.
(f) Effective dates of obligations. (1) Except as noted in
paragraphs (b)(2) and (f)(2) of this section, the obligations under
paragraph (b) of this section are effective February 16, 2016, and the
obligations under paragraph (d) of this section are effective 120 days
after the Commission announces approval from the Office of Management
and Budget.
(2) For a provider of a Covered Service that (together with any
entities under common control with such provider) has fewer than
100,000 domestic retail subscriber lines, the obligations in paragraph
(b)(1) of this section are effective August 11, 2016, the obligations
in paragraph (b)(2) of this section are effective as prescribed
therein, and the obligations under paragraph (d) of this section are
effective 300 days after the Commission announces approval from the
Office of Management and Budget.
(g) Sunset date. The requirements of this section shall no longer
be in effect as of September 1, 2025.
[FR Doc. 2015-24845 Filed 10-15-15; 8:45 am]
BILLING CODE 6712-01-P