FCC Adopts New Wireless Resiliency Rules

On July 6, 2022, the FCC released a Report and Order and Further Notice of Proposed Rulemaking (“R&O” and “FNPRM,” respectively) on improving the reliability and resiliency of mobile wireless networks.  The R&O builds upon and extends the previously voluntary Wireless Network Resiliency Cooperative Framework (“Framework”) to create the Mandatory Disaster Response Initiative (“MDRI”).  The FNPRM seeks comment on standardizing the new reporting requirement adopted in the R&O.

Report and Order

The R&O establishes the MDRI, which largely codifies the existing Framework, extends the reach of provisions to all facilities-based mobile wireless providers, expands the criteria that triggers activation of the MDRI and introduces new provisions requiring providers to enter into roaming agreements with certain providers that have overlapping geographic areas, test such roaming capabilities and report on the performance of their MDRI implementation to the FCC after disaster events.

Expansion of Framework’s Activation Triggers.  The MDRI will be triggered when either Emergency Support Function 2 (“ESF-2”) or DIRS is activated, or when the Chief of the Public Safety and Homeland Security Bureau announces that the MDRI is activated in response to a request received from a state in conjunction with the state activating its Emergency Operations Center, activating mutual aid, or proclaiming a local state of emergency.

Provider Obligations.  When the MDRI is triggered, all facilities-based mobile wireless providers are required to:

1. Provide for reasonable Roaming under Disaster Arrangements (“RuDs”) when (i) a requesting provider’s network has become inoperable and the requesting provider has taken all appropriate steps to attempt to restore its own network; and (ii) the home provider receiving the request has determined that roaming is technically feasible and will not adversely affect service to the home providers’ own subscribers provided that existing roaming arrangements and call processing methods do not already achieve these objectives and any new arrangements are limited in duration and contingent on the requesting provider taking all possible steps to restore service on its own network as quickly as possible.
   • In order to comply with this requirement, the R&O requires facilities-based mobile wireless providers to enter into bilateral roaming agreements with all other facilities-based mobile wireless providers from which it may foreseeably request roaming privileges, or that may foreseeably request roaming privileges from it when the MDRI is active.  
     • Roaming agreements must be bilateral on equitable terms, and must be executed and in place no later than the compliance date for the MDRI (discussed below).  These agreements must be retained for at least one year after their expiration and copies must be supplied to the FCC upon request.
     • Roaming is “foreseeable” when two providers’ geographic coverage areas overlap.
     • “Reasonable roaming” is roaming that does not disturb, but includes compliance with, the FCC’s existing requirements that voice roaming arrangements be just, reasonable, and non-discriminatory, and that data roaming arrangements be commercially reasonable.  Providers may deny a roaming request in writing, with specific reasons why roaming is infeasible.
     • “Technically feasible” roaming is clarified to require a host provider to permit a requesting provider’s customers to roam on the host provider’s network on all compatible generations of network technology that it offers to its own customers.
2. Establish mutual aid arrangements with all other facilities-based mobile wireless providers from which it may request, or receive a request for aid during emergencies.
   • These arrangements should address the sharing of physical assets and commit to engaging in necessary consultation where feasible during and after disasters, provided that the provide supplying the aid has reasonably first managed its own network needs.
   • Providers will be required to have mutual aid arrangements in place within 30 days of the compliance date of the MDRI.
3. Take reasonable measures to:
   • Enhance municipal preparedness and restoration;
   • Increase consumer readiness and preparation;
   • Improve public awareness and stakeholder communications on service and restoration status.

Testing and Reporting Obligations.

1. Testing:  Providers subject to the above must annually perform testing on their roaming capabilities and coordination processes bilaterally with other providers that may foreseeably roam, or request roaming from, the provider.  The first round of testing must be performed no later than the compliance date for the roaming provision discussed above.
2. Reporting:  Providers subject to the above must submit a report to the FCC detailing the timing, duration, and effectiveness of their implementation of the MDRI’s provisions within 60 days of when the FCC issues a Public Notice announcing such notice must be filed for providers operating in a given geographic area in the aftermath of a disaster.

Safe Harbor.  Providers that file a letter in the dockets associated with the proceeding truthfully and accurately asserting, pursuant to section 1.16 of the FCC’s rules, that it complies with the Framework’s existing provisions, and has implemented internal procedures to ensure that its remains in compliance with these provisions, for (i) fostering mutual aid among wireless providers during emergencies, (ii) enhancing municipal preparedness and restoration by convening with local government public safety representatives to develop best practices, and establishing a provider/PSAP contact database, (iii) increasing consumer readiness and preparation through development and dissemination with consumer groups of a Consumer Readiness Checklist and (iv) improving public awareness and stakeholder communications on service and restoration status, through Commission posting of data on cell site outages on an aggregated, county-by-county basis in the relevant area through its DIRS will be presumed to have complied with the MDRI’s counterpart provisions.

1. The safe harbor does not extend to the rules requiring that providers implement bilateral roaming arrangements, test their roaming functionality, provide reports to the FCC, or retain copies of their disaster arrangements.

Compliance Deadline.  Providers will be required to comply with the new rules at the later of (i) 30 days after the Bureau issues a Public Notice announcing that OMB has completed review of any new information collection requirements associated with the R&O or (ii) nine months after the publication of the R&O in the Federal Register for small facilities-based mobile wireless providers (defined as 1,500 or fewer employees pursuant to the SBA standard) and six months after the publication of the R&O in the Federal Register for all other (i.e., not small) facilities-based mobile wireless providers.  As noted above, providers are required to have bilateral roaming agreements executed and in place no later than this compliance date, have mutual aid arrangements in place within 30 days of this date, and perform a complete first round of testing no later than this date.

Further Notice of Proposed Rulemaking

In the FNPRM, the FCC seeks comment on whether it would be beneficial to create a standardized form for providers to use to comply with the new reporting requirement within 60 days of a disaster.  The Public Safety and Homeland Security Bureau is ordered to develop a standardized reporting form, and the FCC seeks comment on the contents of the form.  The FCC also seeks comment on the basis pursuant to which facilities-based mobile providers could seek confidential treatment of the forms or if they should be publicly filed.  Finally, the FCC seeks comment on a compliance date for use of the new forms.

Comments will be due 30 days after publication in the Federal Register and reply comments will be due 60 days after publication in the Federal Register.

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