Another Massive Hurricane, Another Reason Why Congress Must Pass the RESILIENT Networks ActSeptember 10, 2020
When I was growing up, I used to hear the nursery rhyme about the itsy-bitsy spider climbing the waterspout, getting washed out, and then doing the exact same thing again. Whereas most people I have encountered regard this little jingle as an ode to perseverance, I always thought it was a warning about what happens when you refuse to learn from the past. Seriously, spider: It’s a rain pipe. It might be time to move on.
I bring this up as, once again, we have wildfires in California with rolling blackouts and massive hurricanes hitting the Gulf Coast — both of which have historically caused major telecommunications outages (although the infrastructure appears to be holding up so far). Rather than learn from similar wildfires and hurricanes over the last three years, the Federal Communications Commission has become famous for its version of the “Itsy Bitsy Spider,” repeating the same actions that left Americans struggling to connect during natural disasters in the first place. If we want to make any progress on this front during hurricane season, then we need Congress to pass the “Reenforcing and Evaluating Service Integrity, Local Infrastructure, and Emergency Notification for Today’s Networks — or RESILIENT Networks — Act.”
Congress should pass the RESILIENT Networks Act as quickly as possible. Neither the FCC nor state governments have taken the needed steps to update our regulations governing repair of physical networks to reflect modern network construction. The biggest change — that communications networks are no longer self-powered — requires that the FCC and the Department of Energy (through the Federal Energy Regulatory Commission) work together to require power companies and telecommunications companies to coordinate. That takes federal legislation. But we also need to recognize that we can’t require every network to maintain reliability on its own. We need networks to use the redundancy that comes from having competing networks to provide the reliability we used to have from a highly regulated monopoly provider.
What’s the RESILIENT Networks Act?
Introduced by Chairman Frank Pallone (D-NJ) and Rep. Jerry McNearny (D-CA) of the House Energy and Commerce Committee, the RESILIENT Networks Act is the first federal legislative effort to substantially address the problem of how to get modern communications systems back up and running if they go down in a disaster. Initially, states regulated the local physical network — including fines for failure to restore service quickly. You had a monopoly phone carrier that provided the major telecommunications network of landlines that states required to maintain at 99.999% reliability. Now states have deregulated just about everything having to do with telecommunications (or been preempted by the FCC from regulating). Rather than a single network controlled by a single company, we have lots of competing-yet-interrelated networks based on different technologies.
Perhaps the most significantly, we as a society — including our first responders — rely more than ever on our telecommunications networks during emergencies. Furthermore, telecommunications networks now depend on the electric grid. A decade or more ago, you could count on the self-powered copper wire network to operate independently of the power grid. If the power went down for weeks, you could still reach 911 or stay in touch with family. You could call government hotlines for updates and assistance. Increasingly, as we shift to voice-over-IP (VOIP) technologies and wireless, networks depend on the same power grid as everything else, from your Wi-Fi-enabled fridge to the grocery store around the block. Even cell towers with backup power generation can only go so long without power from the main electric grid. Unfortunately, as this article from last year’s rolling California blackouts shows, power companies remain blissfully unaware of the new reality. When asked how customers could get information from the power company’s website during a blackout, PG&E’s Senior Director for emergency preparedness recommended calling family members via landline — apparently unaware that most people do not have landlines, and those that do have landlines rely on technologies that are not independently powered.
Plainly, we need a massive overhaul of how we think about network resiliency at both the federal and state level, and the RESILIENT Networks Act brings us a step closer to keeping us connected during (and after) disasters.
How the Resilient Networks Act Would Make Networks More Reliable
The RESILIENT Networks Act would take a number of very important steps to address the problems underlying the fragility of our current networks. Rather than forcing each network to an acceptable level of reliability — something no longer practical in today’s world of multiple networks that interchange traffic and rely on the external power grid — the RESILIENT Networks Act requires existing networks to work together. This creates resiliency through cooperation and redundancy, rather than the traditional way of hoping each network reduces its own vulnerabilities.
Of course, encouraging networks to work together does not relieve individual networks of the obligation to work toward reliability.. Instead, the RESILIENT Networks Act recognizes that the modern system of interconnected networks needs a different approach for achieving resiliency. Similarly, the fact that we need to see federal leadership here does not mean that Congress or the FCC should preempt the states. The states have a critical role to play here, as no federal agency can hope to address the unique local issues occurring in every state. Furthermore, we are seeing some states — such as California — get serious about mandating reliability. While excellent news, the importance of broadband for national communications and as a first-responder resource makes it imperative for the federal government to step up. Additionally, Congress has the power to force agencies to work together and can make policy judgments on how much electric utilities should prioritize restoring communications capability. The RESILIENT Networks Act is a good start for Congress, but in no way replaces complimentary state efforts.
Fixing What’s Wrong at the FCC
Public Knowledge has urged the FCC to force telecommunications providers into mandatory emergency sharing and roaming agreements since Superstorm Sandy. The FCC has demurred, even when the agency’s professional staff recommended that voluntary guidelines simply did not provide sufficient network reliability. The RESILIENT Networks Act not only makes this cooperation mandatory, but also empowers the FCC to adopt rules that assist with this coordination while also requiring the agency to improve how networks share outage information with first responders. This portion of the RESILIENT Networks Act addresses several years’ worth of FCC reports — or the lack thereof — following disaster outages. Although most providers try to cooperate with each other, federal authorities and local authorities, the lack of rules requiring the players on the ground to coordinate can lead to significant complications that prolong outages — such as power companies cutting fiber lines or removing telecommunication lines from power poles.
Which brings up another important point — our reliability problem is not just a question of telecommunications providers not wanting to spend more money on reliability than necessary. It’s true that profit-maximizing firms have a tendency to underweight the amount of money they should spend on network reliability and emergency preparedness because these expenses cut into short-term profits. Combine this motivation with the common “optimism bias” and you have a recipe for drastically and consistently — but in all good faith — underestimating what you need to do as a provider to maintain a reliable network in the face of rising numbers of high-impact, catastrophic environmental events.
But even if providers were perfect at predicting how much they need to spend on resiliency and treated profits as secondary to safety, we would still have a difference of opinion over how to prioritize recovery efforts on the ground — especially between local power utilities, local communications providers, and other first responders. As I keep saying every time I write about this, you absolutely do not want to have to figure this all out in the middle of a crisis with everybody getting pulled in different directions. It’s not a punishment or some failure to “trust the market” to recognize that it takes someone with actual authority — which means federal or state regulators — to force everyone to come together and develop a comprehensive plan that keeps everyone moving in the right direction.
Consequently, we need Congress to push the FCC to actually do what needs to be done on the planning front; it is simply not going to happen on a voluntary basis. There are too many moving parts to expect things to come together unless it is someone’s job to make sure things come together, and the RESILIENT Networks Act gives this role to the FCC.
Fixing What Falls Between the Cracks
As I discussed above, making sure that everyone who needs to work together, actually works together, no longer falls within the purview of a single federal agency. It used to be that DoE and FERC handled energy, the FCC handled telecommunications, and FEMA handled most everything else during disasters. But now that you can’t do telecommunications without electric power, and you can’t do disaster recovery without telecommunications, multiple agencies must coordinate with each other. More importantly, someone has to set priorities for how these agencies coordinate with each other.
Because telecommunications is essential to recovery, we should require electric utilities to prioritize restoring power to communications networks. First responders have their own networks, but as we have seen in California and elsewhere public authorities need to remain in contact with the general public. You need to be able to tell people on a targeted geographic basis things like when to evacuate or how to get help in the immediate aftermath. Although we have broadcast, that doesn’t get you the kind of granularity you want (and it assumes people still have independently powered radio and television receivers). Additionally, the communications between the public and public safety flows two ways. For example, first responders rely on the public to communicate with them to tell them about new emergencies.
It can be very hard for those involved in recovery efforts to know where cell towers or fiber cables are so they can avoid bulldozing those structuresor cutting telecommunications lines. As the FCC’s report on Hurricane Michael showed, this happens more often than people would think. In hindsight, it becomes much more understandable if you think about disaster recovery. You may have crews from all over the country assisting with these efforts, including many not in the least bit familiar with who the local providers are or what things looked like before the disaster. If you’re on a power crew and you find a bunch of cable or fiber for telecom that no one told you about blocking your placement of new power cable, but you don’t have anyone to ask if that unknown fiber line or cable belongs there, then you probably just cut the old cable down, put up your repair wire, and move on — whether or not that’s best for the community.
The RESILIENT Networks Act takes a couple of steps to prevent these kinds of problems, including requiring the relevant agencies to work with the FCC to develop best practices. Certain systems, like hospitals, may take priority over restoring telecommunications. We’ve never had to figure this out before, so no standard set of best practices exists — and the time is long past to create one.
Our Networks Don’t See Party Lines, and Neither Does Network Reliability
As society has become increasingly dependent on broadband — especially during the COVID-19 pandemic — we can no longer take network reliability for granted. The old solution of closely regulating a single monopoly network does not apply to modern network architecture. At the same time, we cannot simply count on the “market incentive” of providers to ensure that networks become operational in a timely fashion. Big events like hurricanes draw national attention, but the same reliance on broadband — and the same issues with reliability — matter any time networks go down. Whether it’s a local blizzard that takes down power and telecommunication lines, or rolling blackouts enacted contain widespread wildfires, we depend on these services too much to leave their recovery to chance.
The RESILIENT Networks Act takes an important first step in recognizing the complexity of modern telecommunications networks and the cooperation and coordination needed to ensure an acceptable standard of reliability. Congress should take the opportunity to pass the RESILIENT Networks Act when both chambers reconvene in September. Disasters don’t care about red states or blue states, and everyone needs access to telecommunications in a recovery. We do not need Congress or the FCC, like the Itsy Bitsy Spider, to once again climb up the water spout with no plan for when the rains inevitably return.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”