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Harold Feld’s Testimony for the FCC Network Resiliency Hearing

October 25, 2021

Here are the recommendations from the testimony. Download the full testimony below.

Specific Recommendations

  • Expand the Wireless Emergency Framework to all communications providers, including broadcasters, public safety, and utility services. Obviously, different obligations and responsibilities will apply to different entities as appropriate. But we should begin by having a “Communications Resiliency Framework,” not merely a “Wireless Resiliency Framework.” 
  • Make the Framework mandatory for all wireless carriers. Although an expanded framework must begin as a voluntary framework, there is no reason why the existing framework should not be mandatory for all mobile carriers. 
  • Make emergency voice, SMS and data roaming mandatory for all carriers on a bill-and-keep basis. If nothing else, the Commission should require mandatory emergency roaming agreements for the entire industry, on a “bill-and-keep” basis. The sunset of 3G networks removes the problem of networks using incompatible standards. All wireless networks will soon be on LTE and 5G. Additionally, moving to bill-and-keep will reduce administrative costs and enable small carriers to activate roaming agreements swiftly and maintain them for the duration of the emergency. Because public safety now involves voice, text and data, the emergency mandatory agreement must include SMS and data, not merely voice. 
  • Revisit the Back-up Power Rules. Not simply for cell towers, but for all points in the network — in particular, facilities-based VOIP providers. The Commission needs to 4 assess the impact of its 2015 back-up power order and whether it should change these rules to ensure adequate backup power to the home. (Spoiler alert: yes.) 
  • Make the NORS data public. As long as we continue to rely on market incentives, we must recognize that markets need data. Consumers should be allowed to choose their provider based on more than a company’s advertising. Companies claim this information is proprietary, but there is a huge difference between “proprietary” and “embarrassing.” Outages are not a secret to the people impacted. Prohibiting access to the NORS data does not protect trade secrets, it simply makes it difficult for consumers and state regulators to hold companies accountable. 
  • Use modern spectrum technology to enhance available spectrum for emergency purposes. The FCC has two services subject to database control: the TVWS and the CBRS. These databases can authorize devices to use higher power for specific locations and services (such as point-to-point links to restore backhaul or last-mile connectivity). The FCC could also make the 4.9 GHz band available for emergency communications by non-public safety entities where needed. The needs of public safety could be safeguarded in a manner similar to FirstNet, which prioritizes communications by traditional public safety/first responder entities over those of other entities using the network. 
  • Create a new USF fund for network resiliency and restoration. The Commission authorized USF funds to assist Puerto Rican carriers after Maria. The FCC should institutionalize this by adding new principles relevant to network resiliency and creating a formal new fund specifically for resiliency upgrades. 
  • Regulatory fee investment credit. Section 9a(d) permits the Commission to waive or reduce regulatory fees if it finds doing so will serve the public interest. The Commission can encourage investment in shared infrastructure by offering a credit against regulatory fees. The FCC should carefully structure this credit to incent carriers to create new, shared emergency resources rather than fund mandatory obligations or investments in infrastructure solely for use by their own networks. Doing this will help address the “free rider” problem, since those investing will receive a direct benefit as a consequence.
  • Create standards and metrics in partnership with state regulators. One of the biggest problems in talking about network reliability and resiliency is we don’t have any good way to measure it other than in the grossest terms (e.g., “is the network operating today?”) Additionally, while there have been improvements in best practices, some states have been far more active than others in considering how best to respond to the demands of modern communications networks in the face of climate change. The Commission should take the lead in convening discussions with relevant stakeholders, particularly state, local and Tribal governments, to develop the necessary standards, metrics and best practices. I would also like to flag the expertise of organizations such as Telecom Without Borders, which are not traditional industry trade organizations but clearly have significant relevant experience.
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