Posted on April 9th, 2023.

If you work for a company that handles telephone calls – landline, mobile, satellite, VoiP, etc. – the most important calls you can handle are calls to 911. There are a cluster of regulations that govern how your company handles those calls and – more importantly – what happens if your network has an outage, and you can’t deliver 911 calls.

I have tried to make this blog reader friendly, but must use some “lawyer talk.” I have over forty years’ experience in telecommuncations regulations wearing many hats - - regulator, working for a large law firm, being an in-house counsel, being a solo practitioner. Heck, I’ve even been an expert witness in a couple of cases. If you’re not a lawyer or someone who works in your regulatory department on a regular basis – send a link to this blog to the highest level regulatory lawyer in your organization.

The FCC’s “Second Report and Order” in FCC 22-88

On November 18, 2022, the Federal Communications Commission (“FCC”) issued a “Second Report and Order” relating to how communications carriers should handle 911 outages. You can find a copy at https://www.fcc.gov/document/fcc-updates-rules-improve-911-reliability 

The focus of the rules is on how special 911 facilities – called Public Safety Answering Points or PSAPS – get timely and actionable data from telecommunication carriers.

The rule was published in the Federal Register on February 15, 2023 and parts of it became effective on March 17, 2023. Some of the critical notification requirements (discussed below) do not yet have an effective date.

The prudent company will start working now to be prepared for the day the rules are implemented.

Who is Covered?

The FCC is trying to cover every telecommunications company over which it has jurisdiction where a caller might reach out to a PSAP. The rule covers cable, satellite, wireless, wireline, and interconnected VoIP providers.

How Fast Must the PSAP be Notified?

The basic rule is “as soon as possible, but no later than 30 minutes” after the outage is detected. You should note – the notification should be triggered by an outage on “any facilities that they own, operate, lease, or otherwise utilize.”

Who Needs to be Notified?

The PSAP is supposed to designate “contact person(s)” and the carrier is supposed to notify that person. In all likelihood, PSAPs will have several contact persons who are covering various shifts. The prudent carrier will request a “backup” contact person in case none of the designated contacts can be reached.

YOU are Supposed to Keep the Contact Information up to date!

The rule says carriers are to “exercise special diligence” to identify and maintain contact information. The carrier is also required to confirm contact information at least once a year. There is no authorized national database of contact information, so your company is on its own. I have found a database that may get you started at https://hifldgeoplatform.opendata.arcgis.com/datasets/d47bd3b0796f48d488d63c9917d25100_0/explore?location=36.185931%2C71.080932%2C3.15 I do not know how frequently that information is updated.

The FCC also maintains what it calls a “master PSAP registry.” https://www.fcc.gov/general/9-1-1-master-psap-registry PSAPs are supposed to update their information.

“Special diligence” is clearly a lawyer term of art. The FCC says “special diligence” is the diligence expected from a person practicing in a particular field of specialty under circumstances like those at issue. Another definition of “special diligence” is "'The measure of diligence and skill exercised by a good businessman in his particular specialty, which must be commensurate with the duty to be performed in the individual circumstances of the case; not merely the diligence of an ordinary person or non-specialist." I think of special diligence in this instance as the care you would take when handling a live electrical wire or when watching a bunch of kids around a swimming pool. If you make a mistake or don’t properly update your PSAP database, you could be indirectly responsible for a death or serious injury. SO – update your database on a very regular basis!

How is the Notification to be Made?

The rule says the notification is to be made by telephone and “in writing via electronic means.” I assume that last phrase means you must email or fax the information to the PSAP. You are allowed to notify the PSAP in other ways if you have the PSAP’s agreement in writing.

As this blog discusses below, the FCC rule requires a lot of information to be given to the PSAP. The prudent provider should think about ways to contact the PSAP with the assumption that the PSAP’s telephone and fax lines may not be working and the internet service for the PSAP be out as well.

What Needs to be in the Notification?

What would you want to know if your phone went out? When did it start and when is it going to be fixed? Who do I contact for more information? That is pretty much what the FCC wants you to report to the PSAP. I have attached a DRAFT form for your consideration. I suspect that much of the form can be automated using AI.

What Follow-Up Notification Needs to be Made?

You should report any material information to the PSAP as soon as possible. You must do a followup report within two hours of the initial report. You must continue to make updated reports until the outage is completely repaired and service is fully restored.

What Reports Need to Be Filed with the FCC?

There are three reports that have to be filed with the FCC – the initial notification, the Initial Report and the Final Report. The trigger for the initial notification varies by the type of carrier. Your regulatory department should already be aware of these obligations. For all carriers, the Initial Report is very similar to the report submitted to the PSAPs. It is due to be filed within 72 hours of the initial notification.

The Final Report has some additional requirements. It must be filed within thirty days after the discovery of the outage. It should contain all the information that is contained in the initial report, plus any information that was not contained in, or that has changed from that provided in, the initial report. The Final Report must be “attested by the person submitting the report that he/she has read the report prior to submitting it and on oath deposes and states that the information contained therein is true, correct, and accurate to the best of his/her knowledge and belief and that the communications provider on oath deposes and states that this information is true, complete, and accurate.”

How Should the Report be Filed with the FCC?

The FCC has a “Network Outage Reporting System” on-line at https://www.fcc.gov/networkoutage-reporting-system-nors If, for some reason, you can’t use the NORS, you can use e-mail, FAX, or courier for your reports.

Are There More Rules to Come?

Potentially. The FCC originally proposed to have carriers report the outage in a geographic information systems (GIS) format. It declined to do so in this rulemaking, but did instruct its Public Safety and Homeland Security Bureau to gather for future consideration “additional information on 911 special facilities’ capabilities to use graphical outage information, the utility of that information for 911 outage remediation, and the formats in which the graphic information would be feasible for service providers to produce.” Your company should explore how you might add such GIS capability to your system and work with your PSAPs to see how they might use that information. This blog does not cover state rules, but the California Governor’s Office on Emergency Communications has adopted rules that require outage maps be maintained for viewing on the internet. https://www.caloes.ca.gov/wp-content/uploads/PSC/Documents/6-Final-RegText.pdf 

What are the Penalties for Violating These Rules?

• The FCC is very serious about these rules. On December 17, 2021, the FCC announced settlements of five investigations into carriers that were accused of violating these rules.
• AT&T will pay a total of $460,000 to settle two investigations. First, a $160,000 settlement resolves an investigation into whether AT&T violated FCC rules in connection with failed 911 calls and the failure to timely notify potentially affected 911 call centers during a 911 outage on September 28, 2020. Second, for a separate outage that also occurred on September 28, 2020, AT&T will pay a $300,000 settlement, which will resolve an investigation in whether it violated FCC rules in connection with failed 911 calls and failure to deliver number and location information. https://docs.fcc.gov/public/attachments/DA-21-1542A1.pdf 
• CenturyLink (now Lumen Technologies) will pay a $3,800,000 settlement, resolving an investigation into whether it violated FCC rules in connection with the failure to transmit 911 calls and timely notify 911 call centers during an outage on September 28, 2020. https://docs.fcc.gov/public/attachments/DA-21-1543A1.pdf 
• Intrado will pay a $1,750,000 settlement, resolving an investigation into whether it violated FCC rules in connection with an outage that affected the delivery of 911 calls on September 28, 2020 and failed to timely notify 911 call centers regarding the outage. https://docs.fcc.gov/public/attachments/DA-21-1541A1.pdf. 
• Verizon Wireless will pay a $274,000 settlement, resolving an investigation into whether it violated FCC rules in connection with failed 911 calls during an outage on May 7, 2020. https://docs.fcc.gov/public/attachments/DA-21-1503A1.pdf 

What Else were these Carriers Required to do?

In each Order, the FCC required the affected company to create a “compliance process” to “develop and implement processes in the evolving next generation 911 (“NG911”) environment to (1) Identify risks that could result in disruptions to 911 service; (2) Protect against such risks; (3) Detect 911 outages when they occur; (4) Respond to such outages with remedial actions; and (5) Recover from such outages as soon as practicable.” The company is required to have a “Compliance Officer” and that Officer is required to submit a series of reports to the FCC every year for the years 2022 – 2025.

Are All Carriers Required to take those Steps?

The FCC has not put these requirements into a rule – yet. However, they seem to be common sense practices. Every company should be identifying risks and improving its detection and remediation of outages affecting 911 systems. (Quick commercial – check out how TeleSentientTM might help in this regard.) Every company should have at least one employee dedicated to following the FCC rules and improving the company’s response to outages.

What if I have More Questions?

First, contact your legal department or regulatory compliance department. They may be able to answer your questions. They can send me emails at [email protected] and I will be very happy to work with them.