As it did when it imposed circuit capacity reporting obligations on all submarine cable licensees earlier this year, the Federal Communications Commission (FCC) once again is looking to step up regulation of submarine cable systems. Citing the critical nature of submarine cable infrastructure and the importance of submarine cable systems to meet U.S. communications requirements, the FCC announced Thursday a proposal to require submarine cable system licensees to report cable network outages. The Notice of Proposed Rulemaking (NPRM), supported by the entire Commission, seeks comment on whether to bring submarine cable licensees into the reporting framework already applicable to many other communications providers, including satellite, cable, wireless and interconnected VoIP providers, among others. These providers are subject today to a complex network outage reporting regime encompassing consideration of factors such as the facilities impacted, the duration of the outage, and the number and type of minutes affected. Moreover the current network outage reporting rules require the submission of multiple reports with time-sensitive deadlines, some as short as 30 minutes where emergency communications are affected.

While the text of the NPRM has not yet been released, the FCC did provide a preview of what submarine cable licensees may face at Thursday’s open meeting. The FCC proposal would require reporting of “major” outages such as those resulting in degradation or lost connectivity of fifty percent (50%) or more of the submarine cable system’s capacity, of at least thirty (30) minutes’ duration, even if traffic is rerouted during the outage. Licensees would have to submit an initial report shortly after the outage commences, with additional reports due at set timeframes. The FCC hopes consistent reports on cable system outages would reveal trends and facilitate amelioration of systemic issues. The FCC seeks public comment on the proposals and on steps that it can take to improve the submarine cable deployment process.

The item was generally well-received by the Commission, but Commissioner O’Rielly expressed partial concerns about the imposition of additional regulatory obligations, hoping to see more data demonstrating the need for this new regulation. He expressed some reservations about the possibility of a reporting requirement opening the door to further regulation of submarine cables, the potential for an individual cable system consortium member being held liable for reporting even if that licensee’s traffic was unaffected, and compliance costs.

Unlike terrestrial or satellite network outages, where the cause of an outage can often be identified with reasonable effort and in a timely manner, we anticipate submarine cable licensees will incur greater costs to identify the cause of an outage and face hurdles in complying with the brief reporting times being proposed. The NPRM should be released in the near future — setting the comment and reply dates — and we will provide a more detailed review once the text is available.