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 a pean of praise to perseverance, I always thought it was a warning about what happens when you refuse to learn from past experience. Seriously spider dude, it’s a rain pipe. Reality does not care about your rugged determination and individualism. You need to take a lesson from the ant with the rubber tree plant and stop wasting time.
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 telecom outages (although so far the infrastructure appears to be holding up). Rather than learn from these experiences over the last three years, the Pai FCC has become famous for it’s three-part Republican harmony version of the Itsy Bitsy Spider (telecom version) while the Democratic Commissioners are relegated to feeling the Cassandrefreude. So I will take this opportunity to plug the “Reenforcing and Evaluating Service Integrity, Local Infrastructure, and Emergency Notification for Today’s Networks Act” (aka the RESILIENT Act (section by section by section analysis here, press release here).
Briefly, Congress ought to pass the RESILIENT 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 (DOE) (through the Federal Energy Regulatory Commission (FERC)) to work together to require power companies and telecom 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.
I explain more below . . .
Introduced by Chairman Frank Pallone (D-NJ) and Rep. Jerry McNearny (D-CA) of the House Energy & Commerce Committee, the RESILIENT Act is the first federal legislative effort to substantially address the modern problem of how to get modern communications systems up and running if they go down in a disaster. In ye olde days, states regulated this on the state level. You had a monopoly phone provider that provided the major telecommunications network of landlines that states required to maintain at 99.999% (aka “five 9s”) 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 in time of emergency. 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 independent 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, networks depend on the same power grid as everyone else. Even cell towers with back up power generation can only go so long until to power returns. But, as this article from last year’s rolling CA 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, the 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. Which brings me to the RESILIENT Act and why Congress should pass it as quickly as possible.
HOW THE RESILIENT ACT WOULD MAKE NETWORKS MORE RELIABLE.
The RESILIENT 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 harden itself 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 Act requires existing networks to work together. This creates resiliency through cooperation and redundancy, rather than the traditional way of hardening every network.
Mind you, it does not relieve individual networks of the obligation to take necessary steps to make their networks reliable. no one gets a free ride. But the 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 we preempt the states. The states have a critical role to play here, since no federal agency can hope to address the unique local issues at play in every state. Furthermore, we are seeing some states — such as California — get serious about mandating reliability. But 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. So while the RESILIENT Act is a good start for Congress, it in no way replaces complimentary state efforts.
Fixing What’s Wrong at the FCC.
Section 2 addresses the problem of the FCC refusing to shift from a voluntary coordination and roaming framework to mandating telecom providers enter into mandatory emergency sharing and roaming agreements — despite the recommendation of the FCC’s professional staff that voluntary guidelines simply did not provide sufficient reliability. As this is something Public Knowledge has urged since Superstorm Sandy, I am obviously glad to see legislation that would make it happen. (You can see our general list of issues and concerns on network reliability from this letter we sent last year to the House E&C Committee.)
Section 2 also requires the FCC to adopt a bunch of improvements for sharing network outage information with first responders and empowers/requires the FCC to adopt rules that will create better coordination between telecommunications providers, first responders and other covered entities. Again, this builds on several years worth of FCC reports following disaster outages — or more recent failures of the FCC to do in-depth reports on disaster outages. While 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 and cooperate can lead to significant complications that prolong outages — such as power companies cutting fiber lines or taking down telecom lines from power poles. (More on this in the next section.)
Which bring up another important point — it’s not just a question of telecom providers not wanting to spend more money than they have to spend on reliability. Sure, one of the problems is that profit maximizing firms have a tendency to underweight the amount of money they should spend on network reliability and emergency preparedness, since these 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 environmental events. But even if telecom providers were perfect at predicting how much they need to spend and treated profits as secondary to safety, we would still have difference of opinion over how to prioritize recovery efforts on the ground — especially between local power utilities, local telecom providers, and other first responders. As I keep saying very 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 pushed 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.
So once again, we need Congress to push the FCC to actually do what needs to get 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.
Meanwhile, Section 5 tells the FCC to look at 5G and figure out if we are going to need special rules, given the uncertainties about deployment and network architecture for 5G. Section 6 requires a study by the Comptroller General to determine what happened with the FCC’s response to Hurricane Maria and its impact on Puerto Rico — and to fix problems the Controller General identifies.
Fixing What Falls Between the Cracks.
As I discussed above, making sure that everyone who needs to work together 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 telecom, and FEMA handled most everything else. But now you can’t do telecom without electric power, and you can’t do disaster recovery effectively without telecommunications. You need to be able to tell people on a targeted geographic basis things like when to evacuate or how to get benefits. While 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). First responders don’t just talk to each other through independent first responder systems. They communicate with the public, and rely on the public to communicate with them to tell them about new emergencies.
As I also mentioned above, 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 them down or cutting telecom lines. As the FCC’s report on Hurricane Michael showed, this happens more often than people would think. But in hindsight, it becomes much more understandable if you think about disaster recovery. You may have crews from all over the country, people not in the least familiar with who the local providers are or what things looked like before the disaster. You’re a power crew doing your job and you find a bunch of cable that no one told you about blocking your placement of replacement power cable. You don’t have any officially designated coordinator to check if it belongs there. So you cut it down and put up your repair wire and move on.
The RESILIENT Act takes a couple of steps to prevent these kinds of things. Because these issues are relatively recent, the relevant provisions (Sections 3 & 4) mostly require the FCC to work with different agencies on reports or recommendations for best practices. Section 3, for example, requires the FCC to work with the Department of Transportation to see if the current system for keeping track of electric lines and natural gas lines would also work for telecom infrastructure. Section 4 requires the FCC, DHS and DOE to develop best practices for coordination and prioritization of restoring telecommunications services.
CONCLUSION
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, as we continue to see, 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 telecommunications go down. Whether it’s a local flood, or a blizzard that takes down power and telecom lines, or rolling blackouts to try to contain widespread wildfires, we depend on these services too much to leave their recovery to chance.
The RESILIENT 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 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, like the itsy bitsy spider, to once again climb up the water spout with no plan for when the rains return.
Stay tuned . . . .
