Will Power Be the Next Big Issue in Communications and Network Reliability?Will Power Be the Next Big Issue in Communications and Network Reliability?

Are public networks as reliable as they should be--and whose responsibility is it to improve the situation?

A series of recent natural disasters has raised questions about whether communications networks are as reliable as they should be. Usually such discussions involve a tug-of-war between regulators and carriers. Now, however, a remark by an FCC Commissioner raises the intriguing possibility that power utilities might be drawn, willingly or otherwise, into the process of improving the reliability and resiliency of telecom networks.

At the opening of an FCC field hearing on network reliability, Commissioner Ajit Pai said he had heard "complaints that local power companies would not coordinate with network operators. If this is true," he added,

"it has to change. These companies share poles and conduits with each other, and a coordinated response to service restoration can bring all networks back online more quickly and efficiently. Disjointed service repair efforts only prolong the time that customers are left in the dark or cut off from communications. And utilities and communications companies need to start planning for the next disaster now, looking at ways to harden their networks to avoid future outages." [Emphasis added]

Was Commissioner Pai just making an offhand remark, floating a trial balloon on a new utility/telecom regulatory paradigm, or something in between? It is premature to draw any conclusions: it seems that this was more than a casual observation but less than a proposal. It is also unclear whether he was thinking of a regulatory mandate or a voluntary initiative.

With these caveats in mind, let's explore the implications of involving utilities in communications reliability for various stakeholders.

Regulators
The challenges for telecom regulators fall into the short-, medium- and long-term horizons:

Their short-term responsibility is to investigate the incidents that Commissioner Pai mentioned: were they isolated incidents or signs of a larger, systemic problem? Did carriers follow existing best practices, or were these ignored in favor of cost savings?

Second, regulators must recognize that, regardless of whether there should be an expanded role for power utilities in bolstering network reliability, carriers must do more to improve network reliability and resiliency. This will be no easy task; answering these questions and implementing solutions will take years. As noted during a presentation at a recent FCC workshop, improving the resiliency of telecom networks is unlikely "without stronger regulation because of fierce market competition, pressure on profits, consolidation and [a] strong political lobby." In other words, expect lengthy rulemakings and court challenges to any new regulatory proposals.

Finally, regulators must carefully consider the implications of increasing the interdependence between telecom and utilities. Historically, telecom and power networks have been built and operated independently of each other, and for good reasons. In the "good old days" of POTS, the "gold-plated," self-powered PSTN delivered end-to-end reliability of 99.999%, and remained operational even during blackouts.

Increasing interdependence between these traditionally separate (but equally critical) industries could actually have potentially adverse impacts on reliability. Since the 1965 Northeast Blackout, power utilities have refused to become dependent on commercial telecom networks for their operational traffic or control signals so that they can maintain and restore power regardless of any disruption to commercial telecom networks. As the New York Department of Information Technology and Telecommunications (DoITT) explained to the FCC, "in the modern, networked world, impacts to one or more systems...will eventually cascade to the other systems that rely upon them."

Carriers
Making utilities more responsible for the maintenance of communications reliability would be a boon for carriers, who are more concerned about the price tag for network reliability in a competitive telecom marketplace. For example, some wireless carriers opposed the FCC's (ultimately unsuccessful) post-Katrina wireless back-up power rules on grounds of cost: some carriers reportedly claimed that the cost of meeting proposed FCC back-up power rules at all 210,000+ cell towers and roof-mounted cell sites nationwide could approach $15,000 per site. One has to wonder, though, whether the competitive marketplace could reduce these costs with new and innovative power solutions and greater collaboration among carriers for backup power.

But even the most ambitious initiative to shift responsibility to power utilities cannot escape the fact that the principal responsibility for improving network reliability remains with the carriers: indeed, the FCC recently found that had carriers used best practices in engineering and protecting their networks, most outages during the June 2012 derecho storm could have been prevented. Commissioner Pai acknowledged as much when he called for both utilities and carriers to find "ways to harden their networks to avoid future outages."

Finally, when it comes to the question of utilities' role in network reliability, the telecoms need to "get their story straight" about the relationship between utilities and carriers. When it comes to the Smart Grid, the telcos lately have played up their ability to boost the reliability of the power grid. For the carriers to turn around and now say that power utilities need to do more to improve reliability of telecom networks is ironic at best and alarming at worst.

Next Page: Utilities

Utilities
Recent developments involving pole attachments give utilities good reason to worry about the prospect of being saddled with communications-related obligations. For example, the telecom industry already is increasingly reliant on outside plant--such as poles and conduit--that is installed and maintained by electric utilities.

FCC rules severely limit the fees that utilities can charge to telecom and cable companies to use their outside plant; they even impose timelines for utilities to respond to service requests by telecom and cable companies. Moreover, because the FCC has a history of revising terms and conditions in an infrastructure sharing agreement upon complaint by an attaching entity, there is little incentive for arms-length negotiation or for the parties to develop unique and proactive infrastructure-sharing agreements.

If carriers succeed in convincing the FCC that they (the carriers) cannot be held responsible for loss of power to key telecom facilities, electric utilities could find themselves becoming responsible for restoring communications services--even those on which carriers want utilities to rely for the very act of service restoration!

Enterprises
Resolving the regulatory, financial and philosophical issues associated with network liability and resiliency discussed above will take time. In the meantime, enterprises must work to improve network reliability any way that they can. Here are some suggestions:

Make Your Voice Heard: Enterprises need to make their voices heard about the importance of network reliability. The New York DoITT provided the large user's perspective on network reliability in comments to the FCC on February 7, 2013:

"...telecommunications providers will need to make significant enhancements to their infrastructure, their information sharing practices, and their disaster recovery planning. Their charge must be not solely to restore capability and service to pre-storm levels, but to ensure sufficient resiliency and hardening so that the public--and the City agencies that serve them--may confidently rely on these systems in future catastrophic events. (emphasis added)

DoITT added that "it is critical that regulatory steps be taken to harden communications networks in the future." Other enterprises should follow DoITT's lead and voice their concerns about network reliability.

Power Audits and Remediation: Enterprises must review the role of electrical power considerations not just for wireless and wireline communications, but also their CPE and related providers (e.g. cloud, hosting, data centers).

RFPs: Network architecture, reliability and resiliency should be standard questions in RFPs. Customers need to understand whether and how their providers are addressing network reliability (and service providers need to understand that network reliability will become a competitive differentiator).

Back-up power: Enterprises should also determine whether (and for how long) they have back-up power on the premises, including the ability to replenish fuel supplies if necessary. Back-up power for end users (for example, for their wireless devices and other CPE) is critical.

Disaster RecoveryDisaster recovery plans need frequent testing and revision. Plans should include support for operating with degraded capabilities and support for employees working remotely.

Contract provisions:

* Force majeure-related performance failures should only be excused if the provider has taken the proper precautions.

* Representations and warranties should include a commitment to implement industry best practices in network design, disaster recovery, testing and business continuity.

* Carriers should agree to coordinate and share information regarding disaster recovery planning.

Conclusion
Both the telecom industry and the power industry should look at their capacity to restore and maintain service following disaster without depending on the other. Similarly, the user community must be prepared for loss of commercial power and/or telecom services and start to plan accordingly.

Shared infrastructures may produce cost savings for network operations under "blue sky" conditions, but the resulting interdependencies have the potential to exacerbate network outages and prolong restoration times when disasters strike.

Justin G. Castillo and Jeffrey L. Sheldon are partners in the law firm of Levine, Blaszak, Block & Boothby (LB3Law).