In the Matter of National Security Emergency Preparedness

Telecommunications Service Priority System

GEN. Docket No. 87-505

November 17, 1988 Released; Adopted October 27, 1988

By the Commission

1\. INTRODUCTION

1\. By our Notice of Proposed Rule Making (NPRM) in Gen. Docket No.
87-505, 2

FCC Rcd 7124 (1987), we proposed revisions to Sections 64.401 and 64.402
(and

Appendices A and B thereto) of the Commission\'s Rules and Regulations,
47 C.F.R.

§§ 64.401, 64.402, which dictate the procedures for the restoration of
vital

private line services during emergency situations and establish a
\"Precedence

System for Public Correspondence Services.\" The proceeding was
initiated by the

Secretary of Defense in his capacity as the Executive Agent for the
national

Communications System (NCS).1 By its petition, NCS proposed to replace
the

existing Restoration Priority rules with a new National Security
Emergency

Preparedness (NSEP) Telecommunications Service Priority (TSP) System,
which has

a broader scope and applicability. NCS argued that adoption of the rules
is

necessary to \"(1) authorize and require telecommunications service
vendors to

provide priority treatment to NSEP telecommunication services, (2)
ensure such

vendors are not in violation of the Communications Act of 1934 when
doing so

(i.e., not engaging in any unlawful discrimination or undue

preference), and (3) override any existing contractual provisions
inconsistent

with the rules promulgated.\" The appendix to our NPRM essentially
reflected the

proposal submitted by NCS.2 Twenty five parties filed comments and
fourteen

parties submitted replies.3

II\. BACKGROUND

2\. In 1967, the Commission, in conjunction with the Director of

Telecommunications Management, Office of Telecommunications Policy \[now
merged

with the Office of Science and Technology Policy\], adopted rules
establishing a

system of priorities applicable to leased intercity private line
services.4

These rules, contained in Part 64 of the Commission\'s Rules and known
as the

Restoration Priority (RP) System, were promulgated to ensure that
services

\"vital to the national interest \[would\] be maintained, to the maximum
extent

possible, during emergency service.\" The rules are effective until
superseded by

the President\'s powers under Section 706 of the Communications 5 The

general purpose of the RP System is to give private lines vital to the

national security a designation to signify that those lines should be
given

priority restoration when a failure occurs. When lines carrying an RP

designation fail, carriers are authorized and required to interrupt
either lower

or non-priority private line services or public switched network
services to

restore lines with the RP designation if spare circuits are unavailable.
To

obtain an RP designation, a user must submit a request to the NCS or

the FCC.6 When the NCS receives a request, it recommends an RP
designation to

the FCC for final approval. Carriers are directed to treat the NCS
designation

as an interim FCC certification prior to formal FCC approval. As a
general

matter, RP designations are valid for three years. Under the RP System,
there

are four priority categories for private lines. The highest level is
reserved

for federal and foreign government services used to support national
survival if

attack occurs. The second level, applicable to the same entities as the
first

level, is for services that are essential when attack threatens. These
would be

used, for example, to enhance the preparedness of U.S. military forces
or the

ability to conduct diplomatic efforts to reduce the threat of war. The
third

level is applicable to government and non-government services needed to
maintain

vital defense and diplomatic, and health and safety functions during a
major

disaster or other emergency. The last priority is applicable to lines
needed to

continue or reestablish important financial, economic, health and safety

activities during emergencies.

III\. THE PETITION

3\. In its petition, NCS stated that the RP System does not fully
address

today\'s needs for priority treatment of NSEP telecommunications service
and that

a new TSP System is necessary. It offered three reasons. First, it noted
that

the RP System does not cover the expedited provisioning of new NSEP
service.7

Second, it argued that the RP System, which applies only to the
restoration of

intercity private lines, cannot provide as much support to NSEP needs as
the TSP

System which covers all NSEP private lines and includes the capacity and

ubiquity of the public switched network. In this regard it explained
that a key

element of national security strategy is ensuring a survivable

telecommunications infrastructure and that such a structure must include

intracity private lines and the vast resources of the public switched

telecommunications networks. It also noted that the federal government

continually has been expanding its reliance upon public switched
networks to

meet NSEP needs.8 Finally, it stated that the management of the RP
System has

been flawed and that the TSP System has been designed to remedy the
current

problems. NCS noted, for example, that there are \"insurmountable

discrepancies\" in the NCS, FCC and carrier data bases of RP circuits.
Another

problem it discussed related to a lack of specific guidelines limiting
the

number of circuits that qualify for each priority category. This, it
said, has

resulted in a concentration of circuits in the higher priority
categories. NCS

concluded that such a concentration results in a less meaningful
priority

system. To correct these problems the TSP System it proposed would
include

procedures to ensure an accurate data base (e.g., periodic audits,
revalidation

of all priorities every three years) and establishment of percentage
guidelines

on the number of NSEP services that may qualify for each of the

restoration priority levels so that only a relatively small number of
services

will receive \"top priority\" treatment.9

4\. By NCS\' proposal, the Commission\'s rules would be applicable in
all

circumstances except when the President invokes the war emergency powers

contained in Section 706 of the Communications Act, 47 U.S.C. § 706. The

Commission\'s rules, together with regulations adopted by the EOP, are
intended

to establish a uniform system of priorities for provisioning and
restoration of

NSEP telecommunications services both before and after invocation of the

President\'s war emergency powers. The proposal included for the first
time a

definition of \"NSEP Telecommunications\", and set forth services
eligible for

priority treatment. See NPRM at paras. 12-17.

IV\. DISCUSSION

5\. The NRPM itself sought comment on three focal issues: (1) the

applicability of the proposed rules to intrastate services and their
underlying

facilities and the applicability of the rules to switched services, (2)
the

extent to which the proposal over-delegates authority from the FCC to
the EOP in

the process of priority application and assignment, and (3) the means by
which

carriers may recover their TSP-related expenses. A broad range of
additional

issues were also raised in the NRPM, and the commenting parties offered

suggestions and views on these and other matters. The Appendix to the
NRPM

contains the Commission\'s proposals in response to NCS\' petition, and
the

Appendix to this document reflects our final resolution on each of the
matters

discussed below.

6\. Jurisdiction. As noted in the NPRM, the Commission is charged with

promoting the safety of life and property and with ensuring effective

communications for \"the purpose of the national defense.\" 47 U.S.C. §
151. We

also noted that all provisions of the Act must be read in light of that

statement of purpose, and that we have often been required to consider

national security issues in our orders, e.g., AT&T (Divestiture Order),
98

F.C.C. 2d 141 (1983). We stated that we have consistently sought to
balance the

needs of NSEP interests with the needs of the general public in ensuring

efficient service at a reasonable cost. We also stated that \"national

security\" should be the basis for giving priority treatment to one
segment of

telecommunications users over another only when absolutely necessary,
and that

our policy under the RP System has been that prior to preempting any
public

switched network services to restore a private line service carriers

should \"insure that a sufficient number of public switched network
services will

remain available for public use.\" NPRM at para. 19. With these concerns
in

mind, we sought comment on the applicability of the proposed rules to
intrastate

services and their underlying facilities, and the applicability of the
rules to

switched services. We will first address the matter of the Commission\'s

jurisdiction over intrastate services under TSP.

7\. We stated in the NPRM that notwithstanding Section 2(b) of the Act,
47

U.S.C. § 152(b), our national security responsibilities under Section 1
of the

Act gives this Commission the authority to include intrastate services
that have

an NSEP function in the TSP rules. We noted that, in any case, this
Commission

has jurisdiction over physically intrastate lines that carry interstate
traffic.10

We sought comment on whether we also have jurisdiction based solely on a

national defense analysis and asked whether, for example, the fact that
such

services are necessary for national security purposes as demonstrated by
their

role in national defense and in promoting the safety of life and
property \-- a

purpose for which this Commission was created \[47 U.S.C. § 151\] \--

gives us jurisdiction to preempt conflicting state restoration and
provisioning

programs. We also requested parties to comment on any practical problems
they

foresee with the inclusion or exclusion of intrastate services and their

underlying facilities in the implementation of the TSP System.

8\. AAR states that any practical problems with inclusion of intrastate

services and their underlying facilities in TSP would be minimal when
compared

to the advantages of having a single set of rules on a national basis.
AICC

interprets Section 1 of the Act as giving authority to the FCC to
include

intrastate services that have an NSEP function in the TSP rules. Centel

concludes simply that it is incumbent on the FCC to take preemptive
action over

intrastate facilities. For its part, GTE urges that intrastate

services be included in TSP. However, it argues that TSP should not
involve

restoration of intrastate switched services, only their provisioning. It
notes

that Section 1 of the Act supports FCC jurisdiction over intrastate
services,

especially in cases where it is not possible to separate the interstate
and

intrastate components. It states that 911 and other local systems can be

handled under the federal priority system. McCaw also supports FCC
action

preempting conflicting state priority systems. Otherwise, it says, up to
51

conflicting priority systems may exist. It too believes Section 1 of the
Act

supports exercise of jurisdiction by the Commission. Pacific Bell states
that

Congress has declared that national defense is one of the purposes of
the Act so

that the FCC should set national priorities for NSEP services.
Southwestern

Bell states that there is no need to confront the intrastate issue
because the

practicalities of restoration will show that nobody benefits from
litigating the

jurisdictional issue. It believes that the potential problem is one of
the

volume of requests that will be submitted, though it suggests that if

NCS cannot handle the large number of facilities included under TSP the
states

will proceed independently or FEMA \[Federal Emergency Management
Agency\] and

others will help. Telocator supports FCC jurisdiction over intrastate
services,

based on promotion of safety of life and property and national defense

arguments. The FCC must preempt conflicting state priority provisioning
and/or

restoration programs that could potentially affect those lines;
otherwise,

transition to wartime or response to disasters would be difficult. Like
McCaw,

it views separate state NSEP programs as precluding the effective
implementation

of the federal TSP System. Similarly, USTA states that two systems,
state and

federal, would be inherently less effective than one. It urges that no
state

plan should be permitted to conflict with the TSP System. Teltec
supports

preemption based on traditional jurisdiction over intrastate lines that
carry

interstate traffic.

9\. UTC favors preemption of intrastate services to which priority
levels are

assigned under TSP rules. It supports Section 1 as the appropriate
source of

authority. Citing Florida Lime and Avocado Growers, Inc. v. Paul, 373
U.S. 131,

143-44 (1963), Northern States Power Co. v. State of Minnesota, 447

F.2d 1143 (8th Cir. 1971), and Louisiana Public Service Comm\'n v FCC,
106 S.Ct.

1890, 1898 (1987), \[476 U.S. 355\] UTC states that it is a
well-established

principle that federal preemption of state regulation is appropriate
where the

nature of the subject matter regulated is one which demands

exclusive federal regulation in order to achieve uniformity vital to
national

interest or where state law stands as an obstacle to the accomplishment
and

execution of the full purposes and objective of Congress. It urges that
Section

2(b) of the Act does not preclude the FCC from preempting conflicting
state

restoration programs and claims that Section 2(b) was enacted \"to
restrain the

Commission from interfering with those essentially local incidents and
practices

of common carriage by wire that do not substantially encroach upon the

administration and development of the interstate telephone network.\"
North

Carolina Utilities Commission v FCC, (NCUC) 537 F.2d 787, 794, n.6 (4th
Cir.

1976), cert. denied, 429 U.S. 1027 (1976). It also notes that Section
202(b) of

the Act authorizes FCC jurisdiction where there are inconsistent state

restoration programs or where there are facilities connected to radio

facilities. Capital City Telephone, 3 FCC 189, 194 (1936).

10\. In contrast, MCI argues that Section 1 of the Act does not
constitute an

independent ground for agency authority, that Section 2 of the Act gives
the FCC

jurisdiction over intrastate facilities only to the extent they are used
for

interstate communications. It cites Sierra Club v Lynn, 501 F.2d 43, 55
(5th

Cir. 1974), cert. denied, 421 U.S. 994 (1975), and Louisiana PSC, supra,
for

support of the argument that statements of purpose, e.g., in the
preamble of a

statute, \"operate only as guideposts to informed \[agency\]
discretion.\" It urges

the Commission to cooperate with states in adopting a program comparable
to

TSP. NARUC states that the national defense cannot be used as the
justification

for FCC jurisdiction over intrastate services and underlying facilities,
though

it agrees that dual regulation of TSP is not well advised. It suggests a

federal-state board under Section 410(c) of the act to assure uniform
nationwide

implementation, or, as an alternative, subjecting the TSP to triennial
review by

a board of state commissioners. For its part, NTCA notes that

Section 1 of the Act does not provide a basis for ignoring specific
limits on

the FCC\'s authority under Section 2(b)(2), citing Louisiana PSC, supra.
It

urges that where there is a mixed inter-intrastate facility, the FCC
should seek

appropriate legislation and the issue must be resolved before
implementing the

TSP System.

11\. NCS asserts that FCC jurisdiction extends to all intrastate
facilities

\"affecting\" interstate communications, based solely on its power to
regulate

interstate commerce. It states that jurisdiction must extend to wholly

intrastate services to ensure that services vital to NSEP receive the

appropriate priority treatment. As proposed, TSP will preempt any
conflicting

priority systems including any state or local priority systems, i.e.,
systems of

telecommunications priorities equal to or greater than the lowest NSEP
TSP

System priorities authorized.

12\. In reply, CBT urges that the FCC and states work together to arrive
at

an agreed priority system. It asserts that local exchange carriers
should not

be required to administer separate interstate and intrastate plans,
especially

if they are in conflict with each other. MCI states that Section 1 of

the Act does not confer jurisdiction on the FCC; it is a guide for how
the

agency should exercise the jurisdiction expressly granted by other
provisions of

the Act. It says that all commenters agree on the need to have a uniform
set of

NSEP instructions and it favors NARUC\'s suggestion to convene a joint
board to

review proposed rules. NCS, for its part, states that intrastate

telecommunications service to which priority levels are assigned
pursuant to TSP

rules should remain under federal jurisdiction. It agrees with the
majority

view that FCC jurisdiction must be asserted. NCS disagrees with NARUC\'s

position with regard to limited FCC jurisdiction and the need for a

federal-state board. It notes that the states are among members of the
TSP

System Oversight Committee and suggests that if a board of state
commissioners

is established its review be submitted to that Committee. In any case,
it

opposes establishing a federal-state joint board for reviewing proposed
TSP

rules because the NCS Council of Representatives and NSTAC Task Force
have

already done so and have been subject to public review and comments.
Finally,

USTA supports only federal preemption necessary to implementation TSP.

13\. Discussion. The proposed scope of TSP rules, Section 4(a)(1)(b),
states

that domestic NSEP services include intrastate telecommunication
services that

are inseparable from interstate or foreign telecommunication services,
and

intrastate telecommunication services to which priority levels are
assigned. As

noted in the NPRM, we have jurisdiction over physically intrastate lines
that

carry interstate service. NARUC v. FCC, supra note 10. Moreover, it is
well

established that we may preempt state regulation when it is not possible
to

separate the interstate and intrastate components of the asserted
Commission

regulation. Louisiana Public Service Comm\'n v. FCC, 476 U.S. 355, 375
(1987) at

n\. 4. We also have a strong national security mandate from Congress,
expressed

in Section 1 of the Act. These principles permit us to preempt state
priorities

as needed, as we describe below. The intent of TSP is to establish a

national security emergency preparedness priority system that is
effective and

responsive. It is NCS\' position, and we agree, that the TSP System
cannot be an

effective mechanism for achieving national security emergency
preparedness

absent universal applicability. The Act requires that the FCC promote

the safety of life and property and ensure effective communications for
the

purpose of the national defense. To the extent the goals of universality
and

national security \-- seminal features of responsive telecommunications
used for

the national defense \-- require preemption of state priority systems,
we believe

the Act is clear.

14\. As a practical matter, we are not taking any preemptive action now.
The

preemption of a state telecommunications priority would occur only in
those

cases where there is a direct conflict between national and state
priorities for

the use of the same intrastate facility or service. If a state assigned
a lower

priority than did NCS to an intrastate service or facility and refused
to

recognize the higher national priority, the conflicting priorities for
that

inseverable service or facility and refused to recognize the higher
national

priority, the conflicting priorities for that inseverable service or
facility

would confuse and impede the administration of an orderly, responsive
national

TSP System. The resulting adverse direct and indirect impact on the
effective

implementation of TSP by such conflict could be significant. Unless

preempted by the national TSP System, the existence of conflicting state

priority systems would undermine the goal of TSP and the intent of
Congress

through Section 1 of the Act to promote the national defense. We
therefore find

that inclusion of intrastate services under Section 4(a)(1)(b) of the
TSP rules

represents a reasonable and necessary exercise of federal jurisdiction
under

Section 1 of the Act.

15\. We note that the local and state emergency services such as 911 can
be

accommodated within TSP, negating the need to include them under state
systems.

TSP, however, will continue to permit state systems to include these

services \-- unless there is a conflict. As discussed above, in the
event of a

conflict it would not be feasible to separate the operation of the
federal TSP

system from that of the state system. The federal system must
prevail,^11^ and

we would preempt. NCUC I, NCUC II, cf. Louisiana PSC, supra at n. 4.

16\. Switched, cellular, other services. The rules offered for comment
in

the NRPM included switched services, though the TSP System\'s
applicability to

the public switched network (PSN) would be \"limited to: (a)
provisioning of such

services . . . and (b) restoration of cellular services.\" In view of
NCS\'

explanation that the defense community\'s current need for restoration
priority

of switched services only extends to a few cellular systems, we sought
comment

on the practical effects of this limitation, viz., does the limitation
have an

effect upon the balance between the needs of NSEP interests with the
needs of

the general public in ensuring efficient service at reasonable cost? We
also

sought comment on the technical problems associated with restoration
priorities

for switched services, which might also apply to cellular systems. In
addition,

we asked what practical problems would follow eliminating the limitation

entirely, and whether there is any basis for concern that extension of
the TSP

System to the PSN would result in carriers claiming priority treatment
for all

circuits because of the inability to identify which circuit might carry
the NSEP

service. NPRM at para. 22. Finally, we asked interested parties to

comment on the appropriateness of including additional services, such as

air-to-ground service, in TSP.

17\. In AT&T\'s view, which is shared by Bellcore and most other
commenting

carriers, the proposed rules properly leave PSN restoration to the local

exchange carriers because the routes calls take through the local
exchange

carrier\'s (LEC\'s) network cannot be identified by the interexchange
carrier

(IXC). AT&T would retain the parenthetical reference to cellular in
Section

6(f)(2). For similar reasons, AT&T would limit applicability of
restoration of

cellular services to cell sites or dedicated trunking between cell sites
and

carriers\' control centers. Again for reasons of inability to identify
routing,

AT&T and GTE ask that \"virtual private line\" be deleted from the
definition of

\"Private NSEP telecommunication services,\" Section 3(k). AT&T explains
that

dedicated circuits are used to the LECs\' central offices, like PSN
lines, and

then to the IXC point of presence (POP); beyond that point the call
cannot be

identified, it claims. Bell Atlantic also claims that restoration of the
PSN is

not practical because once the PSN is disrupted most of it will have

to be restored before service can be provided to anyone. It proposes a
new

Section 6(f)(3) that would authorize telecommunications vendors to
restore the

PSN simultaneously with private line services which have been assigned

restoration priorities. Bell Atlantic petition, pp. 10-11. Bell Atlantic
would

also limit cellular restoration to the facilities between mobile service

switching offices and the first point of switching in the LEC office.
Pacific

Bell would leave restoration of the PSN to the Exchange Carriers
Standards

Association. Southwestern Bell adds that all control and orderwire
facilities

would have to be restored in order to effectively restore and operate
any NSEP

service which depended on the capacity and ubiquity of the PSN.

18\. Bellcore proposes amending Section 4(a) to codify the limitations
on

TSP\'s applicability to the PSN. It also proposes to include services
which use

private fixed facilities in the definition of private NSEP under Section
3(k);

and would specify switches, interoffice facilities and subscriber loops
under

the definition of public switched network facilities in Section 3(m).
Finally,

Bellcore and Pacific Bell would exclude custom calling features from

priority provisioning. For its part, BellSouth opposes the language in
the Note

to Section 4(a)(1) that permits \"unlimited expansion\" of other types
of public

switched service to be authorized in the future. GTE adds that the
ability to

restore, provide priority service during stress conditions and keep
track of

individual B-1 (business) and R-1 (residential) lines is beyond the
current

needs of NCS and not cost-justified. GTE also asks that the reference to
PSN in

Section 13(c), Essential NSEP, be deleted because that section includes

references to restoration.

19\. CTIA states that inclusion of PSN and restoration of cellular in
TSP

will require certain technical arrangements between landline exchange
carriers

and cellular carriers. It asserts that the benefits of inclusion far
exceed the

costs of denying availability of cellular service to national defense
and

emergency personnel in time of crisis. It states that the cellular
industry

does not intend to force exchange carriers to restore an entire cellular
system

for the purpose of providing service to only a few NSEP users. McCaw and

Telocator emphasize the technological developments forthcoming in

cellular service that they say will eventually permit identification of
trunks

carrying NSEP services to facilitate LEC\'s response to cellular
services

qualifying for priority treatment. McCaw urges the FCC to include
provisioning

of all switched services and restoration priority treatment of cellular
services

at initial implementation. GTE seeks inclusion of air-to-ground service

facilities to the LEC office to the extent needed to support NSEP
communications

needs. Southwestern Bell opposes inclusion of services such as
air-to-ground

until additional experience is gained under TSP. Teltec opposes
including

non-cellular PSN services in TSP, noting that radio common carriers
(RCCs)

should not be included because there is no apparent need for beeper
services

during an emergency that would justify diversion of scarce resources
away from

restoration and provisioning of vital NSEP services. It nevertheless
concludes

that restoration of entire cellular systems is necessary. US West
suggests that

the cellular industry and government develop standards for
distinguishing NSEP

cellular users from other cellular users so that priority trunks and
data

services can be restored in emergency situations. Pacific Bell notes

that mobile telephone switching offices are connected to local offices
and to

access tandems for IXC access via dedicated or PSN facilities. It
asserts that

where cellular communications utilize the PSN, priority restoral is not

feasible. It urges that cellular priority restoration for cellular
carriers

should be limited to those that do not utilize the PSN.

20\. Nynex states that cellular service is secondary and is used by a
limited

number of subscribers. Granting cellular TSP status, it argues, would
result in

cellular services being restored prior to basic telephone service upon
which the

public relies heavily in cases of an emergency or disaster. If cellular
is

included, it urges, TSP restoral should be limited to cellular systems
deemed

vital to national security and sponsored or endorsed by a federal
government

defense entity. Teltec agrees to inclusion of cellular but suggests that
other

PSN services would be counterproductive. It would include entire
cellular

systems because cellular trunk groups are uniquely identified by the

LEC, but PSN shared trunk group carriers cannot identify NSEP traffic
and this

would lead to carriers claiming priority treatment for all circuits,

Teltec asserts.

21\. NCS states that NSEP TSP assignments are only a small percentage of
all

PSN circuits so that a resource conflict between restoration of PSN and
private

lines supporting NSEP services will be rare. If that does happen, it
states,

the NSEP requirements are of higher priority. NCS wants vendors to
ensure that

a sufficient number of public switched services remain available for
public use

prior to preempting any PSN service to restore an NSEP service. In
response to

Bellcore\'s suggestion for FCC sponsorship of a forum to prepare generic
TSP

guidelines, NCS would rely on the TSP Task Force and Task Force Subgroup
formed

under NSTAC to provide industry representatives a forum for advising the

government regarding specific implementation issues. It notes that NCS
and

Bellcore are represented at TSP Task Force Subgroup meetings.

22\. In its reply, AT&T states that it is not feasible to apply
restoration

priorities to the PSN. Bellcore replies that restoration should be
limited to

identifiable circuits; vendors cannot segregate NSEP traffic within the
PSN and

carriers should have flexibility to restore the PSN. BellSouth agrees

that most of the network will have to be restored to restore any PSN.
CTIA

emphasizes the importance of cellular to provide service in a variety of

emergencies, including floods, prison riots, earthquakes, etc. In
response to

Nynex, CTIA says that no preferential treatment is sought, that
priorities will

be assigned as with anyone else for provisioning or restoration. CBT,
for its

part, would permit 911-type restoration coincident with dedicated
services. GTE

points out that Military Airlift Command relies on civilian aircraft to
augment

its airlift capabilities in the event of a national emergency and
therefore

air-to-ground services should be included. McCaw states that those
proposing

limits to cellular restoration ignore existing PSN priority treatment

capabilities being supplied or under development for NSEP service users,
though

it admits the various examples it cites are for provisioning. It also
states

that those proposing limits overlook delay caused (1-2 years) in
implementation,

i.e., time required for Rule Making and/or procedural changes. It
supports

air-to-ground and mobile satellite service inclusion but opposes AT&T\'s

suggestion to delete \"virtual private line\" from the definition of

private NSEP telecommunication services in Section 3(k) because (1) it
implies

that such services are not included, (2) exclusion would obsolete
emerging

capabilities and (3) they are needed to provide full service packages to
NSEP

customers. Finally, referring to Southwestern Bell and Bellcore, McCaw
states

that those proposing limits view NSEP TSP as circuit based rather than
service

based, and argues that cellular service users can be identified by use
of

software in the mobile or portable terminal. Telocator also notes, in
response

to Nynex, that tariffs have been filed and accepted which permit
priorities for

switched service users and additional technological developments will
unfold to

permit priority treatment of PSN. MCI, citing Bell Atlantic, asks that
the

rules permit priority restoration of any service that can be identified
as

carrying the calls of a particular NSEP customer.

23\. NCS opposes Bell Atlantic\'s assertion that the Commission should
retain

authority to overrule assignment of priorities for cases involving
restoration

of PSN and private lines. It says that this would split responsibility
for

priority level assignments between the FCC and EOP, and TSP in any

case is sufficiently flexible, using the National Coordinating Center
(NCC).

NCS does not oppose Bell Atlantic\'s proposal to authorize carriers to
restore

PSN services, e.g., 911, with private line services which have been
assigned

restoration priorities as long as local services can be provisioned or
restored

without delaying the priority provisioning or restoration of NSEP
services. In

response to Bellcore\'s claim that vendors have discretion to exercise
judgment

in allocating resources when dealing with major outages and conflicts,
NCS says

priority services must be restored first. Further, NCS does not propose

application of restoration priorities to PSN.

24\. Discussion. It is generally agreed that cellular radio should be

included as a service which may be assigned priorities under TSP. What
is not

agreed upon, however, is how much of the cellular system should be
included,

e.g., only cell sites or dedicated trunking between cell sites and
carriers\'

control centers. Similarly, there is division with regard to other
services

such as air-to-ground, satellite, etc. The purpose of TSP is to assure
that

telecommunications services can be provisioned or restored according

to their importance relative to other services in times of specified
emergency

conditions. We would unnecessarily limit the flexibility of TSP in the
future

were we at the outset to limit the kinds of services to which TSP might
apply.

Thus, cellular radio, air-to-ground and other services are potentially
no less

critical to emergency preparedness than interexchange private line
service,

which is included under RP. We do not agree with BellSouth or GTE that
Section

4(a)(1) should be restricted. Further, because it may be possible for
some

carriers to restore virtual private lines on a priority basis by
software

techniques, we think it unnecessary to remove the reference in Section
3(k) to

virtual private line, as AT&T suggests. TSP is intended to offer a
system by

which carriers are presumed not to be engaged in the provision of
unreasonable

preferences in violation of Title II of the Act if they prioritize
services to

users in accordance with TSP requirements and procedures. Carriers are
not

required to include services under TSP that they cannot provide. As a
general

rule, therefore, we will not limit the applicability of the TSP System
to any

specific service. The general PSN, however, as generally agreed upon

by the commenting parties, is not technically amenable to restoration
because

subscribers\' PSN services are not identifiable within the switching and

transport system hierarchy. We are amending the Note to Section 4(a)

accordingly.

25\. We believe the most efficient means for assuring optimal
flexibility and

response to emergencies requiring restoration of telecommunications
services is

to rely, to the extent reasonably possible, upon users and carriers to
determine

jointly the feasibility and availability of services that can be
restored under

a TSP priority. Sponsoring agencies and users are generally responsible
for

balancing the costs of seeking, maintaining and invoking service
priorities

against the benefits that are anticipated. Their incentive to limit
costs is

coincident with the goal of TSP to avoid the inclusion of services or
components

of services which technology does not allow to be restored on a priority
basis

or are exceptionally costly. As noted, not all services are necessarily
subject

to TSP priority assignment or restoration. For example, the record
indicates

that the means for cellular subscriber identification are not

available to permit end-to-end cellular restoration capability. It would
not be

appropriate for NCS to assign a priority to network elements that

carriers cannot restore, nor should users submit such requests to NCS.

Accordingly, we are modifying the scope of TSP, Section 4(a), to reflect
these

findings.

26\. Bell Atlantic has proposed a revised Section 6(f)(3) to authorize

vendors to restore the PSN simultaneously with private line services
which have

been assigned restoration priorities. NCS has no objection provided NSEP

priority services are not delayed. Our policy, as noted in the NPRM at
para.

19, is to balance the needs of NSEP interests with the needs of the
general

public. ^12^ The last sentence of Section 7(b) \[7(a)(1)\] provides that
after

ensuring that a sufficient number of public switched services are
available for

public use, such services may be used to satisfy a requirement for
provisioning

NSEP services assigned priority level \"E\" or restoring NSEP services
assigned a

priority level from \"1\" through \"5.\" This essentially follows the
existing RP

rules which state at 47 C.F.R. Part 64, Appendix A, para. 3(a), that
carriers

should insure "that a sufficient number of public switched network

services will remain available for public use.\" This approach evoked no

discernible problems during the implementation of RP and seems a
reasonable

approach for TSP that accommodates NCS as well as carriers and the
public.

This should also assuage Nynex\'s concern that inclusion of cellular
service in

TSP will result in that service being restored prior to basic telephone
service.^13^

27\. The suggestions of Bellcore with regard to the definition of
private

NSEP under Section 3(k) and inclusion of switches, interoffice
facilities and

subscriber loops under the definition of public switched network
facilities in

Section 3(m) appear to be useful clarifications. Exclusion of custom
calling

features, however, as suggested by Pacific Bell and Bellcore, seems an

unnecessary restriction in view of our decision above to encourage
flexibility

in the services to which TSP applies. Similarly, Teltec\'s opposition to

inclusion of RCCs in the TSP System would be restrictive and we prefer
in the

first instance to rely on the joint judgment of user and carrier, with
NCS and

FCC oversight, to determine which services should be included. Other
editorial

suggestions concerning, for example, the reference to public switched
services

in Section 13(c)\[12\]\[c\] may similarly unnecessarily restrict the
flexibility of

the TSP System. By rules of construction, the specific definitions and

explanations of intent set forth in this order should be sufficient to
clarify

the applicability of the rules.

28\. Delegation. In the NPRM we noted that several parties have
expressed

concern over what they consider over-delegation of authority from the

FCC to the EOP in the process of priority application and assignment. We
stated

at para. 26 of the NPRM that it is neither appropriate nor possible for
the

Commission to delegate to EOP, or others, the ultimate authority for
determining

whether preferences granted under the TSP System are unlawful. The
language of

the proposed TSP rules, we said, recognizes the authority of the FCC
over EOP

priority determinations and other responsibilities described in Section
6 of the

proposed appendix. We also said that we do not view delegation of

administrative responsibilities for TSP implementation as an
inappropriate

delegation of authority, particularly in light of the essentially
ministerial

nature of the initial priority assignment process, and given the RP
precedent.

We asked interested parties to focus upon proposed Sections 6(b)(2)(g)
and

6(f)(9), which seemed to offer open-ended Rule Making authority to EOP.
Because

it is not clear what limits on the scope of such EOP-generated
regulations and

procedures are contemplated, and given NCS\' likely use of additional
procedural

instructions, e.g., Directive 3-1 which provides TSP instructions to

the executive agencies, we asked NCS and interested parties to examine
the

intended meaning, potential impact, limitations and FCC oversight role
with

regard to these subsections. Finally, we asked interested parties to
comment

on the issuance of declaratory rulings to resolve questions regarding
EOP

procedures.

29\. Arinc states that delegation should be restricted to interpretation
of

substantive rules adopted by the Commission and that the EOP should not

promulgate substantive rules related to NSEP-TSP. Arinc cites Industrial
Union

Department v. American Petroleum Institute, 448 U.S. 607 (1980) and Kent
v.

Dulles, 357 U.S. 116 (1958), to support its assertion that the FCC lacks

authority to delegate substantive Rule Making powers to the EOP. Arinc
also

urges that EOP have in place appropriate procedures for adoption of

interpretative and administrative rules. AT&T urges the Commission to
maintain

close oversight over EOP-generated guidelines or rules in TSP
implementation.

It notes that RP did not permit EOP to issue rules and that EOP was
limited to

issuing forms, application and review procedures, etc. AT&T asks that
EOP be

required to file its proposed rules with the Common Carrier Bureau for

approval, and suggests that the Commission chair the proposed. Oversight

Committee, with NCS playing a major role in administering the TSP
System.

Ameritech favors use of declaratory rulings and urges that where
ministerial

functions would cause carriers to bear additional burdens solely at the

discretion of the EOP there is improper delegation. For its part, AAR
suggests

that EOP and the Commission arrive at a mutual understanding as to the
extent of

EOP\'s Rule Making authority.

30\. Bell Atlantic states that the Commission must review supplemental
TSP

regulations proposed by EOP. It concludes that Sections 6(a)(1),
6(b)(2)(g),

6(c)(4), 6(d)(11), and 6(f)(9) be amended to reflect that the FCC
retains

authority to approve, modify, or disapprove EOP regulations. Bellcore
adds that

all Rule Making should be done in accordance with the Administrative
Procedure

Act (APA) and final rules should not grant Rule Making authority to EOP.

BellSouth, however, states that delegation to EOP for initial priority

assignment is appropriate since the FCC has final authority for EOP
priority

assignment, including resolution of disputes. It too urges that EOP

must comply with APA requirements, which it notes require full notice
and

comment Rule Making. For its part, GTE urges that the EOP and NCS work
jointly

with industry to develop administrative implementation rules and
procedures for

the TSP System, with FCC review. It states that areas of dispute can be
handled

through abbreviated proceedings like declaratory rulings. McCaw does not
oppose

delegating Rule Making authority to EOP provided cellular and other
vendors are

not obligated to comply with such procedures until the Commission
reviews and

takes some affirmative action approving them.

31\. MCI states that the Commission bears full responsibility for

implementing the Act and while it may delegate ministerial functions the
rules

must be amended to clarify that NCS\' Rule Making authority extends only
to

regulations directly in aid of its administrative functions. It believes
that

the forthcoming operations manual issued by NCS will be so

substantial as to warrant approval by the FCC. It considers the
declaratory

ruling procedure as an inadequate substitute for a limitation on EOP for
NCS

Rule Making authority. US West favors delegation of administrative

responsibility to EOP but not Rule Making authority. Southwestern

Bell also expresses the view that the potential substantive impact of
EOP

regulations requires that the Commission allow review of EOP rules
adopted under

Section 6(b)(2)(g), and it notes that Section 6(a)(1) already provides
for

issuance of declaratory rulings for EOP procedures. It suggests that the

proposed rules lack a mechanism for affected parties to bring specific
issues to

the Commission\'s attention. Telocator adds that the Commission may use
Rule

Making, declaratory ruling, public notice or letter to act upon
supplemental

procedures adopted by EOP. USTA also opposes what it calls open-ended
and

unsupervised Rule Making authority delegation to EOP, except as
necessary at

times of conflict or other emergency. UTC avers that \"operation and
use\"

language in the proposed rules is too broad and goes to substantive
amendment of

the TSP rules. It urges that Section 6 be eliminated because, to the
extent it

delegates Rule Making authority to EOP, it exceeds the FCC\'s authority.

32\. NCS states that the rules adopted through EOP would be supplemental
and

consistent with the Commission\'s TSP rules. It argues that any party

viewing EOP\'s rules as exceeding Commission authority could seek a
declaratory

ruling from the Commission. NCS concludes that the proposed delegated
authority

is neither open-ended nor without Commission oversight. It argues that,
without

delegation, lengthy FCC Rule Making processes will be required. It notes
that

specific rules such as data elements, steps for reconciliation,
discrepancy

resolution and the like have been intentionally excluded from its TSP
proposal

to minimize unnecessary oversight.

33\. In its reply comments, MCI states that delegation of other than

ministerial functions to NCS would be unlawful abdication of
responsibility and

that NCS cannot impose substantive burdens on carriers. MCI suggests
that NCS\'

use of declaratory ruling procedure is improper. It states that the
FCC\'s

affirmative obligation to govern cannot properly be discharged through
exercise

of a veto power. GTE supports Pacific Bell in opposing substantive rules

without FCC review under the APA. Pacific Bell suggests that NCS and
industry

jointly develop operational details and specifications for TSP and
submit them

to the FCC for review, with substantive TSP rules promulgated under the

APA. It argues that the declaratory ruling procedure is not a

substitute for Rule Making because it occurs after rules are adopted.
For its

part, Southwestern Bell says that if NCS does not intend to acquire
open-ended

Rule Making authority, the rules should make that intent explicit. NCS,
in its

reply, notes that the Commission\'s rules provide for informal requests
(47

C.F.R. § 1.4) or petition for declaratory ruling (47 C.F.R. § 1.2) or
Rule

Making (47 C.F.R. § 1.401). It states that the proposed rules do not
grant

open-ended Rule Making authority to EOP. It also states that the FCC\'s
grant of

authority is limited to regulations and procedures supplemental to and

consistent with TSP rules and operation and use of the NSEP TSP System.

34\. Discussion. Under Section 202 of the Act, 47 U.S.C. § 202, it is

unlawful for any common carrier to make any unjust or unreasonable

discrimination in charges, practices, classifications, regulations,
facilities,

or services for or in connection with like communication service,
directly or

indirectly, by any means or device, or to make or give any undue or
unreasonable

preference or advantage to any particular person, class of persons, or

locality, or to subject any particular person, class of persons, or
locality to

any undue or unreasonable prejudice or disadvantage. By Section 1 of the
Act,

47 U.S.C. § 151, the Commission \"shall execute and enforce the
provisions of

this Act.\" The issue before us now is whether the \"issuance of
regulations and

procedures supplemental to and consistent \[with the TSP rules\]\" as
referenced in

Sections 6(b)(2)(g) and 6(f)(9) \[Sections 6(b)(2)(h) and 6(f)(11) under
NCS\'

revised proposal\] can properly be delegated to another agency.

35\. NCS offers no more than a general statement that its supplemental

procedures will be consistent with the Commission\'s rules. Because the

regulations and guidelines are not before us, we do not know whether
they will

require the Commission to engage a notice and comment Rule Making
proceeding

prior to their taking effect. Nor is there sufficient detail to provide
us with

an understanding of how NCS would assure that its supplemental
provisions will

remain \"consistent\" with the Commission\'s rules. On the other hand,
we know

from our experience with the RP System,^14^ as well as by NCS\'
assurances in

this proceeding, that in order to implement a reasonably efficient and

effective TSP System NCS must be afforded some procedural latitude. It
is

conceivable that a declaratory ruling procedure, or another less formal

approach, would permit an initial, fully participatory examination of
NCS\'

proposed guidelines \-- fulfilling the Commission\'s responsibilities
under the

Act \-- before the guidelines are effectuated. If the proposed
guidelines are of

the nature contemplated by AT&T, viz., strictly filing procedures,
and/or they

do not warrant initiation of a Rule Making proceeding, a declaratory
ruling

procedure will serve as an expeditious means for implementing NCS\'
procedural

guidelines. In any event, the Commission will decide the appropriate
procedural

vehicle for examining and resolving the issues contained in NCS\'
proposed

procedures manual when the manual is filed.^15^ The procedures manual
and other

NCS regulations or guidelines will not be effective until Commission
review has

occurred.

36\. Preemption. In the NPRM we discussed the need to clarify the
preemption

requirements proposed in Section 6(f)(5), which authorizes preemption of

existing switched or non-switched services to provide an NSEP service.
Several

parties sought further detail on how this would be accomplished, how
disputes

would be resolved and to what extent carriers that preempt commercial

non-priority circuits would be immune from liability. It was also
suggested

that a more flexible point of contact rule should be considered, i.e.,
24 hours

for small carriers may be burdensome. We asked interested parties to
comment on

these issues.

37\. AT&T states that revenues are lost from services that are preempted
by

higher priority services. It asks that the rules provide that service
vendors

may preempt or interrupt the services of users having lower or no
priority

status and that vendors who in good faith comply with such a request
shall have

no liability to users of interrupted services, or others. AICC states
that the

Commission is the only entity that can effectively generally ensure that

equivalent services receive the same assignment (and interruption in
inverse

order of priority level) under Section 7. Ameritech asks that

Section 7 provides that \"so long as a carrier acts reasonably in

preempting non-commercial users under the standards therein, it should
be

presumed to have complied with Part 64 guidelines.\" It feels that
preemption is

not a big problem in that there are generally space facilities
available, and

TSP requests should not divert all resources to TSP restoration. Bell

Atlantic offers a subsection to exempt vendors from liability due to
reasonable

actions taken in compliance with rules or at the direction of EOP or the
FCC.

It would also amend Sections 6(f)(5) \[6(f)(6)\] and 7 to expand the
requirement

that vendors must preempt and will not be liable for commercial damages.

Bellcore, Centel, NTCA, Pacific Bell and Southwestern Bell also would
change

Section 7 to hold vendors harmless for preemptive actions taken under
TSP. See

Bellcore Comments at pp. 7-8.

38\. MCI adds that immunity would remove possible obstacles to rapid and

flexible carrier response to NSEP needs. For its part, BellSouth states
that

carriers will want to include provisions in their tariffs limiting their

liability for damages resulting from good faith compliance with TSP

rules, and proposes the following additional subsection to Section 7:

\(d\) In any event, nothing contained within these rules shall be
construed to

prevent service vendors from including provisions limiting their
liability in

their appropriate tariffs and/or contracts as a result of good faith
compliance

with these rules.

39\. GTE suggests that if the rules allows interruption of service
without

customer consent to satisfy NSEP requirements, the Commission should
provide

protection from liability. Pacific Bell urges that consent of preempted
users

is not needed. It suggests that the rules provide that a user\'s consent
is not

required in order to preempt that user\'s service, and that a user will
be

notified when its service is preempted, if possible. It adds that
because all

emergencies are not anticipatable vendors should be given latitude to
make

preemption choices following generic guidelines authorized by the FCC.
US West

would add the following additional language to Section 6(f)(5)
\[6(f)(6)\]:

Any carrier required to preempt any customer, pursuant to the provisions
of

Part 64 of these rules shall be held harmless from liability should said

preemption cause any customer to sustain damages in connection with

said service interruption.

Teltec states that if there is no explicit immunity provision in the
rules,

Sections 6(f)(5) \[6(f)(6)\], 7(a) and 7(b) should be deleted. USTA also
believes

an appropriate limitation of liability provision is essential where the
priority

rules cause interruptions because of action that is directed by
government.

40\. NCS states that the purpose of Section 7 is to allow preemption
without

consent from affected users for \"E\" or restoral of \"1-5.\" Preemption
of

provisioning of \"1-5\", on the other hand it notes, requires affected
user

agreement. NCS believes it is inappropriate to specify under what
circumstances

carriers are to be directed by government to preempt non-government
users, since

the actual user may not always be readily identifiable. On the liability
issue,

NCS notes that under Palermo v Bell Tel. Co. of Pennsylvania, 415 F.2d
298 (3rd

Cir. 1969), reasonable actions by a vendor pursuant to FCC rules should
not be a

basis for liability. Also, under American Tel. & Tel. Co., 82 FCC 2d
370, 372

(1980), a carrier has a right to reasonably limit liability and this is
a

balance between rights of aggrieved customers and the public interest

in provision of telephone service at the lowest possible costs.
Moreover,

regulatory bodies have struck this balance by allowing vendors to limit

liability for ordinary negligence. Annual 1985 Access Tariff Filings, 2
FCC Rcd

1416, 1423; see also Lebowitz Jewelers, Inc. v New England Tel. & Tel.
Co.,

508 N.E.2d 125 (Mass. App. 1987). NCS asserts that vendors\' exposure is
not so

unique as to require an exemption or limitation of liability specific to
TSP.

41\. On the matter of 24 hour point of contact, Teltec states that it

supports Section 6(f)(3)(B) provided the requirement is satisfied by the

availability of a contact person \-- not the actual presence of
personnel. NCS

urges that the matter of emergency services and reports of outages is so

critical that the cost associated with maintaining a 24 hour contact is
not

burdensome. It suggests providing the home number of the contact person.
USTA

asks that a list be maintained at the NCC for LECs not represented at
the NCC.

42\. In their reply comments, most parties, including AT&T, Bellcore,

BellSouth, CTIA and US West agree that the rules should contain specific

language limiting service providers\' liability for claims of damages

because of good-faith action to comply with the rules. BellSouth, while

generally agreeing with NCS and Southwestern Bell on their comments with
regard

to consent, emphasizes that preempted users\' consent should not be
required to

exercise a priority level \"1 to 5\" for provisioning. It also states
that it is

not clear whether consent of the user whose service is to be preempted
is

required.

43\. GTE, in its Reply at pp. 6-7, claims that NCS uses \"preemption\"

inconsistently with regard to consent in Section 7 and suggests that the
term be

deleted and Sections 7(a) and (d) read as follows:

\(a\) Consent of the user whose service would be interrupted is required
to

interrupt that user\'s existing service to provision any NSEP service
assigned a

provisioning priority level from \"1\" through \"5.\"

\(d\) Service vendors may, based on their best judgment, determine the
sequence

in which existing services may be interrupted to provision NSEP services

assigned a provisioning priority of \"1\" through \"5.\" Such
interruption is

subject to the consent of the user whose service will be interrupted.

McCaw notes that cellular operators may be vendors, resellers or

interconnecting carriers and, under TSP, may have to preempt existing
services

to provide or restore service. It proposes adding a subsection to
Section 7

that would provide that service vendors shall not be civilly or
criminally

liable to any person for reasonable actions taken in good faith
compliance with

Section 6(f)(6) or Section 7.

44\. Southwestern Bell, in its reply, says that NCS misunderstands what

preemption means. It cites Summer v Mountain States Telephone and
Telegraph

Co., 21 Ariz. App 385, 519 P.2d 874 (1974), where the court held that

discontinuing intercept service was intentional and a limitation of
liability

clause was inapplicable.^16^ Southwestern Bell claims that where a

vendor intentionally terminates service under NSEP the traditional form
of

limitation of liability, which is no more than a limitation of damages,
is

inadequate and the vendor requires exemption from liability because the
act of

preemption is essentially compelled, though not controlled, by the
federal

government. NCS states that it has redrafted Section 7 which, it says,
should

resolve AT&T, Bell Atlantic, BellSouth and US West\'s concern regarding
leaving

discretion vendor for preemption of user service. NCS also

asserts that interruption without consent is referred to as ruthless

preemption but TSP rules without such preemptions would create a
meaningless

NSEP priority system. NCS claims the existing limitations on liability
are

sufficient and objects to AT&T\'s proposal that would recover from the
NSEP user

potential litigation costs or lost revenues, all of which it sees as

inappropriate in any case. Allowing unlimited charges would be an
economic

incentive to a service vendor to interrupt NSEP so that restoral charges
could

then be billed, NCS says.

45\. Discussion. The parties\' comments in response to our questions

concerning preemption focus on the matter of liability for carriers
engaged in

interruption, or preemption, of lower priority or non-priority services
under

the guidance and authority of the rules. Many of the commenting parties,
mostly

carriers, seek specific exemption from civil and criminal responsibility
for

actions taken pursuant to the TSP rules. Southwestern Bell relies on

Summer v Mountain States Tel. and Tel. Co., supra, but that case seems
to

suggest that inclusion of a liability limitation clause in the TSP rules
is not

necessarily assurance of exculpation, if malfeasance can be shown. The

essential purpose of TSP is to provide standards that permit carriers
responding

to NSEP provisioning and restoration priority requests to act lawfully
and avoid

violation of the proscription of 47 U.S.C. § 202 that makes it unlawful
for any

common carrier to engage in any unreasonable preference in connection
with the

provision of communications services. The rules themselves, without a
specific,

additional provision, offer the liability protection that the carriers
in this

proceeding seek because any claimant asserting unreasonable
discrimination or

preference has a heavy burden to show that the carrier had violated
Section 202

of the Act. Presumably, the carrier would answer that it had acted under
the

authority of the TSP rules, whereupon the burden of proof would shift to
the

claimant to show that the carrier had not complied with the TSP rules.
Were

there a liability exculpation clause in the rules, the claimant still
would have

to show that the carrier had not complied with the TSP rules. The RP

rules and our Declaratory Ruling on the NSEP Procedures Manual did not
include

an explicit clause ^17^ and we do not believe one is needed in the TSP
rules.

The existing legal framework is adequate to protect carriers from
actions

lawfully taken pursuant to the TSP rules, notwithstanding the increased
number

of potentially affected users. We therefore agree with NCS that no
change need

be made to Section 7 in this regard.

46\. We now turn to the language of Section 7 regarding the need for
consent prior to preemption. NCS has offered revisions that seem to
respond to several carriers' concerns regarding leaving discretion to
the vendor for preemption of user services. The new language provides
that:

a\. To provision NSEP services:

\(1\) User consent is not required to preempt any user\'s existing
service to

provision an NSEP service assigned a provisioning priority \"E.\"

\(2\) Consent of the user whose service would be preempted is required
to

preempt that user\'s existing service to provision any NSEP service
assigned a

provisioning priority level from \"1\" to \"5.\"

b\. To restore interrupted NSEP services: User consent is not required
to

preempt any user\'s existing service to restore any NSEP service
assigned a

restoration priority level from \"1\" to \"5.\"

c\. Sequence in which existing services may be preempted to provision
NSEP

services assigned a provisioning priority level \"E\" or restore NSEP
services

assigned a restoration priority level from \"1\" through \"5\":

\(1\) Non-NSEP services: If suitable spare services are not available,
then,

based on the considerations in this appendix and the service vendor\'s
best

judgment, non-NSEP services will be preempted. After ensuring a
sufficient

number of public switched services will remain available for public

use, based on the service vendor\'s best judgment, such services may be
used to

satisfy a requirement for provisioning NSEP services.

\(2\) NSEP Services: If no suitable spare for non-NSEP services are
available,

then existing NSEP services may be preempted to provision or restore
NSEP

services with higher priority level assignments. When this is necessary,
NSEP

services will be selected for preemption in the inverse order of
priority level

assignment.

\(3\) Service vendors who are preempting services will ensure their best
effort

to notify the service user of the preempted service and state the reason
for and

estimated duration of the preemption.

d\. Service vendors may, based on their best judgment, determine the
sequence

in which existing services may be preempted to provision NSEP services
assigned

a provisioning priority of \"1\" through \"5.\" Such preemption is
subject to the

consent of the user whose service will be preempted.

While this responsive proposal satisfies the complaints of several
commenting

parties, it perpetuates a problem that we believe must be solved if TSP
is to

function effectively, viz., the need for any prior consent.

47\. The rule proposed in this proceeding are intended to permit

the provisioning and restoration of NSEP services during periods of
national

\"emergency\" conditions (as defined in the proposed rules). The stated
purpose

of TSP, see Section 1(c), is to assure that \"the priorities established
can be

implemented at once when the need arises.\" The imperative for
successful

implementation is the expeditious exercise of service interruption or

preemption. Absent the resolute authority for carriers to act to achieve
this

end, rapid deployment of resources for provisioning needed services or
restoring

damaged services would be frustrated. The purpose of assigning priority
levels

to a qualified NSEP service is to reflect the relative importance of

that service under active national security emergency preparedness
conditions.

Thus, consent of an affected service user, i.e., one having no priority
or a

lower priority, before interruption or preemption of that user\'s
service is

inconsistent with the achievement of the stated purpose of NSEP TSP.
This is no

less true when a vendor must choose among similarly classified users,
i.e.,

users having identical levels of priority. The vendor, under TSP, is
given the authority to make a choice based on equitable and practical
technical factors. Further, the vendor remains subject at all times to
the prohibition of the Act if it acts unreasonably, e.g., by failing to
act according to the TSP rules and engaging in an unreasonable
preference.

Burdening the vendor with the responsibility to track user consent prior
to

preemption or interruption is untenable.

48\. Further, removal of the consent requirement eliminates a concern
some

carriers have expressed regarding their potential liability for
preemption of

commercial or other NSEP users\' services. They feel that failure to
secure

consent as required by the proposed TSP rules would subject them to
legal

liability. Without such a rule requirement, however, failure to obtain
consent

before preempting a user\'s service would not constitute a factual
predicate for

violation of the procedural requirements of TSP. It is probable that
during

NSEP actions consent disputes and authorization inconsistencies would
not be

resolved quickly, causing delays in service provisioning or restoration.
In

general, an environment in which vendors would be required to obtain
consent

from competing users of a valued service could introduce an unnecessary
complication in TSP implementation that would disserve the public
interest. In short, we view the right of consent by a user prior to
preemption of service under TSP as a barrier to the effective
implementation of TSP. Accordingly, we will modify Section 7 to remove
the need for user consent.^18^

49\. As to the 24-hour point of contact matter, we believe that the
intent of

Section 6(f)(3)(b) is to assure that a carrier representative is
available at

all times to initiate response to NSEP TSP needs. NCS\' proposed
revision would

require a 24-hour point of contact for receiving provisioning requests
for

Emergency NSEP services and reports of NSEP service outages or
unusability. No

party opposed NCS\' revision and we are of the view that it satisfies
the

original intent of the provision. If the point of contact requires the

availability of the home telephone number of a carrier\'s employee, we
leave that

choice to the carrier. USTA\'s suggestion that a current list of LECs\'
contact

persons be maintained at the NCC, while an efficient way to achieve a

centrally filed summary of contact persons, is probably better organized

independent of this proceeding by NCS. We will therefore not modify the
rule to

require such a list.

50\. Costs. In the NPRM we discussed the issue of carrier recovery of
TSP

expenses. The proposal itself, at Section 6(d)(5), provided that service
users

would \"\[p\]ay vendors any authorized costs associated with services
that are

assigned priority levels.\" Also, Section 6(f)(7) authorized service
vendors to

receive compensation for costs authorized through filed tariffs or
negotiated

contracts. Several parties urged, among other things, that the
Commission

develop a mechanism with specific provisions for common carriers to
recoup

initial expenses and subsequent implementation costs. We noted that
NCS\'

proposal specified two means of compensation for costs: tariffs or
contracts.

Some carriers, we said, may not be required to file tariffs; however,
dominant

carriers offering interstate services are under a statutory
responsibility to

file and maintain tariffs for their telecommunications offerings. We
noted that

there was some potential that the language of subsection (b) of

Section 6(f)(7) could be incorrectly interpreted to suggest that there
is an

exception to the Title II requirement that carriers offering interstate
services

reflect the rates, terms and conditions of those services in tariffs. In
order

to clarify that issue, we proposed alternative language for subsection
6(f)(7),

though we did not alter the language of NCS\' proposal in the appendix
to the

NPRM.^19^

\(7\) Receive compensation for costs through

\(a\) Provisions contained in properly filed tariffs; or

\(b\) Provision of properly negotiated contracts where the carrier is
not

required to file tariffs.

51\. We observed that it is not clear that the intent of NCS\' proposed

carrier cost recovery rule, i.e., to rely on tariffs or contracts, is

inconsistent with methods currently used by carriers, under RP or
otherwise. We

noted that Title II of the Act and the Commission\'s rules contain the
procedures

for filing, examining and challenging tariffs filed with the Commission.
We

also noted that all related support data are in the public domain,
subject to

petition or opposition. We asked interested parties to explain why

implementation of NCS\' proposal cannot be accomplished through existing

regulatory cost recovery mechanisms, and why existing accounting rules
and

Commission policies do not provide adequate guidance to identify and
allocate

costs. We emphasized that the Commission\'s fundamental policy is that
costs be

assigned to the cost-causative user, not the general ratepayer. We asked
that

parties who do not find these policies, practices and procedures
adequate to

suggest and justify new procedures or methods to accomplish effective
cost

review and cost-causative recovery. We also asked that such suggestions
be

fully explained and justified under Title II of the Act and the
Commission\'s

rules and policies.

52\. In their comments, Arinc, McCaw and USTA agree that using existing

regulatory cost recovery mechanisms and charging cost-causative users by
tariff

is appropriate. McCaw, however, suggests amending Section 6(f)(7)
\[6(f)(8)(b)\]

to read that \"tariffs are not required\" rather than \"the carrier is
not required

to file tariffs\" in order to recognize that service vendors which are
not

carriers are also entitled to compensation for costs through properly

negotiated contracts and avoid possible misinterpretation of the
Commission\'s

proposed revision. AICC and NCS state that they favor the Commission\'s
proposed

revision, though NCS adds that the language should read, \"Provisions
contained

in properly filed state or federal tariffs.\" Ameritech generally favors

recovery through tariffs, including the up-front developmental
expenditures. It

urges that tariffs for TSP cost recovery also include provisions for
expenses

for restoring preempted services.

53\. BellSouth and NARUC agree that cost-causers, i.e., service users,
should

be responsible for actual installation and restoration costs. NTCA,
Pacific

Bell and Southwestern Bell concur that general ratepayers should not
pay. NTCA

suggests that the National Exchange Carrier Association (NECA) develop a

standard TSP tariff for all carriers in order to reduce the burden on
small

carriers. USTA urges the Commission to consider a particular carrier\'s,
NECA\'s

and other tariff proposals designed to effectuate the TSP System. USTA
also

urges that TSP developmental and implementation costs be expensed
because all

parties are benefited. BellSouth asks that initial and ongoing

costs of TSP be recoverable by the service providers. It recommends

that a new subsection (c) be added to Section 6(f)(7) \[6(f)(8)\] to
read:

Costs shall include, but not be limited to, initial costs incurred in
the

installation and implementation of the NSEP system, direct costs
incurred as a

result of the expedited installation and emergency restoration of NSEP
approved

circuits to the end-user and on-going costs incurred in maintaining the
NSEP

system.

Nynex suggests that recovering costs from TSP users would be
\"exceedingly

difficult to administer.\" It states that it is not possible to
determine how the

costs will be allocated without knowing in advance the ultimate number
of TSP

users, and no estimates are available. It further states that the costs
for

each TSP user would vary based on the number of circuits involved. For
example,

it says, the Nynex region might have 2,000 TSP circuits while other
regions may

have more. It claims that the implementation costs for its region are

approximately \$ 2.2 million and the cost per circuit in the Nynex
region would

be about \$ 2,200 each, but could be less in other regions. It concludes
that

costs could be difficult to justify to customers and would be a

hindrance to full priority implementation.

54\. UTC, for its part, opposes costs being shifted from carriers to

individual users seeking restoration priority because the NSEP TSP
System is

intended to protect the general public through the restoration of
emergency and

essential telecommunications services.

55\. Centel states that specific tariff rate elements may be required,
but

existing cost allocation procedures and methods are adequate. It notes,

however, that implementation costs will not be covered by these tariff
elements.

GTE generally favors the Commission\'s proposed rewording of Section
6(f)(7)

\[6(f)(8)\] but suggests that details of implementation are needed to
determine

costs. Southwestern Bell argues that inclusion of intrastate services
and

facilities in the scope of TSP creates a problem with respect to
compensation

because the FCC\'s jurisdiction does not extend to pricing such
services. It

states that developmental and startup costs, the distinction between
routine and

special charges for activities such as service reconciliation studies,
and

whether costs will be recovered directly from NCS or from service users
through

new TSP tariffs all require FCC guidance. Section 6(d)(5), it urges,

does not identify either the party responsible or the method of payment
for

special administrative costs incurred in responding to record
reconciliation

requests. It questions whether the charge to all service users for
maintaining

restoration priority status should include a share of the special
administrative

costs or whether separate charges should be established to recover such
costs

only from service users that cause the special activity.

56\. MCI also agrees that existing regulatory mechanisms are sufficient
for

recovery of costs of development and administration of the TSP System,
but

states that tariff charges are difficult to develop with required
notifications

of circuit completion and database audits. US West states that carriers
should

be compensated for all costs associated with priority assignments
implemented by

request of EOP or any duly authorized agency, whether or not such
assignments

ultimately are approved by the FCC. Pacific Bell is concerned that the
proposed

rule does not address startup costs. System development, reprogramming,

developing standard procedures, training, and identifying and marking
certain

circuits are part of such costs, it says. Moreover, it continues,

some systems are unique to Pacific Bell. It urges that all costs to
implement

changes necessary to support the TSP System be identified and collected
and paid

for by NCS over a negotiated time period such as 24 months. As an
alternative,

it would assess monthly implementation charges for each circuit in TSP
until

costs have been recovered, though it notes that this would be difficult.
AT&T

suggests that costs of administration to enter orders, establish
restoration

procedures, establish and maintain data bases and file reports should be

recovered through charges to users receiving priority assignments, on a

one-time, non-recurring and/or monthly basis. It notes that AT&T Tariffs
FCC

Nos. 9 and 11 impose charges for changes in RP assignments. AT&T also
suggests

that less predictable costs, such as auditing, reconciling data, testing
and

evaluating TSP, and preparing special reports for NCS, should be rolled
into

charges to priority service users who benefit from NCS oversight.

57\. In its reply, BellSouth states that \"most\" parties agree with it
that

initial costs and ongoing maintenance costs are equally significant

to vendors and should be recoverable by them from the cost-causative
users

rather than general ratepayers. However, Cincinnati Bell states that it
is not

clear how costs of implementing and maintaining TSP would be recovered,
i.e.,

from the TSP user, NCS or ratepayers. McCaw supports NCS\' suggested
amendment

to Section 6(f)(7) \[6(f)(8)\], and favors existing regulatory and
contractual

cost recovery mechanisms, with only general guidance from the FCC on
cost

recovery. MCI urges that start-up costs be recoverable on a
non-recurring basis

under existing tariff rules, whereas monthly charges are more
appropriate for

on-going costs, such as restoration and administration. MCI states that

permitting carriers to assess charges against NCS as the direct causer
of the

costs (citing Pacific Bell) would ensure accountability for obligations
imposed

on vendors and would solve Nynex\'s concern regarding inability to
apportion

estimated start-up costs.

58\. NCS responds to Pacific Bell\'s suggestion, asserting that the NSEP
user

and not EOP is always the cost-causer. If NCS were to pay the costs, NCS

suggests, users would not be paying their full share of NSEP services,
leading

to more NSEP services than would likely be requested. NCS agrees

with current FCC policy that assigns costs to the end-user as the
cost-causer.

NCS states that it is continuing to work with the NSTAC TSP Task Force
to

determine the frequency of reconciliation and volume of reconciliation

information involved with vendor-to-vendor reconciliation activities
which are

necessary.

59\. Southwestern Bell urges that especially for emergency NSEP services

\[which specify recovery without regard to cost\], cost recovery
mechanisms must

be established in TSP early on, in sufficient detail to assure that
vendors\'

cost recovery will occur. GTE suggests that the FCC consider requiring
that NCS

contract with each service provider to cover the initial developmental
costs and

then have the day-to-day operating costs borne by the users when they
request

NSEP priorities. This, it claims, would more fairly allocate the

quantity-independent development costs to the true cost-causer and not
result in

geographically varying costs. It urges that audit and reconciliation
costs be

charged directly to NCS whenever it requests such services. In any

case, GTE says, costs cannot be determined until NCS provides firm

details of its requirements and quantities involved, e.g., data
elements, steps

required during reconciliation, how discrepancies are to be resolved,
media and

format for information, how service vendors are to provide information
to EOP,

how revised or revoked priority levels should be handled, how users
provide

information to EOP and how users provide EOP-designated service
identification

and assigned priority levels to service vendors. GTE notes that NCS has
used

the term \"EOP designated service identification\" (a 12-digit code)
that it

asserts may be either a new requirement or simply unapproved terminology
for a

previously identified requirement. GTE advocates settling the details
first,

before costing or implementation can be determined. Telocator concludes
in its

reply that additional tariff requirements for NSEP services are
unnecessary.

Finally, USTA states that all costs, both recurring and non-recurring,
should be

expensed in the year the cost is incurred, under Part 32. Tariffs are
the

correct vehicle, it concludes, but the FCC should verify that the
government

budgetary process will be able to accommodate the tariffs covering the

non-recurring developmental costs; the FCC should also require that

agencies provide accurate forecasts of volumes of circuits required \--
before

tariffs can be developed.

60\. Discussion. The essential question posed in the NPRM was who should
pay

TSP costs: the general ratepayer, users such as federal agencies,
taxpayers or

NCS. The Commission\'s policy, as noted in the NPRM, is that the
cost-causative

user should be responsible for charges incurred by its request for a TSP

priority or its use of TSP-related services. UTC\'s argument, which is
basically

that the general ratepayer is the ultimate beneficiary of TSP \-- and
should

therefore pay for it \-- is not without merit. Indeed, the purpose of
TSP is to

provision or restore facilities that are essential to the national
security, and

the general ratepayer is the most broadly identifiable user of the
national

telecommunications network. But the cost-causative user of NSEP

telecommunications services is not the ubiquitous subscriber to the
public

switched service or the beneficiary of the TSP service ^20^\-- it is, as
the term

\"causative\" suggests, the entity that requests and invokes TSP
priorities, viz.,

the service user as defined in Section 3(s) \[3(t)\] of the TSP
rules.^21^

Ultimately, of course, taxpayers pay for the TSP System because the TSP

service user is generally a government body, but taxpayers do not
directly

request priority classifications or invoke NSEP TSP activities \-- the
service

user does. In short, by assigning the costs of providing TSP System
priorities

and services to \"users\", the Commission\'s policy of requiring the
cost-causative

subscriber to pay for the services provided is furthered. Moreover, no

commenting party has offered a convincing showing that this policy
should not be

applied with regard to TSP. For these reasons we also reject the notion
that

NCS itself should be responsible for funding any of the carriers\'
start-up or

administrative costs.

61\. Most parties agree that the proposed tariff and contract mechanisms
are

suitable means for carrier compensation of TSP-related costs. Several
parties

commented on the proposed language of Section \[6(f)8\] and the revision
offered

by the Commission in the NPRM, cited supra. McCaw\'s suggestion that the

language \"tariffs are not required\" rather than \"the carrier is not
required to

file tariffs\" in subsection (b) of the proposed revision, in order to
recognize

that service vendors which are not carriers are also entitled to
compensation

for costs through properly negotiated contracts, seems unnecessary. The
plain

meaning of the section is to require either a tariff or a contract. A
carrier

that is not required to file tariffs is embraced by the scope of the
existing

language, and that subsection does not apply to non-carriers. In fact,
until

invocation by the President of Section 706 of the Act, the TSP System
rules are

limited by their own terms to common carrier services.^22^ NCS would add
\"state

or federal\" to our proposed revision to subsection (a), so that it
would read,

\"Provisions contained in properly filed state or federal tariffs. . .
.\" While

it is not clear what other kind of tariff NCS contemplates, since

state and federal tariffs are the only tariffs we believe would be
considered in

the context of TSP, we see no harm in the suggested language.

Services which are provided by government and/or non-common carriers and

\[which\] are interconnected to common carrier services assigned a
priority level

pursuant to section 9 of this appendix.

The extent to which non-common carrier services, systems or facilities
are

subject to or protected by pre-706 TSP System rules is limited by the
degree to

which the common carrier vendor uses those services, systems or
facilities to

provide its common carrier services, systems and facilities. This does
not

preclude NCS from using an alternative interpretation in discussions or

negotiations with parties not subject to Title II of the Act to
establish

analogous provisioning or restoration priorities. See, e.g., AAR
Comments at

pp. 3 and 6. This also resolves the question raised by AT&T concerning
the

Commission\'s authority over equipment vendors who sell equipment to
others for

direct connection to the network.

62\. The bulk of comments on the cost issue concern what cost elements

carriers may seek to recover, and when. Various carriers suggest that

administrative, start-up, software development, reconciliation, audit,
standards

and procedures development, training, database maintenance, system
testing,

report preparation and other costs be specifically recoverable under
TSP, either

on a recurring or non-recurring basis. It has also been noted that a

significant number of carriers will not be subject to subject to
Commission

review prior to their provision of TSP service. This is because local
carriers

and interstate non-dominant carriers, both of which are subject to the
TSP

rules, are not required to file TSP tariffs with the Commission.

63\. Under the RP System, we relied upon interstate carriers to file
tariffs

using historically acceptable practices and we have received no reports
of abuse

or complaint. When the RP System was developed, carriers were generally
subject

to the tariff filing requirements of our rules and AT&T was the primary

interexchange carrier, with its subsidiary Bell Operating Companies and
other

carriers concurring in its tariffs. Now, in a more deregulated
environment and with a TSP System that is vastly expanded, AT&T\'s
tariff filing no longer represents the bulk of the industry or
necessarily serves as for other carriers. Instead, we look to three
possible alternative means to check carriers\' use of improper
accounting or cost recovery

methodologies or practices. First, dominant interstate carriers, as
before, are

required to file tariffs with the Commission, and non-dominant
interstate

carriers may file such tariffs. These tariffs must comply with the
practices

set forth in Part 61 of the Commission\'s rules and are subject to
review and

opposition by any interested party, including NCS or a service user.
Further,

the Commission\'s accounting standards, embodied in Part 31 of the
rules, provide

means to identify and prevent interstate carriers\' subsidization of
competitive

services by monopoly services, i.e., cross-subsidization, or
misallocation of

costs between intrastate and interstate accounts. Failure to comply with
these

restrictions may subject the carriers to substantial penalties, and/or
rejection

of the tariff. It would appear that preliminary installation and
implementation

costs, direct costs associated with database development and recurring

administrative costs, could be reasonable components of tariff-based
charges.

Second, the states will continue to apply their regulatory oversight
procedures

to the rates, terms and conditions of intrastate TSP services, much as
the

Commission does with dominant interstate vendors. Third, carriers
engaging in

contractual TSP negotiations with service users will be competing with
other

carriers on the basis of price and service factors. By their budgetary
and administrative review requirements, TSP service users can be
expected to exercise diligence in negotiating TSP service agreements
with carriers, challenging questionable accounting provisions and
disallowing excessive or inappropriate charges.

64\. We believe that the boundaries established by these regulatory and

market mechanisms provide sufficient guidance to carriers as they embark
on

developing their tariffs or engaging in contract negotiations for TSP
services.

It is incumbent upon service users to examine closely the accounting

methodologies and cost figures used by carriers with which they
contract.

Finally, for interstate carriers, both dominant and non-dominant, our
Title

II complaint procedures are available where violation of law is alleged

or apparent. We do not believe it is necessary in this proceeding,
therefore,

to establish new standards or accounting guidelines for carriers in the

provision of TSP services. The existing regulatory and market mechanisms
appear

adequate to assure the TSP cost accounting methodologies are conducted
in the

public interest. We remain available, however, to address specific
instances of

anticompetitive conduct or excessive cost allocation by carriers under
our Title

II complaint procedures.

65\. Procedures. In the NPRM we observed that NCS\' proposal did not
commit

NCS to respond to TSP priority requests within any specified time. We
expressed

the belief that some guidance or limit would be appropriate. We asked

interested parties to offer comment on an amendment to Sections
6(b)(2)(a) and

\(b\) that would require NCS to act within 30 days upon receipt of
requests for

priority assignment. We also asked interested parties to comment on the

procedures necessary, e.g., under the APA, to respond to requests for
review of

priorities. NPRM at para. 32.

66\. Most parties commenting on our 30 days NCS response proposal

favored it, agreeing that review of priority assignment requests by NCS
should

have deadlines. Arinc added that applications for review of EOP
assignments be

automatically stayed pending appeal to the Commission.^23^ McCaw would
require

NCS response to requests for \"essential\" priority assignments within
30 days but

5 days for \"emergency\" level requests. MCI recommends a 7 to 10 day
response

requirement. Southwestern Bell favors five days for \"essential\" and
immediate

action for \"emergency\" provisioning priority requests, stating that
actions

based on requested but not yet authorized priority levels will result in

increased costs and increased risk of error. Telocator favors NCS
response to

requests for \"essential\" priorities within 30 days and 3-5 days for
\"emergency\"

requests. Centel and UTC favor the Commission\'s 30 day proposal. UTC
also

advocates the Commission acting within 30 days on assignment appeals.
NCS, for

its part, states that hearings are not authorized under the APA \[5
U.S.C. § 554\]

for appeals of priority assignments. NCS Comments, pp. 29-30. Also, NCS

objects to the 30 day requirement, stating that it will initiate
processing

requests within 24 hours for \"emergency\" priority action requests and

respond to \"essential\" requests as soon as possible. It further states
that it

expects to process all priority requests in less than 30 days, but
opposes the

30 day limit.

67\. In its reply comments, McCaw urges that more than good intentions
are

needed and that reducing the period to 7-14 days is justified in view of
NCS\'

assertion that less than 30 days is actually necessary. MCI suggests
that

deadlines should apply to actual issuance of the priority assignment,
not

initiation of NCS review. Telocator urges that NSEP service providers
need

certainty regarding when they will receive a response from NCS on
priority

assignment requests. NCS replies that its opposition to 30 days does not
imply

that it expects a long response time, e.g., 30 days is irrelevant under
the \"E\"

classification. It again asserts that rigid time frames are

unnecessary.

68\. Discussion. Apart from NCS, no party has opposed our proposal to

establish a time limit on EOP for responding to priority requests. We
continue

to believe that such a limit is a necessary adjunct to efficient and
responsive

TSP System implementation. Several parties urged a shorter response
requirement

than the 30 days we proposed; only NCS argues that a 30 day requirement
is

unwarranted. As McCaw notes, NCS states that it will process requests in
less

than 30 days, which would suggest that the 30 day requirement would not

significantly burden NCS. We do not believe that a shorter period than
30 days

is advisable because during the first year of implementation NCS may
find it

difficult to accommodate the initial onslaught of TSP priority requests.
As

experience grows we believe the 30 day period will become an
increasingly

distant time boundary.^24^ For these reasons, we believe that 30 days
represents

a reasonable initial limit for NCS and we will adopt that in Sections
6(b)(2)(a)

and (b).^25^ Response to requests for emergency category priority
assignments

will be handled by NCS in an expedited fashion and do not require a
specific

time limit. Parties experiencing delays in securing interim priority

assignments from NCS may direct inquiries or complaints to the
Commission.^26^

69\. The current procedure for appeals is contained in Section 12 \[11\]
of the

TSP rules. We believe that revision of that section will expedite the
TSP

appeal process as well as provide participants with more detailed notice
of the

procedure they must follow. Before submitting an appeal to the
Commission, we

believe it more appropriate that EOP be given an opportunity to review

its initial decision since, as a practical matter, the FCC will not
routinely

revise initial EOP assignments. Only then does it seem necessary to
involve

formal Commission review. We will adjust Section \[11\] accordingly.
Service

users and sponsoring federal organizations may appeal any priority level

assignment, denial, revision, revocation, approval or disapproval to EOP
within

30 days of dispatch of notification by NCS of the assigned interim
priority to

the service user. Such appeals will be submitted using an appropriate
form or

format and a copy must be sent to the Commission. EOP will issue its
decision

within 90 days. Service users and sponsoring agencies, if still
dissatisfied,

may then file an appeal with the FCC.^27^ The party filing the FCC
appeal must

include factual details supporting its claim of priority assignment
error and

will serve a copy on EOP and any other party directly involved in the
matter.^28^

Any interested party may file a response with 20 days, and a reply
within 10

days thereafter. No public notice of such appeals will be issued. The

Commission will notify the parties participating in the appeal of its

decision. The rules will be amended to reflect these changes. See
Section

\[11\].

70\. Multiple service facilities and orderwires. At para. 33 of the NPRM
we

indicated that AT&T supported proposed Section 4(b), which provides that
control

services and orderwires (internal network management circuits) have
priority

over all other telecommunications services and are exempt from priority

interruption. AT&T also recommended that Section 6(f)(2), which permits

broadband and multiple service facilities to be restored even if \]

they carry mostly non-NSEP tariff, be included within the Section 4(b)

exemption. We agreed with NCS that AT&T\'s position would result in an
automatic

exemption and elevation to exempt-priority status any multiple-channel
facility.

We nevertheless welcomed interested parties to comment further on
AT&T\'s

position.

71\. Teltec disagrees with AT&T\'s proposal because it would allow AT&T
\"to

scatter NSEP services across many facilities, elevating all AT&T

wideband facilities to high priority.\" It favors classifying control
services

and orderwires as exempt. Teltec also asks whether CCS #7 (central
office

switch) is covered by Section 4(b). For its part, GTE states that
control

services and orderwires may be obtained from other carriers so they
should be

exempt no matter who owns them. It proposes assigning a unique priority
level

code for these services, or allowing use of \"priority 1\". USTA favors
such

services automatically receiving exempt priority. NCS proposes to revise

Section 4(b) to exempt these services from \"preemption\" instead of

\"interruption\". In its reply, Bellcore supports GTE and would assign
orderwires

a special priority code to assure immediate restoration, though it also
states

that there is no need to include them in TSP since they can be
identified and

given proper restoration emphasis.

72\. Discussion. It is generally agreed that control services and
orderwires

should be treated differently from telecommunications services generally
offered

to users.^29^ The rationale is that facilities used for these purposes
are the

essential internal means by which the underlying network is managed

and controlled. The commenting parties are divided only as to whether it
would

be more useful to assign these services a special or high TSP priority
or, as

NCS as proposed in Section 4(b), it would be best to exclude them from
priority

assignment entirely. We believe that Section 4(b), which excludes
underlying

carriers\' control services and orderwires from TSP, represents the most

practicable means of assuring that the integrity of the network remains
intact.

Assigning control services and orderwires priorities under TSP would
invoke

procedures that would unnecessarily burden both carriers and NCS and
would

potentially undermine TSP responsiveness. Moreover, it is not clear that

carriers\' internal operations are the proper subject of TSP since they
are not

services offered to users and are therefore not subject to all
provisions of

Title II. For these reasons, we will adopt NCS\' proposal, including its
change

of \"interruption\" to \"preemption\" in Section 4(b).

73\. The matter of broadband or multi-channel facilities or services

receiving Section 4(b) treatment by virtue of a single embedded control
or

orderwire service presents a Hobson\'s choice. Denying Section 4(b)
status to a

multi-channel or broadband service that unavoidably carries an orderwire
or

control service would defeat the intent of the TSP System to exempt
control and

orderwire services. On the other hand, granting the entire facility or
service

exempt status by the presence of a single control or orderwire service
could

result in elevation of otherwise non-NSEP services to Section 4(b)
status. The

lesser evil, of course, is to choose the latter and expect that carriers
will

endeavor to separate their control and orderwire circuits from other
bulk

facilities \-- where they judge it technically and operationally
advisable.

Since underlying carriers cannot charge users a premium under TSP for
exempt

Section 4(b) services, the incentive for abuse would seem minimal.^30^

Nevertheless, we remain ready to respond to any complaint concerning
marketing

of facilities or services that are accorded Section 4(b) treatment,
other than

to other carriers for control or orderwire purposes. Consistent with

the foregoing, we will adopt Section 4(b), as amended.

74\. Resellers. In the NPRM we noted that the proposed TSP rules are
similar

to the RP rules with regard to the treatment of resellers except that
the TSP

rules would not require concentration of priority resale services in a
minimum

number of underlying facilities. The purpose of this change, we stated,
would

be to avoid a possible adverse impact on the survivability of NSEP
services,

i.e., by encouraging diversity. The TSP proposal requires that the
highest

priority level assigned to any service using an underlying facility
would

determine that facility\'s priority level assignment; a single NSEP

circuit could cause all non-NSEP circuits on a facility to effectively
have the

same priority. As a result, we said, resellers who strategically
distribute

their NSEP with their non-NSEP circuits among a variety of facilities
could gain

a competitive advantage over the underlying facility vendors. The
vendors would

be required to restore all of the resellers\' circuits before restoring
some of

their own customers\' non-NSEP circuits. In response to a suggestion by
AT&T

that deleting the proposed reseller rule section would void the problem,
NCS

replied that this would probably cause continual disagreement between
resale and

underlying facility carriers and create a competitive disadvantage for
resale

carriers in supplying NSEP services.

75\. One possible alternative, we offered, would be to have the
distribution

of services among underlying facilities subject to FCC review, and the
desired

distribution specified by the customer rather than the reseller or
vendor. We

said it would be useful to know the extent to which priority reseller
services

could be restored on a circuit by circuit basis because this would avoid
the

problem of having to restore a group of circuits to accommodate a

limited number of priority services. We asked interested parties, in
addition

to commenting on this or alternative approaches to the reseller issue,
to

provide data regarding the extent to which users served by resellers
will seek

TSP priority, i.e., the percentage of TSP services likely to be handled
by

resellers.

76\. AT&T claims that NCS\' proposal forces it to give competing OCCs
\[other

common carriers\] and resellers priority restoration of all leased
circuits if a

single circuit qualified for priority treatment. According to AT&T, the

underlying vendor might have to preempt its own bank of facilities to
provide a

pipe for a reseller, losing revenues for the unused circuits. It adds
that the

alternative, for customer specification of distribution of circuits
among

underlying facilities, would satisfy neither the vendor nor reseller.
The

vendor can best determine optimum routine for prompt provisioning and

restoration and neither the customer nor the FCC can manage service
vendor

networks. FCC involvement, it says, would burden administering TSP and
delay

implementation of TSP priorities. It states that Sections 3(t) and
6(f)(4)

treat resellers as service vendors and require cooperation. This,

AT&T argues, is enough to assure fair and appropriate restoration of
reseller

circuits. The underlying carrier would restore priority circuits without

restoring non-priority circuits, if feasible, and would not have to
discriminate

against its own customer, AT&T states. AT&T would delete Section 8 and
rely

instead on the generic requirement that all service vendors must
cooperate with

each other to restore priority circuits.

77\. Ameritech states that under today\'s technology it is generally

not possible for a carrier to designate a TSP classification for
individual

circuits assigned to a non-channelized facility provided to an end user,

interexchange carrier, or reseller. Only entire \"pipes\" can be
assigned TSP

designations. To prevent abuse by resellers who would spread their
circuits out

through multiple \"pipes\". For its part, Centel states priority
restoration

treatment of an entire facility because a TSP circuit is on the facility
should

be by industry guidelines, and not by the customer. The FCC can then
review the

results, within a reasonable time limit. In any case, it says, the
customer

should not be allowed to determine distribution of circuits. If the

customer is permitted to choose and non-TSP circuits are not permitted,
the

carrier should be compensated by the customer for vacant, unused
capacity which

the carrier otherwise would have been able to use.

78\. GTE favors the end user specifying the distribution of its NSEP

circuits, which would than be reviewed by the FCC. GTE\'s concern is
that

resellers and facilities-based carriers each receive a level playing
field. GTE

states that it cannot offer any number of TSP circuits likely to be
carried by

resellers, that this information is only obtainable from the government.
McCaw

suggests that the proposed rule regarding resale carriers be amended to
read,

\"Resale and Interconnecting Carriers\", and offers several language
changes.^31^

It opposes underlying facility carriers determining the distribution or

interconnection of reseller-supplied NSEP telecommunication services.
McCaw

will work with carriers and/or users \"to help separately identify NSEP
services

to them.\" McCaw Comments, pp. 12-13. MCI states that facility
dispersion could

require restoration of non-priority circuits and dilute the ability of
carriers

to respond to other NSEP needs. It suggests that the simplest way to

maximize a carrier\'s ability to respond to NSEP needs is to require
resellers to

concentrate NSEP service in a minimum number of facilities. It adds that
if

survivability of a circuit is required, the end user of reseller can
order route

diversity services.

Certain telecommunications service vendors to not own any or all of the

transmission facilities used to provide telecommunications services.
They rely

instead, in whole or in part, on facilities leased from other
telecommunications

vendors. These resale or interconnecting carriers may provide services
that

qualify for priority level assignment. In order for the priority level

assignment to have practical value, it must also apply to the service
leased by

the resale or interconnecting carrier from other telecommunications
service

vendor, such that the highest priority level assigned to any service
using the

underlying facility will determine that facility\'s priority level
assignment.

Resale and interconnecting carriers must also ensure that
telecommunication

service vendors supplying underlying facilities are provided information

necessary to implement any priority levels assigned to resale or
interconnecting

carrier services.

79\. Southwestern prefers that the rules restrain abuse of NSEP by

intermediary service vendors. Otherwise, it argues, they can
strategically

distribute NSEP circuits among all circuits purchased so that they will
have

rendered all their services/facilities NSEP, and market to their
advantage. It

urges the FCC is pursue data collection concerning percentage of TSP
services

likely to be handled by resellers. Pacific Bell states that the problem
of

resellers\' distributing their services among many facilities is common
to all

carriers and is no more than a marketing tool. Pacific Bell believes

non-disclosure of NSEP services is in the national interest because this
will

prevent marketing abuse. Teltec disagrees with AT&T\'s original proposal
to

delete the reseller provision. It doesn\'t want FCC review of
resellers\'

distribution of services among underlying facilities because these are
basic

business decisions and it would involve millions of circuits.

80\. USTA urges that \"resale circuits generally should be excluded from
TSP

system inclusion because of administrative and cost problems.\" USTA
Comments, p.

5\. It states that a circuit resold to the government or other priority

customer might not be known to the underlying facilities-based carrier

and restoration of that circuit would be impossible without either
specific

advance circuit identification or unnecessary restoration of other
circuits in a

trunk. NCS states that NSEP services provided by resale carriers must be

recognized by the provider of the underlying services and treated
according to

Section 6(f) of the TSP proposal. It would incorporate the intent of
Section 8

into Section 6(f), and delete Section 8. This, it suggests, would
clarify the

equal application of the proposed rules to all service vendors.

81\. In its reply, AT&T withdraws its earlier support for Section 8 and

substitutes NCS\' revised Section \[6(f)(5)\], which provides:

All service vendors, specifically including resale carriers, are
required to

ensure that service vendors supplying underlying facilities are provided

information necessary to implement priority treatment of facilities that
support

NSEP services.

AT&T views resellers as service vendors and states that rules should not
grant

preferred restoration rights to resellers over underlying carriers. GTE
also

agrees with NCS that there should be equal application of the proposed

rules to all service vendors. It also supports Pacific Bell\'s
suggestion that a

non-disclosure rule could help avoid marketing abuse.

82\. McCaw does not agree that reliance on \"service vendor
cooperation\" is

adequate as a replacement for Section 8. It urges that specifying the
rights of

resale and interconnecting carriers would not provide resale or
interconnecting

carriers with a competitive advantage, but would prevent them from being

subjected to a competitive disadvantage. It argues that if Section 8 is
deleted

the Commission should clarify that Section 6(f)(4) requiring cooperation
also

requires all service vendors to provide equal and non-discriminatory
treatment

to a vendor\'s affiliated entities and resale and interconnecting
carriers.

Also, McCaw calls attention to NCS\' proposed Section \[6(f)(5)\] that
includes

\"specifically including resale carriers\" but does not include such
language in

Section 6(f)(4) regarding the obligation to cooperate.

83\. In its reply, NCS states that the decision to restore on a priority

basis the entire facility or the single service should reside with the
service

vendor providing service to the reseller. NCS prefers a more flexible

approach than MCI\'s request that resellers be required to concentrate
NSEP

services in a minimum number of facilities. It suggests that the
determination

as to which NSEP services are assigned to which facilities be left to
vendors,

using contracts. In response to Southwestern Bell\'s suggestion that

facility-based carriers use the Commission to resolve cases of TSP
abuse, NCS

notes that Sections 6(b)(2)(i) \[6(b)(2)(j)\] and 6(f)(2)(e) already
provide for

the Oversight Committee and EOP to resolve conflicts. Nothing else is
needed,

NCS argues. NCS also concurs, for national security reasons, with the

suggestion that information regarding facilities that contain NSEP
services

should not be disclosed to those not having a need-to-know. NCS would
add a new

Section 6(f)(11) that would require service vendors to \"not disclose
information

concerning NSEP services they provide to those not having a
need-to-know, and

not disclose this information in order to offer preferred restoration to

potential or actual customers.\"

84\. Discussion. In the RP System we adopted a rule that required

concentration of resellers\' priority facilities onto the minimum number
of

underlying facilities. The rationale for this approach was to avoid the
consequential elevation of underlying facilities to priority status, an
appropriate objective given the ability of most carriers at that time to
identify and/or segregate facilities assigned RP priorities. Now,
however, services are not necessarily associated with specific
facilities. Today\'s networks use a variety of transmission techniques
to interlace disparate

services onto one facility, e.g., through digital encoding and time
division

multiplexing. The proposed TSP rules respond to these evolutionary
changes by,

inter alia, focusing on services rather than facilities.^32^

85\. Section 8 of the proposed rules provides that any facility carrying
a

reseller\'s priority service will itself carry that level of priority.
The

difficulty of this approach, as noted in the NRPM and by several
commenters, is

that the dispersion of a reseller\'s priority services could result, by
the

nature of trunking, in a multiplicity of the reseller\'s non-NSEP
facilities

being restored before the underlying carrier\'s non-NSEP services, and
resulting

in loss of revenues to the underlying carrier for facilities it must
take out of service to satisfy the reseller\'s priority needs. Based on
the comments, there is inadequate support to invoke our proposal to
subject the distribution of services among underlying facilities to FCC
review, with the desired distribution specified by the customer rather
than the reseller or vendor. We agree with AT&T that FCC involvement in
this process would

potentially delay TSP implementation or, as Teltec suggests, require
review of

an enormous quantity of circuits. Commenters generally do not favor
customer

specification of service distribution, which purportedly would lead to
more

administrative problems that it would solve. GTE\'s view, that customers

specify the distribution of NSEP circuits, would require FCC review,
which we do

not believe is justified. MCI\'s position, to require concentration of
NSEP

services in a minimum number of facilities and require the end user or
reseller

to order route diversity for increased survivability, seems
unnecessarily

inflexible.

86\. In the NPRM we asked interested parties, in addition to commenting
on

alternative approaches to the reseller issue, to provide data regarding
the extent to which users served by resellers will seek TSP priority,
i.e., the percentage of TSP services likely to be handled by resellers.
No party offered any hard data to aid in resolution of this issue.
Nevertheless, in the absence of such data, we would not exclude resale
circuits generally from the TSP System, as USTA urges in its comments. A
substantial component of the communications service industry is
represented by entities that at least in part resell other vendors\'
facilities or services. Restricting TSP priority

assignments to underlying facility-based carriers would offer no
administrative

advantage and could remove an important class of vendor of emergency or

essential telecommunications services from the TSP System.

87\. Several parties, including NCS, agree that Section 8 is not needed
if

additional language is included in Section 6(f) to specify resale
carriers. It

would appear that the consensus of those commenting on the reseller
issue is

that Section 8 should be deleted but that additional language elsewhere
in the

rules provide that carriers generally cooperate in good faith on matters
of

priority treatment. Apart from the consensus, it seems that the intent
of proposed Section 8 is embodied by provisions contained in other
sections of the rules. There are three essential elements to Section 8:
recognition of resellers, assignment of the reseller\'s service priority
to the underlying vendor\'s service and reseller\'s burden to notify
underlying service vendor of priority information. By adding new Section
\[6(f)(5)\], which specifically refers to resale carriers, there is
adequate recognition of

resellers as well as sufficient assurance that underlying carriers are
supplied

with the information needed to implement priority treatment of
facilities that

support NSEP services. Also, the general requirements in the rules for

recognition of properly assigned priorities removes the need for a
special

reference to resellers for that recognition \-- or for equal and

non-discriminatory treatment of a vendor\'s affiliated entities and
resale and

interconnecting carriers. Accordingly, we will delete Section 8, as
proposed.

88\. Finally, it has been suggested that resellers\' distribution of
services

among many facilities is no more than a marketing tool. The thought
seems to be

that a reseller can offer priority restoration to users that do not
independently qualify for priority treatment because they know that
certain non-NSEP services are embedded in the TSP-priority facilities.
It has also been suggested that, to the extent distribution is a
marketing tool, non-disclosure of NSEP services is a means to prevent
abuse. We believe that Title II of the Communications Act already
contains adequate safeguards against this kind of conduct. A primary
purpose of TSP, as noted earlier herein, is to provide

carriers with protection against allegations of unreasonable preferences
arising

out of priority provisioning or restoration. 47 U.S.C. § 202. Were a
carrier

to market non-NSEP services based even in part upon representations that
those

services would be provisioned or restored on a priority basis (because
they

would be embedded in TSP-priority facilities), in might have engaged in

actionable conduct, i.e., in violation of the Communications Act. We
believe

that this disincentive is sufficient to assure that resellers will not
abuse

ancillary priority benefits they derive from their TSP involvement.^33^
NCS\'

support for a rule section that would codify this expectation is founded
on a

general security rationale, viz., that NSEP-related information

should should not be disclosed to parties not having a \"need-to-know\".
The

utility of NCS\' proposed Section 6(f)(11) to prevent abuse by resellers
is

questionable because there is no standard established for the meaning of

\"need-to-know.\" Nevertheless, its inclusion would not be inconsistent
with the

Title II restrictions we have discussed, and it would alert carriers to
the need

to exercise caution with regard to information about NSEP services, for
both

security and marketing-abuse reasons. On balance, we favor this change
and will

adopt it as Section \[6(f)(13)\] of the final rules, with minor
revision.

89\. Recordkeeping and reconciliation. In the NPRM interested parties
were

asked to comment on the extent to which TSP, in conjunction with NCS\'

recordkeeping and reconciliation efforts, will alleviate the problem of

inconsistent of faulty records. It was recalled that one of the problems
of the

RP System was recordkeeping deficiencies among the various participating

entities, including NCS and the carriers. NCS originally proposed:

Section 6(b)(2)(e), which would require the EOP to periodically initiate
the

identification and reconciliation of any discrepancies between EOP
records

relating to priority level assignments and the records of service

users/contracting activities and vendors; Section 6(c)(3), which would
require

sponsoring federal agencies to cooperate with EOP (a) during NSEP

telecommunication service audits and revalidations, and (b) to identify
and

reconcile any discrepancies among service user contracting activity,
vendor

and EOP records relating to priority level assignments; Section

6(d)(10), which would require service users to cooperate with EOP (a)
during

NSEP telecommunication service audits and revalidations, and (b) to
identify and

reconcile any discrepancies among service user/contracting activity,
vendor and

EOP records relating to priority level assignments; and Section
6(f)(6)(e),

which would require vendors to cooperate with the federal government to
identify

and reconcile any discrepancies between user/contracting activity, EOP,
and

vendor records.

90\. In order to avoid the possibility that recordkeeping processes
\"may be

used improperly as a means to change circuit designations free of

charge . . .,\" Ameritech suggests, without explaining its assertion,
that any

guidelines distinguish between audits and revalidation or quality
assurance

activities. It urges that discrepancies be resolved through the normal
service

order process, subject to tariff charges, with appeals handled by the
customer

relations process. BellSouth expresses concern regarding periodic audits
which

may be conducted by the Commission. It fears an overly burdensome level
of

detail and recommends that audits as defined in Section 3 be limited to
review

of billing discrepancies and/or reconciliation of NSEP user and vendor
date base

information. It urges no more than annual reviews. US West suggests the

definition of audit be revised to read: \"Audit means a review,
conducted by the

parties, in response to an identified problem.\"

91\. Pacific Bell suggests that, rather than responding to audits,
vendors

should respond to inquiries because audits are expenses and
time-consuming.

It would delete Section 3(b), Definition of Audit, and replace it with

\"verification\", i.e., review in response to problems identified
through

revalidation and reconciliation. It proposes a new Section 6(f)(10)

that would require vendors \"to provide to EOP, upon reasonable request,

information sufficient to verify discrepancies.\" Also, to assist the

verification process, Pacific Bell would add language in Section 5 that
would

include a reference to the NCS\' Management Information System (MIS)
database as

a source of priority level information. It also proposes that EOP be

responsible for deciding whether there are discrepancies between EOP
records and

users and vendors and suggests that revalidation be limited to once a
year, and

not less than once every three years. Finally, Pacific Bell questions
the

identity of \"authorized\" entity in proposed Sections 6(f)(3)(c) and
6(f)(6)(a)

\[6(f)(7)(a)\].

92\. Southwestern Bell identifies two types of audits, billing inquiries
and

reconciliation. The first of these, it notes, are normal daily business

activities; the second, it states, involves comparison of NSEP
information

between one or more vendors and government for the purpose of resolving

discrepancies. Reconciliation, it urges, should be allowed no more than
once a

year between EOP and each vendor, and should be accomplished by use of
computer

tapes. It argues that the charges should be borne by the cost-causer

and determined by underlying service costs. Southwestern Bell would
revise the

definition of audit in Section 3 to read, \"Audit means a quality
assurance

review in response to billing discrepancies and/or reconciliation of
NSEP TSP

service information/database.\" It would also add the following new
definition in

Section 3: \"Reconciliation means the comparison of NSEP information and
the

resolution of identified discrepancies.\"

93\. For its part, NCS states that it developed the reconciliation
process to

cure the current disagreement in RP records. It states that EOP will
reconcile

its NSEP service information with users and vendors, but vendors will be

responsible for reconciling their information with their subcontractors.
It

states that information confirming NSEP service completion will be
stored in

EOP\'s MIS and reconciled against the prime service vendor.^34^ If no
information

is received, EOP will send a reminder notice to the vendor. NCS states
that EOP

wants to initiate reconciliation no more than once a year with each
prime

service vendor. It adds that vendors with subcontractors will be
responsible

for reconciliation with those subcontractors at least once every three
years and will provide confirmation to the EOP that this has been done.
NCS too would add a definition for reconciliation in Section 3, as well
as a requirement for vendor mutual cooperation. NCS Comments pp. 14-15.
NCS offers a new Section \[6(f)(7)(f)\] which states, \"Periodically
initiating reconciliation with their subcontractors, and by their
subcontractors cooperating with other service vendors during
reconciliation.\"

94\. In its reply, AT&T interprets NCS\' proposed general duty on
vendors to

supply reconciliation data to require carriers to reconcile circuits
with LECs

which provide access channels at each end of each circuit, increasing
the

vendor\'s burden. AT&T claims that data systems do not distinguish
between prime

and subcontractor priority circuits. Also, AT&T says, vendors will take
on an

increasing share of government circuits and they will have to develop a
major

MIS to accommodate NCS\' requirement for reconciliation. AT&T asserts

that the cost-causer for reconciliation is NCS. AT&T suggests that

completion reports during the \"turn up\" phase of TSP service will
provide

adequate confidence that the database will be reliable, so that
reconciliation

need only apply to newly entered data. It also proposes that
reconciliation

address only circuits for which some order activity has occurred within
the

12-month period preceding the reconciliation report, with no review
needed

except in the event of trouble. Under NCS\' proposal, AT&T asserts,

reconciliation would grow each year, whereas by AT&T\'s proposal the
magnitude

would remain constant. AT&T also suggests that there be no
reconciliation on RP

System circuits until TSP is fully operational, at which time a one-time

reconciliation of transitioned circuits followed by reconciliation of
new

circuits could occur.

95\. GTE favors reconciliation, stating that such procedures are needed
to

ensure ongoing quality and accuracy of the TSP System. It, like AT&T,
would

ascribe billing for reconciliation to NCS. GTE urges that billing
arrangements

between contractors and subcontractors be worked out before TSP is
implemented.

It expects that contractors\' costs will be higher because they must

expend more effort in the reconciliation process. GTE Comments, 14. For
its

part, McCaw finds NCS\' use of \"by their subcontractors\" in its new
proposed

Section \[6(f)(7)(f)\] unclear in that it may mean prime contractors
must ensure

subcontractors or other service vendors cooperate with such vendors, or
other

possible interpretations. McCaw also asks whether Section 10(b)(3)
\[9(b)(3)\]

allows a subcontractor to act without EOP identification and what the
possible

consequences of violation would be. It suggests that subcontractors be

similarly restrained and prime contractors should be required to forward

priorities to subcontractors.

96\. Southwestern Bell, in its reply, concurs with Pacific Bell

that EOP should be responsible for discrepancies between EOP records and
service

users\' and vendors\' records. It asks that NCS be required to track
TSPs and

determine, via completed order notification, that requested service has
been

connected. It also supports reconciliation annually between NCS and
prime

contractors and every three years between prime contractors and
subcontractors.

The burden of identifying and re-validating TSP users every 3 years
should

be NCS\' and service users\' responsibility, Southwestern Bell asserts.

USTA emphasizes the importance of restricting priority assignments and
urges the

government to monitor assignments and periodically reassessing priority

classifications.

97\. In its reply, NCS disagrees with BellSouth regarding review of
billing

discrepancies and reconciliation matters, arguing that EOP would rarely,
if

ever, become involved with billing disputes. NCS also disagrees with US
West

regarding who should conduct audits; NCS says only EOP should conduct
them. In

response to Pacific Bell\'s suggestion that priority level assignments
be

retained by the NCS in its MIS database, NCS notes that Section
6(b)(2)(c)

states that EOP is responsible for maintaining data on priority level

assignments, so that no modification is needed. NCS also offers a number
of

minor editorial amendments, which generally will be adopted.

98\. Discussion. Most parties do not dispute the need for a centralized

administrative mechanism for resolving recordkeeping inconsistencies or

discrepancies, and we agree that NCS is the logical entity to administer
such a

mechanism.^35^ However, an apparent problem with NCS\' original

proposal was its use of the word \"audit\" in Section 3(b). As proposed,
audit

was defined as \"a periodic review as mutually agreed, in response to
identified

problems.\" NCS intent was that, in the event of an inconsistency or
problem with

a priority, NCS would investigate and, with the assistance of all
parties,

resolve the problem, which would generally consist of reported or
suspected data

discrepancies. Several commenting parties have interpreted audit to mean
a

review in an extended tax sense, i.e., an exhaustive examination and
tabulation.^36^

In apparent anticipation of these interpretations, NCS offers a revised

Section 3(b) as follows:

Audit means a quality assurance review in response to identified
problems.

We agree that this revised Section 3(b) sufficiently clarifies the
intent

of the audit function.

99\. The problems associated with reconciliation of errors or
discrepancies

in databases maintained by innumerable parties are potentially
significant.

Apart from audits, which are essentially troubleshooting exercises,

reconciliations will be initiated by EOP to assure that database records
amongst

all TSP participants comport. It is generally agreed that
reconciliations

should be initiated no more than once a year between EOP and each prime
service

vendor, with subcontractor-vendor reconciliation at least once every
three

years, and written confirmation to EOP. Hence, while \"periodically\" is
not

defined in the rules, we will expect reconciliations to be initiated by
EOP in

accordance with this understanding. It is not likely NCS will engage,
however,

in audits concerning matters of billing except as a user, in which case
it would

seek redress or correction as would any other user. Coupled with our
statement

of the purpose of audits, we believe the concerns expressed by
Ameritech, ^37^

AT&T, Bellsouth, GTE, ^38^ Pacific Bell, ^39^ Southwestern Bell ^40^ and
US West

are effectively answered.

100\. Implementation. We discussed in the NRPM the periods needed to
achieve

initial operating capability (IOC) and full operating capability (FOC)
of the

TSP System. We concluded that, based on industry meetings and NCS\'
comments,

IOC at 90 days after FCC rule adoption appeared reasonable. Given the
nation\'s

need to proceed with these important NSEP-TSP rules and the purported
interest

of parties to move forward with assignments, we stated that any request
for

delay must be well justified. We also indicated that while we
tentatively favor

a 90 day implementation date, with a sunset provision of July 1, 1990
for the RP

System, the final rules would not be put in place until we are satisfied
all

legitimate concerns have been addressed. We asked for public comment on
these

matters, particularly urging any party not agreeing with the 90 day IOC
date to

substantiate its assertion.

101\. AT&T, with whom GTE agrees, asserts that the 90 day IOC and July
1,

1990 sunset dates do not leave adequate time for development of systems

necessary to implement the TSP System. Algorithms must be developed by
NCS to

establish, maintain and administer TSP, order entry systems must be
developed,

new databases created, personnel instructed, operating procedures

created and tariffs developed and filed, they say. AT&T and GTE suggest
a 12

month IOC (after FCC rule adoption) and sunset two-and-a-half years
later.

Ameritech adds that less than 1 year for IOC would jeopardize the
accuracy of

identifying TSP services, increasing costs of development (two stages
would then

be needed). Bell Atlantic agrees that one year is needed to avoid using
a

cumbersome and inaccurate manual system. BellCore emphasizes the need to

develop software for the BOCs, which involves design parameters such as
flow of

information between government and industry. It suggests that once TSP
is

initiated minor problems can be handled by abbreviated proceedings at
the

Commission, but in any case one year for IOC is needed for smooth
transition

from RP to TSP.

102\. BellSouth urges the Commission to be flexible as to TSP
implementation

to permit carriers to modify mechanized systems to meet the
specifications of

TSP and implement necessary tariffs and other procedures. Both BellSouth
and

Nynex recommend IOC one year after issuance of the final rules. GTE and

Pacific Bell also urge one year, but note that until FCC final rules

and FCC approval of NCS-generated implementing procedures are finished,
no

planning can be done. GTE argues that the IOC date must be measured from
when

implementing procedures are completed, including training, software
development,

internal procedure preparation, and tariff development and filing.
Pacific Bell

would require NCS to provide TSP specifications within 90 days of the
rules and

the data should be subject to further comment. Arinc, Centel and USTA
express

concern regarding the relationship between RP and TSP during the
transition

period, i.e., which dominates.

103\. McCaw and Telocator state that cellular vendors are prepared to

implement TSP on 90 days notice after FCC action on the rules. McCaw
urges that

prompt implementation is needed to assure integrated rules for all. It

emphasizes, however, that only IOC is possible 90 days after rule
adoption. FOC

will take longer, it states, because cellular vendors will need to begin
to

supply NSEP services and generate the associated revenue to

facilitate the evolution to FOC. MCI states that time is needed to
develop some

systems, such as the means by which NCS notifies carriers of a need

to re-prioritize circuits. For IOC it prefers one year \-- or only after

approval of the operations manual which will govern carrier obligations.

Ameritech urges that the federal government\'s new inventory system for

communications circuits should be in place first, to permit generation
of usable

TSP classification requests. It favors a rapid transition to the new
system,

with one year for IOC and 60 days for sunset of RP. For its part,
Southwestern

Bell suggests that 4-6 months are needed for NCS adoption and FCC
approval of

operational and vendor-interface rules, and then one year is needed for
IOC.

For its part, USTA urges that there should be a flash cut after FCC
final action

and after EOP completes and publishes its Directive 3-1 operating
procedures,

tentatively July 1, 1989, with sunset on January 1, 1990. It opposes

simultaneous existence of RP and TSP because of possible differing

classifications.

104\. In its comments, NCS agrees that a year is needed to complete
several

essential elements of TSP. The planned NCS Directive 3-1 (which will
define use

of NSEP TSP Systems, including assignment of responsibilities to NCS)
will

require, it states, several months to complete and time will also be

needed for EOP to develop and implement its automated TSP MIS and
prepare

training materials. It also notes that tariff filing procedures and
industry\'s

need to implement organizational procedures require time. It supports a

two-and-a-half year period for transition from RP to TSP, beginning one
year

after the Commission\'s final order adopting TSP rules. NCS Comments, p.
5.

105\. In its reply comments, AT&T favors an IOC date of 6 months after

operating procedures become available, with FOC one year afterwards.
BellSouth,

BellCore, CBT, Pacific Bell, USTA and US West reiterate the inadequacy
of 90

days and the need for an IOC date commencing, alternately, one year
after

Commission adoption of TSP rules or one year after Commission approval
of

Operations Procedures (developed by NCS). CTIA supports the notion of

permissive TSP implementation and a final FOC date. GTE favors a one
year IOC

date from Commission approval of rules, and a sunset of RP two and a
half years

thereafter. US West opposes the need for a two-and-a-half year
transition

period and suggests instead a six month period, to reduce costs. McCaw,
joined

by Telocator, argues that cellular operators are under a disadvantage

if they cannot implement TSP immediately because they cannot yet restore
NSEP

services. McCaw asks that the Commission either establish a date by
which all

vendors must begin TSP while others may begin earlier, or authorize
cellular

under RP now \-- until TSP becomes effective. MCI opposes Ameritech\'s
flash cut

proposal because there would not be sufficient time to sort out problems
endemic

in the RP System. It agrees with an IOC date of one year after
Commission

approval of NCS\' Operations Manual. Southwestern Bell supports an IOC
date of

one year after FCC approval of EOP\'s operation procedures and a sunset
date of

six months. It would also require resubmission of RP assignments to EOP
by

government agencies within 18 months.

106\. Also in reply, NCS opposes delaying IOC until Commission approval
of

TSP Vendor Operating Procedures, arguing that national security and
emergency

preparedness posture requires more expeditious action. In response to
the

matter of RP/TSP dominance during the transition, NCS notes that service
vendor

operational procedures will address this problem by including an RP to
TSP

restoration priority correlation matrix to show that, during the

transition, neither system takes precedence over the other. See NCS
Reply, p.

26\. For example, it notes, an RP of \"3C\" would, during the transition
period,

be treated as a TSP restoration priority of \"3\". NCS favors a sunset
period for

RP of two-and-a-half years.

107\. Discussion. Our principal consideration in establishing IOC and
FOC

dates is to balance the essential public interest need of expeditiously

initiating a workable NSEP TSP System with the practical requirements of

competent preparation. Our experience with RP and its flawed
recordkeeping and

skewed priority distribution emphasizes the importance of allowing
adequate time

for vendors, users and the government to develop and implement the
mechanisms

they deem necessary to avoid these infirmities in TSP. To do otherwise,
in the

long run, would disserve the public interest and ultimately invoke
corrective

measures that would be both costly and dilatory. While we anticipated in
the

NPRM adoption of a 90 day IOC, with FOC by July 1, 1989, these dates are

generally not supportable.

108\. The majority of commenting parties favor a one year IOC date. They

agree that less time would not be adequate to develop the necessary

procedural guidelines and internal operating systems or, where
appropriate,

obtain regulatory approvals. NCS\'s concurrence with IOC of one year
adds

additional weight to the need for this period. The issue that remains
with

regard to IOC is whether it should commence with Commission adoption of
the TSP

System rules or with Commission adoption of an order approving NCS\'
Operations

Manual. ^41^

109\. There is general support for delay of IOC until one year after

Commission review of NCS\' Operations Manual. See para. 35, supra.

Several parties, including NCS, argue that there is no need to delay
that long,

and some parties recommend that IOC occur upon Commission adoption of
the TSP

rules. NCS\' position is, in effect, that one year is sufficient time
after

Commission adoption of TSP rules to allow for review of NCS\'
procedures, as well

as carriers and users to absorb its contents and implement their
administrative

processes. ^42^ NCS properly seeks to initiate TSP as quickly as
possible, but it

has offered no date specific for completion of its administrative
guidelines.

Nevertheless, in view of its statements concerning current progress on

development of procedural guidelines, NCS\'s stated interest in
expediting

implementation of TSP and the ongoing work of industry-government

representatives in a variety of forums since adoption of the NPRM, we
anticipate

that a final proposal can be presented by NCS to the Commission for
approval

within three months of official release of the final TSP rules. An
additional

nine months from release of such approval should be adequate time for
all

parties to develop their various internal mechanisms, including software

refinements, because many of the details concerning the nature of

TSP System requirements are already known. The IOC date, therefore, will
be

nine months from official release of the Commission\'s order reviewing
NCS\'

procedural guidelines, which we expect NCS to submit within three months
of the

Federal Register date of this order. ^43^ In short, the IOC date will
likely be

just beyond one year after official release of the TSP rules.

110\. We do not agree with McCaw or Telocator that dispensation for

historical exclusion from the current program is warranted. Allowing
carriers

to implement TSP earlier than the IOC date we have established could
lead to

claims of anticompetitive conduct, with carriers that have developed
more

detailed or compliant recordkeeping and assignment tracking systems
effectively

handicapped in the competitive provision of priority services by other
vendors

that the have quickly implemented \"makeshift\" or minimally compliant
systems.

The public interest does not support an environment that requires
vendors to

develop \"lowest common denominator\" systems to compete effectively.
For TSP, it

is important that all parties operate under uniform standards and
capabilities

that will not undermine the long term reliability of TSP System
administration

or lead to the infirmities we have experienced with RP. ^44^ Such a
policy

encourages industry and government to work cooperatively toward
implementation

of the most effective TSP System possible.

111\. It has been suggested by various commenting parties that the FOC
date,

when all RP priority assignments will have been converted to TSP
priority

assignments or deleted, should be from 6 to 30 months from the IOC date.
The

purpose of the FOC period is to establish a transition period that
allows RP

assignees to seek reassignment under TSP or terminate their priority

assignments. There does not appear to be justification for accelerating
FOC to

6 months after IOC because once IOC has occurred TSP will be operational
and the

compelling public interest reasons for developing the RP replacement
will have

been achieved. A longer FOC period would assure that all RP assignees
have

sufficient time to adjust to TSP. We do not believe that 30 months is

unreasonable and, given the absence of a specific showing that the costs

associated with 30 months over 6 months constitute a significant factor
not

outweighed by the general need for an adjustment period, we will adopt
30 months

in Section 2 as the FOC period, i.e., 30 months from IOC. Other issues
raised

by the parties, e.g., Arinc, Centel and USTA at para. 102, supra, have
been

adequately resolved in earlier discussions and by NCS.

Additional Items

112\. EMP. Leggett favors the inclusion of electromagnetic pulse (EMP)

protection measures in the TSP rules. He argues that EMP would add
balance

missing from the proposal, viz., by a regulatory effort to prevent
services from

failing rather than relying on restoration procedures. He proposes a new

section, Obligation to Protect NSEP Services Against the Effects of an

Electromagnetic Pulse, with a requirement that within one year of
classification

of any NSEP service as Emergency or Essential all associated services
and

equipment would be EMP protected. In response to Leggett, NCS agrees
that users

should implement measures that increase survivability of NSEP services,
but

protection from EMP is not a requirement of the TSP System.

113\. EMP is an intense burst of electromagnetic energy that is
generated by

a high-altitude nuclear explosion. Purportedly, a single burst could
blanket

the entire continental United States with an intense electromagnetic
pulse and

disable most solid-state electronic devices, thus rendering many of our

telecommunications systems inoperative. In the Bureau\'s Memorandum
Opinion and

Order, DA 86-305, released December 12, 19986, the Bureau rejected

Leggett\'s request to institute a notice of inquiry \[NOI\] to consider
the effects

of EMP on civilian communications systems and to possibly establish

countermeasures. It noted that the issues raised were topical and
important,

but it decided that examination of them was unwarranted because a
comprehensive

study of EMP was underway by NSTAC and the American National Standards
Institute

(ANSI). The Bureau also noted the limited interest displayed by the
public and

lack of a prima facie showing by Leggett that the public interest would
be

served by requiring a public forum.

114\. On reconsideration, 2 FCC Rcd 2739 (19987), the Commission stated
that

the seriousness of the EMP problem causes us to defer to activities
currently

underway in other forums. We also stated that the sensitivity of EMP and
its

national security implications weigh against a public proceeding. This
position

was supported by the Department of Defense (DoD), which has primary

responsibility for the nation\'s security. As DoD stated, \". . . much
of the

details regarding the impact of EMP and mitigation measures is
classified

national security information not properly debated in a regulatory

proceeding.\" Id. at 2740. The Commission interpreted the paucity of

participation in the proceeding to reflect the collective inclination of
the

private sector to rely on NSTAC and ANSI to take the lead in the
development

of EMP policy. \"In short, we are not convinced that in view of other
ongoing

EMP studies there is an immediate need to institute an NOI.\" Id. We
believe the

rationale applied in the Commission\'s reconsideration of Leggett\'s
petition in

1987 also applies to Leggett\'s proposed TSP rule now before us. Nothing
has

been shown to have changed since the Commission issued its
reconsideration of

Leggett\'s EMP petition. We will therefore reject his request.

115\. FAR. Pacific Bell notes that the Federal Acquisition Regulations
(FAR)

contain procedures for federal procurement of goods and services. It
asks the

extent to which service vendors can respond to emergency procurement
though the

FAR has not been followed, i.e., are they liable for not following the
FAR?

Pacific Bell also refers to Section 6(f)(7)(b), suggesting that \"with
proper

contracting activities\" is unclear and asking whether these refer to
authorities

or procedures. In that Section 6(f)(7)(b) has been modified in the

appendix (see Section \[6(f)(8)(b)\]), Pacific Bell\'s question is moot.
The

matter of FAR as raised by Pacific Bell is not within the scope of this

Commission\'s jurisdiction, i.e., through Title II of the Communications
Act.

EOP may wish to offer guidance to users or vendors or issues involving

compliance with FAR.

116\. Sponsorship. AAR asks that privately owned services of the
railroad

industry be included in the TSP System. It notes that the Peacekeeper
Rail

Garrison depends on railroads to provide highly survivable and capable
strategic

weapons systems, and relies heavily on communications. It states that it
is

important that non-Federal users not be without recourse in matters of

restoration of their telecommunications. UTC expresses concern that some

utilities, e.g., water companies, seeking priority classification
without

sponsorship must apply to EOP. It recommends, without further
explanation, that

such application be made directly to the Commission.

117\. As discussed earlier herein, e.g., at paras. 23-26, TSP offers a
means

by which carriers may provide priority provisioning or restoration
service to a

user without violating the unreasonable preference prohibition of

Title II of the Communications Act. Private services, i.e., services not

offered by a common carrier, would not be subject to allegations of

unreasonable preferences under Title II of the Communications Act and
therefore

would not require the protection of TSP. Indeed, the scope of TSP is
predicated

on the need for a standardized system of issuing priorities to common
carriers

and is not intended to be applied by the Commission to non-common
carriers.

118\. Private telecommunications owners may offer their communications

services alone or in conjunction with leased common carrier services. In
either

case, as noted above, these private offerings are not generally within
the scope

of TSP. ^45^ However, Section \[4(c)\], as proposed, permits users to
\"apply\" the

TSP System to any private service offering, provided the private service
does

not connect to other services that have been properly assigned a TSP
priority

level. See Sections \[4(c)(1)\] and \[2\]. There is no prohibition
against private

carriers using TSP System standards and procedures in conjunction with
services

they provide their users, even if those users also are TSP users. The
private

carriers, however, will not derive any of the legal benefits that a

common carrier gains from compliance with the TSP System. ^46^
Railroads,

utilities and others that own private communications systems and that
wish to

offer priority provisioning or restoration treatment in conjunction with
their

private service offerings must do so independently of formal TSP
procedures,

e.g., by contract. Under the proposed TSP System, it is not contemplated
that

the Commission will accept applications for, or review, non-common
carrier

priority assignments. On the other hand, we do not wish to discourage
the use

of the TSP rules as guidance for such private agreements. Proposed
Section

\[4(c)\] would offer this guidance. Accordingly, we will adopt Section
\[4(c)\] as

proposed. As to UTC\'s preference that certain entities apply directly
to the

Commission for TSP priority level assignment, we note that Sections
6(a)(4) and

6(e) offer mechanisms for entities that cannot otherwise secure the
sponsorship

of a federal agency. Thus, were an energy or water utility not able to
secure

the sponsorship of the Department of Energy, it could seek Commission

sponsorship, or it could choose under Section 6(e) to submit its

request directly to EOP.

119\. Notification, revalidation, verification and back-up. US West
suggests

deletion of the provision in Section 13(b)(2)(b) \[12(b)(2)(b)\] that,
after 30

days, priority level E services are revoked unless extended. It argues
that the

requirement for written notice to carriers is redundant and could be
costly to

TSP service users. It asks whether the E level classification which
provisioned

the service would be required for subsequent changes in the service,
absent the

same urgency as originally required. It also asks whether the 3 year

revalidation requirement for priority assignments is a responsibility of

carriers. Finally, US West asks whether the three time periods of TSP
means

that there is a requirement for contingent priority levels. It

states that carriers do not have the ability to accept orders for
contingent

priorities, only one at a time, and that changes in priority levels from
changes

in time periods or stress conditions will require subsequent service
requests to

alter priority levels.

120\. UTC states that it is not clear whether utilities\' special needs
for

back-up common carrier services fall within the additional justification

requirement of Section 13(d) \[12(d)\]. It requests amendment of the
proposal to

permit utility back-up services to satisfy the \"additional
justification\"

requirement. In its reply comments, BellCore suggests that the Section

13(b)(2)(c) \[12(b)(2)(c)\] emergency restoration 30 day priority option
should be

deleted and assigned under the same operational arrangements as other
TSP

restoration priority circuits. It claims that no priority assignments
should be

automatic. BellCore and Southwestern Bell concur with US West that
contingent

priorities cannot be maintained without great expense and likely
confusion.

121\. NCS disagrees with US West concerning Section 13(b)(2)(b)
\[12(b)(2)(b)\]

and states that EOP will revoke E after 30 days and notify the user
unless the

user requests an extension. It further states that the user must

transmit notice of the revocation to the vendor. Relying on vendors to

automatically change priorities on dates would burden vendors to
maintain

tickler files, NCS argues. It concludes that the better practice is to
require

notice of any such revocation. Also, it adds, no revision is needed to

clarify the rules in response to US West\'s question about whether E
need be

issued for subsequent changes, even if changes do not have the same
urgency as

the original requisition. NCS says subsequent changes must be separately

justified. We believe NCS\' response adequately reflects a reasonable
approach

to these matters and we will not alter the language proposed. If after
adoption

of the TSP rules interested parties find that there are improvements
possible

that would justify instituting a proceeding to amend the rules, they are
welcome

to submit the appropriate petitions.

122\. As to contingent assignments, NCS notes that Section 5 states that

although priority levels normally will be assigned by EOP and retained
by

service vendors only for the current time period, if a user wants to
activate a

contingent priority a service order will be issued to the vendor.

This is treated like any priority level change in that a new service
order is

needed, NCS states. Vendors will not need to maintain contingent
assignments in

their databases. We believe this sufficiently responds to the concerns
of

parties regarding contingent priorities. In response to Pacific Bell,
which

asks for a definition of who is authorized to seek verification of a
priority

level, NCS states that EOP will generally do so. As to US West\'s
question

concerning revalidation, NCS states that users are responsible for
rejustifying

their priority level assignments with EOP at least once every 3 years,
and that

any changes require a service order to the vendor. Finally, we do not
believe

that utilities require special interpretation of Section 13(d) \[12(d)\]
so that

UTC\'s question concerning its need for back-up services is a matter
that can be

taken up with EOP or its sponsoring agency as the need arises.

V. CONCLUSION

123\. By the rules we adopt in this order we initiate a program that

modernizes the means by which the nation is assured that essential

communications facilities provided by common carriers receive
provisioning and

restoration priorities in times of emergency. The rules may also

serve as guidance for the provisioning and restoration of private
systems. NCS

has provided the basis for the rules that we adopt and will soon offer
for

Commission approval its procedures for implementation. Through the
substantive

participation of carriers, users and government, many complicated legal
and

technical issues have been resolved in this proceeding, resulting in a
number of

changes to the proposed rules. It is anticipated that, with these
changes,

the TSP System will provide a uniform and efficient means of providing

preferences to qualified users in response to the nation\'s emergency

communications needs. ^47^

VI\. FINAL REGULATORY FLEXIBILITY ACT ANALYSIS

124\. Reason for action. The Commission is responding to deficiencies in
the

existing Restoration Priority System by which carriers may provide
priority

provisioning and restoration of service when specific National Security

Emergency Preparedness needs have been identified. These rules will
allow

carriers to \"discriminate\" among services and users when NSEP is
involved

without violating the provisions of the Communications Act.

125\. Objectives. The objective of this proceeding is to ensure that
NSEP

telecommunications needs are adequately handled without unduly
interfering with

the public\'s telecommunications needs.

126\. Legal Basis. The legal authority for this action is contained in

Sections 1, 4(i), 201-05 and 303(r) of the Communications Act of 1934,
as

amended, 47 U.S.C. §§ 151, 154(i), 201-05 and 303(r).

127\. Description, potential impact and number of small entities
affected.

The impact of the new TSP rules upon large and small telecommunications

providers will vary depending upon the number of NSEP services they
provide.

The burden hours, estimated at 105,000 annually, will be assumed by
NCS/DoD

which will handle essential administration and review of priority

applications and overall implementation. The economic impact of the
rules will

be minimal on carriers because they will recover their costs through

cost-causative cost recovery mechanisms. Further, once the carriers have

adapted to the new rules, the economic impact should be minimal.

128\. Recording, recordkeeping and other compliance requirements. The

Executive Office of the President will be responsible for maintaining
the

database for TSP. All recording, recordkeeping and compliance records
will be

handled by the Executive Office of the President, with continuing access
by the

Commission. Carriers will be required to maintain records of their
priorities,

which in some cases may require development of new software. Costs for
such

development will be recovered through standard cost recovery mechanisms.

129\. Federal rules that overlap, duplicate, or conflict with these
rules:

None.

130\. Any significant alternative minimizing impact on small entities
and

consistent with stated objective: None.

VII\. ORDER

131\. Accordingly, IT IS ORDERED, That pursuant to authority contained
in

Sections 1, 4(i), 201-05 and 303(r) of the Communications Act of

1934, as amended, 47 U.S.C. §§ 151, 154(i), 201-05 and 303(r), Parts 0
and 64 of

the Commission\'s Rules and Regulations ARE AMENDED as set forth in the
Appendix

below effective December 27, 1988.

132\. IT IS FURTHER ORDERED, That the initial operating capability date
of

these rules will be nine months after the appearance in the Federal
Register of

the Commission\'s order concerning the Executive Office of the
President\'s

procedures for implementation.

133\. IT IS FURTHER ORDERED, That the Chief, Common Carrier Bureau IS

DELEGATED AUTHORITY to participate in and conduct discussions and
meetings and

issue orders to resolve issues in connection with implementation of the

Telecommunications Service Priority System.

134\. IT IS FURTHER ORDERED, That the Secretary shall cause a summary of
this

decision to be printed in the Federal Register.

FEDERAL COMMUNICATIONS COMMISSION

Donna R. Searcy, Secretary

APPENDIX

A. Part O of the Commission\'s Rules and Regulations (Chapter 1 of Title
47

of the Code of Federal Regulations, Part O) is amended as follows:

1\. The authority citation for Part O continues to read as follows:

AUTHORITY: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,

unless otherwise noted.

2\. § 0.11(a)(10) is revised to read as follows:

§ 0.11 Functions of the Office.

\(a\) \* \* \*

\(10\) Under the general direction of the Defense Commissioner,
coordinate the

defense activities of the Commission, including recommendation of
national

emergency plans and preparedness programs covering Commission licenses
and

planning for continuity of essential Commission functions during
national

emergency conditions. Support the Chief, Common Carrier Bureau on
matters

involving assignment of Telecommunications Service Priority System
priorities

and in the administration of that System. Act as FCC Defense Coordinator
and

principal to the National Communications System.

\* \* \*

3\. § 0.91 is amended by adding new paragraph (1) to read as follows:

§ 0.91 Functions of the Bureau.

\* \* \*

\(1\) Administers the Telecommunications System Priority System with the

concurrence of the Office of the Managing Director, and resolves matters

involving assignment of priorities and other issues pursuant to Part 64
of the

rules.

4\. § 0.314(g) is revised to read as follows:

§ 0.314 Additional authority delegated.

\* \* \*

\(g\) To act on and make determinations on behalf of the Commission

regarding requests for assignments and reassignments of priorities under
the

Telecommunications Service Priority System, Part 64 of the rules, when

circumstances require immediate action and the common carrier seeking to
provide

service states that it cannot contact the National Communications System
or the

Commission office normally responsible for such assignments.

\* \* \*

B. Part 64 of the Commission\'s Rules and Regulations (Chapter 1 of
Title 47

of the Code of Federal Regulations, Part 64) is amended as follows:

1\. The authority citation for Part 64 continues to read as follows:

AUTHORITY: Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154, unless
otherwise

noted. Interpret or apply secs. 201, 218, 48 Stat. 1070, as amended,
1077; 47

U.S.C. 201, 218, unless otherwise noted.

2\. § 64.401 is revised to read as follows:

§ 64.401 Policies and procedures for provisioning and restoring certain

telecommunications services in emergencies.

The communications common carrier shall maintain and provision and, if

disrupted, restore facilities and services in accordance with policies
and

procedures set forth in the Appendix to this part.

3\. § 64.402 is removed.

4\. Appendix B to Part 64 is removed.

5\. Appendix A to Part 64 is revised to read as follows:

APPENDIX - Telecommunications Service Priority (TSP) System for National

Security Emergency Preparedness (NSEP)

1\. Purpose and Authority.

a\. This appendix establishes policies and procedures and assigns

responsibilities for the National Security Emergency Preparedness (NSEP)

Telecommunications Service Priority (TSP) System. The NSEP TSP System

authorizes priority treatment to certain domestic telecommunications
services

(including portions of U.S. international telecommunication services
provided by

U.S. service vendors) for which provisioning or restoration priority
(RP) levels

are requested, assigned, and approved in accordance with this appendix.

b\. This appendix is issued pursuant to Sections 1, 4(i), 201 through
205 and

303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i),

201 through 205 and 303(r). These sections grant to the Federal
Communications

Commission (FCC) the authority over the assignment and approval of
priorities

for provisioning and restoration of common carrier-provided
telecommunications

services. Under Section 706 of the Communications Act, this

authority may be superseded, and expanded to include non-common carrier

telecommunication services, by the war emergency powers of the President
of the

United States. This appendix provides the Commission\'s Order to

telecommunication service vendors and users to comply with policies and

procedures establishing the NSEP TSP System, until such policies and
procedures

are superseded by the President\'s war emergency powers. This appendix
is

intended to be read in conjunction with regulations and procedures that
the

Executive Office of the President \* issues (1) to implement
responsibilities

assigned in Section 6(b) of this appendix, or (2) for use in the event
this

appendix is superseded by the President\'s war emergency powers.

c\. Together, this appendix and the regulations and procedures issued by
the

Executive Office of the President establish one uniform system of
priorities for

provisioning and restoration of NSEP telecommunication services both
before and

after invocation of the President\'s war emergency powers. In order that

government and industry resources may be used effectively under all
conditions,

a single set of rules, regulations, and procedures is necessary, and

they must be applied on a day-to-day basis to all NSEP services so that
the

priorities they establish can be implemented at once when the need
arises.

\* In Sections 2(a)(2) and 2(b)(2) of Executive Order No. 12472,
\"Assignment

of National Security and Emergency Preparedness Telecommunications
Functions\"

April 3, 1984 (49 Fed. Reg. 13471 (1984)), the President assigned to the

Director, Office of Science and Technology Policy, certain NSEP

telecommunication resource management responsibilities. The term
\"Executive

Office of the President\" as used in this appendix refers to the
official or

organization designated by the President to act on his behalf.

2\. Applicability and Revocation.

a\. This appendix applies to NSEP telecommunications services:

\(1\) For which initial or revised priority level assignments are
requested

pursuant to Section 8 of this appendix.

\(2\) Which were assigned restoration priorities under the provision of
FCC

Order 80-581; 81 FCC 2d 441 (1980); 47 CFR Part 64, Appendix A,
\"Priority System

for the Restoration of Common Carrier Provided Intercity Private Line
Services\";

and are being resubmitted for priority level assignments pursuant to

Section 10 of this appendix. (Such services will retain assigned
restoration

priorities until a resubmission for a TSP assignment is completed or
until the

existing RP rules are terminated.)

b\. FCC Order 80-581 will continue to apply to all other intercity,
private

line circuits assigned restoration priorities thereunder until the fully

operating capability date of this appendix, 30 months after the initial

operating capability date referred to in subsection d of this Section.

c\. In addition, FCC Order, \"Precedence System for Public
Correspondence

Services Provided by the Communications Common Carriers\" (34 Fed. Reg.
17292

(1969)); (47 CFR Part 64, Appendix B), is revoked as of the effective
date of

this appendix.

d\. The initial operating capability (IOC) date for NSEP TSP will be
nine

months after release in the Federal Register of the FCC\'s order
following review

of procedures submitted by the Executive Office of the President. On
this IOC

date requests for priority assignments generally will be accepted only
by the

Executive Office of the President.

3\. Definitions.

As used in this part:

a\. Assignment means the designation of priority level(s) for a

defined NSEP telecommunications service for a specified time period.

b\. Audit means a quality assurance review in response to identified

problems.

c\. Government refers to the Federal government or any foreign, state,

county, municipal or other local government agency or organization.
Specific

qualifications will be supplied whenever reference to a particular level
of

government is intended (e.g., \"Federal Government\", \"state
government\").

\"Foreign government\" means any sovereign empire, kingdom, state, or
independent

political community, including foreign diplomatic and consular
establishments

and coalitions or associations of governments (e.g., North Atlantic
Treaty

Organization (NATO), Southeast Asian Treaty Organization (SEATO),
Organization

of American States (OAS), and government agencies or organization (e.g.,
Pan

American Union, International Postal Union, and International Monetary
Fund)).

d\. National Communications System (NCS) refers to that organization

established by the President in Executive Order No. 12472, \"Assignment
of

National Security and Emergency Preparedness Telecommunications
Functions,\"

April 3, 1984, 49 Fed. Reg. 13471 (1984).

e\. National Coordinating Center (NCC) refers to the joint
telecommunications

industry-Federal government operation established by the National
Communications

System to assist in the initiation, coordination, restoration, and

reconstitution of NSEP telecommunication services or facilities.

f\. National Security Emergency Preparedness (NSEP) telecommunications

services,\" or \"NSEP services,\" means telecommunication services which
are used

to maintain a state of readiness or to respond to and manage any event
or crisis

(local, national, or international), which causes or could cause injury
or

harm to the population, damage to or loss of property, or degrades or
threatens

the NSEP posture of the United States. These services fall into two
specific

categories, Emergency NSEP and Essential NSEP, and are assigned priority
levels

pursuant to Section 9 of this appendix.

g\. NSEP Treatment refers to the provisioning of a telecommunication
service

before others based on the provisioning priority level assigned by the
Executive

Office of the President.

h\. Priority Action means assignment, revision, revocation, or
revalidation

by the Executive Office of the President of a priority level associated
with an NSEP telecommunications service.

i\. Priority Level means the level that may be assigned to an NSEP

telecommunications service specifying the order in which provisioning or

restoration of the service is to occur relative to other NSEP and/or
non-NSEP

telecommunication services. Priority levels authorized by this appendix
are

designated (highest to lowest) \"E,\" \"1,\" \"2,\" \"3,\" \"4,\" and
\"5\" for provisioning

and \"1,\" \"2,\" \"3,\" \"4,\" and \"5\" for restoration.

j\. Priority Level Assignment means the priority level(s) designated for
the

provisioning and/or restoration of a particular NSEP telecommunications
service

under Section 9 of this appendix.

k\. Private NSEP Telecommunications Services include non-common carrier

telecommunications services including private line, virtual private
line, and

private switched network services.

l\. Provisioning means the act of supplying telecommunications service
to a

user, including all associated transmission, wiring and equipment. As
used

herein, \"provisioning\" and \"initiation\" are synonymous and include
altering the

state of an existing priority service or capability.

m\. Public Switched NSEP Telecommunications Services include those

NSEP telecommunications services utilizing public switched networks.
Such

services may include both interexchange and intraexchange network
facilities

(e.g., switching systems, interoffice trunks and subscriber loops).

n\. Reconciliation means the comparison of NSEP service information and
the

resolution of identified discrepancies.

o\. Restoration means the rejustification by a service user of a
priority

level assignment. This may result in extension by the Executive Office
of the

President of the expiration date associated with the priority level
assignment.

p\. Revalidation means the rejustification by a service user of a
priority

level assignment. This may result in extension by the Executive Office
of the

President of the expiration date associated with the priority level
assignment.

q\. Revision means the change of priority level assignment for an NSEP

telecommunications service. This includes any extension of an existing
priority

level assignment to an expanded NSEP service.

r\. Revocation means the elimination of a priority level assignment when
it

is no longer valid. All priority level assignments for an NSEP service
are

revoked upon service termination.

s\. Service Identification refers to the information uniquely
identifying an

NSEP telecommunications service to the service vendor and/or service
user.

t\. Service User refers to any individual or organization (including a

service vendor) supported by a telecommunications service for which a
priority

level has been requested or assigned pursuant to Section 8 or 9 of this

appendix.

u\. Service Vendor refers to any person, association, partnership,

corporation, organization, or other entity (including common carriers
and

government organizations) that offers to supply any telecommunications

equipment, facilities, or services (including customer premises
equipment and

wiring) or combination thereof. The term includes resale carriers, prime

contractors, subcontractors, and interconnecting carriers.

v\. Spare Circuits or Services refers to those not being used or
contracted

for by any customer.

w\. Telecommunication Services means the transmission, emission, or
reception

of signals, signs, writing, images, sounds or intelligence of any
nature, by

wire, cable, satellite, fiber optics, laser, radio, visual or other
electronic,

electric, electromagnetic, or acoustically coupled means, or any

combination thereof. The term can include necessary telecommunication

facilities.

x\. Telecommunications Service Priority (TSP) System User refers to any

individual, organization, or activity that interacts with the NSEP TSP
System.

4\. Scope.

a\. Domestic NSEP Services. The NSEP TSP System and procedures
established

by this appendix authorize priority treatment to the following domestic

telecommunication services (including portions of U.S. international

telecommunication services provided by U.S. vendors) for which
provisioning or

restoration priority levels are requested, assigned, and approved in
accordance

with this appendix:

\(1\) Common carrier services which are:

\(a\) Interstate or foreign telecommunications services.

\(b\) Intrastate telecommunication services inseparable from interstate
or

foreign telecommunications services, and intrastate telecommunication
services

to which priority levels are assigned pursuant to Section 9 of this
appendix.

NOTE: Initially, the NSEP TSP System\'s applicability to public switched
services

is limited to (a) provisioning of such services (e.g., business,
centrex,

cellular, foreign exchange, Wide Area Telephone Service (WATS) and

other services that the selected vendor is able to provision) and (b)

restoration of services that the selected vendor is able to restore.

\(2\) services which are provided by government and/or non-common
carriers and

are interconnected to common carrier services assigned a priority level
pursuant

to Section 9 of this appendix.

b\. Control services and orderwires. The NSEP TSP System and procedures

established by this appendix are not applicable to authorize priority
treatment

to control services or orderwires owned by a service vendor and needed
for

provisioning, restoration, or maintenance of other services owned by
that

service vendor. Such control services and orderwires shall have priority

provisioning and restoration over all other telecommunication services
(including

NSEP services) and shall be exempt from preemption. However, the NSEP
TSP

System and procedures established by this appendix are applicable to
control

services or orderwires leased by a service vendor.

c\. Other Services. The NSEP TSP System may apply, at the discretion of
and

upon special arrangements by the NSEP TSP System users involved, to
authorize

priority treatment to the following telecommunication services:

\(1\) Government or non-common carrier services which are not connected
to

common carrier provided services assigned a priority level pursuant to
Section 9

of this appendix.

\(2\) Portions of U.S. international services which are provided by
foreign

correspondents. (U.S. telecommunication service vendors are encouraged
to

ensure that relevant operating arrangements are consistent to the
maximum extent

practicable with the NSEP TSP System. If such arrangements do not exist,
U.S.

telecommunication service vendors should handle service provisioning
and/or

restoration in accordance with any system acceptable to their foreign

correspondents which comes closest to meeting the procedures established
in this

appendix.)

5\. Policy.

The NSEP TSP System is the regulatory, administrative, and operational
system

authorizing and providing for priority treatment, i.e., provisioning and

restoration, of NSEP telecommunication services. As such, it establishes
the

framework for telecommunication service vendors to provision, restore,
or

otherwise act on a priority basis to ensure effective NSEP
telecommunication

services. The NSEP TSP System allows the assignment of priority

levels to any NSEP service across three time periods, or stress
conditions:

Peacetime/Crisis/Mobilizations. Attack/War, and Post-Attack/Recovery.
Although

priority levels normally will be assigned by the Executive Office of the

President and retained by service vendors only for the current time
period, they

may be preassigned for the other two time periods at the request of
service

users who are able to identify and justify in advance, their wartime or

post-attack NSEP telecommunication requirements. Absent such preassigned

priority levels for the Attack/War and Post-Attack/Recovery periods,
priority

level assignments for the Peacetime/Crisis/Mobilization period will
remain in

effect. At all times, priority level assignments will be subject to
revision by

the FCC or (on an interim basis) the Executive Office of the President,
based

upon changing NSEP needs. No other system of telecommunication service

priorities which conflicts with the NSEP TSP System is authorized.

6\. Responsibilities.

a\. The FCC will:

\(1\) Provide regulatory oversight of implementation of the NSEP TSP
System.

\(2\) Enforce NSEP TSP System rules and regulations, which are

contained in this appendix.

\(3\) Act as final authority for approval, revision, or disapproval of
priority

actions by the Executive Office of the President and adjudicate dispute

regarding either priority actions or denials of requests for priority
actions by

the Executive Office of the President, until superseded by the
President\'s war

emergency powers under Section 706 of the Communications Act.

\(4\) Function (on a discretionary basis) as a sponsoring Federal
organization.

(See Section 6(c) below.)

b\. The Executive Office of the President will:

\(1\) During exercise of the President\'s war emergency powers under
Section 706

of the Communications Act, act as the final approval authority for
priority

actions or denials of requests for priority actions, adjudicating any
disputes.

\(2\) Until the exercise of the President\'s war emergency powers,
administer

the NSEP TSP System which includes:

\(a\) Receiving, processing, and evaluating requests for priority
actions from

service users, or sponsoring Federal government organizations on behalf
of

service users (e.g., Department of State or Defense on behalf of foreign

governments, Federal Emergency Management Agency on behalf of state

and local governments, and any Federal organization on behalf of private

industry entities). Action on such requests will be completed within 30
days of

receipt.

\(b\) Assigning, revising, revalidating, or revoking priority levels as

necessary or upon request of service users concerned, and denying
requests for

priority actions as necessary, using the categories and criteria
specified in

Section 12 of this appendix. Action on such requests will be completed
within

30 days of receipt.

\(c\) Maintaining data on priority level assignments.

\(d\) Periodically forwarding to the FCC lists of priority actions by
the

Executive Office of the President for review and approval.

\(e\) Periodically initiating reconciliation.

\(f\) Testing and evaluating the NSEP TSP System for effectiveness.

\(g\) Conducting audits as necessary. Any Telecommunications Service
Priority

(TSP) System user may request the Executive Office of the President to
conduct

an audit.

\(h\) Issuing, subject to review by the FCC, regulations and procedures

supplemental to and consistent with this appendix regarding operation
and use of

the NSEP TSP System.

\(i\) Serving as a centralized point-of-contact for collecting and

disseminating to all interested parties (consistent with requirements
for

treatment of classified and proprietary material) information concerning
use and

abuse of the NSEP TSP System.

\(j\) Establishing and assisting a TSP System Oversight Committee to
identity

and review any problems developing in the system and recommend actions
to

correct them or prevent recurrence. In addition to representatives of
the

Executive Office of the President, representatives from private industry

(including telecommunication service vendors), state and local
governments, the

FCC, and other organizations may be appointed to that Committee.

\(k\) Reporting at least quarterly to the FCC and TSP System Oversight

Committee, together with any recommendations for action, the operational
status

of and trends in the NSEP TSP System, including:

\(i\) Numbers of requests processed for the various priority actions,
and the

priority levels assigned.

\(ii\) Relative percentages of services assigned to each priority level
under

each NSEP category and subcategory.

\(iii\) Any apparent serious misassignment or abuse of priority level

assignments.

\(iv\) Any existing or developing problem.

\(l\) Submitting semi-annually to the FCC and TSP System Oversight
Committee a

summary report identifying the time and event associated with each
invocation of

NSEP treatment under Section 9(c) of this appendix, whether the NSEP
service

requirement was adequately handled, and whether any additional charges
were

incurred. These reports will be due by April 30th for the preceding July

through December and by October 31st for the preceding January through
June time

periods.

\(m\) All reports submitted to the FCC should be directed to Chief,
Domestic

Services Branch, Common Carrier Bureau, Washington, D.C. 20554.

\(3\) Function (on a discretionary basis) as a sponsoring Federal
organization.

(See Section 6(c) below.)

c\. Sponsoring Federal organizations will:

\(1\) Review and decide whether to sponsor foreign, state, and local
government

and private industry (including telecommunication service vendors)
requests for

priority actions. Federal organizations will forward sponsored requests
with

recommendations for disposition to the Executive Office of the
President.

Recommendations will be based on the categories and criteria in Section
12 of

this appendix.

\(2\) Forward notification of priority actions or denials of

requests for priority actions from the Executive Office of the President
to the

requesting foreign, state, and local government and private industry
entities.

\(3\) Cooperate with the Executive Office of the President during

reconciliation, revalidation, and audits.

\(4\) Comply with any regulations and procedures supplemental to and
consistent

with this appendix which are issued by the Executive Office of the
President.

d\. Service users will:

\(1\) Identify services requiring priority level assignments and request
and

justify priority level assignments in accordance with this appendix and
any

supplemental regulations and procedures issued by the Executive Office
of the

President that are consistent with this appendix.

\(2\) Request and justify revalidation of all priority level assignments
at

least every three years.

\(3\) For services assigned priority levels, ensure (through contractual
means

or otherwise) availability of customer premises equipment and wiring
necessary

for end-to-end service operation by the service due date, and continued

operation; and, for such services in the Emergency NSEP category, by the
time

that vendors are prepared to provide the services. Additionally,

designate the organization responsible for the service on an end-to-end
basis.

\(4\) Be prepared to accept services assigned priority levels by the
service

due dates or, for services in the Emergency NSEP category, when they are

available.

\(5\) Pay vendors any authorized costs associated with services that are

assigned priority levels.

\(6\) Report to vendors any failed or unusable services that are
assigned

priority levels.

\(7\) Designate a 24-hour point-of-contact for matters concerning each
request

for priority action and apprise the Executive Office of the President
thereof.

\(8\) Upon termination of services that are assigned priority levels, or

circumstances warranting revisions in priority level assignment (e.g.,
expansion

of service), request and justify revocation or revision.

\(9\) When NSEP treatment is invoked under Section 9(c) of this
appendix,

within 90 days following provisioning of the service involved, forward
to the

National Coordinating Center (see Section 3(e) of this appendix)
complete

information identifying the time and event associated with the
invocation and

regarding whether the NSEP service requirement was adequately handled

and whether any additional charges were incurred.

\(10\) Cooperate with the Executive Office of the President during

reconciliation, revalidation, and audits.

\(11\) Comply with any regulations and procedures supplemental to and

consistent with this appendix that are issued by the Executive Office of
the

President.

e\. Non-federal service users, in addition to responsibilities
prescribed

above in Section 6(d), will obtain a sponsoring Federal organization for
all

requests for priority actions. If unable to find a sponsoring Federal

organization, a non-federal service user may submit its request, which
must

include documentation of attempts made to obtain a sponsor and reasons
given by

the sponsor for its refusal, directly to the Executive Office of the
President.

f\. Service vendors will:

\(1\) When NSEP treatment is invoked by service users, provision NSEP

telecommunication services before non-NSEP services based on priority
level

assignments made by the Executive Office of the President. Provisioning
will

require service vendors to:

\(a\) Allocate resources to ensure best efforts to provide NSEP services
by the

time required. When limited resources constrain response capability,

vendors will address conflicts for resources by:

\(i\) Providing NSEP services in order of provisioning priority level

assignment (i.e., \"E\", \"1\", \"2\", \"3\", \"4\", or \"5\");

\(ii\) Providing Emergency NSEP services (i.e., those assigned
provisioning

priority level \"E\") in order of receipt of the service requests;

\(iii\) Providing Essential NSEP services (i.e. those assigned priority
levels

\"1\", \"2\", \"3\", \"4\", or \"5\") that have the same provisioning
priority level in

order of service due dates; and

\(iv\) Referring any conflicts which cannot be resolved (to the mutual

satisfaction of service vendors and users) to the Executive Office of
the

President for resolution.

\(b\) Comply with NSEP service requests by: (i) Allocating resources
necessary

to provide Emergency NSEP services as soon as possible, dispatching
outside

normal business hours when necessary;

\(ii\) Ensuring best efforts to meet requested service dates for
Essential NSEP

services, negotiating a mutually (customer and vendor) acceptable
service due

date when the requested service due date cannot be met; and

\(iii\) Seeking National Coordinating Center (NCC) assistance as
authorized

under the NCC Charter (see Section 1.3, NCC Charter, dated October 9,

1985).

\(2\) Restore NSEP telecommunications services which suffer outage, or
are

reported as unusable or otherwise in need of restoration, before
non-NSEP

services, based on restoration priority level assignments. (NOTE: For
broadband

or multiple service facilities, restoration is permitted even though it
might

result in restoration of services assigned no or lower priority levels
along

with, or sometimes ahead of, some higher priority level services.)
Restoration

will require service vendors to restore NSEP services in order of
restoration

priority level assignment (i.e., \"1\", \"2\", \"3\", \"4\", \"5\") by:

\(a\) Allocating available resources to restore NSEP services as quickly
as

practicable, dispatching outside normal business hours to restore
services

assigned priority levels \"1,\" \"2,\" and \"3\" when necessary, and
services assigned

priority level \"4\" and \"5\" when the next business day is more than
24 hours

away:

\(b\) Restoring NSEP services assigned the same restoration priority
level

based upon which can be first restored. (However, restoration actions in

progress should not normally be interrupted to restore another NSEP

service assigned the same restoration priority level);

\(c\) Patching and/or rerouting NSEP services assigned restoration
priority

levels from \"1\" through \"5,\" when use of patching and/or rerouting
will hasten

restoration;

\(d\) Seeking National Coordinating Center (NCC) assistance as
authorized under

the NCC Charter; and

\(e\) Referring any conflicts which cannot be resolved (to the mutual

satisfaction of service vendors and users) to the Executive Office of
the

President for resolution.

\(3\) Respond to provisioning requests of customers and/or other service

vendors, and to restoration priority level assignments when an NSEP
service

suffers an outage or is reported as unusable, by:

\(a\) Ensuring that vendor personnel understand their responsibilities
to

handle NSEP provisioning requests and to restore NSEP service; and

\(b\) Providing a 24-hour point-of-contact for receiving provisioning
requests

for Emergency NSEP services and reports of NSEP service outages or
unusability.

\(c\) Seeking verification from an authorized entity if legitimacy of a

priority level assignment or provisioning requests for an NSEP service
is in

doubt. However, processing of Emergency NSEP service requests will

not be delayed for verification purposes.

\(4\) Cooperate with other service vendors involved in provisioning or

restoring a portion of an NSEP service by honoring provisioning or
restoration

priority level assignments, or requests for assistance to provision or
restore

NSEP services, as detailed in Sections 6(f)(1), (2), and (3) above.

\(5\) All service vendors, including resale carriers, are required to
ensure

that service vendors supplying underlying facilities are provided
information

necessary to implement priority treatment of facilities that support
NSEP

services.

\(6\) Preempt, when necessary, existing services to provide an NSEP
service as

authorized in Section 7 or this appendix.

\(7\) Assist in ensuring that priority level assignments of NSEP
services are

accurately identified \"end-to-end\" by

\(a\) Seeking verification from an authorized Federal government entity
if the

legitimacy of the restoration priority level assignment is in doubt;

\(b\) Providing to subcontractors and/or interconnecting carriers the

restoration priority level assigned to a service;

\(c\) Supplying, to the Executive Office of the President, when acting
as a

prime contractor to a service user, confirmation information regarding

NSEP service completion for that portion of the service they have
contracted to

supply;

\(d\) Supplying, to the Executive Office of the President, NSEP service

information for the purpose of reconciliation.

\(e\) Cooperating with the Executive Office of the President during

reconciliation.

\(f\) Periodically initiating reconciliation with their subcontractors
and

arranging for subsequent subcontractors to cooperate in the
reconciliation

process.

\(8\) Receive compensation for costs authorized through tariffs or
contracts by

\(a\) Provisions contained in properly filed state or federal tariffs;
or

\(b\) Provisions of properly negotiated contracts where the carrier is
not

required to file tariffs.

\(9\) Provision or restore only the portions of services for which they
have

agreed to be responsible (i.e., have contracted to supply), unless the

President\'s war emergency powers under Section 706 of the
Communications Act are

in effect.

\(10\) Cooperate with the Executive Office of the President during
audits.

\(11\) Comply with any regulations or procedures supplemental to and
consistent

with this appendix that are issued by the Executive Office of the

President and reviewed by the FCC.

\(12\) Insure that at all times a reasonable number of public switched
network

services are made available for public use.

\(13\) Not disclose information concerning NSEP services they provide to
those

not having a need-to-know or might use the information for competitive

advantage.

7\. Preemption of Existing Services.

When necessary to provision or restore NSEP services, service vendors
may

preempt services they provide as specified below. \"User\" as used in
this

Section means any user of a telecommunications service, including both
NSE

and non-NSEP services. Prior consent by a preempted user is not
required.

a\. The sequence in which existing services may be preempted to
provision

NSEP services assigned a provisioning priority level \"E\" or restore
NSEP

services assigned a restoration priority level from \"1\" through \"5\":

\(1\) Non-NSEP services: If suitable spare services are not available,
then,

based on the considerations in this appendix and the service vendor\'s
best

judgment, non-NSEP services will be preempted. After ensuring a
sufficient

number of public switched services are available for public use,

based on the service vendor\'s best judgment, such services may be used
to

satisfy a requirement for provisioning or restoring NSEP services.

\(2\) NSEP services: If no suitable spare or non-NSEP services are
available,

then existing NSEP services may be preempted to provision or restore
NSEP

services with higher priority level assignments. When this is necessary,
NSEP

services will be selected for preemption in the inverse order of
priority level

assignment.

\(3\) Service vendors who are preempting services will ensure their best
effort

to notify the service user of the preempted service and state the reason
for and

estimated duration of the preemption.

b\. Service vendors may, based on their best judgment, determine the
sequence

in which existing services may be preempted to provision NSEP services
assigned

a provisioning priority of \"1\" through \"5\". Preemption is not
subject to the

consent of the user whose service will be preempted.

8\. Requests for Priority Assignments.

All service users are required to submit requests for priority actions

through the Executive Office of the President in the format and
following the

procedures prescribed by that Office.

9\. Assignment, Approval, Use, and Invocation of Priority Levels.

a\. Assignment and Approval of Priority Levels. Priority level
assignments

will be based upon the categories and criteria specified in Section 12
of this

appendix. A priority level assignment made by the Executive Office of
the

President will serve as that Office\'s recommendation to the FCC. Until
the

President\'s war emergency powers are invoked, priority level
assignments must be

approved by the FCC. However, service vendors are ordered to implement
any

priority level assignments that are pending FCC approval. After
invocation of

the President\'s war emergency powers, these requirements may be
superseded by

other procedures issued by the Executive Office of the President.

b\. Use of Priority Level Assignments.

\(1\) All provisioning and restoration priority level assignments for
services

in the Emergency NSEP category will be included in initial service
orders to

vendors. Provisioning priority level assignments for Essential NSEP
services,

however, will not usually be included in initial service orders to
vendors.

NSEP treatment for Essential NSEP services will be invoked and
provisioning

priority level assignments will be conveyed to service vendors

only if the vendors cannot meet needed service dates through the normal

provisioning process.

\(2\) Any revision or revocation of either provisioning or restoration
priority

level assignments will also be transmitted to vendors.

\(3\) Service vendors shall accept priority levels and/or revisions only
after

assignment by the Executive Office of the President.

NOTE: Service vendors acting as prime contractors will accept assigned
NSEP

priority levels only when they are accompanied by the Executive Office
of the

President designated service identification, i.e., TSP Authorization
Code.

However, service vendors are authorized to accept priority levels and/or

revisions from users and contracting activities before assignment by the

Executive Office of the President when service vendor, user, and
contracting

activities are unable to communicate with either the Executive Office of
the

President or the FCC. Processing of Emergency NSEP service requests will
not be

delayed for verification purposes.

c\. Invocation of NSEP Treatment. To invoke NSEP treatment for the
priority

provisioning of an NSEP telecommunications service, an authorized
Federal

official either within, or acting on behalf of, the service user\'s

organization must make a written or oral declaration to concerned
service

vendor(s) and the Executive Office of the President that NSEP treatment
is being

invoked. Authorized Federal officials include the head or director of a
Federal

agency, commander of a unified/specified military command, chief of a
military

service, or commander of a major military command; the delegates of any
of the

foregoing; or any other officials as specified in supplemental
regulations or

procedures issued by the Executive Office of the President. The
authority to

invoke NSEP treatment may be delegated only to a general or flag officer
of a

military service, civilian employee of equivalent grade (e.g., Senior
Executive

Service member). Federal Coordinating Officer or Federal Emergency

Communications Coordinator/Manager, or any other such officials
specified in

supplemental regulations or procedures issued by the Executive Office of
the

President. Delegates must be designated as such in writing, and written
or oral

invocations must be accomplished, in accordance with supplemental
regulations or

procedures issued by the Executive Office of the President.

10\. Resubmission of Circuits Presently Assigned Restoration Priorities.

All circuits assigned restoration priorities must be reviewed for
eligibility

for initial restoration priority level assignment under the provisions
of this

appendix. Circuits currently assigned restoration priorities, and for
which

restoration priority level assignments are requested under Section 8 of
this

appendix, will be resubmitted to the Executive Office of the President.
To

resubmit such circuits, service users will comply with applicable
provisions of

Section 6(d) of this appendix.

11\. Appeal.

Service users or sponsoring Federal organizations may appeal any
priority

level assignment, denial, revision, revocation, approval, or disapproval
to the

Executive Office of the President within 30 days of notification to the
service

user. The appellant must use the form of format required by the
Executive

Office of the President and must serve the FCC with a copy of its
appeal. The

Executive Office of the President will act on the appeal within 90 days
of

receipt. Service users and sponsoring Federal organizations may only
then

appeal directly to the FCC. Such FCC appeal must be filed within 30

days of notification of the Executive Office of the President\'s
decision on

appeal. Additionally, the Executive Office of the President may appeal
any FCC

revisions, approvals, or disapprovals to the FCC. All appeals to the FCC
must

be submitted using the form or format required. The party filing its
appeal

with the FCC must include factual details supporting its claim and must
serve a

copy on the Executive Office of the President and any other party
directly

involved. Such party may file a response within 20 days, and replies may
be

filed within 10 days thereafter. The Commission will not issue public
notices

of such submissions. The Commission will provide notice of its decision
to the

parties of record. Any appeals to the Executive Office of the President
that

include a claim of new information that has not been presented before
for

consideration may be submitted at any time.

12\. NSEP TSP System Categories, Criteria, and Priority Levels.

a\. General. NSEP TSP System categories and criteria, and permissible

priority level assignments, are defined and explained below.

\(1\) The Essential NSEP category has four subcategories: National
Security

Leadership; National Security Posture and U.S. Population Attack

Warning; Public Health, Safety, and Maintenance of Law and Order; and
Public

Welfare and Maintenance of National Economic Posture. Each subcategory
has its

own criteria. Criteria are also shown for the Emergency NSEP category,
which

has no subcategories.

\(2\) Priority levels of \"1,\" \"2,\" \"3,\" \"4,\" and \"5\" may be
assigned for

provisioning and/or restoration of Essential NSEP telecommunication
services.

However, for Emergency NSEP telecommunications services, a priority
level \"E\" is

assigned for provisioning. A restoration priority level from \"1\"
through \"5\"

may be assigned if an Emergency NSEP service also qualifies for such a

restoration priority level under the Essential NSEP category.

\(3\) The NSEP TSP System allows the assignment of priority levels to
any NSEP

telecommunications service across three time periods, or stress
conditions:

Peacetime/Crisis/Mobilization, Attack/War, and Post-Attack/Recovery.
Priority

levels will normally be assigned only for the first time period. These
assigned

priority levels will apply through the onset of any attack, but it is
expected

that they would later be revised by surviving authorized
telecommunication resource managers within the Executive Office of the
President based upon specific facts and circumstances arising during the
Attack/War and Post-Attack/Recovery time periods.

\(4\) Service users may, for their own internal use, assign
subpriorities to

their services assigned priority levels. Receipt of and response to any
such

subpriorities is optional for service vendors.

\(5\) The following paragraphs provide a detailed explanation of the

categories, subcategories, criteria, and priority level assignments,
beginning

with the Emergency NSEP category.

b\. Emergency NSEP. Telecommunications services in the Emergency NSEP

category are those new services so critical as to be required to be
provisioned

at the earliest possible time, without regard to the costs of obtaining
them.

\(1\) Criteria. To qualify under the Emergency NSEP category, the
service must

meet criteria directly supporting or resulting from at least one of the

following NSEP functions:

\(a\) Federal government activity responding to a Presidentially
declared

disaster or emergency as defined in the Disaster Relief Act (42 U.S.C. §
5122).

\(b\) State or local government activity responding to a

Presidentially declared disaster or emergency.

\(c\) Response to a state of crisis declared by the National Command

Authorities (e.g., exercise of Presidential war emergency powers under
Section

706 of the Communications Act.)

\(d\) Efforts to protect endangered U.S. personnel or property.

\(e\) Response to an enemy or terrorist action, civil disturbance,
natural

disaster, or any other unpredictable occurrence that has damaged
facilities

whose uninterrupted operation is critical to NSEP or the management of
other

ongoing crises.

\(f\) Certification by the head or director of a Federal agency,
commander of a

unified/specified command, chief of a military service, or commander of
a major

military command, that the telecommunications service is so critical to

protection of life and property or to NSEP that it must be provided
immediately.

\(g\) A request from an official authorized pursuant to the Foreign

Intelligence Surveillance Act (50 U.S.C. § 1801 et seq. and 18 U.S.C. §§
2511,

2518, 2519).

\(2\) Priority Level Assignment.

\(a\) Services qualifying under the Emergency NSEP category are assigned

priority level \"E\" for provisioning.

\(b\) After 30 days, assignments of provisioning priority level \"E\"

for Emergency NSEP services are automatically revoked unless extended
for

another 30-day period. A notice of any such revocation will be sent to
service

vendors.

\(c\) For restoration, Emergency NSEP services may be assigned priority
levels

under the provisions applicable to Essential NSEP services (see Section
12(c)).

Emergency NSEP services not otherwise qualifying for restoration
priority level

assignment as Essential NSEP may be assigned a restoration priority
level \"5\"

for a 30-day period. Such 30-day restoration priority level assignments
will be

revoked automatically unless extended for another 30-day period. A
notice of

any such revocation will be sent to service vendors.

\(c\) Essential NSEP. Telecommunication services in the Essential NSEP

category are those required to be provisioned by due dates specified by

service users, or restored promptly, normally without regard to
associated

overtime or expediting costs. They may be assigned priority levels of
\"1\",

\"2,\", \"3\", \"4,\" or \"5\" for both provisioning and restoration,
depending upon the

nature and urgency of the supported function, the impact of lack of
service or

of service interruption upon the supported function, and, for

priority access to public switched services, the user\'s level of
responsibility.

Priority level assignments will be valid for no more than three years
unless

revalidated. To be categorized as Essential NSEP, a telecommunications
service

must qualify under one of the four following subcategories: National
Security

Leadership; National Security Posture and U.S. Population Attack
Warning; Public

Health, Safety and Maintenance of Law and Order; or Public Welfare and

Maintenance of National Economic Posture. (Note: Under emergency
circumstances,

Essential NSEP telecommunication services may be recategorized as
Emergency NSEP

and assigned a priority level \"E\" for provisioning.)

\(1\) National Security Leadership. This subcategory will be strictly
limited

to only those telecommunication services essential to national survival
if

nuclear attack threatens or occurs, and critical orderwire and control
services

necessary to ensure the rapid and efficient provisioning or restoration
of other

NSEP telecommunication services. Services in this subcategory are those
for

which a service interruption of even a few minutes would have serious
adverse

impact upon the supported NSEP function.

\(a\) Criteria. To qualify under this subcategory, a service must be at
least

one of the following:

\(i\) Critical orderwire, or control service, supporting other NSEP
functions.

\(ii\) Presidential communications service critical to continuity of
government

and national leadership during crisis situations.

\(iii\) National Command Authority communications service for military
command

and control critical to national survival.

\(iv\) Intelligence communications service critical to warning of
potentially

catastrophic attack.

\(v\) Communications service supporting the conduct of diplomatic
negotiations

critical to arresting or limiting hostilities.

\(b\) Priority Level Assignment. Services under this subcategory will
normally

be assigned priority level \"1\" for provisioning and restoration during
the

Peace/Crisis/Mobilization time period.

\(2\) National Security Posture and U.S. Population Attack Warning. This

subcategory covers those minimum additional telecommunication services
essential

to maintaining an optimum defense, diplomatic, or
continuity-of-government

postures before, during, and after crises situations. Such situations
are those

ranging from national emergencies to international crises, including

nuclear attack. Services in this subcategory are those for which a
service

interruption ranging from a few minutes to one day would have serious
adverse

impact upon the supported NSEP function.

\(a\) Criteria. To qualify under this subcategory, a service must
support at

least one of the following NSEP functions:

\(i\) Threat assessment and attack warning.

\(ii\) Conduct of diplomacy.

\(iii\) Collection, processing, and dissemination of intelligence.

\(iv\) Command and control of military forces.

\(v\) Military mobilization.

\(vi\) Continuity of Federal government before, during, and after crises

situations.

\(vii\) Continuity of state and local government functions supporting
the

Federal government during and after national emergencies.

\(viii\) Recovery of critical national functions after crises
situations.

\(ix\) National space operations.

\(b\) Priority Level Assignment. Services under this subcategory will
normally

be assigned priority levels \"2,\" \"3,\" \"4,\" or \"5\" for
provisioning and

restoration during Peacetime/Crisis/Mobilization.

\(3\) Public Health, Safety, and Maintenance of Law and Order. This

subcategory covers the minimum number of telecommunication services

necessary for giving civil alert to the U.S. population and maintaining
law and

order and the health and safety of the U.S. population in times of any
national,

regional, or serious local emergency. These services are those for which
a

service interruption ranging from a few minutes to one day would have
serious

adverse impact upon the supported NSEP functions.

\(a\) Criteria. To qualify under this subcategory, a service must
support at

least one of the following NSEP functions:

\(i\) Population warning (other than attack warning).

\(ii\) Law enforcement.

\(iii\) Continuity of critical state and local government functions
(other than

support of the Federal government during and after national
emergencies).

\(iv\) Hospitals and distributions of medical supplies.

\(v\) Critical logistic functions and public utility services.

\(vi\) Civil air traffic control.

\(vii\) Military assistance to civil authorities.

\(viii\) Defense and protection of critical industrial facilities.

\(ix\) Critical weather services.

\(x\) Transportation to accomplish the foregoing NSEP functions.

\(b\) Priority Level Assignment. Service under this subcategory will
normally

be assigned priority levels \"3,\" \"4,\" or \"5\" for provisioning and

restoration during Peacetime/Crisis/Mobilization.

\(4\) Public Welfare and Maintenance of National Economic Posture. This

subcategory covers the minimum number of telecommunications services
necessary

for maintaining the public welfare and national economic posture during
any

national or regional emergency. These services are those for which a
service

interruption ranging from a few minutes to one day would have serious
adverse

impact upon the supported NSEP function.

\(a\) Criteria. To qualify under this subcategory, a service must
support at

least one of the following NSEP functions:

\(i\) Distribution of food and other essential supplies.

\(ii\) Maintenance of national monetary, credit, and financial systems.

\(iii\) Maintenance of price, wage, rent, and salary stabilization, and

consumer rationing programs.

\(iv\) Control of production and distribution of strategic materials and
energy

supplies.

\(v\) Prevention and control of environmental hazards or damage.

\(vi\) Transportation to accomplish the foregoing NSEP functions.

\(b\) Priority Level Assignment. Services under this subcategory will
normally

be assigned priority levels \"4\" or \"5\" for provisioning and

restoration during Peacetime/Crisis/Mobilization.

d\. Limitations. Priority levels will be assigned only to the minimum
number

of telecommunication services required to support an NSEP function.
Priority

levels will not normally be assigned to backup services on a continuing
basis,

absent additional justification, e.g., a service user specifies a
requirement

for physically diverse routing or contracts for additional
continuity-of-service

features. The Executive Office of the President may also establish
limitations

upon the relative numbers of services which may be assigned any
restoration

priority level. These limitations will not take precedence over laws or

executive orders. Such limitations shall not be exceeded absent waiver
by the

Executive Office of the President.

e\. Non - NSEP services. Telecommunication services in the non-NSEP
category

will be those which do not meet the criteria for either Emergency NSEP
or

Essential NSEP.

Footnotes

^1^ Executive Order No. 12472, "Assignment of National Security and
Emergency Preparedness Telecommunications Functions," April 3, 1984 (49
Fed. Reg. 13471 (1984)), established the NCS. Section 1(e) of Executive
Order No. 12472 designates the Secretary of Defense as Executive Agent
for the NCS. By direction of the Executive Office of the President
(EOP), the NCS member organizations are: Department of Agriculture,
Central Intelligence Agency, Department of Commerce, Department of
Defense, Department of Energy, Federal Emergency Management Agency,
General Services Administration, Department of the Interior, Department
of Justice, National Aeronautics and Space Administration, National
Security Agency, National Telecommunications & Information
Administration, Organization of the Joint Chiefs of Staff, Department of
State, Department of Transportation, Department of Treasury, U.S.
Information Agency, and the Veterans Administration. The Nuclear
Regulatory Commission has been invited by the EOP and has elected to
serve as an NCS member organization. The FCC, Federal Reserve System,
and United States Postal Service also participate in the activities of
the NCS.

^2^ In its comments to the NPRM, NCS filed a revised proposal in
response to some of the concerns discussed in the NPRM. In this decision
references are to the original proposal that constituted the appendix to
the NPRM. References to NCS' revised proposal are indicated in brackets
where appropriate.

^3^ Comments were filed by Aeronautical Radio, Inc. (Arinc), Alarm
Industry Communications Committee (AICC), American Telephone and
Telegraph Company (AT&T), Ameritech Operating Companies (Ameritech),
Association of American Railroads (AAR), Bell Atlantic Telephone
Companies (Bell Atlantic), Bell CommunicationsResearch, Inc. (Bellcore),
BellSouth Corporation (BellSouth), Cellular Telecommunications Industry
Association (CTIA), Centel Corporation (Centel), Federal Executive
Agencies (DoD or NCS), GTE Service Corporation (GTE), Nickolaus E.
Leggett (Leggett), McCaw Cellular Communications, Inc. (McCaw), MCI
Telecommunications Corporation (MCI), The Mountain States Telephone and
Telegraph Company, Northwestern Bell Company and Pacific Northwest Bell
Telephone Company (collectively, US West), National Association of
Regulatory Utility Commissioners (NARUC), National Telephone Cooperative
Association (NTCA), NYNEX Telephone Companies (NYNEX), Pacific Bell and
Nevada Bell (collectively, Pacific Bell), Southwestern Bell Telephone
Company (Southwestern Bell), Telocator Network of America (Telocator),
Teltec Saving Communications Co. (Teltec), United States Telephone
Association (USTA) and Utilities Telecommunications Council (UTC). Reply
comments were filed by AT&T, Bellcore, BellSouth, CTIA, Cincinnati Bell
Telephone (CBT), GTE, McCaw, MCI, NCS, Pacific Bell, Southwestern Bell,
Telocator, USTA and US West.

^4^ A priority System for the Use and Restoration of Leased Intercity
Private Line Services, 6 F.C.C. 2d 344 (1967). These rules have been
amended on three occasions. *See* 22 F.C.C. 2d 159 (1970); 77 F.C.C. 2d
114 (1980); 81 F.C.C. 2d 441 (1980). *See also* Declatory Ruling, 104
FCC 2d 945 (1986), *recon*., FCC 86-592 (Jan. 8, 1987).

^5^ Section 706, 47 U.S.C. § 706, provides, in part, that during war the
President is authorized "to direct that such communications as in his
judgment may be essential to the national defense and security shall
have preference or priority with any carrier subject to this Act." The
Executive Branch has promulgated rules parallel to the Commission's to
accommodate the transfer of regulatory authority over the RP system to
the President in the event Section 706 is invoked.

^6^ Under the current rules, federal and foreign government users'
requests are submitted to the NCS; state and local government and
private industry requests are submitted directly to the FCC.

^7^ As used in this proceeding, the word "provisioning" refers to the
initiation of a new service or line as opposed to the restoration of an
existing service or line.

^8^ NCS noted that as technology is changing it is becoming infeasible
to physically identify specific circuits in a carrier's office and
associate them with specific restoration priorities. The TSP system is
designed to alleviate this problem by assigning priorities to services,
and even users, when appropriate.

^9^ The petition stated that in September of 1984, in light of these
problems and the vast changes that have occurred in the
telecommunications industry over the last five years, the Manager of NCS
directed action to update and modernize the RP system. NCS asked each
industry entity represented on the National Security Telecommunications
Advisory Committee (NSTAC) to provide advice regarding the matters that
needed to be addressed in provisioning and restoring NSEP services. The
NSTAC Industry Executive Subcommittee (IES) subsequently established a
TSP Task Force to assist the government in the development of the TSP
system. NCS, in conjunction with the TSP Task Force, began work on
drafting TSP System baseline requirements. The requirements were
distributed to the telecommunications industry and the NCS Council of
Representatives for review and comment and were approved by NSTAC's IES
and the NCS Committee of Principals in June 1985. Next, a TSP System
Concept, which was to describe the TSP System in sufficient detail to
permit its subsequent design and implementation, and was drafted and
approved by the NCS Committee of Principals and NSTAC in the spring of
1986. Subsequently, work was begun on the petition for Rule Making
together with detailed procedures for implementing and operating the TSP
System.

^10^ NARUC v. FCC, 746 F.2d 1492, 1498-99 (D.C. Cir. 1984); California
v. FCC, 567 F.2d 84, 86 (D.C. Cir. 1977), *cert. denied*, 434 U.S. 1010
(1978); North Carolina Util. Comm'n v. FCC, 537 F.2d 787 (4th Cir.),
*cert. denied,* 429 U.S. 1027 (1976) (NCUC I); North Carolina Util.
Comm'n v. FCC 552 F.2d 1036 (4th Cir.), *cert. denied*, 434 U.S. 874
(1977) (NCUC II). See also C&P Tel. Co. of Maryland, 2 FCC Rcd 3528
(1987).

^11^ In the NPRM, at para. 34, we discussed the argument raised by Bell
Atlantic that the proposed rules would bar the restoration of any
facility not a part of the TSP system, even if it were an important
local service such as 911, prior to the restoration of all TSP services.
NCS noted that Section 5 of the rules bars only conflicting priority
systems. In response to the NPRM, Centel suggests that 911 and other
vital local services be assigned priority status if they are not
otherwise part of TSP, and NCS recommends that 911 service be given
restoration priority status. We believe that the policy set forth
herein, in conjunction with the language and intent of Section 5, offers
adequate guidance on this matter.

^12^ In a large scale failure it is possible that portions of the PSN
will be restored before some NSEP priority private line services. We
believe this kind of occurrence may be occasionally unavoidable and we
would not rule now that such a result is *per se* not compliant with the
TSP rules. *See* discussion, *infra*, on preemption.

^13^ The term "sufficient number" in Section \[7(a)(1)\| is open-ended
and may in some cases result in near normal PSN service or, in other
cases, very few available PSN lines. At this time we will rely on the
good faith of carriers to provide, to the extent possible, a reasonably
sufficient array of PSN circuits. The change from "will remain" to "are"
in Section \[7(a)(1)\| assures that consideration is given to PSN
circuits in the event all circuits in an area are down. (Of course, NSEP
priorities will take precedence).

^14^ See existing Part 64 rules and Declatory Ruling, 104 F.C.C. 2d 945
(1986).

^15^ In this order we will delegate authority to the Chief, Common
Carrier Bureau to decide the matter of disposition of the filing(s) to
the Commission and to resolve, in the first instance, all related
substantive and procedural issues. *See* para. 133, *infra.* *See also*
note 41, *infra*.

^16^ NCS cites Burdick v. Southwestern Bell Telephone Company, 9 Kan.
App. 2d 182, 675 P.2d 922 (1984), reaching an opposite result on intent.

^17^ In Declatory Ruling, supra, at para. 23, we stated that

> The procedures appear reasonable and it is important for national
> security reasons that carriers know that actions they take to meet
> NSEP requirements should not later be subject to potential liability.
> Accordingly, we find that carrier actions in response to requests made
> in accordance with the Procedures Manual are prima facie lawful. Any
> party challenging discriminatory treatment occasioned by a request
> made pursuant to the Manual would have a very heavy burden to
> demonstrate its unreasonableness.

^18^ While consent will not be mandated, we would expect notification as
a matter of normal business practice, where practicable. *See* Section
\[7(a)(3)\].

^19^ Our alternative language at para. 29 of the NPRM was:

\(7\) Receive compensation for costs through

\(a\) Provisions contained in properly filed tariffs; or

\(b\) Provisions of properly negotiated contracts where the carrier is
not required to file tariffs.

^20^ Moreover, in each case of TSP invocation a different set of general
ratepayers may benefit and in many cases persons or entities that are
not general ratepayers may benefit, such as private line service
subscribers or even non-telephone subscribers.

^21^ Section \[3(t)\| reads: *Service User* refers to any individual or
organization (including a service vendor) supported by a
telecommunications service for which a priority level has been requested
or assigned pursuant to Section 8 or 9 of this appendix.

^22^ *See* Section 1(b) of TSP rules. We note, as did UTC in its
comments, that Sections 3(k), 3(t), and 4(c) refer to services which are
not strictly common carrier in nature and which, therefore, are not
subject to Title II of the Act or the TSP rules. However, Section
\[4(a)(2), amended\| provides that the scope of TSP includes

> Services which are provided by government and/or noncommon carriers
> and \[which\] are interconnected to common carrier services assigned a
> priority level pursuant to section 9 of this appendix.

The extent to which non-common carrier services, systems or facilities
are subject to or protected by pre-706 TSP System rules is limited by
the degree to which the common carrier vendor user uses those services,
systems or facilities to provide its common carrier services, systems,
and facilities. This does not preclude NCS from using an alternative
interpretation in discussions or negotiations with parties not subject
to Title II of the Act to establish analogous provisioning or
restoration priorities. See, e.g., AAR Comments at pp. 3 and 6. This
also resolves the question raised by AT&T concerning the Commission's
authority over equipment vendors who sell equipment to others for direct
connection to the network.

^23^ Arinc also urges that the Commission not permit NCS to downgrade
priorities already approved under RP. We reject this request. A critical
reason for NCS proposing TSP is the skewed distribution of RP priority
assignments. With TSP should come a review of all assignments, some of
which may be upgraded or downgraded.

^24^ Since NCS recommendations are considered interim assignments
pending FCC review, and assignees (users or sponsoring agencies) are
authorized to proceed on the basis of receipt of the interim
assignments, FCC review time is not included in the 30 day limit. In
other words, the 30 day requirement is solely applicable to NCS'
response to priority requests.

^25^ Upon sufficient showing, the 30 day period can be waived.

^26^ In order to expedite resolution of disputes and other matters
involving TSP that are submitted to the Commission, we will delegate all
necessary authority to the Chief, Common Carrier Bureau to discharge,
among other matters, the Commission's responsibilities under Section 6.

^27^ The FCC Form 915 has been eliminated. Any new form will be
developed in conjunction with NCS and the Office of Management and
Budget.

^28^ For example, if a service user files an appeal it must provide a
copy to the service provider.

^29^ Control services and orderwires as used in TSP refer to internal
means used by carriers for network management purposes. Similar terms,
not related to matters associated with this proceeding, have been used
with regard to control channels for specialized data services such as
ISDN.

^30^ Resellers may secure special circuits, such as control or orderwire
services, in order to manage the services and facilities they offer
users. They are not responsible for the integrity of the underlying
physical plant and so would not benefit from TSP exemption for their
leased internal management facilities or services. Their leased
orderwire and control services could qualify, however, for priority
treatment under the TSP System rules. Accordingly, the last sentence of
Section 4(b) will be adopted as proposed.

^31^ McCaw's revised Section 8 would read:

> Certain telecommunications service vendors do not own any or all of
> the transmission facilities used to provide telecommunications
> services. They rely instead, in whole or in part, on facilities leased
> from other telecommunications vendors. These resale or interconnecting
> carriers may provide services that qualify for priority level
> assignment. In order for the priority level assignment to have
> practical value, it must also apply to the service leased by the
> resale or interconnecting carrier from another telecommunications
> service vendor, such that the highest priority level assigned to any
> service using the underlying facility will determine that facility's
> priority level assignment. Resale and interconnecting carriers must
> also ensure that telecommunications service vendors supplying
> underlying facilities are provided information necessary to implement
> any priority levels assigned to resale or interconnecting carrier
> services.

^32^ While TSP focuses on services, it is facilities that are always
actually provisioned or restored.

^33^ "Non-disclosure" as a standard business practice would serve as a
defense against an assertion of abuse.

^34^ This information includes identification, priority, contracting
activity and contract identification data which must be received by EOP
directly from the prime service vendor.

^35^ It has been suggested that charges incurred as a result of
reconciliation and audits be borne by NCS as the cost causative user.
*See* discussion, *supra*, concerning costs.

^36^ It has been informally suggested that a different term be used,
such as investigation, reconciliation procedure, problem review, etc. In
view of our discussion herein, we believe the term audit is appropriate.

^37^ The definition of "revalidation" in Section 3(o)\[3(p)\| in
conjunction with the clarification of "audit" should alleviate
Ameritech's concern regarding improper changing circuit designations
through the recordkeeping process.

^38^ NCS' changes in Sections 6(c)(3), 6(d)(10) and 6(f)(6)(e)
\[6(f)(7)(e)\| as well as its addition of Section \[6(f)(7)(f)\] to
require vendors to track their contractors' records, respond to
suggestions and concerns expressed by AT&T, GTE, McCaw regarding
reconciliation responsibilities. Further in response to McCaw, we
interpret Section \[6(f)(7)(f)\| to require contractors, in turn, to be
primarily responsible for their subcontractors' reconciliation
activities. This institutionalized burden flow-through represents the
most expedient means of assuring that reconciliation is conducted
correctly by each succeeding subcontractor. We will modify the language
of Section \[6(f)(7)(f)\| accordingly.

^39^ NCS has indicated that it will maintain its MIS database of
priority level assignments. *See* Section 6(b)(2)(c). Hence, the concern
expressed by Pacific Bell to assure a source of information is moot. We
are also satisfied that NCS' statement that in most cases verification
will be obtained from EOP is responsive to Pacific Bell's concern
regarding the identity of "authorized entity" in Sections 6(f)(3)(c) and
6(f)(6)(a) \[6(f)(7)(a)\].

^40^ Southwestern Bell's suggestion to include a definition of
"reconciliation" has been adopted by NCS. *See* Section 3\[n\].

^41^ There are several references in the pleadings to the issuance of
procedural guidelines by NCS. The guidelines are called, variously,
vendor operating procedures, operational procedures, operational
guidelines, operations manual, procedural guidelines, etc. All of these
refer to the procedural guidelines that are currently under preparation
by NCS for government and vendors. Our analysis applies equally to both,
and for purposes of this discussion there is no decisional significance
to any of the terms used for NCS' procedural guidelines, since, in whole
or part, they will appear before us for review. Proposed Directive 3-1
is subsumed in this term as well.

^42^ NCS apparently based its position in part on its predicate argument
that the Commission should delegate EOP authority to develop rules that
implement TSP. *See* paras. 34-35, *supra*.

^43^ The difference between the adoption date and Federal Register date
will likely be only a matter of weeks. The Commission's decision is
effective 30 days following the Federal Register date. (The Federal
Register date also constitutes the official release date. If there is no
Federal Register publication, the official release date is the day the
order is released to the public at the Commission's main offices, 1919 M
Street, N.W., Washington, D.C.). We also note that RP assignments may be
issued until the IOC date, in order to preserve the availability of a
priority procedure until TSP is initiated. This is codified in Section 2
of the TSP rules. With effectuation of the TSP rules (IOC date),
however, the RP rules and the precedence rules will be deleted from the
Code of Federal Regulations. Nevertheless, the extent to which RP
remains viable, i.e., until the FOC date, will be by reference through
Section 2 of the rules.

^44^ Moreover, application of RP to cellular services would require a
Rule Making proceeding, resolution of which would probably not occur
prior to TSP IOC. The TSP NPRM did not contemplate any interim changes
to the existing RP rules.

^45^ Of course, the common carrier component may be subject to TSP if
the common carrier provider of that component complies with the TSP
procedures.

^46^ Private system owners may be subject to antitrust action if they
provide priority treatment to certain users. Collateral compliance by
private users with TSP standards and procedures may not necessarily
provide them with a defense to antitrust allegations.

^47^ Section 0.314(g) of the Commission's rules delegates authority to
the Engineer in Charge (EIC) at each installation to act on and make
determinations on behalf of the Commission regarding requests for
reassignment of restoration priority levels and assignment of new
restoration priorities concerning the restoration in emergencies of
common carrier-provided intercity private line service pursuant to
Appendix A of Part 64 of the Commission's rules when, for any reason,
the Commission's ROP processing staff cannot be contacted. This
provision was predicated on the RP system, which involved assignment of
priorities by either the Commission or NCS. The TSP System, however,
essentially reserves initial assignment (or reassignment) of all
priorities to NCS. A general delegation to the EIC to issue priorities
under TSP potentially could conflict with the process established under
TSP. On the other hand, there may be exceptional circumstances under
which an EIC, on-site and with authority to alter or grant priorities,
would serve the purposes of TSP and the public interest. Those
circumstances should be limited to cases where, in the judgment of the
EIC, after reasonable effort neither NCS nor the logistics warrant
immediate action. In any such case, the NCS and the Commission must be
notified as soon as possible by the EIC, and the carrier involved must
expeditiously seek priority in accordance with normal TSP procedures. We
will amend Section 0.314(g) accordingly.