**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | ET Docket No. 04-35          |
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| New Part 4 of the Commission's   | ** |                              |
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| Concerning Disruptions to        | *) |                              |
| Communications                   | ** |                              |
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**ORDER GRANTING PARTIAL STAY**

**Adopted: December 20, 2004 Released: December 22, 2004**

**By the Commission:**

1.  Before the Commission for consideration is the "Petition for Partial
    Stay" (hereinafter, "USTA Petition" or "Petition") filed on November
    19, 2004 by the United States Telecom Association (USTA)[^1] and
    Comments in Support of the Petition ("MCI Comments") filed on
    November 26, 2004 by MCI. The USTA requests a stay of the
    enforcement of the provisions of paragraph 134 of the *Report and
    Order* in this proceeding.[^2] The *Report and Order* adopted
    revised mandatory outage-reporting requirements and extended those
    requirements to include cable, satellite, and wireless
    communications providers, as well as to wireline communications
    providers, which were previously subject to such requirements.[^3]
    The *Report and Order* also addressed major communications
    infrastructure failures and adopted a reporting requirement for any
    outage that lasts at least 30 minutes and affects 1,350 or more DS3
    minutes.[^4] USTA objects to paragraph 134 of the *Report and
    Order*, which states:[^5]

> When a DS3 is part of a protection scheme such as a SONET ring, it
> will frequently switch to a protect-path within seconds of a failure
> in the primary path. The communication services being provided over
> the DS3 will not be immediately affected, *but they will no longer be
> protected*. Unfortunately, we have had a number of network outages
> reported where there are multiple failures on a SONET ring at
> different points in time, in one case five months after the initial
> failure.[^6] The second failure that occurs before the first failure
> is repaired causes the loss of all communications services being
> provided over the DS3. We therefore require that DS3s that switch to
> protect be counted in DS3 outage minutes until such time as the DS3s
> are restored to normal service, including protection. . . . Protected
> communications services are not restored to normal until both the
> primary and protect DS3s operate properly. In this same regard, if
> protection DS3s should fail while the primary DS3s are still working,
> services would not be immediately affected but the failed DS3 minutes
> are still counted toward the reportable trigger due to the loss of
> protection.

2.  The USTA refers to the switching of a DS3 that is part of a
    protection scheme, such as a Synchronous Optical Network (SONET)
    ring, as a "DS3 simplex event,"[^7] and argues that such events
    should not be considered to be communications disruptions or
    outages. It claims that the requirement to report DS3 simplex events
    that exceed the 30-minute/1350-DS3-minute criteria was adopted
    without adequate public notice and poses an inequitable burden on
    communications providers. USTA also contends that a DS3 simplex
    event is not an \"outage,\" as that term is defined in the
    Commission\'s rules.[^8] It states, therefore, that it intends to
    file a petition for reconsideration of this requirement and requests
    a stay of the enforcement of this requirement pending the
    Commission's decision on reconsideration.

3.  As the USTA states, to warrant the grant of a stay, a moving party
    ordinarily must satisfy a four-prong test that:[^9] (a) it is likely
    to prevail on the merits; (b) it likely would suffer irreparable
    harm absent a stay; (c) no harm would be caused to third parties if
    a stay were granted; and (d) grant of a stay would serve the public
    interest. For reasons explained below, we find that the USTA has
    failed to satisfy the first prong of this test and, therefore, we
    deny its Petition. Nevertheless, we believe that the public interest
    would be best served by developing a full record pertaining to the
    issue of "DS3 simplex events." We particularly wish to investigate
    the burden that could be imposed on communications providers if they
    are required to report on DS3 simplex events that are repaired
    within the maintenance window but exceed the
    30-minute/1350-DS3-minute criteria. We therefore, on our own motion,
    grant a partial stay of the enforcement of the provisions of
    paragraph 134 of the *Report and Order* to the extent that it
    applies to DS3 simplex events that are restored to full service
    within five days of their discovery

as reportable outages.[^10] The stay will remain in effect until our
investigation is complete. In any event, however, DS3 simplex events
that are not restored within five days of becoming reportable outages
must be reported as DS3 outages.[^11]

# USTA Petition for Partial Stay

4.  *Likelihood of Prevailing on the Merits*. USTA argues that the
    Commission did not provide proper notice of the DS3-simplex
    reporting requirement, that DS3 simplex events do not constitute
    "outages," and that it is likely to prevail on these arguments.[^12]
    We disagree. The *Notice of Proposed Rulemaking* in this proceeding
    specifically stated, "Rather than collect information that is
    limited specifically to 'special services,' . . . we propose to
    directly address the underlying issue and collect information on the
    potential impact on all communications services of major
    infrastructure failures.\"[^13] The *Notice* further explained:[^14]

> \[a\]s a consequence, we propose to establish additional
> outage-reporting criteria that would apply to failures of
> communications infrastructure components having significant
> traffic-carrying capacity. . . . We believe that the threshold
> reporting criterion for such infrastructure outages should be based on
> the number of DS3 minutes affected by the outage. . . . Specifically,
> we propose to require the reporting of all outages of at least 30
> minutes duration that potentially affect at least 1,350 DS3 minutes.
> We propose to count only working DS3s in this measure, by which we
> mean those *actually carrying some traffic of any type* at the time of
> a failure. . . .
>
> It is indisputable that when a DS3 operates in simplex mode (*i.e.*,
> bearer path without a protect path), it is carrying traffic. It is
> also true that when a DS3 operates in duplex mode (*i.e.*, bearer path
> plus protect path), both circuit paths provide information
> simultaneously. The traffic on the protect path, however, is ignored
> until such time as the bearer path becomes disabled. The purpose of
> this design is to achieve greater assurance of the continuity of
> communications in the event that communications along one of the paths
> is disrupted. We thus also regard the protect path as a
> traffic-carrying path. Therefore, we conclude that paragraphs 46-47 of
> the *Notice* sufficiently notified the public that DS3 simplex events
> could become subject to the kind of outage-reporting requirements
> adopted by the *Report and Order*. This conclusion is reinforced by
> the actual wording of the proposed rule, which defines \"DS3 minutes\"
> as \"the mathematical result of multiplying the duration of an outage,
> expressed in minutes, *by the number of previously operating DS3
> circuits that were affected by the outage*.\"[^15]

# Grant of Partial Stay *Sua Sponte*

5.  Through affidavits and a declaration attached to the USTA Petition,
    BellSouth, Verizon, SBC, ALLTEL, Frontier and Citizens ILECs, and
    Iowa Telecom claim that the requirement to report DS3 simplex events
    as outages will impose substantial additional burdens and costs on
    communications providers with no corresponding benefit. BellSouth
    states that when a DS3 simplex event occurs:[^16]

> a repair is scheduled in a judicious manner. . . . \[R\]estoration
> activities . . . are typically scheduled to take place *during the
> next maintenance window* along with other critical activities that
> place service at risk. BellSouth's maintenance windows are typically
> late at night or early in the morning each day of the week, including
> weekends. Restoration activities for simplex events involving
> electronics are scheduled during normal maintenance periods because
> these activities pose a greater risk to service than the possibility
> that the DS3 simplex event could escalate to an "outage" caused by a
> second failure. In comparison, restoration activities for facility
> damage (typically caused by construction and farming activities
> involving digging equipment) that result in a DS3 simplex event are
> scheduled promptly on a priority basis instead of being scheduled
> during a normal maintenance window.

BellSouth essentially argues that, if all DS3 simplex events were
treated as priority-basis outages, they would generate approximately
1,011 outage reports annually, even though true DS3 simplex "outages"
occur only three to four times a year.[^17] As a result, BellSouth
estimates that it would incur additional labor costs of 36 man-years, or
\$5.82 million, for treating as reportable outages those DS3 simplex
events that are repaired during its maintenance windows.[^18]

6.  Similarly, Verizon estimates that the requirement to report as
    outages all DS3 simplex events would result in its filing an
    additional 1,000 outage reports annually.[^19] Verizon stresses
    that, like BellSouth, it "maintains a policy that unless the risk of
    failure of the simplex element is so significant as to warrant
    immediate restoration, restoration of a simplex DS3 event to a
    two-path ("duplex") operation routinely is deferred until a time of
    day when traffic is low."[^20] It asserts that this policy adheres
    to NRIC Best Practices.[^21] SBC states that it, too, usually defers
    corrective action for DS3 simplex events to low-traffic, maintenance
    windows.[^22] If all DS3 simplex events were treated as outages, SBC
    states it would need to implement new methods and procedures, would
    be required to report approximately 3,500 DS3 simplex events
    annually, and would incur an additional 315,000 man-hours (over 150
    employees) in labor costs.[^23]

7.  ALLTEL states that the DS3 simplex event reporting requirement would
    require it to file at least 200 additional reports annually and that
    it would have to install at least \$2 million in electronic
    monitoring equipment throughout its network in order to comply with
    the requirement that a Notification be filed within two hours of the
    onset of the outage.[^24] Frontier and Citizens ILECs state that, to
    comply with the two-hour reporting requirement, they would need to
    spend \$16 million for network reconfigurations and additional
    hardware and software, plus additional labor costs.[^25] Iowa
    Telecom declares that it, too, would have to redesign its network to
    comply with DS3 simplex event reporting requirement, a project that
    it estimates would take three to five years and \$16 million to
    complete.[^26] Finally, in its comments, MCI estimates that the
    requirement would result in its having to file between 5,000 and
    8,000 outage reports annually, with an annual cost approaching one
    million dollars.[^27]

8.  Although these cost and burden estimates have not been supported
    with sufficiently comprehensive showings, we do believe that a more
    complete record should be developed on this issue. As we understand
    the arguments, the cost and burden estimates are based almost
    exclusively on inclusion as outages of those DS3 simplex events that
    are routinely corrected within the communications providers' normal
    maintenance windows. No persuasive argument has been advanced as to
    why DS3 simplex events that extend beyond the maintenance window
    should not be counted as outages. In the worst case scenario, this
    window might last as long as five days.[^28] We also take cognizance
    of, but reject, the contentions that substantial network
    reconfiguration will be needed to comply with the two-hour
    Notification requirement. The two-hour Notification requirement runs
    from the time that the communications provider reasonably becomes
    aware pursuant to normal business practices that a reportable outage
    has occurred. Communications providers are not required to
    reconfigure their networks or to add any monitoring equipment that
    might alert them more quickly to the onset of an outage although, in
    most cases, it would not be inappropriate for them to consider doing
    so.

9.  As a consequence, we have decided to grant a partial stay of the
    provisions of paragraph 134 of the *Report and Order* insofar as it
    requires the reporting as outages of DS3 simplex events that are
    corrected within five days of their discovery. The stay shall
    continue in effect until our investigation of this matter is
    completed. DS3 simplex events that extend beyond this five-day
    window must be reported as outages.[^29]

# Ordering Clauses

10. Accordingly, IT IS ORDERED that the "Petition for Partial Stay"
    filed on November 19, 2004 by the United States Telecom Association
    IS DENIED.

11. IT IS FURTHER ORDERED that the provisions of paragraph 134 of *New
    Part 4 of the Commission's Rules Concerning Disruptions to
    Communications*, ET Docket No. 04-35, *Report and Order*, FCC 04-30,
    released August 19, 2004, ARE STAYED to the extent set forth in
    paragraph 9, above, pending resolution of our investigation into the
    matters discussed hereinabove.

12. IT IS FURTHER ORDERED on our own motion for good cause found,
    pursuant to Section 553(d)(1),(3) of the Administrative Procedure
    Act, 5 U.S.C. Section 553(d)(1),(3), and Section 1.103(a) of the
    Commission\'s Rules, 47 C.F.R. Section 1.103(a), that the effective
    date of this Order and of the stay is the date upon which this Order
    is released by the Commission.[^30]

> **FEDERAL COMMUNICATIONS COMMISSION**
>
> **Marlene H. Dortch**
>
> **Secretary**

[^1]: The USTA is a trade organization representing local exchange
    carriers (LECs). USTA Petition at 1.

[^2]: *Id.* For the text of paragraph 134, see *New Part 4 of the
    Commission's Rules Concerning Disruptions to Communications*, ET
    Docket No. 04-35, *Report and Order*, FCC 04-188, released August
    19, 2004 (hereinafter, \"*Report and Order*\"), at ¶ 134.

[^3]: The *Report and Order* also moved the outage-reporting rule from
    section 63.100 to new Part 4 of our rules.

[^4]: A DS3 is a unit of communications capacity that can be used to
    carry hundreds of different services. The services that are actually
    carried can vary from moment to moment. *Report and Order*, *supra*
    note 2, at ¶ 143. DS3 circuits have a data rate of approximately
    44.7 megabits per second. *Id.* at ¶ 128 n.353. "DS3 minutes" are
    defined as the mathematical result of multiplying the duration of an
    outage, expressed in minutes, by the number of previously operating
    DS3 circuits that were affected by the outage, Section 4.7(d) of the
    Commission's Rules, to be codified at 47 C.F.R. § 4.7(d) (2005).

[^5]: *Report and Order*, *supra* note 2, at ¶ 134.

[^6]: Under the *current* 63.100 reporting scheme the initial failure
    was not reported because there was no loss of voice service to end
    users (footnote in original).

[^7]: We shall use this same terminology hereinafter in this Order.

[^8]: USTA Petition at 2. An \"outage\" is defined in the Commission\'s
    rules as \"a significant degradation in the ability of an end user
    to establish and maintain a channel of communications as a result of
    failure or degradation in the performance of a communications
    provider\'s network.\" *Report and Order,* Appendix B at § 4.5(a).

[^9]: *See Virginia Petroleum Jobbers Ass'n v. FPC*, 259 F.2d 921, 925
    (D.C. Cir. 1958).

[^10]: We note in this regard SBC's statement that \"\[i\]t would be an
    exceptional circumstance that would result in a DS3 simplex event
    ever lasting longer than five days\" (USTA Petition, Affidavit of
    Ray M. Luke, SBC, at 4) and BellSouth's statement that \"restoration
    activities for electronics are typically *scheduled* to take place
    *during the next maintenance window* along with other critical
    activities that place service at risk. BellSouth\'s maintenance
    windows are typically late at night or early in the morning each day
    of the week, including weekends\" (USTA Petition, Affidavit of
    Archie McCain, BellSouth, at 4) (emphasis in original).

[^11]: Of course, simplex events that subsequently degenerate into
    failures of *both* the primary and the protect paths are
    independently reportable as outages subject to the 1,350 DS3-minute
    reporting trigger.

[^12]: USTA *Petition* at 5-9.

[^13]: *New Part 4 of the Commission's Rules Concerning Disruptions to
    Communications*, ET Docket No. 04-35, *Notice of Proposed*
    Rulemaking, FCC 04-30, released February 23, 2004 ("*Notice*"), at ¶
    46.

[^14]: *Notice* at ¶ 47 (emphasis added).

[^15]: *Id.* at Appendix A, § 4.7(d) (emphasis added). This definition
    was adopted without change. *See Report and* Order*, supra* note 2,
    Appendix B, § 4.7(d), to be codified at 47 C.F.R. § 4.7(d) (2005).

[^16]: USTA Petition, Affidavit of Archie McCain, BellSouth, at 4
    (emphasis in original).

[^17]: *Id.* at 5.

[^18]: *Id.* at 5-6.

[^19]: USTA Petition, Declaration of Robin Howard, Verizon, at 2.

[^20]: *Id.* at 3.

[^21]: *Id.* at 3-4.

[^22]: USTA Petition, Affidavit of Ray M. Luke, SBC, at 3-4.

[^23]: *Id.* at 5-6.

[^24]: USTA Petition, Affidavit of James J. Roberts, ALLTELL, at 2-3.

[^25]: USTA Petition, Affidavit of Cassandra K. Guinness, Frontier and
    Citizens ILECs, at 3.

[^26]: USTA Petition, Affidavit of Dennis R. Kilburg, Iowa Telecom, at
    4.

[^27]: MCI Comments at 3.

[^28]: USTA Petition, Affidavit of Ray M. Luke, SBC, at 4.

[^29]: Of course, simplex events that subsequently degenerate into
    failures of *both* the primary and the protect paths are
    independently reportable as outages subject to the 1,350 DS3-minute
    reporting trigger.

[^30]: This Order addresses Commission rules that are currently pending
    but are expected to become effective on January 3, 2004, hence the
    need for putting the Order into effect immediately.