In the aftermath of Hurricane Ian, utilities and telecommunications companies in Florida and other states in its path will be beginning the disaster recovery process. This checklist is not intended to be an all-inclusive list, but is intended to serve as a preliminary guide to help utilities and telecommunications companies affected by Hurricane Ian consider some of the potential legal and operational concerns that may surface during the initial phases of disaster recovery.
Potential Legal Issues
- Waiver and/or extension of certain FCC filing deadlines during Ian disaster recovery
On Thursday September 29, 2022, the FCC found that, "in light of the significant damage caused by Hurricane Ian," it would be unduly burdensome to require affected licensees and applicants to continue to meet certain filing requirements and regulatory deadlines. Accordingly, the FCC granted a blanket deadline extension to those impacted making most deadlines currently set between September 24, 2022 and October 24, 2022 extended to October 25, 2022.
The FCC also waived certain timeframes, such as the requirement to notify the FCC within 30 days of making minor license modifications, or the requirement to give the FCC advance notice of construction. Those notifications will be considered timely so long as they are submitted by October 25, 2022. FCC licensees and applicants impacted by Hurricane Ian also do not need to file individual waiver or extension requests, and will not have to pay individual waiver fees. FCC licensees and applicants impacted by Hurricane Ian may also file waiver requests for relief not covered by the September 29, 2022 Public Notice.
- FAA tower painting and lighting requirements applicable to damaged cell towers and other structures over certain height in Ian impact zone.
Any temporary or permanent structure that exceeds an overall height of 200 feet above ground level, should be marked and/or lighted. Construction or alteration of such a structure generally requires FAA notification at least 45 days prior to the construction or alteration start date. However, under these circumstances, you may notify the FAA about the emergency construction/alteration "by any available, expeditious means," so long as a FAA Form 7460-1 is filed within five days of the initial emergency construction notice to the FAA. The Form may be submitted through the FAA's e-file system. If the emergency construction or alteration is abandoned, dismantled, or destroyed, notice should be submitted through the FAA's e-file system within 5 days after the construction or alteration is abandoned, dismantled, or destroyed.
In the aftermath of Hurricane Ian, utilities, and other public service providers may need to erect temporary structures that exceed 200 feet in height above ground level. This includes temporary construction equipment such as cranes and derricks. Such temporary structures and/or equipment, must be reported using the FAA's e-file system. Detailed instructions for electronically reporting a temporary structure are available here.
Because all light outages, even partial outages, decrease the margin of safety, the FAA requires that any light outage that lasts more than thirty minutes and affects a "top light" or a "flashing obstruction light" must be "reported immediately" by using the FAA's online reporting tools if you do not own the structure, use the Light Outage Report Form; if you do own the structure, use the FAA's e-file system; or call the FAA at 877-487-6887. Either reporting method will result in the issuance of a Notice to Airmen ("NOTAM") regarding the light outage.
- Requirements regarding access and/or repairs to equipment located in areas of religious and cultural significance on Native American reservation lands in or near the Ian disaster impact zone.
An advance notification procedure is required to alert Tribes of anticipated activity in areas of religious and cultural significance on Tribal lands. Exempt or otherwise permitted emergency response activities must be undertaken within 30 days of the disaster declaration. If additional time is needed, the entity may request an extension from the Advisory Council on Historic Preservation prior to the expiration of the 30 days.
- Compliance with National Historic Preservation Act for utility equipment/repair replacements on sites covered by the Act.
Immediate rescue and salvage operations conducted to preserve life or property after a disaster or emergency has been formally declared by the appropriate authority are exempt from the requirements of the National Historic Preservation Act. Exempt or otherwise permitted emergency response activities must be undertaken within 30 days of the disaster declaration. If additional time is needed, the entity may request an extension from the Advisory Council on Historic Preservation prior to the expiration of the 30 days.
Potential Operational Issues
- Debris removal coordination with state and local governments and other utilities or telecommunications companies is critical during disaster recovery. In past hurricane disaster recovery situations there were numerous documented instances of debris removal crews inadvertently pulling down aerial cable, cutting buried fiber, etc. These fiber cuts sometimes occurred repeatedly in the same areas.
- Utility work crew credentialing will be very important to have in place before the clean-up begins. Having the right badges, passes, and letters of introduction to get the utility work crews past the state police roadblocks and into the areas where equipment repairs are needed, can become a critical concern during disaster recovery. The credentialing function is often controlled by the state police or other state agency. Lobbyists with relationships in upper management within the state police or other relevant state or local agency can be very useful during disaster recovery.
- Certain very specialized equipment may be in short supply during disaster recovery. Federal agencies may unofficially assist utilities in locating very specialized equipment for use in disaster recovery. Utility industry associations may also be of assistance in this area.
- Utilities may want to create a special cost center to separately track storm recovery costs. Some storm-related costs may be recoverable through state utility commission-approved rate increases, but will need to be closely tracked in order to ensure reimbursement. Non-rate-regulated companies will also want to closely track storm recovery expenses for comparison purposes with spending during other disasters.
- One of the most important logistical tasks in a disaster recovery situation is finding places for the utility's internal disaster recovery employees to stay while working in the storm impact zone. Citizens displaced by the storm and FEMA employees typically use a substantial portion of the available hotel rooms in the storm impact area. Accordingly, utilities companies might have to put their employees up in areas some distance away from the storm impact area, which can add a travel delay in getting employees to and from the storm impact zone, which in turn could impede recovery time.
- Utilities may want to issue press releases explaining what the utility is doing to assist customers in the storm impact zone. This may include waiving late fees, setting up cell phone charging stations, or other accommodations due to the disaster.
- Utilities may want to give its Customer Care representatives a list of available fee waivers, bill credits, and/or other assistance currently available to impacted customers who call Customer Care. The list should be constantly updated as assistance is increased or modified.
Based on our experience, we anticipate that there will be additional legal and/or operational concerns that surface during post-Ian disaster recovery for utilities and telecommunications companies, because each disaster presents a unique set of factual circumstances and legal or logistical challenges. Adams and Reese will provide further updates as they become available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.