The U.S. National Telecommunications and Information Administration (NTIA) supports efforts to enhance submarine cable security but urges the Federal Communications Commission (FCC) to avoid imposing redundant licensing requirements already addressed through agreements with the Committee for the Assessment of Foreign Participation in the nation’s telecommunications services sector. This comes as the agency emphasizes the critical national security need to preserve the competitiveness of the U.S. technology and telecommunications sectors, especially against strategic competitors such as the People’s Republic of China.
NTIA also concurs with the FCC’s assessment that the national security and law enforcement landscape for communications networks has changed significantly since the rules were last updated. The agency commended the FCC’s renewed focus on addressing threats from foreign adversaries. These comments seek to carefully balance safeguarding national security with the economic consequences of simplifying or lowering regulatory hurdles.
The agency added in its reply comments document, “Still, NTIA encourages the Commission to contemplate, as this proceeding seeks to do, the national security imperative that is the United States technology and telecommunications sector’s competitiveness with its foreign counterparts, particularly the People’s Republic of China (China). These comments seek to strike a balance between national security considerations and the broader economic implications of streamlining or reducing regulatory barriers.”
The NTIA response comes to the FCC’s move to conduct its first comprehensive review of submarine cable rules since 2001 to enhance the protection of the nation’s submarine cable infrastructure amid evolving national security concerns. The review also proposes that all applicants for cable landing licenses and licensees submitting periodic reports must certify that they have developed and implemented cybersecurity risk management plans. Existing licensees must also provide this certification for the first time, following a prioritization schedule.
The NTIA encourages the FCC to reduce barriers to regulatory approvals, focus on enhanced coordination, improve existing processes with executive branch agencies and the Committee, and remain mindful that discouraging investment in the U.S. may lead to increased investment in adversaries’ networks and technologies.
To deal with these outcomes, the NTIA recommends that the Commission adopt requirements that minimize duplicative work, rely on information provided by existing mechanisms like those carried out by the Committee, and foster further interagency information sharing between the FCC and the Committee, Committee advisors, and the executive branch.
Also, avoid requirements that trigger substantial changes to the economics of submarine cables, like shortening the license term or adding unnecessary reporting requirements, as these mechanisms may harm American cable investment and duplicate existing periodic and ad hoc reviews and limit the scope of its requirements, considering this action may raise costs and harm the American submarine cable economy.
The Commission proposes adding a three-year periodic review requirement, arguing that ‘it is critical that the Commission has a continuous and systematic understanding of who owns and controls submarine cables and how they are used…’ While the NTIA agrees that gaps in cable ownership make securing certain national security objectives difficult, it highlights that the Commission’s proposed reporting risks imposing a significant and duplicative burden on licensees.
Also, to the extent the Commission’s proposed requirements create duplicative responsibilities (i.e., to the extent they are not paired with proposals to replace existing information collection mechanisms), they place further economic and deployment burdens on U.S. firms laying submarine cables.
NTIA also recommends that the Commission focus on capturing material changes to infrastructure and allow for simple and streamlined certifications in situations where no change has occurred since the previous review. In narrowly tailoring its reviews to avoid duplication with Committee reporting requirements and allowing ‘no-change’ certifications, the Commission would avoid creating continuous disclosure regimes that disproportionately burden licensees without advancing national security.
The FCC also seeks comment on the merits of shortening the overall license term from its current 25-year period. NTIA strongly cautions against this proposal, as it risks profoundly harming the economics of submarine cable investment and deployment going forward. The Committee does not believe it necessary to address national security or law enforcement risks.
NTIA added, “Shortening the license term threatens to erode U.S. leadership in telecommunications infrastructure and open the door for other nations, like China, to lead in submarine cable deployment that otherwise would have routed through the United States.”
Highlighting that the Commission’s suggestion for 15-year license terms would be appropriate if the lifespan of the cable was the same as for a geostationary satellite, but submarine cables have a lifespan of 25 years or, in some cases, more. Accordingly, the current 25-year term is sufficient as it aligns with not only the return on investment (and accounting) per cable, but also the cable lifespan itself.
NTIA believes that the Commission should limit the scope of any new requirements to avoid placing unnecessary burden on applicants or licensees that might deter investment. NTIA recommends that the Commission work with the Committee to streamline reporting requirements and prevent any duplication of efforts by the government or industry.
“Given the risks involved in expanding the scope of the Commission’s submarine cable license requirements, NTIA recommends that, where possible, the Commission seek to complement a whole-of-government approach to address any issues it has with the current process,” the document added. “This would foster industry and regulatory certainty and ensure that investments in subsea systems continue apace.”
The NTIA also recommends that the Commission refer to ‘areas beyond the limits of national jurisdiction’ instead of ‘international waters’ in the text for the proposed Commission for greater precision, as the latter term is not used in the Law of the Sea Convention.
In conclusion, the NTIA appreciated the Commission’s careful consideration of these important issues. “The importance of securing our nation’s networks has never been greater; likewise, never has the importance of ensuring U.S. leadership in network deployment and use been greater. Through careful consideration of existing tools available to the Commission and the Executive Branch, the Commission and federal agencies can improve its view into the vulnerabilities of our subsea infrastructure while also streamlining requirements to enhance submarine cable economics for the private sector owners, operators, investors, and customers.”
It added that “the whole of government must collaborate to ensure we balance security with innovation to ensure American networks are the networks of choice for global companies and investors. As the President’s advisor on telecommunications and information policies, NTIA can serve as crucial fulcrum in this respect. NTIA’s ability to convene both government and private sector stakeholders allows us to drive consensus and achieve balanced, thoughtful outcomes that maximize both security and economic potential, and minimize waste and red tape.”
