The Federal Communications Commission could be forced to back off the backup power rule.
Two members of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voiced serious doubts about whether the FCC had authority to mandate an eight-hour backup power rule for cell sites.
Chief Judge David Sentelle and Judge A. Raymond Randolph repeatedly pressed FCC attorney Nandan Joshi on the legality of an agency action intended to address communications failures in the aftermath of Hurricane Katrina.
“This is a Section 1 case,” said Sentelle, referring to a preamble of sorts to the Communications Act that generally outlines the FCC’s charter and which served as the sole legal basis for the agency’s controversial backup power decision.
Question of power
Sentelle and Randolph strongly suggested the FCC was taking an overly broad reading of Section 1 of the Communications Act so as to render the agency’s powers virtually boundless.
The FCC’s Joshi, while agreeing with Sentelle that the case indeed turns on Section 1, argued the backup power rule falls within the agency’s jurisdiction over interstate communications because backup power is required for communications when a disaster disrupts the normal distribution of commercial energy to wireless service providers. Moreover, Joshi said the backup power rule is reasonably ancillary to agency responsibilities under Section 1 to ensure communications facilities promote the safety of life and property.
Helgi Walker, a lawyer representing cellular association CTIA, said Section 1 does not give the FCC a blank check to take any action it wants to in furtherance of public safety. “We just don’t think it makes sense,” said Walker.
Walker said that under the FCC’s interpretation of Section 1 there would be no need for regulatory provisions encompassing the lion’s share of the rest of the Communications Act.
Judge Judith Rogers appeared to give some weight to FCC arguments that the backup power rule was consistent with legal precedent. The other two judges did not share Rogers’ view.
“The panel clearly understood our concern over whether the FCC had specific jurisdiction to impose the rule,” said Michael Altschul, general counsel of CTIA, following oral argument.
What about paging?
Matthew Brill, an attorney representing paging carrier USA Mobility Inc., asserted the FCC failed to give proper notice in the rulemaking that the backup power rule could apply to paging carriers. However, Sentelle appeared skeptical of that argument. The FCC’s Joshi did not address the issue during oral argument.
At one point, the oral argument got sidetracked on the issue of the status of the backup rule itself. The D.C. Circuit put the rule on hold in late February, and the Office of Management and Budget has not yet approved it.
The backup power rule was approved last year, following recommendations in 2006 by the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks. The agency responded to protests by partially modifying the rule and extending auditing and compliance deadlines.
The new rule, among other things, calls for a minimum 24 hours of emergency backup power for telecom assets inside central offices and eight hours for other facilities such as cell sites, remote switches and digital loop carrier system remote terminals. There are about 200,000 cell sites in the United States, with tower companies operating about 115,000 sites and operators controlling 85,000 sites.
Wireless companies have six months to determine which assets comply with the new guidelines and to ascertain which facilities are exempted for safety reasons or conflicts with federal, state or tribal laws. Carriers with wireless facilities covered by the new rule, but not in compliance, must rectify the situation, or file an action plan within 12 months on how they intend to meet new federal requirements. The FCC has stated it does not regard the reporting requirements as burdensome, but the cellular and tower sectors argue otherwise.
Separate from the legal issues before the court is the dollar factor of compliance with the backup power rule. Mobile-phone and tower companies estimate the cost could be in the hundreds of million of dollars.
In addition to the appeals lodged by CTIA and USA Mobility, a number of other parties have participated in the case, including Sprint Nextel Corp., T-Mobile USA Inc., MetroPCS Communications Inc., wireless infrastructure association PCIA, the National Emergency Number Association and the Association of Public-Safety Communications Officials.