The Federal Communications Commission is facing a gathering legal storm over its emergency back-up power rule, with the mobile-phone industry asking a federal appeals court to put its legal challenge on a fast track and Sprint Nextel Corp. seeking to stay the effective date of new guidelines that could cost cellphone and tower companies hundreds of millions of dollars.
The FCC back-up 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 back-up 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 mobile-phone carriers controlling 85,000 sites.
Wireless companies have six months to conduct inventories 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 said it does not regard the reporting requirements as onerous, but the cellular and tower industries see it differently. Moreover, they argue the FCC rule is unlawful and at odds with the Katrina Panel recommendation that federal regulators encourage service providers and network operators to implement best practices with respect to back-up power for critical communications services .
“The FCC lacks authority to issue the rule,” Sprint Nextel told the U.S. Court of Appeals for the District of Columbia Circuit. “There is no provision in the Communications Act directing the commission to issue regulations requiring wireless carriers to adopt back-up power rules, and the commission’s attempt to rely on ‘ancillary jurisdiction’ . strains the reach of those provisions beyond the breaking point.”
The No. 3 mobile-phone carrier said the FCC ruling “struck the communications industry like a bolt from the blue.”
Cell sites taken off line?
Cellphone industry association CTIA and USA Mobility Inc., whose appeals of the back-up power rule have been consolidated, told the court expedited treatment of the appeal is justified because the back-up power rule “would impose overwhelming compliance costs, most of which would be incurred during the pendency of these cases.” The two parties also pointed to the FCC’s own admission that compliance with the back-up power rule could force carriers to take down cell sites critical to wireless communications, including emergency 911 services.
“Decommissioning critical wireless communications facilities may in turn cause widespread disruption of personal communications, and result in substantial loss of customer goodwill for commercial mobile radio services providers,” stated CTIA and USA Mobility. “In addition, enforcement of the rule would irreparably skew the outcome of private negotiations for cell sites and potentially force carriers to violate state and local permitting requirements regarding the installation of back-up power sources.” The latter point could be significant, given that the introduction of hazardous materials (gas, diesel, propane, lead and sulfuric acid) associated with power sources could be prohibited is some cell-site leases on public property.
The FCC told the court it does not oppose expedited treatment of back-up power appeal, but would vigorously oppose Sprint Nextel’s stay motion.
Already the case has attracted a number of participants. In addition to CTIA, Sprint Nextel and USA Mobility, others seeking to intervene include wireless infrastructure association PCIA, T-Mobile USA Inc., MetroPCS Communications Inc., the National Emergency Number Association, the Association of Public-Safety Communications Officials International, NextG Networks Inc. (a provider of distributed antenna systems) and Qwest Services Corp.
