Backup power ruling remains in limbo: Questions linger over court jurisdiction

A dispute has erupted over whether a federal appeals court should delay ruling on the wireless industry’s challenge to the Federal Communications Commission’s backup power rule until Bush administration budget officials complete their review of controversial guidelines designed to respond to communications failures from Hurricane Katrina.
Based on new briefs filed by parties in the case, the law appears to back the wireless industry’s contention that the U.S. Court of Appeals for the District of Columbia Circuit can indeed decide the matter irrespective of OMB.
The latest feud between the FCC and the wireless industry in the backup power appeal dwells on the arcane particulars of how a federal regulation becomes official and the OMB’s role in the final stage of that process.
The day after the May 8 oral argument in the D.C. Circuit, the three-judge panel overseeing the case asked the parties – petitioners CTIA, Sprint Nextel Corp., USA Mobility Inc. and defendant FCC – to address whether a decision legally can be rendered before the Office of Management and Budget approves, or rejects, the backup rule. The court briefly wrestled with the OMB issue at an oral argument otherwise focused on the question of whether the FCC overstepped its authority in imposing the eight-hour backup power rule on the mobile phone and paging sectors.
The FCC, which appeared on the defensive throughout oral argument, conceded that case law – National Treasury Employees Union v. Federal Labor Relations Authority – indicates a D.C. Circuit ruling prior to OMB action would be legitimate. But the agency nonetheless urged the court to put the case on hold. Indeed, the agency argued “a decision by the court now would be premature and potentially unnecessary.”
The cellphone industry argued the D.C. Circuit is on solid ground insofar as issuing a ruling in the backup power appeal before OMB acts.
“First, National Treasury held that the legal question on appeal in that case was justiciable under the set of facts presented, and this case presents even strong facts demonstrating justiciability,” industry parties stated in a joint brief. They added that the “OMB possess only the limited power to review the discrete information collection requirements of the backup power ruled and, as result, the sole issue before OMB will be compliance with” the Paperwork Reduction Act.
In short, according to the wireless industry, OMB lacks the legal authority to speak to legal issues central to the backup power appeal before the court.
Cellular association CTIA and USA Mobility Inc. subsequently asked the court to disregard major portions of the FCC’s latest brief because those sections involve issues of law not raised at oral argument or by the court.
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, which the D.C. Circuit stayed in February, 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 potential economical impact of industry 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, T-Mobile USA Inc., MetroPCS Communications Inc., wireless infrastructure association PCIA, the National Emergency Number Association and the Association of Public-Safety Communications Officials International.