Court in holding pattern on challenge to FCC’s backup power rule

The U.S. Court of Appeals for the District of Columbia Circuit today said it will not rule on wireless providers’ 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 Gulf Coast communications failures from Hurricane Katrina.
The court said information that would be collected under the FCC’s Katrina decision “is crucial to the operation of the backup power rule. Without it, the commission would have difficulty enforcing the rule, and the exemptions and alternative compliance plan might be unworkable.”
The FCC declined to comment on the court’s action.
“We are pleased with the court’s decision to keep the stay in place while the FCC completes its work on this item,” stated cellular industry association CTIA.
The Office of Management and Budget could not immediately respond to a request for comment. On a government Web site, the agency’s Office of Information and Regulatory Affairs does not list the FCC Katrina decision’s information collection provisions as being under review.
The court held oral arguments May 8 on appeals filed by CTIA, T-Mobile USA Inc. and USA Mobility Inc. A three-judge panel at that time appeared to give weight to the wireless industry’s argument that the FCC lacked legal authority to approve the backup power rule.
“The order has yet to take effect, mitigating its immediate impact, and we believe industry likely will ultimately win,” said analysts at Stifel, Nicolaus & Co Inc. “However, the wireless industry would have preferred the court to simply reverse the FCC decision now rather than prolong uncertainty – while the case is pending, carriers must still make preparations in case the order goes into effect.”
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 D.C. Circuit put the rule on hold in February.
The FCC Katrina guidelines call 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.
The Katrina measure gives wireless providers 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 disagree. Moreover, they claim the rule will cost millions of dollars in compliance.