FCC moves forward on backup power rules: Stage set for lawsuit over wireless network requirements

As several tropical storms threatened various sections of the nation, the Federal Communications Commission took action to prompt Bush administration and court review of a backup power rule maligned by the wireless and tower sectors.
The FCC on Thursday sent the backup power rule – which was stayed by a federal appeals court in February – to the Federal Register for publication. The Federal Register is expected to publish the rule and 30-day notice early next week. The agency next will send the backup power rule, including the controversial information collection requirements, to the Office of Management and Budget. The OMB will determine whether the rule complies with the Paperwork Reduction Act.
While there’s been a delay in the process of getting the rule published and reviewed by OMB, the FCC said it is not the agency’s fault that the backup power rule remains in limbo.
“If it wasn’t for the opposition and appeal of the rule this would already be in place,” said Robert Kenny, an FCC spokesman.
The outcome of the OMB review – in which wireless and tower companies are expected to participate – could trigger further developments. If OMB rejects the backup power rule, which the FCC enacted in response to Gulf Coast communications failures in the aftermath of Hurricane Katrina three years ago, the agency as an independent body could simply reject the administration’s assessment.
More importantly, though, once the OMB review is completed, the U.S. Court of Appeals for the District of Columbia Circuit will be free to rule on the merits of the appeals lodged by cellular association CTIA, Sprint Nextel Corp. and USA Mobility Inc.
In July, the D.C. Circuit ruled it would not rule on wireless industry appeals until Bush administration budget officials finished their review of the backup power rule and the information collection guidelines. In that order, the court said such information “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.”
At oral argument in early May, a three-judge panel appeared to give weight to the wireless industry’s argument that the FCC lacked legal authority to approve the backup power rule.
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 FCC responded to protests by partially modifying the rule and extending auditing and compliance deadlines.
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 operators and tower owners believe otherwise. Moreover, they claim the rule could cost them millions of dollars in compliance.
Parties participating as intervenors in the case include 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.
The FCC’s Public Safety and Homeland Security Bureau said it has begun posting updates on hurricane related assistance provided to telecom carriers. The agency also announced the activation of the Web-based Disaster Information Reporting System in response to Hurricane Gustav.
Meantime, wireless providers, which have invested heavily to harden networks to better withstand hurricanes, have been preparing gathering storms, and they are urging consumers to take precautions.