Backup power issue may get backed up in Washington: Hurricane season helps to highlight issue

The backup power controversy is now officially before Bush administration budget officials, but the overarching issue of whether the Federal Communications Commission rule will stand or be overturned in court may not be resolved until after the increasingly active Atlantic hurricane season ends in late November. Worse, given the various scenarios for how litigation and regulatory proceedings could play out, the backup power issue could still be in limbo by the time next year’s hurricane season rolls around.
Just as the Federal Register on Tuesday published a notice of the FCC’s backup power rule and set in motion a review by the Office of Management and Budget, yet another tropical storm – Hurricane Ike – was gaining strength over the Gulf of Mexico. Ike is expected to make landfall in Texas on Saturday.
OMB is analyzing the information collection requirements of the backup power rule to determine whether it complies with the Paperwork Reduction Act.
The OMB review process gives mobile-phone carriers and tower companies – which regard the backup power guidelines as unnecessarily burdensome (as well potentially costly) and argue in federal appeals court that the FCC overstepped its authority in approving the rule – a fresh opportunity to debate the issue. Public comments on the information collection requirements of the backup power rule must be submitted to OMB by Oct. 9. Even if OMB rules against the FCC on the information collection matter, the commission – as an independent government agency – is not bound by the outcome.
The U.S. Court of Appeals for the District of Columbia Circuit – which put the FCC’s backup power decision on hold in February and held oral argument in May on appeals filed by Sprint Nextel Corp., USA Mobility Inc. and industry association CTIA – said in July it would not issue a ruling until after the OMB review is completed. The FCC appeared to be on the defensive for much of the oral argument before a three-judge panel of the D.C. Circuit in May.
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 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 FCC backup power rule gives wireless providers six months to determine which assets comply with the new guidelines and to ascertain which facilities are exempted for safety reasons. 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 only recently sent the backup power rule to the Federal Register as tropical storms lined up over the Atlantic Ocean, but the agency insists there would not be delay and uncertainty surrounding the matter had industry not to filed appeals.