The Bush administration rejected the Federal Communications Commission’s backup-power reporting requirements, possibly increasing chances that controversial regulations opposed by the mobile-phone industry will be struck down by a federal appeals court.
The Office of Management and Budget said the FCC ran afoul of the Paperwork Reduction Act by, among other things, not seeking public comment and evaluating feedback on information collection guidelines included in the 2007 backup-power decision. OMB also said the FCC failed to justify the practical utility of the information collection obligations.
The U.S. Court of Appeals for the District of Columbia Circuit put the FCC’s backup-power ruling on hold in February. In July, following oral arguments in May that did not appear to go well for the commission, the court said it would hand down a decision after OMB completed its review. The question before the court is whether the FCC exceeded its authority in mandating the backup-power rule.
“We believe that having backup power for America’s communications networks during times of emergency is vitally important for public safety,” said FCC spokesman Robert Kenny. “Ensuring that reliable and redundant communications are available to public safety during, and in the aftermath, of natural disasters and other catastrophic events continues to be a high priority for the commission. We are considering our options in light of the OMB decision.”
OMB’s action is not binding on the FCC, which could override it, modify existing requirements, or choose to do nothing and forego the rule.
The wireless industry applauded OMB’s ruling, but was careful not to gloat in light of the public-safety issues involved and the fact that the court has yet to rule.
“CTIA is pleased the Office of Management and Budget recognized that the FCC failed to seek and evaluate public comment on these important rules at the inception of the rulemaking process, and failed to demonstrate the practical utility of the information collected,” stated the cellular industry association. “While we have the same goal as the FCC – to keep our networks running during times of emergency – we believe that having the flexibility to adapt to unique emergency situations will better serve American wireless consumers. Carriers already have implemented flexible business continuity/disaster recovery plans that address their backup power needs and enhance network reliability and resiliency.”
The FCC, responding to communications failures caused by Hurricane Katrina and other major storms several years ago, adopted guidelines last year calling for a minimum of 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 agency’s action followed the issuance of recommendations in 2006 by the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks. The wireless industry claims the backup-power rule veers from the panel’s report. The FCC initially responded to protests by partially modifying the rule and extending auditing and compliance deadlines.
The FCC estimated each wireless carrier would have to shell out approximately $312,600 to comply with backup-power information collection requirements, but the mobile-phone and tower industries told OMB that figure doesn’t even come close to the cost of the federal mandate. Moreover, wireless providers and the tower sector argue the backup-power rule’s burdensome requirements will have the unintended effect of draining resources needed to quickly restore communications to consumers and first responders when facilities are damaged in natural disasters.
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