The Federal Communications Commission will avoid a direct confrontation with the Bush administration over the backup-power rule, informing a federal appeals court it will not override the Office of Management and Budget’s rejection of reporting requirements associated with the cell-site regulation.
At the same time, the FCC does not appear to be completely backing down in the controversial matter.
In a two-page letter, the agency told the U.S. Court of Appeals for the District of Columbia Circuit it will initiate a proceeding shortly “with the goal of adopting backup-power rules that will ensure that reliable communications are available to public safety during, and in the aftermath of, natural disasters and other catastrophic events while at the same time attempting to address concerns that were raised regarding the prior rules.”
The FCC also suggested to the court that legal challenges to the backup-power rule should be dismissed because key questions have become moot as a result of the OMB’s action and the commission’s decision not to override it.
However, the wireless industry may want to keep the court appeal alive and preserve its options as the FCC re-examines contentious issues in a new rulemaking. The reporting requirement regulatory issue analyzed by the OMB involved compliance with the Paperwork Reduction Act and is different from the legal issue before a three-judge panel at the D.C. Circuit.
Cellular association CTIA, Sprint Nextel Corp. and paging company USA Mobility Inc. have backup-power appeals pending in the D.C. Circuit.
CTIA was not immediately available for comment on the FCC’s latest move. After the OMB hammered the FCC information collection guidelines in the backup-power rule, the trade group stated: “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. 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.”
Contentious history
The appeals court 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 agency, the court said it would hand down a decision after the OMB completed its review. The question before the court is whether the FCC exceeded its authority in mandating the backup-power rule. The mobile industry argues the FCC did just that, while the commission insists otherwise.
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 commission’s backup-power ruling 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 argued 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.
