The mobile-phone industry told a U.S. appeals court the Federal Communications Commission exceeded its statutory powers in mandating the eight-hour backup power rule for cell sites as part of an otherwise legally flawed rulemaking.
“By promulgating a sweeping mandate far beyond its regulatory authority without notice, the FCC produced a clumsy rule that fails to achieve any of its stated goals,” stated cellular industry association CTIA and Sprint Nextel Corp. in their opening brief. “Congress understood that public notice and comment helps check against agency excess. That is, notice and comment not only guarantee a fundamentally fair process, but expose agency action to criticism, debate, alternative suggestions and practical concerns that come to light through public discourse.”
Industry said it already has taken significant measures since Katrina and other hurricanes of 2005 to protect critical networks components with adequate power and to ‘harden’ networks to better withstand harsh weather conditions. Moreover, wireless carriers said they employ solutions to power outages – such as cell sites on wheels, cell sites on light trucks and satellite cell sites on light trucks – that do not require permanent power sources.
USA Mobility Inc. also appealed the FCC’s backup power decision. T-Mobile USA Inc. and wireless infrastructure association PCIA have intervened to support the appellants. Other intervenors include MetroPCS Communications Inc., the National Emergency Number Association and the Association of Public-Safety Communications Officials.
Though not explicit in industry’s legal argument at the U.S. Court of Appeals for District of Columbia Circuit, cellphone and tower companies estimate the cost of compliance with the backup power rule could be in the hundreds of million of dollars.
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 new rule, among other things, calls 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.
Deadlines ahead
Wireless companies have six months to conduct inventories 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 said it does not regard the reporting requirements as burdensome, but the cellular and tower sectors argue otherwise.
Separate from the appeal itself, a motion to stay the FCC’s backup power requirements was filed with the court by Sprint Nextel.
“In addition to the significant audit costs that the [FCC] orders will impose, wireless carriers will have to incur immense and unrecoverable costs in order to even begin to try to comply with the orders,” T-Mobile USA and PCIA stated in support of Sprint Nextel’s stay request. The motion remains pending before the D.C. Circuit.
