July 9, 2008

Court Delays Decision On Cell Tower Backup Power

A federal appeals court on Tuesday delayed its decision on federal rules meant to keep cell phone towers operational during natural disasters. The rules, introduced more than a year ago, were being challenged by the wireless industry. But the court decided to put off it's ruling until the Federal Communications Commission (FCC) receives preliminary clearance for the rules.

An FCC-appointed panel of experts described how many cell towers along the Gulf Coast had stopped working as a result of power losses during Hurricane Katrina, causing communication breakdowns that complicated rescue and recovery efforts.

The agency had proposed in May 2007 that all cell towers have a minimum of eight hours of backup power that would switch on in the event a tower lost its primary energy source.

But wireless companies maintain the regulations were drafted illegally and create significant bureaucratic and economic burdens. Specifically, the thousands of generators or battery packs required would be expensive, and local zoning laws or structural constraints could make installation impossible in some areas, they say.

In October, the FCC agreed to exempt cell sites that a wireless carrier proved couldn't comply with the rules. The agency would also give companies six months to generate a feasibility report on installing backup power, and another six months to either bring sites into compliance or provide an alternate plan to provide backup service, such as using portable cellular transmitters.

But Sprint Nextel Corp., CTIA-Wireless Association and others asked the U.S. Court of Appeals in Washington, D.C. to intervene this year, saying the exemptions would still burden wireless companies with scrambling to inspect and generate reports about thousands of towers.

The appeals court subsequently put the rules on hold while it heard both sides of the argument in May.  

On Tuesday, the court said that the FCC has yet to receive clearance for the rules from the Office of Management and Budget (OMB), something required for federal regulations whenever they involve mandating members of the public to gather and submit information.

"Because none of the backup power rule's requirements takes effect until OMB approves the information collections, the case is unripe and we shall hold it in abeyance pending OMB's decision," the court wrote.

Robert Kenny, a spokesman for the FCC, told the Associated Press the agency had no comment on the court's action, and was reviewing the ruling to determine if and when it would submit the rules to the OMB.

CTIA spokesman Joe Farren told the AP his organization was "pleased with the court's decision to keep the stay in place while the FCC completes its work on this item."


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