CTIA Ready to Go to Court over Backup Power Rule
Unless the FCC acts by Friday on a July 31 CTIA petition for an administrative stay of requirements that all cell sites install backup power, the CTIA will have to seek “further relief,” it said. That likely would mean going to federal court. The FCC in August extended the deadline for installing backup power until Oct. 9, two weeks away, but granted no stays.
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In July, CTIA presaged its likely arguments in a legal challenge to the order, approved as a part of the FCC response to Hurricane Katrina. CTIA said then that the rule contradicted agency authority under the Communications Act and violated the Administrative Procedures Act.
“Among other things, the Commission failed to provide notice of this rule and, as a result of its last-minute promulgation, failed to consider important aspects of the regulation, such as its relation to numerous federal, state, and local environmental, building, and health and safety codes that substantially limit the placement of batteries, generators, and fuel cells,” CTIA said.
“CTIA is really stepping up to the plate on this issue and taking it seriously,” said a wireless industry attorney. “They are hearing from their members this is a big one for them and they want it fixed.”
Michael Fitch, president of PCIA, said he shares CTIA’s concerns but is undecided about joining any suit. “Litigation is a serious business,” he said. Fitch hopes the commission will deal with industry concerns as the deadline nears, he said. “We've provided the commission a whole lot of reasons they ought to pull the rule,” he told us. “That’s based on the practical realities of what you can’t do as a matter of local permitting, what you can’t do as a matter of physical space, as a matter of lease agreements.”
While the back-up power rule doesn’t cover most small carriers, Rural Cellular Association members Rural Cellular Corporation and Cellular South are, said that group’s counsel, David Nace. “Each makes use of many cell sites where it is completely impractical if not dangerous to install generators with fuel tanks or extra batteries to meet the new requirements,” Nace said. “Both have informed the commission of the problems they would have in complying, but unless the Commission acts quickly to alter the rule or the effective date, they would have no alternative than to request a waiver and support federal court action.”