After Hurricane Katrina hit the U.S. Gulf Coast in 2005, many cell towers failed because they didn’t have backup power supplies. A panel of experts appointed by the Federal Communications Commission found that backup power should be required to be installed at all cell towers. In May of 2007 the FCC ruled that all cell towers in the United States must have a minimum of eight hours of backup power in case a tower should lose its regular power source. (See: Cell Carriers Fight FCC over Backup Power).
Wireless companies fought the FCC’s regulations claiming they were illegally drafted and would create a huge economic and bureaucratic burden. The wireless companies argued that local zoning rules, structural limitations and cost would make the backup rule impossible and impractical to implement.
In October the FCC agreed to allow exemptions to the rule. Companies would be given six months to explain why individual towers couldn’t meet the regulations. Then the companies would be given another six months to explain how they would provide backup service through other means, such as installing portable cellular transmitters.
The Wireless Association, CTIA, and others filed a complaint with the U.S. Court of Appeals in Washington, D.C., saying the exemption would force service providers to inspect and write reports on thousands of towers.
Yesterday the court found that the FCC doesn’t have clearance for the rules from the Office of Management and Budget (OMB). The OMB is required to approve federal regulations whenever they require members of the public to collect 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.
This court ruling won’t settle the issue. The FCC only has to wait for the OMB to sign off on the rules. But because this is a major election year, both federal entities may wait until the November elections are settled.