FCC Takes Tough Stance on Backup Power Rule for Cell Towers
The FCC is giving wireless and wireline carriers a break on installing backup power at critical facilities, but not as big as industry wanted. An FCC order, released Thursday, warns carriers not to enter agreements just to avoid having to install backup power (CD Oct 2 p1). The FCC adopted the requirement in its followup to Hurricane Katrina. Six groups had filed petitions for reconsideration challenging the backup power mandate.
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The FCC will give carriers a pass on installing power at a site only if installation is “precluded” by federal, state, tribal or local law, danger to life or health, or a private legal obligation or agreement. The last category covers cases where lease terms for a site prohibit installation of backup power. Carriers will have only six months to complete an inventory of their facilities and provide explanations of cases where they can’t install backup power. They have a year to comply.
The order warns that the FCC expects local exchange carriers to renegotiate leases if they can. “LECs and CMRS providers should make efforts to revise agreements to enable rule compliance where possible, for example through renegotiations or renewals,” the order says. “Obviously, the Commission will disapprove of attempts to circumvent the rule through private agreements.”
The FCC acknowledged that in some cases carriers will have to find better sites for cell towers and other facilities and they will face costs. “We believe, however, that any such burdens are far outweighed by the ultimate goal of this rule,” it said.
The order rejects arguments carriers made in various filings that the FCC had imposed the requirement without adequate legal notice and in violation of the Administrative Procedure Act. “Taken together, the questions raised in the notice as well as the Katrina Panel report’s findings regarding the lack of emergency power were sufficient to put interested parties on notice that the Commission was considering how to address the lack of emergency backup power,” the FCC said.
PCIA said the order left a lot to be desired. “The original scheme was so problematic that this is a slight improvement,” said Jackie McCarthy, PCIA director of government affairs. “Overall, there are still a lot of infeasible and unreasonable aspects to this.” One of the biggest gaps results from the FCC"s decision not to provide an exception in cases where carriers cannot comply because of spacial and structural problems, she said. PCIA and the DAS Forum also continue to believe there should be a specific exception for distributed antenna systems. “Our members are reviewing it and obviously we're still concerned about some elements,” said a CTIA spokesman.