D.C. Circuit Judges Grill FCC on Backup Power Authority
The FCC might not have authority to set emergency backup power rules for carriers, Judges David Sentelle and Raymond Randolph suggested in oral arguments on CTIA’s appeal in the U.S. Court of Appeals for the District of Columbia Circuit. CTIA, Sprint Nextel, T-Mobile and USA Mobility challenged the rules, adopted after Hurricane Katrina (CD March 16 p10).
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Ancillary jurisdiction under Section 1 of the Communications Act authorizes the FCC to promote public safety, FCC lawyer Nandan Joshi said. Citing Section 1 alone may be a “stretch,” said Sentelle. Section 1 did not set FCC rights or duties, but rather explained the congressional rationale for creating the FCC, Randolph said. If the FCC correctly reads Section 1, agency authority is “very broad,” he said.
FCC ancillary jurisdiction is not unbounded, since the agency only can regulate telecom “subject matter,” Joshi said. Lawyer Helgi Walker, representing CTIA, disagreed. FCC power has “no logical stopping point” if the agency enjoys ancillary jurisdiction over backup power on cell sites, she said in an opening statement. Randolph seemed to latch onto the CTIA argument, asking if FCC also claims ancillary jurisdiction to require cellphone users to carry backup cellphone batteries. The agency would not make that claim, said Joshi, because it doesn’t have reign over end users.
Debate over ancillary jurisdiction amounts to “a lot of fandango about a very simple concept,” Randolph said. The Constitution didn’t empower Congress to create “a more perfect union,” and Section 1 didn’t tell the FCC to do so either, he said. The judge asked if the FCC also would argue that it can raise carrier employees’ wages to keep them from deserting critical communications infrastructure. That would be a “hard argument to make,” Joshi said.
The FCC’s only apparent relief came from Judge Judith Rogers. The D.C. Circuit ruling in Computer & Communications Industry Association v. FCC supports the FCC side and the court may be “bound” by it, she said. In that case, the court allowed the FCC to regulate AT&T products and services not subject to Title II common carrier authority. “CCIA can be harmonized on a thoughtful reading,” said Walker. Rogers disagreed, saying it would be difficult to “reason around” the case.
A self-described “curve ball” that Randolph tossed may mean the appeals court won’t rule at all. The FCC hasn’t sent the backup power for Office of Management and Budget review, whose result could render a court order moot, Randolph said. OMB told the FCC it would wait until the D.C. Circuit case is resolved, said FCC lawyer Nandan Joshi. Randolph dismissed that argument. OMB knows it won’t “have to worry” if the court strikes down the rule, he said. But “on the other hand,” the court needn’t worry if OMB kills the rule, he said. Parties have 10 days to submit briefs on the issue, the court said.
The OMB angle might slow, but probably won’t stop, a court ruling, Stifel Nicolaus said in a note. “The court could remand or hold the case in abeyance, pending further FCC/OMB action, but eventually we expect it to rule on the merits.” The judges seem inclined to reverse the FCC backup power order, the firm said. Rogers “seemed to suggest” a hearing before the full D.C. Circuit may be needed to resolve the CCIA precedent issue, but such an en banc hearing might not fall in the FCC’s favor, it said. “The FCC may have an uphill fight defending its rules due to the court’s composition.”