OMB Rejects FCC Hurricane Katrina Backup-Power Rule
The Office of Management and Budget rejected the backup power requirements for cell sites set in the FCC’s Hurricane Katrina Order. In a decision that isn’t binding on the commission, the OMB said it found several procedural flaws that violated the Paperwork Reduction Act. The backup power rule, on hold during the OMB’s study, is being challenged in court by wireless carriers. The rule would have required carriers and tower companies to install batteries at 220,000 sites (CD Nov 14 p4).
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The FCC should have sought public comment on the reporting requirement before adopting it, the OMB said. And it said the commission failed to show that “the practical utility” of the information to be collected, that “a reasonable effort has been made to reduce to the extent practical the burden placed on respondents due to a lack of sufficient clarify on how respondents are to satisfy compliance with this collection,” and that “the collection has been developed by an office that has planned and allocated resources for the efficient and effective management and use of the information collected.”
The FCC is considering its “options in light of the OMB decision,” said commission spokesman Robert Kenny. “We believe that having backup power for America’s communications networks during times of emergency is vitally important for public safety… Ensuring that reliable and redundant communications are available to public safety during, and in the aftermath, of natural disasters and other catastrophic events continues to be a high priority for the Commission.” The FCC could override OMB’s decision, change the requirements or give up the rule, a commission official said.
The FCC disagrees with charges that it broke procedural rules, Kenny said. The FCC accepted and considered public feedback on backup power rules before passing the Katrina order, he said. In designing the order, the FCC created an independent panel that included industry representatives, he said. The commission considered industry views expressed in reconsideration petitions and other filings, he said. And the FCC sought comment twice specifically on the information collection portions of the Katrina order, totaling a combined 90-day comment cycle, he said.
In July, the U.S. Court of Appeals for the District of Columbia put off a decision on the rule during the OMB’s review and kept the backup power order on hold. “The FCC is not bound by the OMB ruling, but, depending on OMB’s reasoning, it could carry weight both at the FCC and in the court,” said Stifel Nicolaus analyst Rebecca Arbogast.
The CTIA and the PCIA applauded the OMB study. OMB “recognized that the FCC failed to seek and evaluate public comment on these important rules at the inception of the rulemaking process, and failed to demonstrate the practical utility of the information collected,” said CTIA President Steve Largent. “While we have the same goal as the FCC -- to keep our networks running during times of emergency -- we believe that having the flexibility to adapt to unique emergency situations will better serve American wireless consumers.” The backup power rule would have represented a significant burden on the wireless industry, considering the “tens of thousands” of cell sites affected, said a PCIA spokeswoman.
Sprint Nextel is “pleased that OMB realized the reporting requirements would be an undue burden for carriers and hope[s] the FCC takes steps to revise this rule in the best interest of wireless providers and their consumers,” the wireless carrier said. “Sprint has and continues to take significant steps to harden sites that are more prone to natural disasters.”