If your cell tower loses power, be sure to thank CTIA and the DC Circuit

[Commentary] As we hunker down to wait out Hurricane Sandy, some folks have noticed that if we lose power our cell phones might not provide the backup we expect. Cell towers require power, and if the backup battery is drained and local power is not yet restored then the network goes dead. We had this problem in the Katrina aftermath. The report of the Federal Communication’s Katrina Panel recommended a requirement that carriers have power back up for towers. The FCC subsequently issued an order implementing several of the Katrina Panel recommendations, including the backup power recommendation. Under the announced rule, carriers would need to ensure that towers had 24 hours’ worth of backup power.

The FCC relied on its Title I ancillary authority to justify the rule — arguing that ensuring sufficient back up power to maintain communications was “reasonably ancillary” to its authority to ensure emergency communications. Needless to say, the carriers were not thrilled with this expensive new requirement. They challenged in the D.C. Circuit. Ever happy to spank the FCC on behalf of industry, the court first issued a preliminary injunction against the rule taking effect. At oral argument, Chief Judge Sentelle and Judge Randolph, two of the more notorious FCC-bashers, ripped counsel a new one for relying on all the dopey old precedent about Title I ancillary authority. Judge Randolph noted that the FCC’s actions were justified under the court’s precedents, but Judges Sentelle and Randolph were having none of it. Bad FCC! Extending regulatory power over carriers just because lives might depend on it and past precedent before we got here said you had authority to issue the regulations!