Harold Feld has written a provocative post taking the D.C. Circuit to task for having effectively scrubbed a regulation that would have required cell towers to carry batteries that would provide them with 24 hours of back-up power:
As we hunker down to wait out Hurricane Sandy, some folks have noticedthat if we lose power our cell phones might not provide the back up we expect. Cell towers require power, and if the back up 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 FCC’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 back up power recommendation. Under the announced rule, carriers would need to ensure that towers had 24 hours worth of back up 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 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 regs!
Feld’s tone is polemical, but he raises a legitimate point. One could argue that it is the obligation of the authorities to subsidize redundant capacity of this kind, but this doesn’t strike me as an obviously egregious exercise of the FCC’s regulatory authority.