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 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 Rogers 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!
Before the D.C. Circuit could issue one of its inventive results-oriented opinions, the Office of Management and Budget (OMB) stepped in an disallowed the rules on the grounds that the FCC hadn’t looked carefully enough at the cost. Seizing the opportunity to get away from a potentially devastating precedent, the FCC withdrew the rule and had the case dismissed. In theory, the FCC was going to hold more proceedings on the matter, which could also firm up the statutory authority. (I can personally think of a couple of ways to achieve the same end without relying on Section 1 ancillary authority, if anyone were actually interested.)
In reality, however, the D.C. Circuit made it pretty clear they didn’t want to see a rule. So the FCC dropped the matter. This is how life in Administrative Law works these days. As I noted recently with the passing of the program access rules, the D.C. Circuit has become pretty much a law unto itself, capriciously deciding whether to spank the FCC or let its opinions stand based on the prejudices of the panel. Given the general tilt of the court (what Washpo Columnist Steven Pearlstien called the Judicial Jihad Against the Regulatory State), this generally results in agencies getting spankings for trying to do their jobs.
Again not surprisingly, the result of this steady stream of reversals (often in fairly abusive language) is — as Pearlstien noted after the D.C. Circuit reversed the FCC in the Comcast blocking bittorent case — regulatory paralysis. Short sighted industry lobbyists generally applaud this outcome, at least until they need an actual decision on something. Then they lament that the FCC seems unable to reach vital decisions quickly — as if these phenomena were somehow unconnected. From experience, I can say that figuring out what the law actually says or trying to determine the best policy usually takes a distant second at the agency to “what is the D.C. Circuit likely to affirm.” If I had a dollar for every time an argument is rejected by “sure that makes sense, but the D.C. Circuit would never allow it” I could retire and move to some country with an actual rule of law.
So if your cell phone service fails this week because the local cell tower ran out of power and had insufficient back up, thank Chief Judge David Sentelle and his merry band of judicial activists. No matter what the subject matter, no matter the threat to public safety, these guys know that membership in the Federalist Society confers enough wisdom to cast aside the judgments of some dumb old “expert agency.” Sure not being able to call 911 in the aftermath of a disaster is inconvenient, potentially even life-threatening. But if industry doesn’t like a rule, then the D.C. Circuit has their back.
Stay tuned . . . .