Telecom Alert - December 17, 2018: California Telecom Tower Standard; SCOTUS Considers Agency Deference; FCC Confirmation Vote; FCC Office of Economics and Analytics
California Proposes New Telecom Tower Standard
The California-OSHA Standards Board will hold a public hearing on its revised rules for fall protections on telecom towers and poles in January 2019. The Standards Board intends to bring Cal/OSHA in line with federal OSHA walking/working surfaces and personal fall protection equipment regulations. Under federal rule, 29 C.F.R. 1910.268(g), OSHA aims to reduce falls by requiring pole and tower climbers to use positioning or personal fall protection systems. However, under current Cal-OSHA regulation, Telecommunication Safety Orders Section 8615(g), climbers in California are not required to use fall protection equipment for point-to-point travel on telecom towers and poles. The Standards Board proposes to eliminate this Cal-OSHA exception and give employers the discretion to use alternative measures when fall protection systems are more hazardous or infeasible.
SCOTUS to Consider Agency Deference Standard in Kisor
On December 10, the U.S. Supreme Court granted cert to review an agency deference standard in Kisor v. Wilkie, which could have significant impacts on administrative law. The maritime-law veteran benefits case asks the Court to consider whether to overrule a string of decisions in which SCOTUS instructed federal courts to defer to agencies’ own interpretations of their own ambiguous regulations. Should SCOTUS overrule this precedent, judges will apply heightened scrutiny to agencies’ interpretations of their own rules. Such a decision would indicate SCOTUS might, if presented with a suitable case, limit, scale-back, or even overrule the long held principle of the Chevron decision that obligates reviewing courts to defer to agency interpretations of ambiguous provisions in the laws the agency administers, such as the FCC and the Communications Act.
FCC Confirmation Vote
In light of recent increased funding through the FCC’s Connect America Fund (CAF) for rural broadband Senator Dan Sullivan, R-Alaska, may remove his hold on the confirmation of two FCC nominees, Republican Brendan Carr and Democrat Geoffrey Starks, by the end of the year. The Alaska senator intends to delay the vote until he is satisfied with the FCC’s attention to broadband funding to carriers in his state and in other hard-to-reach rural areas. Senator Joe Manchin (D-WV), however, issued a press release explaining that, because the Commission is putting the Mobility Fund II on hold, he has placed a hold on the nomination of Commissioner Carr.
FCC Opens Office of Economics and Analytics
The FCC’s new Office of Economics and Analytics (OEA) is open as of December 11. The OEA aims to help incorporate economic and data analysis into FCC policymaking through four divisions: the Economic Analysis Division; the Industry Analysis Division; the Auctions Division; and the Data Division. In a press release on the OEA’s opening, FCC Chairman Pai stated, “The communications sector is a major part of America’s economy, and [the FCC’s] rules can substantially affect incentives of companies and consumers. [The OEA] makes it essential that [the FCC] systematically incorporate sound economics in [its] work.”