Shutdown Likely Headed Toward End, But Prospects of Later One Worry FCC Practitioners

Congress was on the path Monday toward ending a three-day government shutdown, which already had widely varying impacts on communications-policy agencies. Senators voted 81-18 at our deadline to pass a continuing resolution that would fund the federal government through Feb. 8, after a bipartisan group of negotiators worked out a deal to debate immigration legislation. The shutdown began at midnight Friday after Senate Democrats voted overwhelmingly against cloture on a slightly longer CR amid disagreements with Republican leaders on immigration and other issues (see 1801190055). The House was also set to vote on the shortened CR later Monday.

If government faces another shutdown close to the Feb. 8 deadline, communications lawyers told us, their biggest concern will be the possible effects to the Consolidated Database System (CDBS) and other FCC filing systems. If applications can’t be filed electronically, as they couldn’t during the shutdown in 2013, licensee finances could be affected, said Fletcher Heald broadcast attorney Matthew McCormick. Having comment deadlines and other FCC processes interrupted by a shutdown is “a hassle,” but the timing of deal approvals can affect other expenditures, so having them unexpectedly interrupted by a shutdown can be very disruptive, he said. “It’s not anything insurmountable,” he conceded. National Treasury Employees Union Chapter 209 (FCC) President Ana Curtis said in an email that the shutdown didn't affect commission employees.

Attorneys were concerned early Monday about the effect of a shutdown or shuttering of FCC filing systems on the upcoming AM translator auction window, which is to kick off Thursday and last until Jan. 31. Several said they received assurances from the FCC that auctions would continue to operate during a shutdown. An FCC plan released in December said up to 185 employees would continue to work during a shutdown because their work isn't funded out of appropriations and they would be "supporting spectrum auction-related activities." Wilkinson Barker broadcast lawyer David Oxenford "heard that FCC auctions (including the upcoming filing window for FM translators for AM stations) may be funded differently than the rest of the agency," he blogged Sunday. And he noted the FTC was closed, as was its website. "Website information and social media properties will not be updated until the government re-opens," the agency said.

A closure affecting FCC filing systems could have repercussions for several proceedings and due dates, Wiley Rein communications attorney Greg Masters said. Since the FCC said it could stay open for a week during this shutdown and it apparently won’t need to, lawyers expect the agency would be able to temporarily weather a later shutdown if need be.

"The current fix only provides certainty until Feb. 8," said Keller Heckman's Kathleen Slattery in an interview. "While we expect the commission to remain operational for at least a few days in a government shutdown, we want to be prepared if this happens again and lasts longer," she said. "We are advising clients to get things on file with the commission in the next few weeks, prior to the possible shutdown deadline."

If funding is secured until February, the FCC’s Jan. 30 commissioners’ meeting likely will proceed as usual. Commissioner Mike O'Rielly told reporters Monday (see 1801220040) it's possible under a shutdown that the commission could conduct the January meeting via phone-in. The “overall value” of such a meeting ”could be suspect," O’Rielly said. Monthly meetings are required by statute, he said.

Elsewhere in Government

Since the judiciary stays open during government shutdowns, the effects on court proceedings are generally minimal, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, representing clients challenging FCC policies in court proceedings. DOJ attorneys are generally involved in court filings from the FCC, which could present difficulties if one agency is able to stay open during a shutdown and the other isn’t, Schwartzman said. It’s likely courts would allow federal agencies some flexibility with filing deadlines in the event of a shutdown, he said.

The National Consumers League chided an FTC tweet notifying consumers their questions on Twitter won’t be answered and they can’t “file complaints or register for Do Not Call during this time.” The “federal gov’t may be shut down, but http://Fraud.org is OPEN and ready to take your complaints (which we will share with @FTC when it reopens),” NCL tweeted. The FTC complaint program is the “gold standard in terms of collecting complaints so it’s certainly an inconvenience for consumers,” John Breyault, NCL vice president-public policy, told us. NCL collects 6,000 to 7,000 complaints a year, compared with millions filed with FTC, he said, but it’s still an option for consumers while the agency is shuttered.

“As a practical matter, a short-term delay will have little impact on consumers,” said a Consumer Federation of America spokesman about the lack of government funding.

Some noted that this mini-shutdown differed from the previous one in that some agencies stayed fully open Monday. The Copyright Office closed at 12:01 a.m. Saturday and can't "update the information provided on this website, respond to inquiries or process transactions," it said. Broadcast lawyer Oxenford noted that by contrast, the Patent and Trademark Office website said "it has sufficient funds from prior appropriations to continue to function 'for a few weeks.'"