Shutdown Seen Already Hindering Hill Oversight of FCC

The ongoing partial government shutdown is affecting Capitol Hill's ability to conduct oversight of the FCC, a problem that will grow more acute in coming weeks if it continues, lawmakers and lobbyists said in interviews. Most FCC activities have been curtailed during the shuttering. Commission lawyers asked the U.S. Court of Appeals for the D.C. Circuit Tuesday to postpone a Feb. 1 oral argument on Mozilla v. FCC, which challenges rescission of the 2015 net neutrality rules (see 1901150011).

There were no signs of progress at the White House or on the Hill toward a deal to end the shutdown, which reached its 26th day Wednesday. Speaker Nancy Pelosi, D-Calif., rescinded her invitation for President Donald Trump to deliver his State of the Union speech Jan. 29, citing shuttering-related security concerns. She suggested Trump submit a written version. Congressional Democrats met with Trump administration officials on funding for a wall on the U.S.-Mexico border, the source of the impasse, but none of the lawmakers is a party leader. A bipartisan group of moderate senators was pushing Trump to agree to a three-week continuing resolution to temporarily fund the shuttered parts of the government.

House Commerce Committee Chairman Frank Pallone, D-N.J., told us the shutdown won't deter him from pursuing his plans for aggressive FCC oversight this Congress (see 1811070052). Pallone unsuccessfully sought an emergency FCC briefing on why the commission hasn't ended top wireless carriers' unauthorized location data disclosures. The FCC said it isn't able to do a briefing because of the shutdown (see 1901140049). The issue remains controversial (see 1901160044).

“The shutdown is obviously going to affect [the Senate Commerce Committee's] ability to have a number of hearings early” this session, including any panel involving FCC officials, said committee Chairman Roger Wicker, R-Miss. “We can provide oversight” of agencies under Commerce jurisdiction but “having the cooperation of those agencies is important,” so “we need to get past this.” Commerce is delaying a planned hearing on 5G because the shutdown hindered potential testimony by officials from executive agencies (see 1901160039).

Early Impact

Senate Communications Subcommittee Chairman John Thune, R-S.D., and House Communications Subcommittee Chairman Mike Doyle, D-Pa., separately said they're concerned about the shutdown's impact on FCC oversight but are hoping a swift end to the impasse could reduce the problem.

“We want to make sure the important oversight work” that Senate Commerce does “is able to continue unabated,” Thune said. “My hope is [the shutdown] won't go on too much longer,” Doyle said. “If it continues, lots of things will be affected.”

The 116th Congress convened earlier this month, so a lapse in FCC officials' ability to respond to Hill inquiries and to schedule hearings is “not the kind of thing that would be felt immediately,” said Senate Communications ranking member Brian Schatz, D-Hawaii. “But when the FCC, the FTC and others can't do their work, there are going to be problems” for lawmakers conducting Hill oversight in the short term, even after the shuttering ends. Senate Commerce formally convened Wednesday (see 1901160046), while House Commerce isn't set to meet until after the Martin Luther King Jr. Day recess.

House Commerce ranking member Greg Walden, R-Ore., told us he believes the shuttering could affect the committee's oversight hearings schedule even this early in the legislative calendar because “pulling together good hearings takes time.” When House Commerce Republicans controlled the agenda during last Congress, “we would sketch out these hearings a month or two in advance,” though scheduling was always fluid until finalized, Walden said. “It will be hard to schedule witnesses” from the FCC and other agencies until the hiatus ends, and that alone “will begin to delay our ability to conduct oversight.”

“I don't think much has happened yet” on oversight of federal agencies that would have been affected by the shutdown, said Free Press Policy Director Matt Wood. “It's having an impact for sure” on the correspondence side of FCC oversight given Pallone's briefing request, but “it's just not the same level we would have seen if we were later in the calendar.” Telecom lobbyists said the oversight impact will be more noticeable if the shutdown continues into February, once House and Senate Commerce begin to dive into their 2019 agendas.

Ex-Officials Wary

Former FCC officials believe the shutdown is hampering FCC oversight. “There’s almost no staff to support the commissioners, so it would be extremely difficult to prepare for hearings” or even “answer letters,” said former GOP Commissioner Robert McDowell, now at Cooley. Briefings for commissioners “could be deemed to be outside of the core public safety functions FCC folks are limited to working on by law.”

FCC commissioners “are still working” and Congress “could call them in, but the issue is that they wouldn't have staff” to adequately brief them, said Georgetown Law Institute for Technology Law and Policy's Gigi Sohn, a former aide to Democratic former Chairman Tom Wheeler. “These hearings are not just about net neutrality and privacy and other big issues” that commissioners can speak to without additional briefing, she said. “They feature every little parochial issue” that lawmakers want to address, and “you can't expect a commissioner to know all of those details without being staffed.”

The extent to which the commissioners depend on aides to brief them before hearings “really depends on the commissioner,” said Brookings Institution Senior Fellow Blair Levin, chief of staff to Democratic then-FCC Chairman Reed Hundt during the 1995-96 government shutdown. “We used to prepare” Hundt for oversight hearings “but that's like coaching Michael Jordan before a basketball game. Why bother?” Some other commissioners who served with Hundt “demanded huge efforts to prepare” for questioning, Levin said.

A shutdown “pushes back everything” in the FCC's docket of congressional correspondence, the Hill oversight aspect that's already being affected, Levin said. “Everybody wants you to start doing things very quickly and you are still trying to go through” weeks of correspondence. “It's very much like a tie-up on the highway,” he said. “Because it's so crowded, it takes even longer” to end the logjam.

NTIA, also affected by the shutdown, is better positioned to respond to Hill oversight queries during the shuttering, said consultant John Kneuer, administrator during part of President George W. Bush's administration. Current Administrator David Redl “and his key staff would probably be fully capable of providing Congress with the information they need on oversight given the policy issues and likely subjects” that lawmakers would be interested in, Kneuer said. “To the extent there are gaps, they can always complement the record afterward.” All but 239 essential NTIA employees are furloughed, and Redl canceled a planned appearance at the CES in Las Vegas (see 1901100020).