FCC Window for Votes on Jan. 30 Meeting Agenda Seen Closing Due to Shutdown

Votes planned for a Jan. 30 FCC meeting are at risk as the partial government shutdown drags on with no end in sight, agency observers said. Even if lawmakers jump-start negotiations and reopen FCC offices before Jan. 30, time is slipping away for deliberations and votes by officials who would be scrambling to play catch-up and address backlogs. Another complication is the looming addition of Commissioner Geoffrey Starks, who hasn't been sworn in despite being confirmed (see 901170036).

Some believe the window is shutting for holding a full meeting Jan. 30. "They're probably out of time for proceeding with this agenda," said Kelley Drye telecom attorney Steve Augustino.

Attorneys said Chairman Ajit Pai has broad latitude to compress the normal three-week pre-meeting period -- two weeks for lobbying, one week for agency consideration. He can alter the agenda by delaying some or all votes and holding a pared-down or pro forma meeting. Political optics appear more important than litigation risks, some said.

"The FCC could gavel a meeting open and adjourn it a few minutes later," said ex-Commissioner Robert McDowell, now at Cooley. "I think at a bare minimum they’re going to have a meeting, even if it’s just to just check the box," said Morgan Lewis communications lawyer Andrew Lipman. He suggested commissioners could use the meeting to discuss their plans for ramping back up: "There's a kaleidoscope of possibilities ... They’re in pretty unexplored territory." The FCC didn't comment. Its Sunshine Act agenda is due Wednesday, a week before the meeting. Lipman said the FCC is trying to "keep all options open" as long as possible.

Lipman believes the FCC could still squeeze in Jan. 30 votes on at least some items if it reopens by next week, the earlier the better (Monday is a holiday). But ex-Commissioner Mignon Clyburn suggested it will get much more difficult to proceed with Jan. 30 votes if the FCC shuttering continues into next week. During a shutdown that began Oct. 1, 2013, Clyburn, then-interim chairwoman, on Oct. 15 postponed an Oct. 22 meeting. When government reopened Oct. 17, she rescheduled the meeting for Oct. 28, with lobbying restrictions waived to Oct. 24.

The FCC is required to have a monthly open meeting by Communications Act Section 155(d). If it reopens this month, it's widely expected to hold a meeting Jan. 30 (or 31), with its scope depending on the timing details, substantive controversies and commission preferences. "I have no doubt that Ajit Pai is going to be compliant with the statute," Clyburn said: "I don't see him not having a meeting in some form." If the January meeting is pro forma, McDowell said the FCC could add a second meeting in early-to-mid February to address the draft items or move them to the scheduled Feb. 21 meeting. Augustino said at least some draft items could be handled on circulation, though McDowell said the risk of commissioner delay is a disincentive for Pai.

Agenda

Whenever the FCC next targets votes at a meeting, there will be pressures to give stakeholders time to weigh in with commissioners, who have remained on duty, and staffers, most of whom have been furloughed, attorneys said.

Commissioners could want "more time to get ex-parte presentations," said Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. "I also assume that the top-level staff, bureau chiefs and general counsel, are going to be overwhelmed with backlogs." Stakeholders need "adequate time to make their case," said Gigi Sohn, a Georgetown Law Institute for Technology Law and Policy fellow. "They have to give parties a chance to speak if there are outstanding issues," Clyburn said.

There are five draft items on the tentative agenda. They are on phasing down Connect America Fund Phase I support for price-cap telcos, revising IP captioned telephone service rules, processing noncommercial education station and low-power FM station applications, eliminating broadcaster Form 397 mid-term equal employment opportunity reports, and implementing Ray Baum's Act anti-spoofing caller-identification provisions (see 1901030039).

USTelecom agrees with parts of the CAF I draft order, but has concerns, "particularly the denial of our proposal to create a funding mechanism for extremely high-cost voice areas which [price-cap ILECs] are obligated to serve but for which [they] don't receive funding," said Mike Saperstein, vice president-law and policy. "We would hope to have ample time to go into the commission to talk about this item."

Frontier Communications backs FCC rural broadband efforts, but also "is disappointed the current draft mandates that price cap carriers like Frontier provide voice service to the most costly-to-serve areas without providing any, let alone sufficient, funding,” said A.J. Burton, vice president-federal regulatory affairs, in a statement. An IP CTS draft combining two orders and a Further NPRM also has some potential for controversy, said Lipman and Augustino.

Starks

Clyburn and others said Starks' potential participation adds uncertainty.

"It will take him more than a couple weeks to get up to speed," Sohn said. "If there was something on the agenda that he felt passionate about, he could ask them to pull it. If there’s no great urgency, then you’ve got to give the new commissioner an opportunity to be a part of this."

If the agency doesn't reopen this month, it's unclear if its meeting requirement would hold, given restrictions on FCC activity. "I don't think they could be faulted for not holding a meeting," said Free Press Policy Director Matt Wood. One ex-FCC general counsel guessed the commission would hold a meeting, possibly to discuss the shutdown. Another was more skeptical, acknowledging it could hold a perfunctory meeting if it feels a need: "It's a question of relations with Congress."

Augustino said risks are growing that FCC plans for the Feb. 21 meeting will be disrupted. Its tentative agenda and drafts are due by Jan. 31. If staff doesn't come back soon, Pai may have to stick with teeing up already circulated items. More broadly, Lipman sees increasing "cascading effects" the longer the shutdown continues.