Shutdown Could Have Ripple Effect for FCC Policies in 2019

The shutdown is having immediate FCC consequences in the form of delayed filing deadlines and shuttered websites. It could also ripple out to delay expected rule changes for 2019, industry officials told us this week. Since staff isn’t available, expected early-2019 policy decisions on kidvid and rate regulation, court cases and progress of deals such as T-Mobile buying Sprint are considered likely to be delayed.

“Everything is delayed, it doesn’t matter what,” said broadcast lawyer Dawn Sciarrino of Sciarrino and Associates. “Very little is getting done.”

The shutdown stalled progress on the 2018 quadrennial review of broadcast rules on two fronts, industry attorneys noted. Though the proceeding kicked off with December approval of an NPRM, it hasn't been published in the largely shuttered Federal Register and thus has no comment dates. The related 3rd U.S. Circuit Court of Appeals case on the 2014 QR may also be delayed by the shutdown. The FCC is expected to soon seek the court’s permission to delay filing a brief scheduled for Feb.14, said Georgetown University Institute for Public Representation co-Director Angela Campbell, representing anti-consolidation petitioners.

A delay in the QR rulemaking has future consequences for broadcasters because it makes it more difficult for them to plan, said Womble Bond broadcast lawyer John Garziglia. The radio industry in particular has been waiting on deregulation efforts for local ownership caps that are expected to come out of the QR, he said. After about a month, “the clock hasn’t even started,” he said. That means rule changes from the ownership review are increasingly unlikely this year, he said.

Court challenges to broadband infrastructure orders also appear likely to be delayed by the shutdown's impact on associated petitions to reconsider the items. Citing the petitions, the FCC got a 60-day proceeding stay from the 9th U.S. Circuit Court of Appeals on a municipal challenge to its August pre-emption declaratory ruling. The agency asked the 11th Circuit to hold in abeyance an August pole-attachment order, pending a utility recon petition. The commission could also ask the 9th Circuit to hold in abeyance challenges to its September small-cell wireless order, pending another municipal recon petition.

Commissioner Mike O’Rielly has said the agency would aim to release an order relaxing kidvid rules in early 2019. That’s likely to be pushed back with the shutdown, said broadcast attorneys. Without staff to write orders, it’s unlikely much progress has been made on a draft, they said. That’s a positive for opponents of the proposed changes, Campbell said: “The only changes are going to be for the worse.”

O’Rielly didn’t comment. Nor did the FCC.

The shutdown also delayed a radio proceeding on revising interference protections for Class A AM stations, said Fletcher Heald broadcast attorney Anne Crump. Comments were due Tuesday, but will now be pushed to the end of the shutdown. The backlog of filings and comments that returning FCC staff will find on returning could further displace planned 2019 initiatives, Crump said. That will depend on what the agency prioritizes when the shutdown is over, she said.

Spectrum Impacts

It's not just broadcasters who are affected. Satellite, wireless and other industries worry, too.

“The shutdown isn’t helpful for any company doing business at the FCC,” an Intelsat spokeswoman emailed. The C-Band Alliance of which the company is a part and its members have “many technical and operational workstreams that are progressing despite the situation at the FCC,” the representative added. All satellite policy issues before the FCC will be delayed -- even the ones that Chairman Ajit Pai indicated are a priority, like streamlined rules for small satellites, a satellite industry lawyer noted.

The Enterprise Wireless Alliance’s frequency coordination and license submittal work is being conducted, but the certified applications are “piling up” in the universal licensing system, said Mark Crosby, EWA president. “Conditional licensing is not available to applicants during the shutdown, so new communication systems and system upgrades are put on hold,” he said. “There are also a number of regulatory proceedings that will demand attention when the FCC reopens, but deadlines will be shortened, making the process less than optimum.” CTIA and the Competitive Carriers Association declined to comment.

The closure might be felt particularly in the cable rate regulation reform proceeding, where comments were due Jan. 10 and replies Feb. 11, though how it affects ultimate timing is anyone’s guess, said cable lawyer Seth Davidson of Mintz. It and the parallel proceeding on Charter Communications' petition for a finding of effective competition due to the existence of DirecTV Now “are hung up now and not going anywhere,” he said. It’s hard to know how fast or slow they would have moved otherwise, he said.

Who to Call?

The shutdown’s big effects are in the lack of people at the agency to call when wanting to run a client’s question by them, Davidson said.

In the case of a programming blackout, there’s no way to try to file a complaint about lack of good-faith negotiating and try to bring the FCC in to help come to a resolution, he said. He said in a normal year, congressional hearings might have been scheduled on the Satellite Television Extension and Localism Act reauthorization, but it’s a lower priority given the budget issue. “Just the normal ebb and flow is disrupted,” Davidson said.

Many had expected the FCC to act on a Telephone Consumer Protection Act remand on illegal robocalling at its Feb. 21 meeting, said Kelley Drye telecom attorney Steve Augustino, suggesting "it's probably going to slip" due to the hiatus. The FCC previously seemed to be nearing action on intercarrier compensation "arbitrage," (see 1812180020). Also pending are staff investigations into Aureon and South Dakota Network centralized equal access tariff filings, with deadlines approaching.

Lifeline advocates are growing increasingly concerned about FCC delays in addressing national verifier implementation problems they say undercut program enrollment (see 1901230036). On another USF matter, the FCC needs to immediately fix a high-cost rate floor that will cause many rural phone rates to "skyrocket," tweeted NTCA officials Jan. 17. Absent action, RLECs may have to increase rates May 1, an NTCA spokesperson said.