FCC Would Be Largely Shuttered, but Few Negative Results Expected Early On from Federal Closure

Longtime FCC watchers and former FCC officials told us Monday that with many big issues before the commission, starting with the incentive auction of TV spectrum, a shutdown becomes a problem and potential source for delay only if it extends beyond the next few days. The government’s last major budget-related closure occurred Nov. 14-19, 1995, and from Dec. 16, 1995 to Jan. 6, 1996, for a total of 28 days.

Perhaps the most significant of the events expected to be delayed if a deal isn’t reached is a Thursday executive session of the Senate Commerce Committee slated to take up O'Rielly’s nomination for an open seat on the FCC. “A shutdown almost assuredly would delay the confirmations of Wheeler and O'Rielly,” said former FCC Commissioner Robert McDowell. “The Senate is less likely to break bread on such matters when bigger issues are stuck at an impasse with large amounts of acrimony spewing about."

A government shutdown appeared likely Monday afternoon, as the House and Senate battled over a continuing funding resolution. House Republicans voted in favor of a resolution over the weekend that included provisions delaying the Affordable Care Act. The Senate killed the House amendments in a 54-46 vote Monday afternoon.

"A couple of days probably doesn’t have that much of an effect on the overall progress of the FCC’s work, other than the inevitable loss in productivity as management has to plan for the shutdown and as staff is distracted by it,” said a communications lawyer and former eighth floor staffer. “Near term, there would be some things that would be postponed if there is no resolution quickly, such as the FCC’s E911 Location Accuracy Workshop. If you have a petition pending, for example for a transaction that needs 214 or wireless license affirmative approval, that will be held up. This can also slow up transactions that would otherwise go on streamlined processing, which means they can be closed after a certain number of days if the FCC does not act, because those timelines don’t start to run until the FCC releases a public notice. So if you need your application to go on public notice, that won’t happen either.” While a few days would have minimal effect “a longer delay would be much more disruptive, both in terms of the large policy work, and the transactional items referenced above,” the lawyer said.

A former FCC spectrum official said with an incentive auction unlikely before late 2014 at the earliest, a brief shutdown likely wouldn’t mean a later auction. “The FCC may be affected less than other government agencies, given that it is operating under an acting chair,” the lawyer said. “Although Chairwoman Clyburn has been getting far more done than most interim chairs of the FCC, there is likely to be a period when the new chairman comes to the agency and reestablishes priorities and workflow, revisits pending policy decisions, and puts his own stamp on major issues such as the incentive auction. Therefore, the current shutdown will have the greatest impact on the most immediate workflow and the chairwoman’s priority items rather than the next chairman’s potential efforts."

A House Communications Subcommittee hearing on 5 GHz is slated for Tuesday, but is expected to be delayed. The same goes for government events on and off the Hill. The Senate Judiciary Committee had a hearing scheduled for Wednesday morning on surveillance issues and the Senate Intelligence Committee planned a markup Thursday of proposed surveillance legislation. The FCC has a cybersecurity forum scheduled for Tuesday and wireless 911 workshop set for Wednesday; both would be postponed. NTIA said Monday its Oct. 7 ConnectED workshop has been canceled “in light of the uncertainty surrounding a potential government shutdown,” NTIA said.

Perhaps 70 or more FCC employees may be called in to work voluntarily during a government shutdown, in a status where they're neither required to report to work nor considered nonexempt from a furlough, said the head of the commission’s chapter of its main union. Such hybrid-status employees appear to include many in the Enforcement Bureau working in field offices, said the president of the National Treasury Employees Union’s FCC chapter, Ana Curtis. Such staff include those whose jobs encompass operations affecting safety of life such as interference to certain frequencies, she said in an interview Monday.

"The number of employees to be retained to protect life and property will not exceed 5 percent of the number of employees on-board at the beginning of a hiatus less those exempt,” who number 38 (CD Sept 30 p1), said the FCC’s contingency plan (http://1.usa.gov/1946pki). Curtis pointed us to that section as outlining employees who could be considered to have a hybrid status. She also said the plan called for as many as 10 Wireline Bureau employees and a “few” from other offices who may need to work for as long as a day after a shutdown “to suspend recently filed tariffs so they do not automatically take effect during the” commission’s closure. An agency spokesman declined to comment.

FCC staff eager to hear about shutdown plans jammed the Commission Meeting Room from about 2:30 to 3:30 p.m. Monday to hear agency officials including General Counsel Sean Lev discuss contingency plans and take questions, said NTEU’s Curtis. “People were very worried,” she said, with so many people dialed into the conference bridge that it had no available lines. “A lot of people here really do live paycheck to paycheck.” The agency is planning as if a shutdown will happen, speakers said at the event, recollected Curtis. She said human resources and payroll experts fielded questions on subjects including health insurance.

"Whether the commission is open or not, there’s no one over there that has a magic spectrum wand,” said a former FCC spectrum official. “In any event, the H block is already scheduled and I wouldn’t expect that date to change given that short-form applications are not due until Nov. 5, and those are prepared by the applicants with very little, if any, input from the commission. Also, there’s been a growing consensus that the incentive auction won’t take place in 2014 after all. I just don’t see a shutdown -- even if it lasts for more than a week or two -- hampering these proceedings. On the other hand, work by NTIA on releasing the 1755-1780 MHz band would be delayed because the task at present involves intra-governmental discussions. Obviously, if these folks are not working, there will be no talks, and that important process will not move ahead until the shutdown ends."

"It’s like an accident on the Beltway,” said Public Knowledge Senior Vice President Harold Feld. “While the lanes are closed, the traffic mounts up. Even when the accident is cleared and the lanes are open, the backlog persists for a long time. That cascades through the agency as staff try to deal with backlog and triage what they are working on."

"It’s just so damned dumb,” said former FCC Commissioner Michael Copps. “Here’s an agency trying to protect consumers and public safety that has shed hundreds of workers since I went there in 2001 -- even as communications has grown to one-sixth of our economy. So it’s already understaffed and backlogged on cases and complaints. The last thing it needs now is to lock the doors for days or weeks so the people’s business can’t be tended to. It’s a totally shabby way to treat talented public servants, too."

"A short-lived government shutdown won’t affect any fundamental activities by the commission,” McDowell said. “A longer-term shutdown could delay work on intricate and important matters like the incentive auctions. Ultimately, a shutdown just delays the inevitable. The FCC must launch and conclude the auctions as a matter of law, so they will get done."

Jeff Silva, analyst at Medley Global Advisors, said a long shutdown appears unlikely because of the “political and economic risks” that would involve. “I tend to doubt a brief government shutdown would have a significant impact on priority policy matters at the FCC,” he said. “Major commission initiatives tend to have longer time horizons, and one suspects decisive judgments on many high-profile matters were not going to made anyway until the arrival of incoming chairman, Tom Wheeler. A prolonged government shutdown is a different ballgame.” Such a scenario would likely disrupt agencies to varying degrees, he said, with the consequences potentially more acute at the FCC than at other agencies in light of the leadership transition at the commission. “In particular, it would add another layer of complication to an already challenging effort to fashion incentive auction rules this year but not necessarily throw it into disarray.”

A government shutdown also has “a disruptive and demoralizing effect” on agency staff, Feld said. “People are human, and when you make them go on unpaid leave ... for several weeks they are going to have a tough time picking up from where they left off as if nothing happened,” he said. “So you don’t just lose the time off, you actually need to spend serious time getting back to where you were before the shutdown.”

The National Governors Association sent a letter (http://bit.ly/1eUNURL) to leaders of both houses of Congress Monday, urging Congress to avoid a shutdown and to increase the national debt limit. The governors slammed the consequences as “severe” and said the uncertainty at the federal level also translates into the state level. A coalition of 251 organizations also sent Congress a letter Monday urging Congress to avoid a shutdown and raise the debt ceiling. “It is simply unconscionable to use federal employees as pawns in an ideological fight, with its resulting harm to the public,” said President Colleen Kelley of the National Treasury Employees Union Monday in a statement. “This brinksmanship has got to stop, both for our country and for the dedicated workers who serve the public as federal employees.” ,