FCC Seen Being Hit Hard in Any Government Shutdown
The FCC likely would again be hit hard in any government shutdown, though it’s escaped some of the continuing impact of the budget sequester, said agency and industry officials in interviews this week and last. They said that as a fee-funded agency with a large amount of its $300 million-plus annual budget spent on labor, the commission continues to avoid furloughs. That’s unlike some other parts of the government, where employees have been forced to take days off during the ongoing sequester.
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The commission likely would see a return to December 1995 and January 1996, the last time it was shut down because there was no budget, if a continuing resolution doesn’t pass by Monday, said current and former agency employees and industry officials and a budget expert. The building was unheated then, and commissioners at first were the only eighth-floor employees exempt from a requirement they not work, recalled then-FCC member Susan Ness. Eventually during the several-week government shutdown, each commissioner office could have one additional staffer, and some auction personnel also worked (CD Sept 25 p1), said the Democrat, who now is a communications policy consultant and senior fellow at Johns Hopkins University’s School of Advanced International Studies.
"It was freezing cold because the heat hadn’t been turned on in the building,” said Ness. “So we were literally sitting there with blankets to keep warm. On the other hand, you didn’t get a lot of phone calls. You could read a lot.” Agency personnel have largely been in the dark in recent weeks about contingency planning, though they expect to soon hear more, said several staffers. Acting FCC Chairwoman Mignon Clyburn, “hopeful” the agency won’t “be faced with” a shutdown, said the Office of Managing Director is “working closely with the Office of Management and the Budget to make sure proper procedures are followed.” The agency will continue to keep employees “informed,” she told reporters after the agency’s monthly meeting Thursday. “We're engaged -- we have a plan. Unfortunately, this is not the first time we've been faced with this so we do have a plan that we are familiar with.”
Behind-the-scenes planning appears to have begun, though no plan has been shared with career employees, said several agency officials including the chapter president of the commission’s main union. The National Treasury Employees Union, representing about 1,200 of the agency’s approximately 1,700 staff, hasn’t been told by commission brass what to expect in a shutdown, but expects to hear soon, said Ana Curtis, a Wireline Bureau lawyer and president of the NTEU’s FCC chapter. “I think pretty much they'll follow what they did last time. I don’t think they'll make too many changes in terms of who is an essential employee,” she said of now versus 2011. “The agency doesn’t have too much leeway about that.” That means only employees doing what’s considered essential to safety and life can stay, said Curtis.
Delays getting licensing renewals, deals approved and what Wilkinson Barker radio lawyer David Oxenford called a “long-awaited” filing window to seek low-power FM stations all could occur if no budget deal is reached, said Oxenford and other attorneys. Licensees with expiration in the next few months should “get their renewal applications in BEFORE October 1 to avoid the possibility of losing their operating authority for the duration,” wrote communications lawyer Donald Evans on the blog of his law firm, Fletcher Heald (http://bit.ly/18sijCy). “FCC filings would also probably be put on hold (and one wonders if the electronic filing system would even be available for preparing drafts of applications that would be filed once the government reopened),” wrote Oxenford on his blog Thursday (http://bit.ly/16MxKlr).
Other agencies in the communications field would be affected differently, according to experts and planning documents those agencies issued in 2011 when there were fears another continuing resolution would have expired without new funding. The U.S. Patent Office and Trademark Office, like the FCC also funded by fees and not hit by furloughs, would have been able to keep all of its then 10,363 staff in 2011 because their compensation was funded by money that didn’t come from an annual appropriation, said a Commerce Department plan (http://1.usa.gov/17571nr). A PTO spokesman had no comment. Four NTIA employees, about 1 percent of the total, would be considered exempt from having to stay home during a shutdown, according to Commerce’s 2011 figures. An NTIA spokeswoman had no comment.
"The Administration strongly believes that a lapse in appropriations should not occur,” said a Commerce Department spokeswoman by email. “There is enough time for Congress to prevent a lapse in appropriations. The Commerce Department is still in the process of updating our plans.” The OMB “is working with agencies to take appropriate action” in case of a funding “lapse,” said a spokeswoman. “This includes agencies reviewing relevant legal requirements and updating their plans for executing an orderly shutdown, as outlined in the guidance OMB issued last week. This planning is consistent with what was done in previous instances where a potential lapse in appropriations was approaching.” The FCC seems to be taking a page from its 2011 playbook and is likely to be mostly shut down, said Curtis.
The FTC’s plans from 2011 would have exempted as many as 280 employees, or 23 percent of the total, “to protect life and property through the prosecution of enforcement actions,” said that agency (http://1.usa.gov/190Kquw). Because of fees paid by those seeking transaction approval under the Hart-Scott-Rodino Act, the agency is at least partly funded by such money, said a veteran antitrust lawyer. If the act’s pre-merger notification process were disrupted during any shutdown, “that would be a big impact on anyone who practices in the mergers and acquisitions area, and on any” company conducting M&A, he said. An agency spokesman had no comment.
The main way the FCC has been affected by sequestration is in having to drastically cut back employee travel, said agency officials. Staff sometimes participate in conferences from afar using videoconferencing technology such as Skype, and in potentially spending less on contracts, they said. Furloughs haven’t happened, said agency officials. That’s a key difference for agencies that like the FCC, Patent Office and FTC are at least partly funded by user fees, said a budget expert. “They are clearly less affected by constraints than agencies that are not directly getting user fees,” said Ron White, director-regulatory policy at the Center for Effective Government, which seeks government transparency. The sequester has been much easier on those agencies because “they have the other source of income” besides appropriations, he said. “Agencies, even with user fees, that require an appropriation via Congress for funds would in fact be affected except for exempt personnel” during any shutdown, said White.
OMB and the Office of Personnel Management told agencies to have supervisors “informally communicate with employees” about whether they're likely to have to stay home or can come to work during a shutdown, said NTEU President Colleen Kelley in a written statement Thursday. “This process is expected to take place in the next 24 to 36 hours.” Agency shutdown plans likely will be posted online by OMB and on agencies’ websites by Friday afternoon, she said. ,