FCC, FTC Other Shutdown Contingency Plans Released; Morale Seen Being Hurt

Some are optimistic the FTC won’t lose too much momentum if it must largely close Tuesday because no continuing resolution was passed to fund the government starting that day, though they acknowledged morale would be hurt. Based on the last shutdown in winter 1995-96 (CD Sept 27 p5), one now would not only hurt FCC staff morale but also mean much went undone, said those who worked at the agency during that time. With the commission “freezing and dark” during the shutdown as it went unheated, then-Republican Commissioner Rachelle Chong “took home a huge stack of ‘circulate decisions’ and read them in the comfort of my living room which was heated,” she recalled.

"We could not issue a darned thing without our staff to physically produce the decisions,” said Chong, who later was a member of the California Public Utility Commission. She and Susan Ness, a Democratic commissioner at the time, recalled that the shutdown came just before the 1996 Telecom Act was passed by Congress. It’s “disruptive” and “a hardship for all if there is an extended period of time in which commission staff is prohibited from doing its functions,” said Ness, now a communications policy consultant. “It’s not like it’s a fat agency and more resources can be poured into more places -- they don’t have the resources. I certainly hope that they don’t go through that futile exercise,” which “is such a monumental waste of resources and time,” said Ness.

As sequestration continues, the FCC has done “everything we can to avoid furloughs” of employees so far, and it has “no fat,” said the president of the agency’s chapter of its main union. “We've cut it close” so far by avoiding furloughs, said the official, Ana Curtis of the National Treasury Employees Union. “A lot of people here buy their own supplies,” including her, she said Thursday as she awaited word of contingency plans.

The Patent and Trademark Office said it’s continuing to assess its fee collections “compared to our operating requirements to determine how long we will be able to operate in this capacity during a general government shutdown. ... Should we exhaust these reserve funds before a general government shutdown comes to an end, USPTO would shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions” (http://1.usa.gov/16xbyl6).

If the government closes, FCC employees must report to work the first business day following a lapse in appropriations “to conduct orderly shutdown of operations,” the agency said. The FCC estimated that each employee should need “not more than four hours” to finish up. “All FCC activities other than those immediately necessary for the protection of life or property will cease,” the FCC document said. “Suspended activities include, among many others: Consumer complaint and inquiry phone lines cannot be answered; consumer protection and local competition enforcement must cease; licensing services, including broadcast, wireless, and wireline, must cease; management of radio spectrum and the creation of new opportunities for competitive technologies and services for the American public must be suspended; and equipment authorizations, including those bringing new electronic devices to American consumers, cannot be provided.”

By the FCC’s count, those who don’t have to go home include acting Chairwoman Mignon Clyburn and the two other commissioners and three Inspector General staffers. “The three (3) IG staff, however, may need to be furloughed due to lack of excepted supervisors,” the agency said. Up to 16 employees will be kept on to handle operations designed to protect life and property at the FCC Operations Center and the High Frequency Direction Finding Center, with a single manager overseeing operations at both. Another eight employees will be retained “to conduct interference detection, mitigation, and disaster response operations wherever they may be needed,” two for “critical oversight issues,” four to handle critical information technology issues and one employee each to conduct treaty negotiations and “to perform national security functions instrumental in the discharge of the President’s constitutional power.” The agency will also keep on various contractor employees, mainly to oversee security at the FCC headquarters and other commission facilities.

NTIA excepted positions include FirstNet board Chairman Sam Ginn and the nine FirstNet board members, according to its plans. The Department of Commerce released its 87 pages of government shutdown contingency plans, marked “pre-decisional,” Friday afternoon (http://1.usa.gov/1bhyBCe). Its orderly shutdown needs named four excepted employees, all of whom required two days to handle shutdown transition issues related to information technology and finance. Those positions are the chief financial officer, the chief information officer, the attorney adviser and senior adviser. Other excepted positions include employees working on the FirstNet state and local implementation grant program. NTIA Administrator Larry Strickling is excepted along with the domestic spectrum manager and several telecom analysts.

The appropriations for FY 2014 can keep the PTO running under “full operations” for about four weeks, the Commerce Department said. It said all 11,789 employees are excepted if the government shuts down. It describes a shutdown plan that would happen after that month of operations and calls for excepted positions to “ensure the functionality of processes and systems minimally necessary for the preservation of patent rights, to allow compliance with statutory provisions that cannot be waived, and avoid disclosures of information that would be detrimental to the national security,” according to the document. “Additionally, the excepted employees will ensure the functionality of processes and systems minimally necessary to preserve trademark rights.” The document expresses a concern that preventing the public from accessing the office’s electronic filing and payments system could cause “complete or partial loss of intellectual property.” To “prevent the loss of valuable intellectual property,” the systems should stay open, it said.

The National Institute of Standards and Technology wants to keep staff to “ensure the safety and security” of its facilities in Gaithersburg, Md., and Boulder, Colo., the document said. It wants staff on hand to “ensure appropriate monitoring and maintenance of the nuclear reactor and other critical research equipment that require specialized shutdown monitoring or that must be kept in an operational status even if not in use to avoid contamination or system failure” as well as to “ensure operation of the national timing and synchronization infrastructure as well as the National Vulnerability Database,” it said. It also wants workers to maintain irreplaceable biological cell lines and to maintain the NIST facility infrastructure.

The Commerce Department plan emphasizes that any employees who are presidentially appointed or confirmed by the Senate “will remain on duty.” “In total, DOC has 649 employees who would remain on duty for more than one half day but no more than three days in total to effect an orderly shutdown,” it noted. Across all its agencies, the Commerce Department has 46,420 employees, and it will retain about 13 percent of that total in the event of a shutdown. NTIA has 300 employees and also would retain 13 percent. NIST would retain 8 percent of its 3,143. PTO will keep 1 percent of its 11,789 if it falls into shutdown mode four weeks after the shutdown hits the rest of the Commerce Department.

Although the FTC was able to keep some employees on duty during the last shutdown, morale suffered, recalled then-Assistant General Counsel Maryanne Kane, who later was the commission’s chief of staff during the George W. Bush administration. The FTC “is a high-production agency,” so it frustrated workers that they couldn’t do their jobs, said Kane, now an antitrust lawyer at O'Melveny & Myers. “It is very hard for an agency to maintain morale, and high productivity” if Congress can’t agree on a budget for that agency, she said. “You're very aware that your functions are caught in the crosshairs of these political battles. It’s discouraging."

Mostly closing the FTC won’t stop many from working, even if they shouldn’t, said Center for Digital Democracy Executive Director Jeff Chester. “There are so many workaholics in Washington,” he said. “A dirty secret is a lot of people are going to be working” at the FTC, he said. “Their work and investigations will continue.” Such work may be exempt from furlough, other experts have said. For those not exempted, “it’s regulatory philanthropy,” said Chester. “People will on their own time do what needs to be done.”,