FCC Headed to Pre-pandemic Operations March 13

Though phase 4 is described in the reentry plan as a return to pre-COVID operations, the FCC “intends to be more flexible with telework than pre-pandemic, consistent with employees’ job duties and the legitimate business needs of Bureaus/Offices,” the email memo said. The memo says the agency will allow routine scheduled telework of up to three days per week with supervisor permission, and some limited ad hoc telework days. Under the permissive telework allowed under phase 3, most employees rarely worked from FCC headquarters. The new policy is also less flexible on the hours employees keep, requiring most to work during the ”core hours” from 10 a.m. to 3:30 p.m. The agency has been in phase 3 since May. In phase 4, FCC staff who want to telework more than three days a week will need to show a temporary hardship and get approval from their supervisor, bureau chief, and the Office of Managing Director, the memo said.

“Practically, we expect that Phase 4 will see an increase in in-person work and events, and there are no limits on holding in-person meetings, trainings, or other work,” the memo said. “While the FCC will continue to be flexible with respect to telework, and we anticipate more frequent use of hybrid or virtual meetings/events than pre-pandemic, employees will be expected to attend on-site meetings and other work events when necessary and instructed to do so,” the memo said. “There should be no expectation that coming into the office is entirely voluntary or otherwise discouraged.”

“We ask the FCC and each supervisor to adopt flexible policies when implementing Phase 4 that allow pro-performance, pro-safety, and pro-work-life balance for all staff,” said Tracy Bridgam, president of the FCC’s chapter of the National Treasury Employees Union. FCC supervisors should approve the maximum amount of time for telework permitted by the collective bargaining agreement with the union, she said. She also urged the agency to allow hybrid workplace meetings. “While the idea of a once-a-week meeting with everyone crowded into a conference room may seem feasible, COVID concerns still remain, especially for those employees with underlying illnesses or family members who are immunocompromised.” In-person work and telework "are governed by our telework policies and applicable collective bargaining agreements, and we anticipate that most employees will have hybrid work schedules with a mix of both in-person work and telework," an FCC spokesperson said.

FCC staff had varying reactions to the planned shift. It’s hard to know what the eventual telework polices will be in practice and how they will be enforced, employees said. “A lot of specifics will need to be figured out during the implementation process, but I like the overall outline for the next phase,” one employee said. “The FCC will be sharing much more detail about Phase 4 telework in an email to employees on or about March 13, when we officially enter Phase 4,” the memo said.

The location of the new FCC headquarters may exacerbate concerns, since the new building is farther from the Metro and with less parking than the Portals site, said a longtime regulatory lawyer, noting rumblings starting in 2020 that some may retire early rather than try to commute to the new building: “Some of those folks may have stayed at the commission a bit longer because they could do their jobs from home.”

Fletcher Heald’s Francisco Montero said more in-person work could “improve the pace of FCC action.” Processing times are “still far longer than they were pre-pandemic,” he said: “Couple that with the technical problems the FCC filing systems have been experiencing, staff shortages, and an empty commissioner seat for several years, and I would expect the delays to continue.” To Montero, “the new normal” is “applications that used to take a few weeks may now take a couple of months and those that took a couple of months will take four to six months. That’s just a reality the industry may have to get used to.”

Taking Root

The ability to work from home “has taken hard root, and it may be hard for the FCC to get everyone back into the building,” predicted Jim Dunstan, TechFreedom general counsel. Some may choose to leave or take early retirement rather than face “the ugly commute into D.C.,” he said: “The FCC will have to tread a fine line.” A hybrid system may not work unless the FCC’s new offices “have really good videoconferencing systems that allow for staffers to pop into meetings virtually,” he said.

Multiple FCC staffers told us holding teleconference meetings at agency headquarters is cumbersome due to a shortage of properly equipped computers. At the same time, telecom industry officials have now become accustomed to such meetings instead of in-person visits, especially for smaller matters, said Wiley broadcast attorney Kathleen Kirby. The agency sought to address that issue by giving laptops with mics and webcams to employees, FCC staffers told us. “The FCC’s laptop deployment project is ongoing, and will happen concurrently with our transition to Phase 4,” the email said.

“As someone who works in a hybrid work environment, I think it's important that staff have flexibility to work either in the office or remotely,” said Jonathan Cannon, R Street fellow-technology and innovation and a former acting legal adviser to Commissioner Nathan Simington.

"Seeing people in person adds so much value to a meeting compared with virtual meetings,” emailed Cooley’s Robert McDowell, a former commissioner. But the FCC has proven “it can do its job pretty darned well in a virtual environment.” Virtual meetings with commissioners or staff also “obviate the need for travel which some out-of-town advocates simply cannot afford,” he said.

'Moment of Truth'

“With the end of the pandemic and a return-to-the-office mandate, we have a moment of truth -- will we see a rash of retirements and resignations, or will people get used to it?” McDowell said, noting similar anxiety when the FCC moved to the Portals from its M Street headquarters in 1999. “Transitions can be stressful, but eventually a new normal will be established,” he said.

“In-person meetings offer advantages, but video meetings allow for parties to participate in commission proceedings without needing to come to D.C. … and there is value in increased accessibility,” said Jeffrey Westling, American Action Forum director-technology and innovation policy. Even if the commission largely returns to in-person work “those options will remain,” he predicted.

Kirby said she has had recent in-person meetings with FCC commissioners and aides and does think they allow more productive meetings on weighty matters. “There’s nothing like having an in-person discussion with someone,” she said. Wilkinson Barker lawyer Davina Sashkin said she expects going forward to meet with FCC staff electronically and pursue in-person meetings for 10th-floor officials.

In April 2021, when more companies started to return to in-person work (see 2104140030), Kastle Systems, which tracks building occupancy, found average occupancy of 24% in 10 major cities. The average in late February was 50.1%, with 46.6% in the Washington, D.C., metro area.

Network:On, a public interest group, concluded in a paper last week that many wanted to continue working from home even after the pandemic is over. “Existing literature suggests that remote working reduces commuting time, with the consequent increase in quality of life, productivity, and overall wellbeing,” the paper said. The group said remote work is more possible in some areas than others. Less than 40% of households in Arkansas had a broadband connection of 25 Mbps downstream speed according to recent data, which compares to 91.4% in Delaware, Network:On said: “This means that not all Americans have the same resources needed to work remotely.”