With Site Shuttered, FCC May Have to Grant Waivers for Missed Filing Deadlines During Shutdown, Lawyers Say

It remained unclear at our deadline when the shutdown will end. The shutdown is the first major one for the FCC in the electronic filing era. The last major closing was 1995-1996 when law firms still sent staff to the FCC to copy paper documents, several former FCC officials said.

"The lack of access to the FCC website and previously filed comments makes it extremely difficult to prepare reply comments in particular,” said Michael Calabrese, director of the New America Foundation’s Wireless Future Project. “Everyone has come to rely on ECFS as the repository for all notices and comments. For example, reply comments are due Tuesday on 1755 MHz auction rules, but we cannot see comments filed by the other parties. I expect the FCC to extend all existing deadlines by at least the length of the shutdown period. The commission may also need to either shorten the sunshine period, or delay the October open meeting, since there has been no opportunity for the usual pre-meeting interaction."

"The commission is well aware of the problem, so I fully expect that there will be some sort of blanket extension period to allow for filings that were due, and to provide time for replies to those filings,” said public interest lawyer Andrew Schwartzman. “The shutdown of the commission’s website has had a paralyzing effect. For years now, there has been no need to collect hard copies of various comments and other filings because they are available on demand via the FCC’s web site. Those of us with fewer resources have been especially hard hit, since we cannot afford to subscribe to private services that have at least some of the materials available. Recently, for example, a question came up about a recent commission order. I had to inquire of my friends and colleagues as to whether any of them happened to have downloaded the relevant document. It took me several hours to locate it."

Among the due dates that have passed or are coming up are deadlines on two major transactions. Oppositions to petitions to deny on AT&T/Leap were due Oct. 7. Comments are due Oct. 18 on a public notice on the foreign ownership implications of Verizon’s bid to buy Vodafone’s 45 percent of Verizon Wireless, the biggest telecom deal in history at $130 billion.

A former FCC spectrum official who represents wireless clients including carriers said the shutdown of the website has created problems that could have been avoided if information had been left online. “The fact that the FCC did what it did does sort of create the conditions that would justify granting extensions, especially in notice and comment rulemaking proceedings where the comments were just recently filed, but no longer available on the FCC’s website,” the lawyer said. “It has the potential to delay resolution of transactions, which is never a good thing, because there’s no information about the transactions available now. It has the potential to delay a lot of stuff that doesn’t have to be delayed.”

"I anticipate that there will be a slew of extension requests particularly for reply comments,” said John Nakahata, head of the telecom practice at Wiltshire Grannis. “The inability to access ECFS without notice makes it very hard to write reply comments."

Angela Giancarlo, a partner at Mayer Brown and former chief of staff to Commissioner Robert McDowell, said she would understand a waiver to extend a deadline for filing reply comments because of the website’s shutdown. With respect to initial comments, however, “if the government is open on the filing date, parties should not rely on a receiving a waiver,” Giancarlo said. “Get your work done and file it. ... Any professional would have his or her filing as complete as possible, file it on time, and maybe put a sentence or two in there up front requesting the right to make a supplemental filing in the event of any changed circumstances due to the shutdown."

"I'm hopeful reason will prevail and they will give a blanket extension for some reasonable amount of time, like a week, for any filings that were due during the shutdown and for any filings that were due a day or two after the shutdown,” said Harold Feld, senior vice president at Public Knowledge. “They may also want to try to figure out how to stagger things so there isn’t an overload on the first day or two. Since the commissioners are working, they can be thinking about this and have something ready to go as soon as they return. “ Feld said “ideally” the FCC will put up an alert on its webpage as soon as the government reopens explaining what’s next. “The question is what happens with statutory deadlines, which the commission does not generally have the discretion to move,” he added. “The general rule is that if it is impossible to file because some unpredictable event, like a snow storm shutting everything down … the obligation fell on the first available day with no discretion to move it."

"It is indeed difficult to prepare replies if you don’t have the initial comments in front of you, and it’s rather hit-or-miss in terms of whether you've downloaded those comments,” said Free Press Policy Director Matt Wood. “I'm sure some practitioners still do that as a rule, or may have done so in advance of the website shutdown, but I'm sure it’s not uniform throughout the communications bar. As for extensions, the FCC famously notes that extension are not routinely granted, but of course the current situation is anything but routine."

Mitchell Lazarus of Fletcher Heald said in a blog post last week the longer the shutdown goes on, the worse the chaos when the government reopens. Things will be a mess even if an agreement is reached immediately and the government reopens Wednesday, Lazarus said (http://bit.ly/17uceBn). “Eleven days’ worth of filings will all come due on Thursday,” he said. “Filings that have no due date -- new applications, waiver requests, you name it -- will have piled up in people’s offices during the shutdown, and likewise all come pouring in. But now suppose you file a routine request the next day, Friday. Whatever the processing time usually is, you can count on it being much longer. Think about it: you are stuck in line behind eleven days’ worth of other people’s requests on which the FCC has not yet started work. If the system worked with perfect efficiency, you might expect your request to take eleven days longer than usual. In practice, we're betting the added time will be considerably greater."

Oct. 8 was the statutory deadline for the FCC to release new rules for making user interfaces and program access guides accessible under the 21st Century Communications and Video Accessibility Act (CVAA). Though missing the deadline puts the commission in violation of a federal law, Constantine Cannon CE attorney Robert Schwartz said Congress is unlikely to throw the book at the FCC. “They have a good excuse this time,” he said. “Staff had been working tirelessly both internally and with stakeholders to meet the deadline, but the shutdown stopped them in their tracks,” said CEA Vice President Julie Kearney. Oct. 8 also was a deadline for e-readers, and a waiver request remained pending amid the shutdown even after the rule was to have taken effect. (See separate report in this issue.)

The Oct. 8 deadline for Web browsers on mobile phones to be made accessible for the visually impaired -- also part of the CVAA -- also passed during the shutdown. American Council for the Blind Director-Advocacy and Public Affairs Eric Bridges said he believes Microsoft, BlackBerry and other manufacturers may not be in compliance with the FCC’s rule, but there’s not much to be done about it. With the FCC out, “there’s not an enforcement body active” to inform about the problem, he said. “We're waiting for the commission to get back.” The ACB may file something about the compliance issues with the rule when the FCC returns, he said.

Reply comments on TiVo’s petition to reinstate some CableCARD rules stripped away by the courts were due Oct.9. An NCTA spokesman said the deadline delay doesn’t have much effect on filing comments. “It doesn’t really change the policy; when the government reopens we'll push ahead,” he said.

In the Wireline Bureau, replies were due Oct. 7 on a petition by Video Relay Service provider Purple seeking clarification of a statement in the VRS Reform Order. A footnote in the order said “calls that are completed using a technology that does not provide both inbound and outbound functionality are not compensable” from the Telecommunications Relay Service Fund. Purple wanted clarification that the footnote doesn’t apply when users access IP Captioned Telephone Service (CTS) through Web and wireless services. If it did apply, Purple and other IP CTS providers would stop providing IP CTS using Web and wireless applications because, Purple said, “there is no technology currently available that allows inbound IP CTS over Web or wireless technologies to be captioned without some intermediary step."

Several comments are due this week at the Wireline Bureau. Reply comments are due Wednesday on the NPRM seeking to modernize the E-rate program. The original round of comments drew more than 700 responses. The International Society for Technology in Education said in a notice to its members that it would accept comments from its members who want to file comments while the FCC’s comment filing system is down (CD Oct 7 p10). An ISTE official told us the association of educators has collected more than 100 comments that it plans to file when the FCC reopens.

Comments are due Thursday on the National Exchange Carrier Association’s 2014 modification of the average schedule universal service high-cost loop support formula. On Friday, comments are due on the FNPRM on how to revise the current rate methodology for IP CTS providers.

Nonprofit organizations that want to apply for low-power FM stations are being hindered by the shutdown, which put the Oct. 15-29 filing window on hold. “With the government shutdown, there’s nobody that can put out official information on what’s going to happen,” said William Godfrey, an engineering associate at Kessler and Gehman Associates. His clients include schools, churches and American Indian tribes that want to apply for LPFM stations. He’s still preparing applications, he said. “All we can do is assume it’s going to open on the 15th even though it’s very unlikely."

Godfrey said he plans to complete the paper application and then transfer the information to the electronic form when the window opens after the shutdown ends, he said. “It seems like the amount of days the government will be shut down will be the number of days the window will probably be delayed,” he said.

Despite the expected delay, Godfrey said his engineering team has the information it needs to go forward with successful applications for their clients. Godfrey uses software to determine whether a proposed station location would cause interference to other stations, he said. “That software matches the FCC’s exactly so when we do our work in house, we know that it’s going to be acceptable with the FCC when it gets turned in.” However, blocked access to the FM database is problematic, he said. “Every day FM applications are filed to the FCC and a lot of those applications are for full-service FM [stations], which require protection.” Engineers trying to conduct studies no longer have access to that, he said. “Ever since the beginning of the month, we've been doing studies based on an older database and that could play a part in this."

Some state broadcast associations are still trying to figure out how they plan to file comments on the problems identified in the first nationwide Emergency Alert System test, said Suzanne Goucher, president of Maine Broadcasters Association. Comments are due Oct. 23 (CD Sept 25 p7). But without access to the public notice, it’s difficult, she said. “The state associations will probably file something, but I can’t get my hands on the filing to review it [the public notice] and think about what we might want to say,” she said. “What a mess."

The shutdown also affects radio license renewals, Goucher said. “We're in the middle of a radio license renewal cycle, too, and a lot of the stuff folks need to prepare their license renewal paperwork is on the FCC website.” If the shutdown continues up to and through the deadline for filing comments, “I would imagine an order to leave enough of a window for a complete record of filings that they'd probably push the deadline back,” she said. The FCC plans to accept filings from these proceedings the day after the agency opens back up. Goucher doubts the agency can handle the expected avalanche of filings then, she said. “Practically speaking, I don’t know how they can hold to that.” The commission will have to push some deadlines back, “otherwise their website is going to be taken down,” said Goucher.

Other missed deadlines include replies in the public notice on Dish Network’s request for flexibility in its AWS-4 operations, which were due Oct. 10. Analysts and attorneys said the FCC could still act on the petition by Dec. 14, which would prompt Dish to bid nearly $1.6 billion in the Jan. 14 H-block auction (CD Oct 9 p4). Due Oct. 7 were oppositions to deny long-form applications filed by 33 winning bidders for the 3,104 paging licenses sold in FCC Auction 95.,,,