Industry Relief Mixed with Anxiety as Agreement Reached That Apparently Would End Federal Shutdown

On Tuesday, the FCC delayed its Oct. 22 meeting at which it had been scheduled to take up the 700 MHz interoperability pact, an order adopting technical rules for the 700 MHz broadband spectrum licensed to FirstNet and an order and NPRM on rural call completion. The FCC largely took down its website Oct. 1, the first day of the shutdown, but updated the shutdown site to announce the meeting wouldn’t take place as scheduled.

"First and foremost the commission must dispatch with the October meeting because it’s required by law to have a monthly meeting,” said ex-Commissioner Robert McDowell, now a visiting fellow at the Hudson Institute. “That’s the easy part. The harder part will be addressing the backlog of more routine matters than may have exceeded regulatory deadlines and such. Hopefully, the commission will act quickly to provide extensions and waivers of deadlines and other legal requirements that could not be met during the government ’slim down.'” McDowell said “hopefully” the “break in the logjam” means the Senate will quickly approve Tom Wheeler and Michael O'Rielly to the FCC’s open seats.

A former FCC spectrum official predicted a slimmed-down meeting for October. “Realistically, would Congress call the agency on it” if the commission doesn’t meet at all, the lawyer asked. “Or, the commissioners could elect to schedule a non-substantive meeting to discuss status of various projects to meet the spirit of the requirement."

Public interest lawyer Andrew Schwartzman is relieved, though worried another shutdown is possible, he said. “This has been a frustrating, annoying and utterly unnecessary exercise,” he said. “More generally, I am angry that this happened at all, and concerned that this may start all over again in three months. There is little reason to believe that the same people and the same forces won’t lead us to the same place in January."

Whenever the FCC reopens, it might need to offer a further deadline extension for all filings that had been due during the shutdown and would then be due a day after it ends, said a former Media Bureau and eighth-floor official. Rosemary Harold, a lawyer with broadcast, cable and newspaper clients at Wilkinson Barker, said the agency might instead want to adopt a staggered deadline plan. That could help the agency avoid being swamped with such a high volume of documents that the electronic filing system has technical problems, said the deputy Media Bureau chief during Kevin Martin’s chairmanship who later was an aide to McDowell. Filings would be due a business day after the “return to normal operations,” said a public notice Oct. 1, the day of the shutdown, that is among the few items still available on fcc.gov (http://fcc.us/16bfDLb).

"I think there will be some concern that the pent-up demand for filings is going to be a strain on the computer systems over at the commission,” Harold said. “The announced plan that everything due during the shutdown would be due one day after the commission opens could be a technical problem.” With the agency aware of its systems’ “strengths and weaknesses,” she said she hopes it thinks “creatively about a looser postponed deadline schedule.” That’s “so we're not all piling in at once” with filings, said Harold. The agency might have to grant a blanket waiver for late filings, other lawyers have said (CD Oct 15 p1).

A wireless industry lawyer said most will feel relief if as expected the shutdown ends after more than two weeks. “Just having the website back up will be a huge help,” said the lawyer, who represents carriers and other industry players. “The FCC staff are probably anxious about how to handle the many backlogs, filing deadlines, FCC meetings, the agenda meeting -- there will be a lot for them to sort through. We'll need to be a little patient."

"I think there’s a tremendous amount of anxiety,” said a former FCC legal adviser. “The surprise decision of the FCC to close its website created a tremendous amount of confusion and that will only multiply when it’s back online. Things like deadlines for waivers, comment period, petitions, other things, are completely up in the air and it’s unclear how the agency is going to communicate what it’s going to do. ... The question I guess will be is it all on the chairwoman’s shoulders, are the commissioners going to participate in that?”

"I think many of us are extremely relieved, but also wondering what happens now,” said Public Knowledge Senior Vice President Harold Feld. “I'm sure Chairwoman Clyburn and the other commissioners have been thinking about how to handle this, and I expect they will move quickly to let people know how to handle things. Still, even with some kind of blanket extension, we can expect a lot of work in the next few weeks.” Feld expects a “tremendously disruptive few weeks” after the government reopens, he said. “There is also a certain sense of weariness as people are asking -- ‘are we just going to have to do this all over again in a few months?'”

Even those who think the FCC should impose less regulation should be relieved the agency is reopening, said Free State Foundation President Randolph May. “Shutdowns are no way to run the government in an efficient manner, especially when it is a foregone conclusion that taxpayers are going to end up paying the furloughed personnel anyway. And, in any event, the commission does have some important work to do.” May said commissioners need to do some “mission prioritization” to get things back on track and should be “liberal” in granting extensions in most proceedings because of the website shutdown. Some proceedings are more urgent, he said. “In this latter category, I would certainly put work on the incentive auction and IP transition proceeding."

Attention to the coming incentive auction of TV-station spectrum might be a key focus of staff once the FCC reopens, some industry officials said Wednesday. With Wheeler awaiting a full Senate vote, it’s possible he won’t be confirmed in time to have any chance of proceeding with the agency’s previous plan to issue an incentive auction order this year, so that the auction can be held next year, said a media attorney. A 2014 order and 2015 auction seems the most likely outcome, said the lawyer, as others have also speculated. The FCC is scheduled to hold an Oct. 24 reverse-auction workshop on unlicensed spectrum, the agency said before the shutdown without releasing more details (CD Oct 15 p17)., ,