FCC Up and Running, Though Electronic Filing Problems Reported

NTIA put up notices on its website confirming Thursday that both the FirstNet meeting scheduled for Thursday and the Commerce Spectrum Management Advisory Committee meeting slated for next week had been canceled.

The FCC website, the cause of much industry concern, sputtered on and then off Wednesday night, though ECFS remained up. It was back Thursday morning, though still not fully functional. “Happy, excited, and glad to welcome my colleagues back to the @FCC today,” Commissioner Jessica Rosenworcel tweeted.

"After a 16-day disruption, the FCC is open for business again,” acting Chairwoman Mignon Clyburn said in a written statement. “Our number one priority is to resume normal operations as soon as possible, and the Commission’s dedicated staff is working hard toward that goal. We have already taken immediate steps to remedy disruptions caused by the shutdown and will be issuing further guidance very soon. We appreciate your patience and understanding as we work through this extraordinary situation.

"I'm glad the website is back up, ECFS is not fully functional however,” said a wireless industry lawyer who represents carriers and others. “I can’t file in a couple of dockets. I've been trying every few minutes and I get an error message and the phones aren’t being answered at the helpline.” The lawyer said that beyond Monday a number of big deadlines loom, including H-block filings Nov. 5. “I think getting certainty soon on a whole host of deadlines is really important,” the lawyer said. The FCC could do more, said a former agency wireless official. “What about a news release outlining specific steps that the public should take -- and should not take -- with respect to pending proceedings?” the lawyer asked. “Perhaps include points of contact in each bureau and office. That might be a good start. Certainly it would be an even, equitable manner of communicating."

The FCC needs to treat some filing deadlines with more urgency than others, said Mitchell Lazarus, who represents wireless clients at Fletcher Heald. Comments on most rulemakings are not as time sensitive, he said. “But other kinds of filings request relief, which is time sensitive to the applicant,” Lazarus said. “Just a couple of examples. Experimental license applications for people who have research and demonstrations planned and need the license to do it lawfully. Microwave licenses: some of our microwave clients need to put up links quickly and the license application process has been stalled. Part of my mobile two-way radio licenses, people need service when they need it. Equipment authorizations, companies bringing in new kinds of radios, new handsets, have announcements planned, product rollouts planned, and until the FCC grants the authorization they can’t move.”

FCC staffers have contacted some attorneys as they try to get a handle on the backlog. “In a tribute to the professionalism of FCC staff, they affirmatively reached out to us first thing this morning and have asked us to identify all client matters that require urgent attention,” said Pantelis Michalopoulos, head of the telecom, Internet and media practice group at Steptoe & Johnson. “This makes me confident there will be no serious fallout from the shutdown."

But those attorneys who haven’t yet gotten a call are hesitant to bother commission staff. David O'Neill, partner at Rini O'Neill, thinks it’s best to let the agency get up and running again before he calls. “I've not had a crisis situation that requires calling them,” O'Neill told us. “Let people find their desks, see what they need to take care of, and stay out of their way."

"Their first day back, I do not want to bug them,” said Alan Tilles, chairman of the telecom department at Shulman Rogers. Tilles plans to call the agency in a couple days to get an idea of the impact the delay has had on his pending matters, and to find out when the agency will be able to get to him. “I'm asking our clients to just remain calm. They understand it’s not the FCC’s fault. These government workers are just a pawn in a bigger chess game."

Tilles and his staff have been busy catching up on a “boatload of filings” that were due during the shutdown. Although everything due through Oct. 21 has had its deadline lifted, business has still got to get done, he said. Even when it’s a peripheral matter -- a utility being sold that requires a transfer of the radio system -- that assignment application still has to get approved before the whole deal can go through, he said. The agency’s website is holding up. Usually he hears “some expletive” from down the hall if the website wasn’t up, he said. So far, so good: “My staff hasn’t yelled at me yet."

The attorneys at Keller and Heckman started working before sunrise, just in case the website didn’t stay up. “We saw during the narrowbanding process at the end of last year that a lot of times it would crash or slow down, and we wouldn’t be able to file,” said attorney Dawn Livingston, who works on wireless licensing matters. Livingston got to the office around 7 a.m., and did about a dozen filings before 9 a.m. -- just as the system started slowing down, she said.

For O'Neill, the biggest lesson of the shutdown is “never go to cloud computing,” he told us, only half-joking. The shutdown was a reminder of just how much the industry has become dependent on the cloud, he said. “You don’t really appreciate it until it’s shut down.” With the agency’s proclamation that all filing dates through Oct. 21 are suspended until further notice, O'Neill is proceeding under the assumption that everything will be due Oct. 22. He’s less clear on when the countdown starts for pending matters that have responses due 30 days after an earlier filing. “If I'm being cautious, I'll start from tomorrow,” he said.

By delaying filing deadlines the commission “avoided a flurry of potential waiver requests, as well as confusion about how to proceed with deadlines that occurred during the shutdown period,” said a wireless industry lawyer. “This gives the commission some time to provide guidance to the industry in an orderly fashion.” Suspending comment deadlines “is the right call,” said a former FCC legal adviser. “Other than shutting down the website to begin with, I think the agency has taken the right steps. I am aware of no urgent problems."

"Chairwoman Clyburn and her staff are making the best of it,” said David Honig, president of the Minority Media and Telecommunications Council. “Recall that only 38 people -- two percent of the staff -- weren’t furloughed, so the task of getting back up to speed can’t possibly be done in one day. There is a very long queue of parties with pending transactions, or with business plans contingent on the timely completion of rulemakings. It will take at least a few months for the Commission’s already overworked staff to catch up. Those of us inhabiting the ‘FCC World’ need to be patient. Recall, too, that there could be another shutdown early next year."

"It appears that the FCC is taking appropriate, proactive steps to return to regular operations in a way that is responsive to the public’s immediate needs,” said Fred Campbell of the Competitive Enterprise Institute’s Communications Liberty and Innovation Project. “FCC leadership should be commended for promptly notifying the public that it would be issuing further guidance so quickly regarding revised filing deadlines.” Campbell is former chief of the Wireless Bureau.

Free Press Policy Director Matt Wood said the FCC was right to delay filing deadlines “to account for the fact that none of us can instantly resume business as usual today, because the website and the research tools were frozen in place for the past two weeks.” ,