FCC Website Expected To Stay Open for Business Even if Federal Government Shuts Down

During the last partial closure two years ago (see 1310150016), one of the most difficult parts for some, and a topic of industry and consumer group complaints, was that the FCC largely took its website offline. That cut off access to many of the documents used by lawyers and others to prepare filings at the FCC, as well as kept the public from seeing the forms. Other government websites still had some functionality, but that was not true for the FCC, where acting Chairwoman Mignon Clyburn and her top advisors took a very strict view of what was permissible under federal guidelines.

Industry and agency officials said they have been assured that since the last partial shutdown the FCC has changed how it does its budget so that there should be some money left to keep parts of the website open.

Some parts of the government will see business as usual. The FirstNet board has meetings set to get underway Thursday and they are expected to occur no matter what happens since FirstNet is not under a normal government appropriation, a Commerce Department spokesman confirmed.

The announcement by House Speaker John Boehner, R-Ohio, that he is leaving Congress at the end of October probably will help avert a shutdown for now, “although it may well be a prelude to a massive train wreck in a few months,” said Andrew Schwartzman, senior counselor at the Georgetown University Law Center Institute for Public Representation. “Spending unappropriated money is not a trivial matter because, in theory, it is a crime.”

The Commerce Department, under which NTIA and FirstNet fall, posted its contingency plan Friday. It lists only 26 NTIA employees, including Administrator Larry Strickling, who would be expected to work if the government closes. At the FCC, the managing director is heading up a group preparing contingency plans, agency officials said.

The FCC has some 1,700 employees, according to its contingency plan, also released Friday. No more than 138 will remain on duty, including up to 13 “retained to protect life and property” and up to 120 whose salaries aren't funded out of annual appropriations, including auction staff, the agency said. “With very rare exceptions,” the FCC “estimates orderly shutdown will be completed in approximately four (4) hours -- one half-day for planning purposes,” it said.

Fred Campbell, former chief of the FCC Wireless Bureau, told us that he would not expect a shutdown to have much of an effect on pending rulemakings or the incentive auction, as long it doesn't continue for a long time. Campbell, who oversaw the 700 MHz auction, said there is inevitably some work that can’t get done if the government closed. “The FCC relies heavily on contractors to do programing of the auction system and testing of the auction system,” he said. “I’m not 100 percent sure where those outside contractors fall under the rules.” Campbell is now executive director of the Center for Boundless Innovation in Technology.

The incentive auction could be most vulnerable to problems from any prolonged shutdown, said Columbia University computer science professor Henning Schulzrinne, who was FCC chief technology officer during the 2013 shutdown and remains a technical adviser. “That seems like it’s on a pretty tight schedule,” he told us. Transaction approvals also could be affected, he said. “It’s difficult because of the amount of material that needs to be digested -- 180 days is pretty short anyway.”

While the 2013 shutdown had “limited” effect on the public, it took weeks before some areas, such as licensing and policy, were caught up, Schulzrinne said. “The work doesn’t go away, it’s like coming back from vacation -- you suddenly find all the stuff you were working on before is still there, just more of it,” he said. “Now everybody has to scramble.”

Shutdowns “have been a fact of life of living and working in Washington since 1995,” said former FCC Commissioner Robert McDowell, who left the agency in 2013 prior to that year’s shutdown. “Most threats of shutdowns get averted at the last minute. In the rare cases where a ‘shutdown’ actually occurred, they were technically more of a ‘slowdown.’ Vital governmental offices continued to operate, but work of a non-essential or non-urgent nature became delayed.” As to the Oct. 1 deadline, “It's anybody's guess as to what will happen this year because we are in a presidential election cycle,” said McDowell, now at Wiley Rein.

Public Knowledge Senior Vice President Harold Feld said it's good the FCC has new guidance on shutdowns, but “annoying” one might occur two years after the last. “I’m glad the FCC has reexamined what is and is not possible for them to do in the digital era,” Feld said. “The last shut down of the federal government prior to 2013 was the 1995 shut down, when few federal agencies even had a website. 2013 introduced entirely new questions about access to digital resources that had not previously been necessary to consider.”

“With any luck, the FCC won't reopen,” said Berin Szoka, president of TechFreedom. “The Internet would get by just fine, thank you very much.” But Richard Bennett, visiting fellow at the American Enterprise Institute, said it will a “shame” if the shutdown “impairs revenue-generating activities that contribute to jobs and the growth of the economy overall. Congress needs to find a more constructive path forward.”