FCC, Other Federal Agencies Preparing for Government Shutdown, Before Friday Night Deadline
The FCC, FTC and other federal agencies were planning to continue to at least partially function in the short term after the start of a possible federal government shutdown that was set to begin at 11:59 p.m. Friday absent action by Congress. Senate Democrats said they had enough votes to prevent the Senate from invoking cloture on a continuing resolution to fund the federal government through Feb. 16 unless it includes a deal on the Deferred Action for Childhood Arrivals immigration policy. The House passed the CR Thursday sans DACA language on a 230-197 vote. A Senate cloture vote on the measure was seen as possible after our deadline. Lawmakers acknowledged before our deadline Friday that a shutdown was still possible but were hopeful there would be a deal.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Senate Minority Leader Chuck Schumer, D-N.Y., emerged from a meeting Friday with President Donald Trump without a deal to forestall the shuttering. “We had a long and detailed meeting,” Schumer told reporters upon his return to the Capitol. “We discussed all of the major outstanding issues. We made some progress, but we still have a good number of disagreements. The discussions will continue.” Senate Majority Whip John Cornyn, R-Texas, separately said Trump told Schumer to “go back and talk” with Senate Majority Leader Mitch McConnell, R-Ky., and Speaker Paul Ryan, R-Wis., to reach an agreement on outstanding issues related to immigration policy and spending.
In the event of a shutdown, the FCC planned to stay open, at least through this coming Friday, the agency announced. The FCC has “available funding” through the end of the week, it said. That means the FCC’s Broadband Deployment Advisory Committee could meet as planned Tuesday and Wednesday, where it's expected to take up final reports of its working groups (see 1801100057).
The FCC released a shutdown plan in December (see 1712070071). One change from the past is that the five commissioners can continue to work. Of 1,492 employees, 227, or about 15 percent, would still be expected to show up because they support auction-related activities or are otherwise involved in oversight or protection of life or property or are performing international and treaty-related activity.
During the 2013 shutdown, the FCC took almost all information off its website (see 1310030055). The public could no longer access documents, including filings made before the government shuttered. “We regret the disruption, but during the Federal Government-wide shutdown, the FCC is limited to performing duties that are immediately necessary for the safety of life or the protection of property,” the revised site said. “FCC online systems will not be available until further notice.” FCC officials said then they had no choice because no staffers were available to monitor the website against potential threats.
Lawyers who work with the government said Friday they hoped the FCC wouldn’t have to close, an eventuality that still loomed at our deadline. The 2013 shutdown lasted Oct. 1-13, during Commissioner Mignon Clyburn's acting chairmanship. During the Clinton administration, the government shut down twice -- in 1995 and 1996, for five and 21 days, respectively.
A former FCC spectrum official said the last shutdown was the worst because of the shuttering of the website. “We were paralyzed,” the lawyer said. “Nobody keeps paper anymore and even if you did if you need information on licensing issues, you need those databases.”
“It creates a lot of uncertainty, especially where there are deadlines or pleadings that need to be filed or applications due or construction permits expiring,” said Francisco Montero of Fletcher Heald. “Obviously, lawyers, as well as their clients and the markets loathe uncertainty. Despite that, we stay busy when the government shuts down. There’s a lot happening on our end that moves forward even if the government is shut down, like negotiating contracts and prepping those filings for when the government reopens.”
The FTC's shutdown plan focuses on securing the agency's IT infrastructure and records, but the agency said 262 of its 1,124 employees would be exempt during the shutdown. The IT protection plan should take "no longer than a day," the FTC plan said. A "substantial number of the agency's lawyers and support staff" will need to spend another "half-day or more" addressing the agency's law enforcement docket, notifying courts and parties involved in litigation of the cessation of normal operations, and canceling planned meetings, workshops and hearings, the FTC said. Work that would not be done includes processing Freedom of Information Act requests; dealing with ethics issues unless required by a court; defending equal employment opportunity or other suits against the agency; and participation in workshops, conferences and other events.
Senate Commerce Committee Chairman John Thune, R-S.D., told reporters he didn't have any concerns about the FCC and FTC being able to operate effectively in the event of a short government shutdown. But it would be different “if it were to be prolonged” shuttering, he said. “I think everybody can manage for a short amount of time” if a shutdown happens “but hopefully that won't be necessary,” Thune said.
Other lawmakers didn't directly answer similar questions amid hopes a deal still could occur. Concerns about the FCC's ability to function during a shutdown “would just be another reason to avoid such an outcome,” Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., told us. “God willing we won't have” a shutdown, said House Digital Commerce Subcommittee Chairman Bob Latta, R-Ohio. “I hope that our friends in the Senate will get the work done by the end of the day.”
The DOJ Antitrust Division (ATR) would keep about 40 percent of its employees on the job (280 out of 693) if appropriations lapse, the department's FY18 contingency plan said. Antitrust head Makan Delrahim would be exempt from furlough as a presidential appointee. "The excepted employees are needed to conduct or directly support ongoing criminal trials, prepare for criminal proceedings that have been scheduled for court (including the handling of arraignments, pleas, and sentencing hearings), and conduct or support ongoing civil litigation in which a continuance cannot be obtained," the plan said. "They will also prepare cases that must be filed due to Hart-Scott-Rodino or statute of limitations deadlines, only when an extension or waiver cannot be obtained and ATR leadership determines that allowing a proposed merger to go forward without objection would pose a reasonable likelihood of peril to property in which the United States has an immediate interest." DOJ didn't comment Friday, including on possible fallout for its case against the AT&T/Time Warner deal, which is to go to trial March 19.
NTIA would have 228 of 528 employees "excepted" from furloughs if appropriations lapse, said the Department of Commerce's Plan for an Orderly Shutdown. Assistant Secretary David Redl, as a presidential appointee, would be exempt from furlough, and 207 employees would continue to work on FirstNet, through funding from provisions of a 2012 tax and jobs law. An NTIA spokesman didn't comment. Under the plan, the U.S. Patent and Trademark Office would have only 115 of 12,684 positions "excepted" from furloughs, and the National Institute of Standards and Technology would have only 335 of 3,473 "excepted."
FirstNet would stay open, a spokeswoman said Friday. FirstNet doesn’t receive annual appropriations so wouldn’t be part of any shutdown.