Partial Government Shuttering Possible; FCC, FTC Funding OK for Some Days

Many agencies were releasing updated shutdown plans, but at least some wouldn't take immediate effect. Monday and Tuesday are federal holidays in observance of Christmas. The FCC and FTC in particular may be able to remain fully open for at least a few days or slightly longer into a shutdown because they can draw on funding reserves.

The Senate voted 48-47 to agree to consider a House-passed version of the CR that included the border wall funding, with Vice President Mike Pence (R) casting the tie-breaking vote. Senate Majority Leader Mitch McConnell, R-Ky., said the chamber won't conduct any further votes until there's agreement on a CR to keep government open. “There are not the votes in the Senate” for a CR with the wall funding, said Senate Minority Leader Chuck Schumer, D-N.Y., in a floor speech. The CR the Senate passed Wednesday didn't include the wall appropriation. The House voted 217-185 for its CR after and President Donald Trump threatened not to sign a funding extension that didn't include the wall funds (see 1812200060).

“Now it’s up to the Democrats as to whether or not we have a shutdown tonight,” Trump told reporters Friday after meeting with Senate Republicans. “I hope we don’t, but we are totally prepared for a very long shutdown. This is our only chance that we will ever have, in our opinion.”

FCC

The FCC could potentially stay open in a shutdown by tapping prior year funds, said its latest contingency plan (see 1812180056).

If that funding is unavailable or runs out, 1,197 employees would be furloughed. About 245, or 17 percent, would keep working: the four commissioners; up to 24 for oversight and protection of life and property; five for critical information technology issues; up to five to perform international and treaty activities needed for the president to discharge his duties; up to four to oversee or conduct interference detection, mitigation and disaster responses wherever needed; two to certify USF disbursements and up to 200 whose salaries and expenses aren't funded by annual appropriations and who will support spectrum auction-related activities. About 190 contractors would be retained.

House Commerce Committee Chairman Greg Walden, R-Ore., was among several lawmakers we spoke with who said they had concerns about the shutdown overall but weren't particularly concerned about the potential ramifications for the FCC. "Hopefully, there isn't a shutdown" but if it happens, "we've been through this" before in recent years, Walden said. "There's a way for them to work through that. You can have essential personnel" for some tasks.

Francisco Montero said Fletcher Heald's office is open starting Wednesday, regardless of what the federal government does, though his expectation is the FCC will remain open through Jan. 2. “In the near term, there will not be much of an impact for us,” he said. “We’ll be monitoring the situation as we head into January.”

Challenges Ahead?

This is generally a slow time of year at the FCC and some commission work tends to taper off, said Mintz Levin wireless lawyer Laura Stefani. “Any shutdown will impact the commission’s regular work of processing applications and other discrete requests for commission action,” she said. “There are numerous pending experimental applications, for example, that industry relies on the commission to process in an expected period of time so that they can start or continue their work testing new technologies. An extended shutdown would certainly delay grant of these applications, which in turn would have a domino effect of slowing the time to market.”

A prolonged federal government shutdown could challenge USF programs, emailed Schools, Health & Libraries Broadband Coalition Executive Director John Windhausen. “We have been assured that funding for all the Universal Service Fund programs -- including E-rate and the Rural Health Care program -- will continue to flow,” he said. “Nonetheless, there are many issues that the Rural Utilities Service and FCC will have to handle in the next few weeks -- such as setting the filing dates for the ReConnect program, finalizing the rules for the Rural Health Care program as [FCC Chairman Ajit Pai] promised Congress, and issuing the E-rate Category 2 staff report and opening the E-rate filing window.” Windhausen said since the shutdown would only affect part of the government, “it increases the risk that the shutdown could last longer than usual.”

"This kind of thing is tremendously disruptive for ordinary public servants," said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman.

John Nakahata said Harris Wiltshire has been trying to make sure it downloads any comments lawyers need from the FCC electronic comment filing system, since that is sometimes shut down. A wireless lawyer said the only step he’s taking is uploading a filing onto the FCC universal licensing system before it’s potentially taken offline.

FTC, NTIA

The FTC has funding to operate through mid-day Dec. 28 in the event of a shutdown, a spokesperson said.

Once the agency spends that prior-year unobligated balance, it must resort to a contingency plan. A plan from August 2017 dictates the FTC operate at about 23 percent of staff across the entire agency. The Competition Bureau would work at 43 percent, or 132 staffers in 2017; the Consumer Protection Bureau 20 percent, or 84 staffers in 2017; the office for the chairman, chief of staff and the commissioners at 15 percent, or three in 2017; the Office of the Executive Director at 75 percent, or 3 staff in 2017; and the Office of General Counsel at 6 percent, or three staffers in 2017.

Those percentages represent essential employees, who would allow the agency to defend its interests in essential litigation. During a shutdown, agencies are required to cease all operations not essential to the safety of human life and property. Hart-Scott-Rodino-related litigation and merger activity can be considered essential, while investigations like those of Facebook and Equifax aren't. The agency might continue such efforts due to the high-profile impacts on consumers, one ex-official said. The agency also will generally continue cases nearing completion, another said. One purpose of ending a case is to curtail harmful behavior as soon as possible.

All but 239 NTIA staffers are to be furloughed, the Department of Commerce said in a memo. Two-hundred seven FirstNet staffers are separately funded and never part of a shutdown. NTIA has about 498 employees.