The full federal government got back to work Monday, after a prolonged partial shutdown that shuttered the FCC, FTC, NTIA and other agencies overseeing communications policy. Incoming FCC Commissioner Geoffrey Starks will be sworn in Wednesday by Chairman Ajit Pai in an eighth-floor conference room and will participate in the commissioners’ meeting that follows, said industry officials. President Donald Trump signed off Friday on a continuing resolution to reopen the FCC and other shuttered agencies through Feb. 15, after the House passed the measure as expected (see 1901240016).
CTIA supports the FCC at the U.S. Court of Appeals for the D.C. Circuit in the case challenging the March wireless infrastructure order, Keetoowah Band v. FCC, No. 18-1129. “Actions in the Order serve as a long overdue recognition that its prior environmental review regulations are out of step with the manner in which modern wireless facilities are deployed,” CTIA replied (in Pacer) Friday. “The agency’s decisions in the Order are thus completely reasonable, if not required.” To get to a 5G world, “wireless carriers will need to deploy approximately 300,000 small cells in the next few years,” CTIA said, saying small cells don’t raise the same review issues as macro towers. The Natural Resources Defense Council countered that the FCC made two errors. The agency “overlooks the additional responsibilities that the National Environmental Policy Act imposes on it independent from the Commission’s obligations under the Communications Act,” NRDC said (in Pacer). "The FCC also overlooks the continuing federal role it plays in overseeing the conduct of those it licenses to provide wireless service.”
Media deals making their way through federal court -- AT&T/Time Warner at the U.S. Court of Appeals for the D.C. Circuit and Disney/Fox at U.S. District Court in Manhattan -- shouldn't face a delay in judicial action due to the partial federal shutdown, antitrust and law experts told us. The month-long shutdown also isn’t seen having much effect on broadcast deals, analysts and attorneys told us.
The FCC is continuing to prepare for the 24 GHz auction and future auctions, including pushing forward on the C band and other bands being looked at for 5G. The 28 GHz auction closed Thursday. Nevertheless, the agency remains constrained in how much staff can do as the longest shutdown in federal history continues. “Staff continues to work on future auctions,” a spokesperson emailed Thursday.
The shutdown is having immediate FCC consequences in the form of delayed filing deadlines and shuttered websites. It could also ripple out to delay expected rule changes for 2019, industry officials told us this week. Since staff isn’t available, expected early-2019 policy decisions on kidvid and rate regulation, court cases and progress of deals such as T-Mobile buying Sprint are considered likely to be delayed.
The FCC’s partial reopening of the equipment authorization system, announced Friday (see 1901180040), will provide only limited relief, Commissioner Jessica Rosenworcel again warned Tuesday. The federal shutdown could slow FCC work on 5G in general, particularly on clearing mid-band spectrum, she said. Rosenworcel spoke at an Internet Innovation Alliance session on a potential incentive auction for the 2.5 GHz educational broadband service band, with a goal of raising money to close the “homework gap.”
Expect Senate and House Commerce Committee hearings on wireless carrier location tracking practices that stirred national security concerns, lawmakers told us. Senate Intelligence Committee ranking member Mark Warner, D-Va., wants briefings from carriers on recent reports companies sold customer location tracking data allegedly accessed by bounty hunters (see 1901110042). “I want to hear personally not only from folks on the communications side but also continue hearing if there are any national security implications,” Warner told us.
McGuireWoods Consulting adds Gregory Guice, ex-Akin Gump, as senior vice president-federal public affairs/senior counsel, McGuireWoods ... DLA Piper announces partners-intellectual property and technology Tracy Shapiro, ex-Wilson Sonsini, and Michael Jay, ex-Boies Schiller ... Stevens & Lee taps James MacDonald, ex-Ballard Spahr, to co-chair technology, telecom and life sciences ... T-Mobile US hires Ulf Ewaldsson, ex-Ericsson, as senior vice president-technology transformation (see 1901180024) ... Ohio Public Utilities Commissioner Thomas Johnson won’t seek reappointment; term expires April 10.
Votes planned for a Jan. 30 FCC meeting are at risk as the partial government shutdown drags on with no end in sight, agency observers said. Even if lawmakers jump-start negotiations and reopen FCC offices before Jan. 30, time is slipping away for deliberations and votes by officials who would be scrambling to play catch-up and address backlogs. Another complication is the looming addition of Commissioner Geoffrey Starks, who hasn't been sworn in despite being confirmed (see 901170036).
Incompas urged a court to reject an FCC motion to delay Feb. 1 oral argument on its net neutrality reversal due to the partial government shutdown (see 1901150011). Denial would expressly authorize the FCC to proceed with the case despite Anti-Deficiency Act (ADA) restrictions absent regular funding, and be in line with U.S. Court of Appeals for the D.C. Circuit precedent denying such government stay requests during shutdowns, said the group's opposition Wednesday in Mozilla v. FCC, No. 18-1051. Incompas, one of many petitioners challenging the commission order, cited the need for a "timely decision" to protect consumers and edge providers from the risk of "substantial harm" due to possible ISP network interference, adding that delay would disrupt petitioner preparations. The court "may likely deny this motion," emailed Morgan Lewis communications attorney Andrew Lipman, citing opposition and precedent: "My sense is the FCC recognizes this distinct possibility in the way they drafted the Motion. I believe they will be ready to go on Feb 1." It seems the FCC expects the motion to be denied "but that the denial acts as authorization to continue preparing for the argument ... because the court requires it," emailed Daniel Lyons, Boston College associate law professor. Citing "aggressive" cost cutting by federal courts and public defender offices, the Administrative Office of the U.S. Courts confirmed Wednesday its intent to extend judiciary operations at least through Jan. 25 "by using court fee balances and other 'no year' funds." But "at some point in the near future, existing funds will run out if new appropriated funds do not become available." After that, only "mission-critical work" would be allowed, including case resolution, with each court determining staffing needs.