FCC Post-Shutdown: What Now?
October 15, 2013
Remember that old greeting, "I'm from the government and I'm here to help you"? Well, not too much lately! But, after two weeks of a shutdown FCC, and only days away from a U.S. financial default, perhaps a little help may be in the wings. It appears that Senate Leaders Harry Reid and Mitch McConnell may have a deal to keep us out of default and reopen our government. There has been speculation that the House Tea Party caucus may not accept that deal, but the latest news reports are that House Republicans may now be turning the corner as well.
The Hill Newsletter reports that they will vote on a more conservative version of the Senate fiscal deal that would include a delay of Obamacare's medical device tax and scrapping of subsidies for members of Congress and top Cabinet officials, lawmakers and aides said. Neither of those two items should be deal killers.
Both plans would keep the essential pieces of the Senate plan crafted by Majority Leader Harry Reid (D-Nev.) and GOP Leader Mitch McConnell (Ky.). As reported in The Wall Street Journal, the proposal would reopen the government at current spending levels until January 15th, and extend the federal borrowing limit until early February. This would also allow lawmakers to begin long-term negotiations on a budget with the task of reaching an agreement by December 13th. As many predicted, while the deal would avoid a default, but it will only "kick the can down the road." Many of us had hoped for more and we may be facing another government shutdown in mid-January.
Left open is the enormous question of what will happen with all the filing deadlines that were missed during the shutdown, or those due shortly thereafter. As one of its last acts on the day of the shutdown, October 1st, the FCC released a Public Notice that specified procedures for filings in the event of a lapse in funding. With one exception that does not apply to broadcasters, the Notice stated that any materials required to be filed with the Commission during the suspension of operations or on the day of return to normal operations, will be due on the business day following the day of return to normal operations. Thus, the Commission has given broadcasters only two days to get all of their applications prepared and filed.
That time period would not be so bad were it not for two factors. First, the Commission shut down its websites and the CDBS system used for drafting and filing of all broadcaster applications. Unable even to prepare applications, some of which are lengthy and complicated, it may be very difficult to meet that two-day deadline. Second, some previous filing windows have demonstrated that the Commission's CDBS is not built to handle extremely heavy surges of activity. So short a filing window could very well take down the CDBS system.
Also not specifically addressed is whether the two-day window will allow for automatic reinstatement of construction permits and other authorizations that have expired because the necessary applications were not timely filed. To be sure, there will be an opportunity to file the curative applications and documents. But will the underlying permits be considered curable? Hopefully, this may be an overly technical, legalistic analysis, but the Public Notice stated that it applies only to the due dates of filings with the Commission that are due during the government-wide shut down or on the day the government reopens.
Specifically, "[i]t does not affect the effective dates of Commission actions or other events. . ." So the Commission should clarify that the Commission's Public Notice grace period applies to effective dates and expiration dates in Commission authorizations as well. Hopefully we will get immediate clarification on these questions and additional time to comply.
In addition, two weeks have now been cut out of the filing preparation time for the congressionally mandated LPFM window. By the time the FCC reconvenes, the filing window would have opened. With public interest groups losing preparation time for applicants unfamiliar with the online filing process, will the Commission extend the LPFM window by more than two days? Further complicating that process are the ungranted singleton FM translator applications that figure into the LPFM planning process.
The one saving note in the Commission's Notice is that if it is unable to restore electronic filing systems on the day government reopens, it may issue another public notice further extending filing deadlines. We are all hopeful the Commission will do that in any event and provide additional time for all applicants, given the hardship the shutdown has created on broadcasters, who are, after all, among the greatest, if not the greatest source of its fee revenues that contribute to the FCC budget.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.