The MAB has been closely watching the partial government shutdown and its impact on broadcasters, especially with the FCC. Despite the shutdown happening on December 22, the FCC continued with operations until January 3 at 12 noon Eastern Time, at which point the Commission announced it would begin shutdown of its operations. On January 4, it was noted that the Commission had, on that day, granted less than a handful of applications filed by broadcasters.
From MAB Washington Counsel David Oxenford:
Do you have a deal to buy a new station or a planned technical modification that needs FCC approval? Well, it looks like those plans may have to wait as the budget controversy in Washington has shut down the FCC. But what does the shut-down really mean for broadcasters? The FCC clarified some of the questions broadcasters have in a Public Notice released Wednesday.
Most applications will not be processed, though the FCC has made clear that it will have FCC staff members available to deal with issues related to the TV spectrum repacking that was caused by the incentive auction. So for those stations needing FCC approvals for actions relating to the repacking of the TV band, the FCC will be functioning. Unlike in past shutdowns (see, for instance, our article here), the FCC website will remain up and generally will be operating, and the CDBS and LMS databases used for most broadcast applications will continue to function (though without any sort of tech support if an applicant has problems). Certain other databases relevant to some aspects of broadcast operations (like the public complaint filing system, the International Bureau’s database used for filing earth station applications, and the tower registration database) will not be available. Perhaps most surprisingly, as the FCC does not specifically mention it in the Public Notice, the FCC has shuttered its Online Public Inspection File database for broadcasters. With that database not working, public file updates (including the Quarterly Issues Programs lists that are due to be added to the files by January 10, cannot be uploaded unless the government reopens. Note that, in the FCC’s orders adopting the online public inspection file obligations, stations are supposed to be able to provide access to their political files when the FCC system is offline (see our article here). While no access to the rest of the file is required, stations are supposed to be able to provide access to back-ups of the political file. Luckily, with few elections taking place at the moment, this should not generally be a widespread issue, but it could obviously become an issue should the shutdown persist.
For the applications that can be prepared in the databases that will remain available, they will all be considered to have been received the day after the day the FCC reopens. Other FCC filing deadlines that fall within the shutdown period (which will include yesterday as the FCC was not open for regular business all day) will be postponed until the day after the day that the FCC reopens. Exception to the suspension of these deadlines deals with auction deadlines – including those due to the repacking of broadcast stations following the incentive auction and an auction of mutually exclusive FM translators. Those deadlines remain in place as auction related activities are separately funded so the auction process continues. Depending on the length of the shutdown, the FCC may reexamine other deadlines that fall within the period that routine operations of the government are closed.
There are certain other emergency functions of the FCC that remain open even during a shutdown, including the filing of STAs where there are issues of life or property. Routine STAs already in place authorizing temporary operations are extended through the end of the shutdown (except where they involve repacking issues). The FCC has a meeting scheduled for January 30 (assuming the FCC is open by then). Routinely, the FCC would have released its agenda for that meeting next week. In anticipation of the shutdown, the agenda was released yesterday (here), and contains several matters of interest to broadcasters which we will cover in subsequent posts. The tentative draft orders for that meeting that were released yesterday (here) pose an interesting question of how, with most of the FCC staff furloughed, interested parties are supposed to bring issues about the draft orders to the FCC’s attention.
Obviously, the shutdown will be disruptive, and station sales and most facilities modifications will be on hold until the FCC reopens. As these rules about what is available and what is not are complex and open to interpretation, consult your own attorney about how the shutdown impacts your operations. And watch the news to see when we can expect the FCC (and the other agencies affected by the partial government shutdown) to restart their operations.
The MAB will inform members with further guidance in this area as we receive it. Remember that MAB members have our Washington Legal Hotline with David Oxenford as a resource in matters like this; and there is no charge for the call.