Shuttered FCC triggers questions about filing, recordkeeping requirements

WASHINGTON--As the government shutdown heads into its third week, broadcasters are facing ongoing uncertainty when it comes to filing documents, public inspection files and recordkeeping obligations.

Although the Federal Communications Commission was still on the job about a week and a half after the U.S. government officially shut down on Dec. 22 (due to the FCC’s ability to provide its own funding through Jan. 3), those funds officially ran out on last Thursday.

That now leaves broadcasters with myriad questions about filing deadlines and political file requirements, wrote Pillsbury Senior Counsel Lauren Lynch Flick in a blog post.

Under the Antideficiency Act, FCC employees are prohibited from working until funds are available to pay them. And while the Antideficiency Act doesn’t directly affect automated FCC’s filing databases and other systems, some of those systems are incapable of operating without regular human intervention, Lynch Flick said. Others can only operate without human intervention until they experience a malfunction of some kind, “at which point the Antideficiency Act prohibits anyone from maintaining or repairing them,” she said.

On Jan. 2, the FCC released a Public Notice detailing which systems remain online for the time being. Those include network outage and disaster reporting systems, databases related to licensing and filing comments, among others.

Other systems, however, will be unavailable. According to Lynch Flick, conversations with FCC staff minutes before they were required to leave the building indicated that even they didn’t know for sure whether the commission’s Public Inspection File database would continue operating during the shutdown.

As of January 7, attempt to access station documents were unsuccessful. While it says that stations are currently uploading documents on the FCC’s main Public File page, all attempts to view station documents simply lead to a page reading “Authentication Failed Error. Contact Technical Support.”

According to Lynch Flick, the public’s inability to access the online Public File triggers an obligation on the part of broadcasters and cable/DBS systems to make a back-up copy of the political broadcasting portion of their Public Inspection File available to the public.

Though stations can keep this political file in physical form at their main studio or electronically on their website, the elimination of the Main Studio rule in 2017 placed another obligation in place. Political file documents that are not available via the FCC’s online database must now be made available at an accessible location in the station’s community of license during normal business hours, Lynch Flick wrote. That means a station office, the local library, the office of another broadcaster or another business.

Broadcasters are not required to make any other portion of their Public Inspection File beyond the political file available during the federal shutdown, she said.

She also noted that shutdown of the online Public Inspection File database also means broadcasters cannot upload their Quarterly Issues/Programs List or Children’s Commercial Television Limits compliance documents. Those would otherwise be due on Jan. 10, 2019, though the date to upload those documents has been extended until after the commission reopens.

However, she noted, “the inability to upload materials to the Public File does not relieve stations of their recordkeeping obligations.” A 2016 Public File Report and Order requires that stations must still maintain documents and upload them to the file once it is available again for upload. “[S]tations should proceed as usual in the creation of their Jan. 10 documentation and be prepared to upload those materials once the online Public Inspection File database becomes accessible,” she said.

The commission noted in its Public Notice that, other than auction filings and those necessary for the protection of life and property, filings at the FCC during the shutdown will be accepted on the day after return to normal operations.

One area that is not affected by the shutdown: spectrum auction operations. Those remain fully funded by the FCC and staff will available to answer questions, grant requests for Special Temporary Authority and process requests for reimbursement.

“So if upon hearing of the FCC shutdown you thought you could extend that holiday vacation, think again,” Lynch Flick wrote. “Your regulatory obligations didn’t go away, they just became more complicated to fulfill.”