Question: When is a federal employee deemed “excepted” or “unexcepted?” Answer: Apparently, when there is money involved.
During last November’s first partial budget-related government shutdown that lasted six days, the entire Federal Communications Commission was furloughed. Prior to the Dec. 16 shutdown, FCC Chairman Reed Hundt petitioned President Clinton’s Office of Management and Budget to reclassify 40 FCC employees in the Auction Division as “excepted,” meaning essential to government operation.
These employees would continue to oversee the three separate auctions-for broadband personal communications services C-block licenses, 900 MHz specialized mobile radio channels and multipoint distribution services-that currently are occurring simultaneously.
The chairman was reacting to a Dec. 4 memo sent to all government agency heads by OMB Director Alice Rivlin, who asked for any changes in official agency shutdown plans. Hundt reportedly requested the personnel status change so that spectrum auctions, which have contributed nearly $11 billion to the U.S. Treasury so far, would not be impeded. OMB accepted his logic and redesignated the workers.
Hundt told RCR that it would have been silly not to hold the auctions during the shutdown, given that money is what the ongoing budget debate is all about.
The background: The partial government shutdown has categorized some 280,000 government workers as “unexcepted,” putting them on furlough status; another almost half-million employees have been ordered to stay on the job, under the designation “excepted.” Excepted employees include Justice Department personnel, Federal Bureau of Investigation agents, federal prison guards, Veterans Administration medical personnel and others who are fulfilling health and safety roles that would cause some threat to the public interest if they were eliminated temporarily.
Neither category of worker has received a full paycheck since Congress and the Clinton administration reached a budget impasse. However, furloughed employees are eligible to apply for unemployment compensation or to seek alternate employment. Excepted employees can do neither, and they must show up for work under penalty of termination.
At RCR deadline, Congress was expected to pass a temporary measure to put furloughed federal employees back to work.
Last week, U.S. District Judge Emmett Sullivan rejected a joint petition by the American Federation of Government Employees and the National Treasury Employees Union for a temporary restraining order that would force the government to pay excepted workers from a federal judgment fund. Such workers would walk off the job after 72 hours if the order were not fulfilled by the government.
The unions targeted the definition of “excepted personnel” in particular, debating what constitutes an “essential” employee. “Many are not performing jobs that impact safety,” argued AFGE’s Virginia Seitz and John West, “like the FCC employees who were called back to run the auctions. There are those who truly are `non-emergency.’ “
Susan Rudy of the Justice Department, arguing the administration’s position, admitted that “not many people working today even fall under the `emergency workers’ category.”
Sullivan, while sympathizing with excepted workers’ financial plight, ruled that issuing the order would create a crisis in the country and that he “couldn’t assume that Congress will fix this.”
The FCC shutdown is causing problems for wireless interests and licensees alike. Comments regarding amendments to the commission’s personal communications rules, due Dec. 21; refarming comments, due Jan. 5; and 800 MHz auctioning and General Category comments, due Jan. 16, including the possibility for petitions for reconsideration all are on hold, because there is no one to serve and no one on duty to answer inquiries. License applications cannot be processed at the FCC’s Gettysburg, Pa., facility, leaving many expansion plans in limbo. The lines will be long the day the FCC reopens.
Sean Stokes, counsel for the Utilities Telecommunications Council, questions the impact of the shutdown with such ongoing negotiations as the consolidation of radio services, which must be completed next month-and the Radiofone remand.
“The Radiofone remand was supposed to be resolved during the C-block auctions,” he said. “The auctions are going on, but are the attorneys working? The auction could be over by the time the FCC opens again, and then what will happen?”
Stokes also expressed concern about the possible impact of a signed telecommunications-reform bill, which would put additional strain on an unapproved, already stretched commission budget. “Our members are feeling a tremendous amount of uncertainty to move ahead,” Stokes said. “If the FCC has to downsize and if it has to reduce its interference monitoring, it will have to shift some of its priorities. Quality will fall.”
