It’s been nearly a year since Public Knowledge and the Silicon Flatirons Center held its FCC Reform conference, and the FCC has moved slowly but steadily towards addressing many of the concerns raised at the conference and the paper submitted beforehand.
One concern raised by a number of the conference participants was some of the unintended consequences of the Government in Sunshine Act. The Sunshine Act was intended to ensure that agency business is not done behind closed doors. This is certainly a noble goal, but by prohibiting more than 2 Commissioners (3 is a quorum for the 5 member FCC) to meet unless an open meeting is held and public notice is given, power has trickled down to unappointed and unconfirmed FCC staffers, who are under no such prohibition and who serve as secret brokers for their bosses. After staff finish their horse trading, the actual open meeting is like “Kabuki theatre” - Commissioners read from prepared statements, there is little or no debate and the outcome is predetermined.
Today, Rep. Bart Stupak (D-MI) introduced legislation to exempt certain Commission collaborations from the Sunshine Act while providing protections to ensure that important Commission decisions are not made behind closed doors. H.R. 4167, entitled the “Federal Communications Commission Collaboration Act,” would permit 3 or more Commissioners to hold a meeting that is closed to the public to discuss official business under four conditions:
no vote is taken at the meeting;
each person at the meeting is either a Commissioner or Commission employee;
there is at least one Commissioner from each political party; and
an attorney from the FCC’s Office of General Counsel is present.
To ensure transparency, the bill requires the FCC to disclose the meeting on its website, including the names of attendees and a summary of the matters discussed at the meeting. If passed, the law would sunset after 5 years.
This bill was the result of recommendations made by Commissioner Michael Copps and former Chairman Michael Powell, but numerous other former Commissioners, most notably Nicholas Johnson and Ervin Duggan have similarly complained about the limits the Sunshine Act places on sound policymaking.
We agree, and believe that the Stupak bill could result in more frank discussions among Commissioners, greater collegiality and collaboration, which in turn will result in more honest policymaking. It is critically important, however, that private meetings between 3 or more Commissioners be documented in detail. To that end, it is critical that the FCC reform its “ex parte” rules, which require that most meetings between Commission staff and the public be documented and made part of the public record. We have complained in the past that such rules have been honored in the breach and have not been enforced by the Commission. Thankfully, the FCC’s Office of General Counsel is undertaking such reform, and has already held a workshop featuring, among others, PK’s very own Jef Pearlman.
Public Knowledge’s statement supporting the bill is here.