Is "Sunshine" Really the Problem?
At Monday’s conference on FCC reform, several speakers raised the issue of the 1976 Government in Sunshine Act (5 USC 552b) as being a major factor in the FCC’s current dysfunctionality. I am not so sure, although I will not deny it could be a factor.
I joined the FCC in 1979 under Chairman Ferris after the effective date of the Sunshine Act. Ferris, the product of a Jesuit education at Boston College and a career on Capitol Hill, loved debate - both debate in his office among senior staffers from different parts of FCC and debate at Commission meetings. These days people talking about the “monthly FCC meeting”. One meeting/month is the legal minimum, not the requirement. In the Ferris era there was a meeting almost every week and sometimes 2 in one week. For the 2nd Computer Inquiry decision, the Commission discussed the substance for 4 1/2 hours, asking the staff hard questions and fine tuning the decision as they went.
In those days under the Sunshine Act there were “associate items”, alternative viewpoints from either commissioners or bureau/offices circulated along with a draft, that were considered alongside the main proposal. I believe I wrote the last one in 1983 when OET (then called OST) infuriated the Private Radio Bureau (WTB’s predecessor) by sending the Commission a 5 page associate item disagreeing with a draft report saying a significant increase in Part 90 spectrum was necessary. While this OST associate item was never formally discussed at a Commission meeting, it resulted in the Commission not embracing the PRB report and just issuing it as a staff report. (We now know that CMRS demand later skyrocketed, Part 90 became more spectrum efficient, and the Commission never made a significant increase in Part 90 spectrum except for public safety.)
FCC is not the only commission/board affected by the Sunshine Act. Are they all dysfunctional? I never hear discussion about how other commissions or boards cope with it. My wife used to work at the Nuclear Regulatory Commission and for a while worked on their “8th Floor”. When the NRC chairman wanted a collegial body, it was collegial. When another chairman wanted to be dictatorial, it became dysfunctional just like FCC.
The Sunshine Act is not a perfect piece of legislation and needs updating based on 30 years of experience. But changing such legislation may not be fast. I really doubt that it is the root cause of FCC’s problems today.
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I was an intern for
I was an intern for Commissioner Ty Brown in 1980, and I also recall debates and real exchanges of views at the FCC meetings. Sometimes, Commissioners would press the staff about whether something had been done, why and why not. I don’t know what the answer is, but repealing the Sunshine rules outright strikes me as inconsistent with the whole concept of transparency.
Sunshine
Commissioners complain about the sunshine law because no more than two of them can talk without it being a public on the record meeting. This means that the commissioners cannot meet to negotiate on proceedings and decisions. As the Commissioners cannot meet, this is done through proxy, through their legal assistants - who then meet with each other and with the Bureau Chiefs.
C Copps and others have pressed for revision of the Sunshine laws - basically eliminating the sunshine - so that the commissioners can meet behind closed doors, discuss proceedings, and achieve outcomes. This is much like Congress where the members can meet privately - but then can also make statements and participate publicly in hearings and on the floor.
My gut is that while the Sunshine laws may need to be reformed, it is a tweak, not a revision. The problem is not that the sunshine law keeps the commissioners from meeting — it is that the commissioners insist on meeting in private, behind closed doors, keeping from the public the decision making process. It seems to me that the solution is greater transparency and openness. The assumption should be, as Marcus pointed out, that the debate at the FCC is a public and open debate. That inquiries are made in front of the public, in the open hearing, available using streaming media and other forms. The problem is not the one C Copps points to that they cannot meet, but rather that C Copps and the others were unwilling to have the decision making process out in the open.
What tends to happen is - the Chair lets it be known that a major decision is coming down the road - a flurry of behind closed door lobbying ex partes take place - a draft order is circulated with insufficient time to both the Commissioners and the FCC staff - And then the votes are counted and meeting takes place
Should we be pushing more behind closed doors or creating more transparency.
Yes, there needs to be the opportunity for deliberative process. There needs to be the opportunity for Commissioners to explore subjects before forming the opinion. But Copps assumes that the only time he wants to be public is after he has made up his mind.
This is a democracy. Let’s act like a democracy. Let’s have less of an agency that operates in the backroom and more an agency that is concerned with its mission.
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