Rob Schill shares his views on the latest Congressional effort to bid “good day” to the Sunshine Act.

[Blogmeister’s Note: The House recently passed H.R. 3675, the Federal Communications Commission Process Reform Act of 2014. If passed by the Senate and signed by the President, this bill would require the FCC to set certain deadlines and time limits for some of its activities, and also prepare some extra routine reports and the like. We’d go into greater detail on these nitty-gritty points if the bill were likely to get through the Senate, but the smart money currently says that that’s not going to happen, so we won’t bother our readers with unnecessary information. If the smart money turns out to have been wrong, for sure we’ll be reporting on the final bill.

One aspect of the House bill did attract our attention: a provision that would permit FCC Commissioners to meet in nonpublic sessions to discuss business. The longstanding Government in the Government in the Sunshine Act (the Sunshine Act) would ordinarily prohibit such closed door meetings, but the House is nevertheless apparently OK with letting the FCC bar the doors and shutter the windows. A nearly identical proposal was introduced in 2013. Our colleague, Kevin Goldberg, wrote – somewhat disparagingly – about it back then. In the interest of fairness and balance, this time around we’re offering a different take on the matter from our colleague, Rob Schill.]

The Federal Communications Commission Process Reform Act of 2014 (the 2014 Reform Act) raises the same essential question my friend and colleague Kevin Goldberg addressed last year: Is it conducive to “good government” to create an exception to the Sunshine Act that would allow more than two commissioners to meet privately when a few key transparency safeguards are included? Kevin and I reach different answers to that question.

The 2014 Reform Act seeks the happy medium between the competing needs of openness and administrative efficiency. The bill looks to provide for transparency and accountability while acknowledging the reality that the FCC often does not move at a pace consistent with the changing technology world it is tasked to oversee. The fact that the bill has bipartisan Congressional support, as well as the support of FCC members and industry representatives, suggests that perhaps Congress is onto something here. 

As with last year’s version that Kevin reviewed, this year’s bill would allow more than two commissioners to meet privately to discuss Commission business. The Sunshine Act currently forbids private meetings including three or more commissioners. Where there’s a will, there’s a way, though, so it’s not surprising that over the years a number of workarounds have been developed to circumvent the strict letter of the law: shuttle diplomacy among commissioners’ offices, communications through staff members, etc.

Many at the Commission, and on the Hill, have felt that such tip-toeing around the Sunshine Act unnecessarily slows down the Commission’s ability to get about its business. Accordingly, the 2014 Reform Act would allow a bipartisan majority of commissioners to hold a meeting closed to the public, provided that:

  • Commissioners may not vote or otherwise take agency action in such private meetings;
  • Each person present at such meetings must be a Commissioner or Commission employee, or a member of a joint board or conference established under section 410 or their staff;
  • An attorney from the Commission’s Office of General Counsel must be present;
  • Within two days the Commission must publish a list of attendees with a summary of subject matter.

Whether or not this is the ideal manner for conducting business is certainly worthy of discussion. But first, let us compare the proposal to the status quo. 

No reasonable observer believes the “open meetings” of today’s FCC actually shed much light on how the Commission conducts business. There is little debate or discussion of substantive issues. Instead, we have Kabuki: The public hears a litany of thank you’s to all the staff members who worked hard behind the scenes, after which the agency’s decision – order, policy, proposal, what have you – is revealed to the assembled multitude, including all those quietly texting/tweeting/websurfing in the background. 

The requirement of “open meetings” is presumably one of the Sunshine Act’s crowning achievements. But if that Act was supposed to increase public knowledge of the regulatory process, or citizen awareness of and participation in that process, there’s obviously a problem here: a brief glance at FCC “open meetings” plainly establishes that such meetings do nothing to advance those goals. To be sure, the commissioners and staff are following the letter of the law with their indirect debate, circulation of memos, staff contacts, etc.. but the end result is doubtless far afield of what the Sunshine Act drafters had in mind.

And, truth be told, it’s possible that the all-style-no-substance Kabuki nature of the FCC’s “open meetings” is a natural consequence of attempting to force out into the public domain conversations that should be kept “nonpublic” (let’s not call them “private”). After all, does requiring every meeting and negotiation to be convened in public truly encourage debate, or does it merely lead to a series of performances by commissioners? For once there is an audience, you have theater.

Looking back, we can see that our nation was itself founded in the proverbial smoky backroom of the Constitutional Convention. The proceedings were kept from the public, according to George Mason, because there is “a material difference between the appearance of a subject in its first crude and undigested shape, and after it shall have been properly matured and arranged.” Allowing the Commissioners the opportunity to meet to discuss matters (with the ray of sunshine of a publicly available summary) may get us closer to an effective process.

By sharp contrast, the existing system leaves a great deal of the internal agency discourse and deliberations to Commission staff, unelected, unappointed, often unknown to the general public. Not much “sunshine” there.

And what of the effects of the existing process on a healthy marketplace that supports growth and innovation? Can we honestly say that the odd dances commissioners must now perform encourage businesses and individuals to invest their next dollars in FCC-regulated concerns?

As a prime example, take the Internet economy, the wellspring of our economic growth, a sector continually giving birth to new business and innovation. Certainly Internet-centric investors must warily eye the Commission which is in turn eyeing their domain as the next subject of regulatory oversight and authority. In his post last year Kevin invoked a scene from “My Cousin Vinny”. To my mind, a different scene from the same golden text illustrates the reaction of the Internet economy – here taking the role of Mona Lisa Vito – to the FCC’s processes:

You wanna know what I’m nervous about? I’ll tell you what I’m nervous about! I am in the dark here with all this legal crap. I have no idea what’s going on. . . . Meanwhile, . . . [m]y biological clock is TICKING LIKE THIS.

The last thing we should want to do is stymie innovation. But the slow and unsteady manner in which the FCC acts – largely as a result of Sunshine Act constraints – exacerbates uncertainty, thereby frustrating and discouraging innovators. Can’t we all agree that our government should not be impeding our economy?

To find the middle ground, sometimes it’s necessary to tack back and forth between competing approaches. The Sunshine Act, a valued solution to prior years’ threats to government openness, has brought us to today’s reality: a bipartisan understanding that the Sunshine Act’s noble experiment isn’t working as intended. So perhaps it’s time to announce “ready to come about” and move on a different tack.

The 2014 Process Reform Act’s nonpublic collaborative discussions provision may not be the perfect endpoint in the search for good government – indeed, the perfect endpoint is probably an unattainable ideal. For now, though, and until future circumstances mandate another change of course, we should allow our public servants the opportunity to meet, to discuss, to decide nothing official and to do so under the warm and caring gaze of career attorneys.