I don't often agree with FCC Commissioner Michael Copps -- so when I do, I like to take the opportunity to take note.
For many years now, to his credit, Commissioner Copps has been the most steadfast proponent of congressional action to revise the Sunshine Act. As most readers of this space know, the Sunshine Act prohibits more than two of the five commissioners from meeting together privately outside of a formal FCC open meeting preceded by a public notice.
Perhaps in theory, this post-Watergate "reform" sounds nice, but in practice – in the real-world of agency decisionmaking in a multi-member commission -- the Sunshine Act works against the type of collaboration and collegial discussion that might well improve agency decisions.
Way back in 1995, I chaired a special committee of the Administrative Conference of the United States that recommended revisions to the Sunshine Act. Our committee report proposed revisions that would, at least on a trial basis, allow agency members to meet in private, without advance notice, provided a summary of the meeting was put in the agency's public record after the meeting. The report explained in detail the problems with the Sunshine Act and the reasons why revising the law would improve agency decisions.
Now Representatives Anna Eshoo, John Shimkus, and Mike Doyle have introduced the "Federal Communications Commission Collaborative Act." Their press release says that the bipartisan legislation "would modify current FCC rules to allow three or more Commissioners to hold nonpublic collaborative discussions, as long as no agency action is taken." A member of each political party would have to be included in any such discussions.
Commissioner Copps, in a news release commending the bill's introduction, stated that "[i]f there is only one action that the Commission could take this year to reform the FCC, this should be it."
I can think of several measures that ought to be taken to reform the FCC, but Commissioner Copps is right that revising the Sunshine Act is certainly an important one. Here is the way that Commissioner Copps explained why this is so:
“The inability of Commissioners to get together and talk as a group makes zero sense. The statutory bar on more than two Commissioners talking together outside a public meeting has had pernicious and unintended consequences—stifling collaborative discussions among colleagues, delaying timely decision-making, discouraging collegiality and short-changing consumers and the public interest. For almost a decade I have seen first-hand and up close the heavy costs of this prohibition."
Again, Commissioner Copps deserves credit for his leadership on this issue. Much of the press tends to take a pretty superficial, knee-jerk reaction against any proposed changes to the Sunshine Act, so it takes a certain amount of courage to argue for reforming the law.
Commissioner Copps and I are in agreement that, in the current state of affairs, too much Sunshine hurts.
PS – A final reminder. In a January blog, I put in a plug for Time Warner Cable's Research Program on Digital Communications, which awards stipends designed to foster research dedicated to increasing understanding of the benefits and challenges facing the future of digital technologies in the home, office, classroom and community. As I said in that piece, TWC executives, led by Fernando Laguarda, deserve much credit for developing and implementing the program. It presents a good opportunity for scholars to contribute to our understanding of digital communications.
The 2011 Program Announcement setting forth the program guidelines is here. The deadline for submitting applications is April 1. Take heed.