In early December Representative Bart Stupak (D-MI) introduced the ‘Federal Communications Commision Collaboration Act’ (H.R. 4167).  You can read the text of the Act in its entirety here. Essentially the Act is purposed for the increase of face to face time among commisioners, and would allow more than two commissioners to meet at any one time.  Currently the FCC operates under two main sets of rules regarding communications.  One set is known as the “Sunshine Rules,” and the other known as “Ex Parte Rules“.

Ex Parte Rules deal with how Congress may contact FCC commissioners, and the Sunshine Rules mainly deal with how commissioners may work with each other and additionally prohibit members of Congress and their staff from contacting FCC commissioners in the weeks proceeding a public meeting prior to the decision on a matter is publicly released.

The Sunshine Act’s application to the FCC prevents more than two members at any one time meeting together in private.  Meetings of more than two members must occur as a public meeting.  The idea behind this is that it provides transparency in the decision making process and attempts to prevent collusion behind closed doors.

Though some scholars at various DC think tanks have observed that they feel the current process produces a climate resulting in more difficult decision making, and that public meetings tend to be scripted affairs.

Partisan issues will be a concern here.  Generally speaking, the party in control of the White House will see to it that a majority of the commission members tow the line of the party in control.  The concern here would be that allowing meetings with more than two members would allow for the possibility of three plus members sharing a similar ideology to meet in private.  This obviously brings up transparency and collusion concerns.  However, when dealing with technology issues, party ideological differences are often blurred.  And positions can often be ubiquitous across the board no matter what party a commissioner may align themselves with outside of their commission duties.

Considering these things leaves the standing question, “Why now?”  In dealing with a change to the Sunshine Rules, this question will always remain, because the party that is not in control will always have some suspicion that the party who appointed the members has something up their sleeve.  i.e. If a party from the left has placed a majority of members, the party on the right will be suspicious of ulterior motives, and if the party on the right has appointed the majority of commissioners, the same would occur from the other point of view.

That being the case, the “Why now?” question will always be present in a test of motives with this type of legislation.  Therefore, scholars should move past this point and test the pros and cons of such a change.  This analysis of pros versus cons inevitably will always return to a debate between efficiency and transparency.  Neither argument in this case would be wrong.  Transparency is of vital importance as it acts as a barrier and gatekeeper against collusion and provides the public with knowledge of what work and decision making is taking place with their tax dollars.  However, efficiency also carries a heavy weight in this debate, and also concerns the use of tax dollars as well.  If only two commissioners are able to meet on an issue and communications amongst all commissioners must take place in writing, there is a possibility that decision making could drag on for years wasting valuable resources.

A policy approach to consider might be to maintain the status quo in regards to private meetings, but to bridge the gaps in inefficiency by taking advantage of new technologies.  Setting up public meetings not only can be time consuming and require lengthy preparation along with the rigors of pomp and circumstances that come with government addresses to the public.  It could be possible for the FCC to move into the digital age where meetings of more than two commissioners could take place as long as the meetings were broadcast online or on CSPAN3 which broadcasts only on the web.  But even this would suffer from the actor’s dilemma.  In speaking with George Ou on the subject, he posited,

“As soon as something is accessible to the public (regardless of the format), we can be pretty sure that it will be scripted and planned as always.  Call it the ‘Heisenberg’s uncertainty principle of politics’.  It’s not possible to publicly observe a politician without altering their behavior.”

The line between transparency and efficiency is a tough line to tow.  But it is the responsibility of the government to do so.