The toxic effect of the Sunshine Act

There is an old saw that sunlight is the best disinfectant. It seems a little ironic, then, to blame a law called the Sunshine Act, which was aimed at bringing government proceedings into public view, for creating to the toxic culture that many say pervades the Federal Communications Commission.

The three-decade-old law applies to dozens of government agencies, but the FCC’s structure and its recent leadership have made it especially caustic in that setting, critics say.

The Sunshine Act prohibits a majority of commissioners (there are five) from meeting to conduct official FCC business while behind closed doors. As a result, the commission roughly once a month holds an open meeting, where members of the public and press can watch as the commissioners read prepared statements and cast votes on the items on the agenda.

The Sunshine Act came from a good place. On its surface, it seems to advance the cause of opening government to the public, which would theoretically make it more accountable.

But to critics, the problem is that the Sunshine Act has had the unintended consequence of bleeding the debate and honest dialogue out of the commission’s consideration of the issues. Paradoxically, it has made the FCC a more secretive place.

“The Sunshine Act is one of the biggest barriers to dialogue among the commissioners,” Kathleen Abernathy, a former commissioner, recently said at a seminar in Washington on reforming the FCC.

She stressed that it’s important to prevent a “cabal” from forming among three like-minded commissioners, but at the same time lamented the effect of prohibiting the commissioners from collaborating on the various draft proposals to arrive at some meeting of the minds ahead of the open meetings.

Because they are open to the public, the open meetings have become highly scripted affairs, said Henry Geller, a former administrator of the National Telecommunications and Information Administration (NTIA), a division of the Commerce Department that advises the president on telecom and IT issues.

“Now you have kabuki,” Geller said of the FCC’s open meetings. “I can get it on the Internet, but I don’t bother.”

*Kabuki*. Some of the panelists chuckled at that, but they were laughing because it’s true.

In a 2005 letter ([PDF]( to Ted Stevens, who then chaired the Senate Commerce Committee, Commissioner Michael Copps and then-Chairman Michael Powell wrote:

**”The open-meeting requirement [has not] generally achieved its goal of having commissioners help shape each other’s views in the course of public deliberations. In fact, this requirement is a barrier to the substantive exchange of ideas among commissioners, hampering our abilities to obtain the benefit of each other’s views, input, or comments, and hampering efforts to maximize consensus on the complex issues before us. Due to the prohibition on private collective deliberations, we rely on written communications, staff, or one-on-one meetings with each other. These indirect methods of communicating clearly do not foster frank, open discussion, and they are less efficient than in-person interchange among three or more commissioners would be. Finally, and perhaps most significantly, commission decisions are in some cases less well informed and well exp1ained than they would be if we each had the benefit of the others’ expertise and perspective.”**

Despite this and similar bipartisan entreaties, efforts to reform the Sunshine Act have run aground.

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