FCC Scored on Lack of Notice on Private DTV Meeting

But public-interest lobbyists voiced concern that they and others only learned of the meeting four days afterward, when Commissioner Robert McDowell mentioned it to reporters while talking about his trips to small cities to discuss the digital transition. Commissioner Deborah Tate sought the meeting, and McDowell asked that approval be sought from the general counsel’s office, commission officials said. They said the meeting covered what FCC members learned on visits to small towns and to markets heavy with over-the-air TV viewers. A general-counsel staffer was on hand to ensure that the gathering complied with the law. Participants discussed DTV-related trips and no regulatory items, an FCC spokeswoman said.

“This kind of going in and having a closed door meeting is not the best way to build public credibility and trust in a commission that has been riven by partisan and policy disagreements,” said Meredith McGehee, the Campaign Legal Center’s policy director. “I understand that there are both some legal reasons they are able to do it and probably some good personal reasons to do it. But the policy question is, what does this do for its perception among the public?” The FCC should have released a list of topics discussed, she said. “They would be better served to have it very above board.”

Benton Foundation Chairman Charles Benton is “disappointed” that people learned of the meeting in the media rather than an official agency notice. “Why did it need to be a private meeting?” he asked. “Since the commissioners were reporting back on what they've learned on official FCC trips, why couldn’t the public be party to the discussion?” Agency handling of the meeting seems “at odds with the intent and spirit” of the Sunshine Act, Benton said. He serves on the FCC Consumer Advisory Committee, which offers advice on DTV education.

Under the act FCC meetings must be public only when all commissioners discuss potential or pending regulation, said current and former FCC staffers. “If the commissioners did not take actions which determined or resulted in the disposition of agency business, then no meeting took place triggering the open meeting requirements,” said Randolph May, the Free State Foundation’s president, citing exclusions in subsections (d) and (e) of the act. “This is often overlooked, or forgotten, but is important,” he said. “The commissioners may all get together and exchange information and views without making determinations disposing of agency business.” May was FCC associate general counsel 1979-1981.

“This is all normal and consistent with the act, as long as the commissioners discuss matters such as travel plans and scheduling, and not substantive issues relating to the merits of issues relating to the DTV transition,” said communications lawyer Christopher Wright, who was FCC general counsel 1997-2001. Until the act went into place, chairmen could visit commissioners before meetings to line up votes, said Henry Geller, general counsel 1964-1970. Before the 1976 law, FCC Chairman Richard Wiley would convene the other commissioners around his desk, Wiley said. “We'd kind of go over all the matters,” he told us. “It was effective.”

Sunshine Act Broken?

The act changed all that, Geller, Wiley and others said. Wiley said he couldn’t recall any private meetings during his tenure on the FCC but after passage that involved all the commissioners. His chairmanship ended in 1977. “We've all been frustrated” that open meetings are “somewhat scripted,” he added. “I found the meetings before as a very vigorous process … There was a lot of free exchange. That had its advantages, but that’s long past. I don’t think it’s going to return.”

Some believe the Government in the Sunshine Act doesn’t work. “I hate the effects that GSA has on agencies headed by collegial bodies,” said Richard Pierce, an administrative law professor at George Washington University Law School. “If I were God, I would repeal GSA tomorrow … I am in favor of anything an agency can do to escape the application of GSA.” Though “very well intentioned,” the law hasn’t worked, Geller said. “It has prevented exchanges and effective participation and you still have the same thing happening, but you use staffers instead.” Advisers to all FCC members meet as often as daily during the work week to discuss pending items, agency officials said.

The commissioners’ Oct. 10 meeting seems to have been aboveboard and in accord with the act, said former members, including Wiley, a Republican. “It can be very helpful when commissioners meet to discuss non-substantive issues,” said Gloria Tristani, a Democratic commissioner 1997-2001. “I think it’s very good that they got together to discuss” DTV outreach -- an effort that the Consumer Advisory Committee, of which she’s a member, endorsed. There’s no need to release minutes of private meetings, Tristani said. “I don’t think anybody should be micromanaging what the commissioners actually do. Although this is new territory, there are experienced, solid individuals who know how to do these kinds of things.” Before the gathering, “it sounds like they dotted the i’s and crossed the t’s, so I can’t imagine there will be any problems,” said Henry Rivera, a Democratic commissioner 1981-1985. “I don’t know of a proceeding they've got outstanding that would prohibit them from having that kind of conversation, unusual as it is.”

Such meetings are unusual, current and former commission officials told us. This month’s was the first private meeting of all commissioners under Martin, an FCC official said. None may have occurred during Michael Powell’s 2001- 2005 chairmanship, the official said. Tristani said that while she was on the commission she attended no more than a handful. Martin attended the Oct. 10 meeting at the request of other commissioners, said the FCC spokeswoman.

Other Agencies’ Policies

Other federal regulatory agencies we surveyed give public notice at least in some instances in which their commissioners meet privately. The Federal Energy Regulatory Commission alerts the public to closed meetings, of which it has held four in 2008, a spokeswoman said. She said the last was Oct. 21. Seven days earlier, a FERC meeting notice listed the subjects to be discussed, with a certification by the general counsel that the event would cover “non-public investigations and inquiries” that “may properly be closed to public observation.”

The Federal Trade Commission always alerts the public to closed meetings via its Web site, a spokesman said. Members vote to schedule all meetings, closed or open, he said. “If the commission determines that a particular meeting should be closed to the public -- because, for example, it concerns a non-public law enforcement matter -- the public announcement of the meeting will of course not include the name of the matter to be discussed,” he said. “It will instead say something like ‘consideration of possible law enforcement action in a non-public Part 2 matter.'”

Private meetings of the SEC commissioners don’t “happen very often,” a spokesman said. The SEC sometimes publicly discloses closed-door meetings involving all members, he said. At the Consumer Product Safety Commission, commissioners meet privately only to discuss personnel or other “administrative” matters, not rulemakings, a spokesman said.

Should the FCC hold another closed-door meeting, it would do well to make an announcement, said two administrative law professors, endorsing private discussions as a way to enhance communication among members. “People will find out and they'll wonder if you don’t tell them ahead of time,” so an announcement beforehand is a good idea, said Lewis & Clark Law School’s William Funk. “It’s cheap and easy and makes everyone feel good,” he said. “The more you tell, the more people will feel good.” Jeffrey Lubbers of American University echoed that sentiment. “In this instance, where it was a scheduled event, I think it would be better for the FCC to be upfront about having such a meeting,” he said. “Certainly the spirit, if not the letter, of the Sunshine Act would better be met by doing so.”