If you stand outside of the FCC on any given day, you will have the opportunity to witness the great ebb and flow of telecommunications lobbyists (and, admittedly, the occasional public interest representative) streaming inside. These folks are at the FCC to have private meetings to discuss their issues with staffers and Commissioners. Although these meetings are private, there are some rules – called ex parte rules – that require people meeting with Commissioners and Commission staff to write up a summary of what was discussed. These summaries – called ex parte letters – are supposed to let the public know what happened. Unfortunately, for a variety of reasons, those letters are not always very informative.
As we announced in The Greatest Video EVER Made in the History of the World About FCC Ex Parte Reform, the FCC recently began looking at ways to improve its ex parte system and bring some transparency to the process. Yesterday Public Knowledge, along with Consumer Federation of America, filed our suggestions. In our comments, we suggested some big changes as well as some smaller changes to try and fix the system.
In the big change category, we offered three different ways that the Commission could eliminate some of the secrecy surrounding the private meetings. The first option would be to eliminate ex parte meetings entirely. Instead of in person meetings, all information presented to the Commission would have to come in the form of a written comment. This way, the public would know exactly what points are being made on a given topic.
The second option would be to make a video recording of the meeting available to the public. If the private meetings are valuable, the video option would be a way to make them as transparent as possible.
The third option is to have an independent third party, a “neutral scribe,” attend the meeting and prepare a record. This record could either be a verbatim transcript (like a court reporter) or a detailed summary. As with the video recording, this report would be accessible to the public and provide meaningful details about the discussion.
Ideally, the Commission would approve all three of these options, and then let individual Commissioners and Bureaus choose from the menu. That way we could find out which most effectively balanced the importance of bringing the business of the Commission into the sunlight with the value of having the meetings in a resource effective manner.
We also proposed a number of smaller changes. Perhaps the most important was to the scope of what can be discussed during a meeting. The value of private meetings is often justified on the grounds that they give the Commission staff an opportunity to probe arguments offered by various parties. In light of this, we suggest that the scope of private meetings be narrowed to include only existing arguments. If a party has an important new argument to put forward, it should be required to do so in a written document open to the public.
Finally, we pointed out that one of the biggest problems with the current ex parte system is not that today’s rules are deficient, but rather that no one is actively enforcing them. Any reform of the ex parte process must be paired with a commitment to enforcement, or the entire exercise will be a waste of time.