At Monday's conference on FCC reform, several speakers raised the issue of the 1976 Government in Sunshine Act (5 USC 552b) as being a major factor in the FCC's current dysfunctionality. I am not so sure, although I will not deny it could be a factor.
I joined the FCC in 1979 under Chairman Ferris after the effective date of the Sunshine Act. Ferris, the product of a Jesuit education at Boston College and a career on Capitol Hill, loved debate – both debate in his office among senior staffers from different parts of FCC and debate at Commission meetings. These days people talking about the “monthly FCC meeting”. One meeting/month is the legal minimum, not the requirement. In the Ferris era there was a meeting almost every week and sometimes 2 in one week. For the 2nd Computer Inquiry decision, the Commission discussed the substance for 4 1/2 hours, asking the staff hard questions and fine tuning the decision as they went.
In those days under the Sunshine Act there were “associate items”, alternative viewpoints from either commissioners or bureau/offices circulated along with a draft, that were considered alongside the main proposal. I believe I wrote the last one in 1983 when OET (then called OST) infuriated the Private Radio Bureau (WTB's predecessor) by sending the Commission a 5 page associate item disagreeing with a draft report saying a significant increase in Part 90 spectrum was necessary. While this OST associate item was never formally discussed at a Commission meeting, it resulted in the Commission not embracing the PRB report and just issuing it as a staff report. (We now know that CMRS demand later skyrocketed, Part 90 became more spectrum efficient, and the Commission never made a significant increase in Part 90 spectrum except for public safety.)
FCC is not the only commission/board affected by the Sunshine Act. Are they all dysfunctional? I never hear discussion about how other commissions or boards cope with it. My wife used to work at the Nuclear Regulatory Commission and for a while worked on their “8th Floor”. When the NRC chairman wanted a collegial body, it was collegial. When another chairman wanted to be dictatorial, it became dysfunctional just like FCC.
The Sunshine Act is not a perfect piece of legislation and needs updating based on 30 years of experience. But changing such legislation may not be fast. I really doubt that it is the root cause of FCC's problems today.