Ex Parte Rules Reform: Making the Process "Transparently" Translucent?
Recently (July 15th), Communications Daily ("Comm Daily") reported that on June 12th, Commissioner Copps, as Acting Chairman, had circulated to the other Commissioners a draft Notice of Proposed Rulemaking ("NPRM") that would propose new rules for reporting "ex partes". The existing ex parte rules require parties who have private, "one-on-one" meetings with Commissioners, or Commission staff, to file a notice by the end of the next business day explaining who from the FCC and who from the interested party attended the meeting, as well as a short summary of what was discussed. Moreover, if a written presentation was used, the filing party must include a copy of the materials used in the meeting.
The proposed new rules would require parties that have one-on-one meetings with Commissioners, and Commission staff, to provide more detailed information about the meetings in the subsequent notice filing. The theory behind the proposed rules is that they will help to "fix" the FCC by imposing more "transparency" and "openness" on the Commission's process.
I wish the FCC the best of luck, should it decide to "reform" the ex parte reporting process, but I have to concede that I am a little skeptical as to whether these proposed changes will have the desired effect. Why? Well, it's like that old expression that you can't be just "a little" pregnant.
While an agency can become "more" transparent, you have to keep in mind that concepts like "transparent" and "open" are pretty binary . . . something is either transparent, or not. So, when you're going for being "more transparent", you sort of have to admit that the result you're seeking is still "not transparent" (a lighter shade of translucent, maybe . . . but not transparent).
And, while it's naïve to think that any "independent" agency is ever free of political influence at some level (after all the people who run the agencies are political appointees, and the agencies themselves are political creatures), some agencies are more "transparent" than others, in that they promulgate most of their policies implementing their Congressional mandate through administrative, adjudicatory decisions. These are adversarial proceedings, supported by substantial records, and are characterized by scrupulous procedural rules (rules that typically don't allow for any ex parte contact with the decision-maker). Here are some examples of the alphabet soup of agencies that work like this: the CFTC, the SEC, the FTC, and the EEOC.
The FCC, on the other hand, doesn't seem quite ready to "go cold turkey" with the whole transparency thing. The Commission still wants to allow ex parte meetings, but just wants to make the information discussed at the meetings more accessible to the public.
This may not be a bad thing, but it definitely makes a "political creature" more likely to engage in "political" decision-making; and "political" decisions are--almost by definition--never transparent. Said differently, if the criticism is that the FCC's record in any given proceeding does not provide a clear and logical "map" to its ultimate decision, my guess is that the process--and not the procedures within that process--is to blame.
But, maybe the FCC could have its cake and eat it, too. If the premise for the rule changes is correct, why not go all the way? Just about every congressional committee--House and Senate--puts all hearings on the Internet, and sometimes these go one after another. The FCC has talked about changing the website to make it friendlier to the public, why not start with just putting all Commissioner ex parte meetings on the web? Alternatively, if a party chooses, the FCC could use a stenographer--and put the transcripts on the web. Such an experiment might be a little costly, but as long as the FCC remains committed to allowing ex parte meetings, such a plan would ensure ex parte accuracy and eliminate the costs of enforcement.
While I don't necessarily believe new ex parte reporting rules will help make the FCC's decision-making more transparent, or better for the public, if you do have this belief, it's worth the experiment to make all the ex parte information available to the public. After all, if all the information is public, let's give it to the public. Then, no party (FCC, corporation, or public interest non-profit) has to run the risk of being perceived to be "ridin' dirty" with too much undisclosed influence . . . and those of us who are just "white and nerdy" can always stay away from the camera by using the "stenographer option."
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