The Federal Government has long conducted most of its real business behind closed doors, out of the public view. With the exception of a few public working sessions, Congressional hearings are often staged events to allow legislators to preen before cameras and each other, but the real decisions about legislation are more often than not made without public or media access. Real decision-making at administrative agencies isn’t much better.

So it was no surprise when the Wall Street Journal (subscription required) reported that the senior officials at the Federal Communications Commission were meeting privately with affected industry to consider possible rules affecting "net neutrality."

WASHINGTON–Federal Communications Commission officials are quietly holding talks with phone and cable companies about a legislative compromise that would give the agency authority over Internet lines without the need to adopt a controversial proposal to reregulate Internet lines.

FCC Chief of Staff Edward Lazarus and other senior FCC staffers are holding closed-door meetings with a small group of lobbyists representing Internet providers, including AT&T Inc., Verizon Communications Inc., the National Cable & Telecommunications Association, and Internet services providers, such as Google Inc. and Internet phone provider Skype Ltd.

Over at Huffington Post, Tim Karr has been following the FCC’s [mis]handling of internet issues, focusing lately on how the FCC might respond to a recent Supreme Court decision rejecting the agency’s theory for regulating the internet. You should read that and Karr’s other posts on net neutrality issues, but I wanted to focus on the closed door meetings aspect. Karr is right to be appalled at how the FCC is behaving:

This is what a failed democracy looks like: After years of avid public support for Net Neutrality – involving millions of people from across the political spectrum – the federal regulator quietly huddles with industry lobbyists to eliminate basic protections and serve Wall Street’s bottom line.
Obama pledges to appoint Net Neutrality supporters to the FCC
We’ve seen government cater to big business in the same ways, prior to the BP oil disaster and the subprime mortgage meltdown. The Industry’s regulatory capture of the Internet is now almost complete.

The one agency tasked with oversight of communications now thinks it can wriggle free of its obligation to protect the open Internet, if only it can get industry to agree on a solution.

Once upon a time, decades ago, I served in the General Counsel’s office for a state regulatory agency, and one of my tasks was to make sure my five commissioners and their staffs didn’t go to jail for violating the state’s Open Meetings Act and other procedural statutes.

California statutes make it clear that public agencies are required to conduct public business in public — that is, they can only make decisions in noticed public meetings in which the public, not just the affected industries, can attend, have advanced notice of the issues to be decided and an opportunity to address the agency in a public session on those issues.

To make sure our commissioners and staff stayed well within the statutes, the commission adopted procedural regulations I drafted that defined how they would conduct business and relate to the public. We chose to go well beyond the statutes; we opened up the commission so the public could see what we were doing.

If the proceeding was about whether a utility could get a permit to build a power plant, our rules required every meeting between the applicant and staff to be open and publicly noticed. If our commissioners or staff wanted to do a field trip to inspect the site or surrounding environment, that trip was noticed in advance, so that interested intervenors could come along. When we sat down with the applicant to gather information before hearings, it was public. And of course, when the formal evidentiary phase began, the hearings were always noticed, public and recorded. Private meetings between applicants and commissioners were banned. In some cases, willful violations of the Open Meetings Act could leave a commissioner subject to severe penalties.

Rulemaking proceedings were also fairly open. We typically had at least one, and usually many public hearings to take public comment. All meetings were noticed and open. Whatever proposals we developed had to be distributed to the public well in advance, and whatever comments the public submitted had to be explicitly responded to, in writing, proving we had actually read and considered them. I and others working for the commissioners read and wrote responses to literally thousands of public comments urging us to adopt or change or reject proposed regulations.

At the time, these rules may have seemed onerous, especially to older agencies with more closed processes. But as it turned out, compliance wasn’t that hard. Our commission and the companies we regulated just got used to doing business in public, and nobody died because of having to put out a notice ten days in advance or letting interested people come along on a inspection visit.

The point is, it’s not that hard to do the public’s business in public. It’s not necessary to have all those closed door meetings to get business done. People who claim otherwise just haven’t tried or don’t want the public to know what they’re doing.

So while the Obama Administration likes to claim it is more transparent than other administrations — I don’t know — I doubt they’re yet taking open government and transparency seriously.

The FCC Staff’s closed-door meetings are likely not in violation of any law. They can claim their meeting was about legislative proposals and not a formal investigation or rulemaking before the FCC. But that’s a pretty weak argument for shutting out the public. The net neutrality issue has been before the FCC in rulemakings and litigation and is likely to be there again.

But the more important point is that this is a vitally important public policy issue. The public has a strong interest in knowing what the FCC and its senior staff are thinking and discussing with regulated industries and how those discussions might affect the public’s interest in an open, accessible internet.

So there’s no excuse for these closed door meetings. None.

John Chandley