Recused FCC Commissioner May Vote on AT&T/BellSouth

Late Friday, the Federal Communications Commission's general counsel, on prompting from the chairman, ruled that a commissioner who had recused himself from proceedings on the proposed AT&T/BellSouth merger may now participate in the vote. Commissioner Robert McDowell was formerly an employee of the lobbying group CompTel, that has been on record as opposing such mergers.

But which way McDowell will vote remains uncertain, and he could still choose to abstain. Like Chairman Kevin Martin, McDowell is a Republican and a recent appointee of President Bush; however, while Martin and fellow Republican Commissioner Deborah Taylor Tate have already expressed their support of the merger, Democrats Jonathan Adelstein and Michael Copps are strongly opposed.

The question today comes down to this: Will McDowell vote to support his party, his history, or his conscience?

While analysts this morning are saying McDowell will end up breaking with history and siding with the chairman, those same analysts predicted an unencumbered 3-2 vote in favor of the merger last September.

FCC counsel Samuel Feder was asked by Martin to rule on whose interests were more important: those of McDowell in avoiding a conflict of interest, or those of the government in getting the matter resolved.

In a memo to McDowell on Friday, Feder wrote, "Balancing these competing concerns here was difficult, and reasonable people looking at these facts could disagree about the appropriate result. However, on balance, as explained below, I find that you should not be barred from participating in this proceeding if you choose to do so."

In justifying his ruling, Feder cited a 2000 case where then-chairman William Kennard, a Democrat appointee of Pres. Clinton, recused himself from proceedings in a matter where the FCC was voting on whether to temporarily suspend its rules on personal attacks in political ads, pending a then-forthcoming court decision on the matter.

Kennard had previously served as a lobbyist for the National Association of Broadcasters, which was on record as opposing continuation of those rules. Kennard chose to un-recuse himself because, as he wrote then, "I believe that the public interest, and the efficient conduct of FCC business, now outweighs the reasons for my cautionary recusal."

Citing that decision, Feder wrote to McDowell, "I find any appearance concerns in that case to be greater than the potential appearance concerns here: Chairman Kennard previously participated as an advocate in the very same proceeding, while you never participated in any way in this proceeding on behalf of CompTel. And I find the Government's interest in your participation here to be at least as strong as the Government's interest in Chairman Kennard's case."

What Feder did not note was that Kennard's advocacy in favor of the NAB had taken place during the early 1980s.

In responding to Feder, McDowell released a very brief public statement acknowledging he had received the memo and was now authorized to vote. However, he continued to express trepidation, stating he hoped Chairman Martin would take care to review a letter sent last week by incoming House Energy and Commerce Committee chairman John Dingell (D - Mich.) and incoming House Telecommunications Subcommittee chairman Ed Markey (D - Mass.). Rep. Dingell last week, as reported in Broadcasting & Cable, advised the FCC to hold off on its vote until the 110th Congress convenes after the holiday.

Meanwhile, Rep. Markey has called on McDowell to abstain "as a matter of principle."

With the political winds in Washington blowing in all directions - as evidenced by the fracturing of Republican factions over the recent publication of the Iraq Study Group report - it isn't easy to judge which way the wind will carry McDowell, or whether he'll remain "becalmed."

Last week, Bruce Fein of the government relations consulting firm The Lichfield Group, stated he believed no conflict of interest actually exists here, in a conclusion with which Feder apparently sided. Fein's statement, though, goes on to imply that any reticence on McDowell's part could be more personal in nature than legal.

"The AT&T-BellSouth merger was not announced until after the Commissioner had ceased working for CompTel," writes Fein. "He had undertaken no advocacy on the issue at the time he was confirmed by the Senate. Thus, any appearance of bias regarding the merger would be contrived. Further, any appearance problem would be an apparent bias in favor of CompTel, which opposes the merger. AT&T, the party who would be most prejudiced but McDowell's putative bias, has voiced no objection to his participation. AT&T's position completely discredits the idea that McDowell's participation might shake public confidence in the integrity of the F.C.C.'s merger ruling. There also has been no allegation that McDowell would gain or lose monetarily depending on the fate of the AT&T-BellSouth merger. In sum, the alleged apparent conflict of interest that would be raised by McDowell's participation is an illusion."

As far as McDowell's former employer is concerned, CompTel President and CEO Earl Comstock last Friday released a statement that offers a possible roadmap for McDowell, but not one that necessarily leads him in any direction. "Having reviewed the memorandum, I think the FCC General Counsel's analysis is less than compelling," Comstock writes. "It is noteworthy that the Director of the Office of Government Ethics, who has extensive experience in these matters, would decide against authorization were the decision up to him. The memo makes clear that Commissioner McDowell is free to abstain, and that course would best ensure that no party can claim he has taken action that is biased against them."

Another route McDowell could take, Comstock suggested, would be to vote that the matter is in dispute - not aye, not nay, not abstain, but "Help!" - which would send the matter before Congress for resolution. There it would meet with Dingell and Markey, whose influence could very well sway the final decision in CompTel's direction, while still sparing McDowell's conscience.

The two parties in the merger went on record this morning as welcoming McDowell's vote, which has been taken as an indication that whispers on the street may have said he'll side with his chairman after all.

But if he does, the entire matter could then come under the close scrutiny of incoming Senate Commerce Committee chairman Daniel Inouye (D - Hawaii).

Last week, Sen. Inouye sent Chairman Martin a letter chastising him for his "willingness to waive government recusal rules," and urging him to reconsider alternate means of resolving the conflict - meaning, subjecting themselves to Congressional hearings.

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