We just got word that FCC Commissioner McDowell has announced that he will not participate in the AT&T, Bell South merger. His statement is here. This leaves the FCC deadlocked at 2-2 and essentially forces Chairman Martin to compromise with Commissioners Copps and Adelstein, who want more conditions on the merger, including enforceable net neutrality.
Commissioner McDowell made particular note of the fact that the December 8 memorandum from FCC General Counsel Samuel Feder did not make “a strong and clear case for my participation.” McDowell went on to say:
Instead, the Authorization Memo is hesitant, does not acknowledge crucial facts and analyses, and concludes by framing this matter as an ethical coin-toss frozen in mid-air. The document does not provide me with confidence or comfort. Nor does the December 11, 2006, letter responding to the questions posed by Representatives Dingall and Markey. I must emphasize that in no way should anyone interpret my observations as a criticism of Mr. Feder or his staff. As indicated in the Authorization Memo, reasonable minds can differ on this matter. Nonetheless, while I expected the legal equivalent of body armor, I was handed Swiss cheese.
McDowell also made particular note of the fact that 1) the Director of the Office of Government Ethics, Robert I. Cusik told Mr. Feder that had the decision been up to him, he would have decided against authorizing the Commissioner to participate; and 2) the Ethics Agreement that was prepared by the FCC's Office of General Counsel as part of his Senate Confirmation process required that he disqualify himself for one year from “participating in any particular matter, involving specific parties, in which COMPTEL is a party or represents a party,… ” McDowell was an employee of COMPTEL, which opposes the merger and was sworn in on June 1, 2006. The Commissioner also noted that there are no exceptions to this agreement, and that it was a particular topic of interest to members of the Senate Commerce Committee who confirmed him.
Needless to say, we believe that Commissioner McDowell did the right thing, and we put out the following statement to that effect:
Commissioner McDowell should be commended for his thoughtful deliberation over what anyone would consider a very difficult decision. In the end, he was correct to recuse himself from the AT&T takeover of BellSouth. This is too important a transaction to be clouded by the ethical questions that would have come up had the Commissioner taken part in the proceeding. It is now up to Chairman Martin to negotiate a balanced set of terms and conditions with Commissioners Copps and Adelstein that will protect the public interest and the freedom of the Internet. We have every hope he will do so.
How refreshing — a public official who puts ethics and the public interest before political pressure and private interests – something we can all be thankful for this holiday season.