You've got to hand it to FCC General Counsel Sam Feder. His opinion that supposedly “clears” Commissioner Robert McDowell to participate in the AT&T takeover of BellSouth probably wasn't what Chairman Kevin Martin had in mind.
The idea of the exercise was to put pressure on McDowell to jump into, presumably on the side of AT&T, and force Commissioners Michael Copps and Jonathan Adelstein into a corner. Try as he might, Feder couldn't bring himself to make the air-tight case for McDowell's participation that Martin wanted.
In a news release we put on Friday night, we said Commissioner McDowell made the right decision to recuse himself in this proceeding, and Feder's opinion said nothing that should cause the Commissioner to change his view. The opinion made a tepid case at best for Commissioner McDowell to participate. Feder seemed to go out of his way to stress that it was McDowell's decision to participate. The Feder memo said it was a “very, very close call” whether McDowell should take part, and that reasonable parties could disagree on a decision.
Indeed, the opinion cited the director of the Office of Government Ethics as saying he would decide against authorizing McDowell to participate. This indicates to us McDowell is on safer ground staying out and letting negotiations continue. If anything, this memo counsels extreme caution for McDowell.
On a broader scale, the concept of the public interest was nowhere to be found in this General Counsel's opinion. The chief concern is the effect on the companies involved, and not the effects of the public interest. Government's role should be broader than meeting arbitrary deadlines or acting for the convenience of large companies.
It's unconscionable to try to grease the largest telecom merger in history, which is what Martin is trying to do.