The Unrecusal of Commissioner McDowell
The Unrecusal of Commissioner McDowell
The Unrecusal of Commissioner McDowell

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    The unseemly political pressure to try to force FCC Commissioner Robert McDowell to participate in the AT&T takeover of BellSouth is increasing with each hour. So far, McDowell has stuck to his decision not to participate because he recently represented CompTel before the Commission and because of ethics concerns from the Virginia Bar Association.

    FCC Chairman Kevin Martin has sent a letter to Capitol Hill saying he's asked the General Counsel, Sam Feder, to determine whether it's possible for McDowell to participate, citing a 2000 precedent of then-Chairman Kennard having been authorized to break a 2-2 tie. AT&T sent a letter to the Commission saying that competitors are holding up the merger despite all that AT&T has been willing to concede. These two items, both dated Dec. 1, are of course related. Martin wants the merger, as does AT&T. They are also related in that each makes claims that don't hold up under further scrutiny.

    Take, for example, Martin's use of the 2000 decision by Kennard. The circumstances then were decidedly different than the ones that exist today. Then it was the question what to do with rules concerning personal attacks and political editorials. By the time of the 2000 decision, Kennard had been recused for at least two years in the docket as the debate raged. That was because he had represented the National Association of Broadcasters 20 years earlier in a docket on the same issues. In addition, it was Kennard who asked the General Counsel for a ruling, unlike the situation now in which Martin is asking the General Counsel to decide for McDowell.

    And, for what it's worth, Kennard noted at the time: “In addition, the parties opposing the broadcasters, who would be the parties most likely to question my impartiality since the issue arises because I previously worked for the NAB, have made clear that they believe that I should participate.”

    Perhaps the most compelling reason that the situations are different is that the Commission at the time was under the direction of the U.S. Court of Appeals for the D.C. Circuit to resolve the issue. The Court remanded a challenge to the rules brought by the NAB to the Commission in December 1999, and was not at all pleased that the Commission didn't act until October 2000 and even then only extended the record in the case. Tired of waiting, the Court on October 11, 2000 ordered the FCC to vacate the rules.

    Contrast those circumstances with the consideration of the AT&T merger. The only time pressures are those generated by AT&T wanting the Commission to get on with it, and internally from Martin wanting to accommodate. After all, the Justice Department approved the merger without a formal order.

    AT&T believes that it has conceded enough. In its letter to the Commission, AT&T said it couldn't see any circumstances on which it could agree to new conditions in the access for business customers and for Net Neutrality. The Government Accountability Office recently reported that competition in the business market is considerably less than previously thought, so some safeguards here are probably a good idea.

    AT&T completely mischaracterized the Net Neutrality argument, saying that merger opponents said that the company should only be limited to charging consumer to recover the costs of network upgrades to broadband facilities, “but also in our Internet backbone network under the guide of a fifth non-discrimination principle that would apply throughout the network.”

    We have defined Net Neutrality all along as applying to the last mile. We don't want any network provider to make a decision for a customer on how well a service or application will function based on a financial arrangement between the network company and the provider. It's that simple. We have always endorsed the ability of companies to charge customers, whether residential or commercial, for the bandwidth they use. We wish the market were more competitive, but that's another story. No one has talked about rates in terms of cost recovery. We use the term non-discrimination.

    As a result, we are back to McDowell, and to our statement from Friday: “In response to Chairman Martin's letter, members of Congress should make clear that having Commissioner McDowell participate in the AT&T-BellSouth merger at this point would deeply compromise the integrity of the Commission. It is unseemly to try to force the Commissioner to violate the ethical constraints not only of the Commission, but of the Virginia Bar as well. A better solution would be for Chairman Martin to reconsider his opposition to the pro-competitive and pro-consumer merger conditions being advocated by Commissioners Copps and Adelstein.”

    Rep. Ed Markey (D-MA), the once-and-future chairman of the Telecom Subcommittee, said he believes McDowell should stay out. His colleagues should agree as well and McDowell should stick to his original decision.