In a remarkably thoughtful statement, Republican FCC Commissioner Robert McDowell has announced that he will not cast the tie-breaking vote that would clear up the logjam at the Commission blocking final approval of the AT&T-BellSouth merger. At the direction of Chairman Kevin Martin, the Commission’s General Counsel Sam Feder had, earlier this month, given McDowell a green light to vote on the deal in an “authorization memo” even though McDowell had recused himself due to conflict-of-interest concerns.
As McDowell details in his statement, his previous work for Comptel, a group that represents competitive telephone companies and that now objects to the AT&T-BellSouth merger, poses a clear conflict of interest from a range of perspectives. First, McDowell pledged before the Senate during his confirmation hearing that he would uphold the highest ethical standards regarding the merger.
Secondly, in March 2006, McDowell signed an ethics agreement prepared by the FCC’s Office of General Counsel in which he promised to “disqualify himself from participating in any particular matter involving specific parties in which COMPTEL is a party, or represents a party” for up to a year after he became commissioner. McDowell didn’t assume that position until May 2006.
McDowell said that General Counsel Feder’s opinion that he can go ahead and vote on the deal is, in essence, relatively cold comfort that McDowell is on firm ethical footing in doing so.
In all candor, however, I had expected a memorandum making a strong and clear case for my participation. 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.
Moreover, the Office of Government Ethics (OGE) also hasn’t given McDowell the safety net he needs, with OGE Director Robert Cusik saying that “were the decision up to him [as opposed to the FCC’s Feder], he would decide against authorization.” Finally, the Virginia State Bar, of which McDowell is a member, has conflict of interest ethics obligations that make it difficult for McDowell to participate. McDowell said that his discussions on this matter with his private attorneys were privileged although he was not encouraged by their advice.
McDowell further said he felt like he had been used as a pawn in the ongoing fight to get the deal pushed through the FCC and now that he is out of the equation, maybe the four remaining commissioners and AT&T will cut out the game-playing and get back to negotiating a compromise.
Now that I am removing that chess piece from the board, I hope that the twin pillars of sound negotiations are restored: good faith and sacrifice.
Public interest groups embrace McDowell’s decision. Gigi Sohn, head of Public Knowledge, said in a statement:
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.
As for Chairman Martin, who has aggressively pushed for the deal’s approval with as few conditions as possible, the response has been muted.
With Commissioner McDowell having made his decision, I will continue to try to work with my colleagues to bring our consideration of this merger to conclusion.
Cynthia Brumfield at 5:15 PM|Comments(0)
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