Policy

McDowell’s Voting Status Questioned

12/15/2006 7:00 PM Eastern

Washington— The Federal Communications Commission’s top lawyer failed to justify his decision to allow FCC Republican Robert McDowell to vote on AT&T’s merger with BellSouth, according to the two incoming House Democrats who will oversee the FCC in January.

Rep. John Dingell (D-Mich.), who takes over as chairman of the Energy and Commerce Committee next month, and Rep. Edward Markey (D-Mass.), who will head a key subcommittee, last Tuesday issued separate statements insisting McDowell should stay away from the giant telecommunications merger even though FCC general counsel Sam Feder gave him the green light to cast a vote.

“I find the general counsel’s response inadequate in convincing the American people that … McDowell’s participation is necessary, proper or wise,” Dingell said.

Added Markey: “I trust that … McDowell will find the FCC general counsel’s weak legal arguments, and even weaker rationale for a compelling government interest, of little comfort when deciding whether to abandon the ethical high ground upon which he currently stands.”

Dingell’s and Markey’s comments came in response to Feder’s 10-page letter that explained his reasons for freeing up McDowell to participate in the $81 billion merger.

McDowell has been legally barred from voting because his former employer, a small telecommunications trade group, is opposing the merger and demanding conditions. The prohibition ends June 1.

With McDowell sidelined, the four voting FCC members left — two Republicans and two Democrats — have been at loggerheads over merger conditions, effectively blocking the deal from closing.

Martin notified Dingell and Markey on Dec. 1 that he had asked Feder to determine whether McDowell could break the deadlock. Based on law, precedent and the large economic impact of the merger, Feder determined that McDowell could vote if he so chose.

Feder agreed to remove the constraints on McDowell even though Robert I. Cusick, director of the U.S. Office of Government Ethics, informed the FCC that if it were his decision, he would not authorize McDowell to cast a merger vote. But Cusick noted that because it was a close call on which reasonable people could differ, according to Feder, he would not criticize Feder for deciding to authorize McDowell to vote.

“The general counsel has not provided a thoughtful and appropriate explanation for departing from the advice of the director of the Office of Government Ethics, which could lead reasonable people to question the integrity of the agency’s decision in this very important matter,” Dingell said.

McDowell, who is studying Feder’s decision, hasn’t indicated whether he will vote.

Both AT&T and BellSouth support his participation.

September