The FCC's general counsel has provided top House Democrats with supporting information for his decision to allow Republican Commissioner Robert McDowell to vote in the Bell South/AT&T merger, but the answers didn't sit well with them.
Michigan Democrat John Dingell, almost certain to be new chair of the House Commerce Committee, said the FCC "has not provided a thoughtful and appropriate explanation for departing from the advice of the Director of the Office of Government Ethics,"
FCC General Counsel Sam Feder had sought the advice of the ethics director, who said were it him he would not un-recuse McDowell. But one former FCC official suggested the ethics director tends to be conservative on such calls.
Dingell's dissatisfaction with the response was echoed by Ed Markey (D-Mass.), also widely expected to get the nod as the next chair of the House Telecommunications Subcommittee.
"Nothing in the General Counsel's response surmounts the ethical hurdle placed before the Commission by the Director of the Office of Government Ethics Robert I. Cusick," said Markey, "who indicated to the FCC that if the decision were up to him, he would not authorize Commissioner McDowell's participation in the AT&T-BellSouth merger proceeding. Instead, the FCC General Counsel's response highlights that there is no direct or persuasive precedent for 'un-recusing' Commissioner McDowell."
Markey counseled McDowell to abstain, saying that would keep him on "the ethical high ground upon which he currently stands."
If he stands there, it is because that is where he is supposed to stand. McDowell has made it clear that the decision to recuse was not his, but instead an automatic red light per ethics rules unless the FCC General Counsel said otherwise.
Feder said there were several precedents for un-recusing commissioners, including one involving FCC Chairman Kevin Martin and one involving former Chairman Michael Powell. He also said that the FCC had demonstrated it was at an impasse on the merger vote, with the item pulled from the agenda three times because it was deadlocked 2-2. He also pointed out that clearing McDowell to vote did not mean compelling the vote.
McDowell has not said whether or not he would vote, but was understood to be waiting to review Feder's response before deciding. He is said to have missed a media ownership hearing in Nashville Monday because he was working through the issues surrounding his participation.
Unless the FCC's general counsel rules the government interest outweighs the appearance of conflict, there is a one-year moratorium on a commissioner participating in a proceeding to which his former employer, in this case telecom association COMPTEL, is a party.