The FCC's general counsel has given Republican FCC Chairman Robert McDowell the go-ahead to vote on the multi-billion merger of AT&T and BellSouth.
That could mean a vote as early as the FCC's Dec. 20 monthly meeting if McDowell decides to break the tie, as is likely.
In a memo issued late Friday, General Counsel Sam Feder said that McDowell was free to vote, citing the precedent of former Chairman William Kennard's participation in a proceeding in which he had appeared as an advocate--while working for NAB--before joining the commission.
FCC Chairman Kevin Martin had asked Feder for the ruling after several attempts to vote on the issue met were met with rebuffs by Democratic Commissioners seeking stronger conditions on the merger after the Justice Department chose not to apply any conditions. Without McDowell's vote, the commission is at a two Republican to two Democrat tie.
"I appreciate the hard work and careful consideration that went into this important decision by the General Counsel," said Martin of Feder's decision. "It is in the interest of the government and the American people to move this matter forward in a timely fashion. To that end, I look forward to working with all of my colleagues here on the Commission to reach a consensus."
McDowell said he was "reviewing the opinion," but did not say whether he would vote or abstain. He said he's "look[ing] forward" to seeing the response of Feder to a letter from ranking Senate Commerce Committee John Dingell (d-Mich.) asking for responses to 15 questions and requests for documents on how Feder planned to make the decision to allow McDowell to vote.
McDowell was prevented by ethics rules for participating--for one year--in proceedings in which his former employer--CompTel--had been a party, unless Feder concluded it was in the government's interest.
Feder, who consulted with the dirctor of the Office of Government Ethics before making the decision, said it was important to break the stalemate, pointing out that McDowell could not delegate the vote to someone else. "You are the only person available to break the impasse in this proceeding," he wrote in a letter to McDowell.
Congressional Democrats have argued that the merger is not stalemated, given that the FCC, for instance, took far longer to approve the Adelphia break-up than it has so far taken on the AT&T/BellSouth merger (400-plus days versus 23o-plus and counting).
Also weighing in favor of allowing the vote was the fact that McDowell had no financial interest that would be impacted by the vote, nor did any of his family.
AT&T said it had not problem with McDowell voting, even though CompTel weighed in against the merger.
Ed Markey (D-Mass.) who joined Dingell in asking for info from Feder on the recusal decision, Friday advised McDowell to sit this one out.
"As I indicated earlier, if Commissioner McDowell is authorized to participate by the FCC General Counsel, he should abstain from participating as a matter of principle, "Markey said in an e-mail to B&C,
"The General Counsel's own memorandum is instructive. On the bottom of page 7, the Director of the Office of Government Ethics disagrees with the FCC General Counsel's determination and the memorandum states that if 'the decision were up to him, he would decide against authorization' of Commissioner McDowell's participation in the merger proceeding. Commissioner McDowell should not wade into these ethically murky waters. I urge Chairman Martin and Commissioners Copps, Adelstein, and Tate to continue their work on this matter and, if they deem to approve the merger, to do so only with meaningful and enforceable public interest conditions."