Lawmakers Question FCC Recusal Maneuver

Key Democratic lawmakers leveled sharp criticism Tuesday at Federal Communications Commission (FCC) Chairman Kevin Martin’s efforts to break the agency’s deadlock over approval of the AT&T-BellSouth merger.

Last Friday, Martin informed Congress he is seeking the legal authority to allow Republican Commissioner Robert McDowell, who has recused himself from the vote, to participate in the merger approval process.

Without McDowell, the remaining two Republicans and two Democrats on the FCC are split along party lines over approving the deal that would create the world’s largest telecommunications company.

The Department of Justice approved the merger with no strings attached on Oct. 11.

In a series of letters to Martin, U.S. Sen. Daniel K. Inouye (D-Hawaii) and U.S. Congressmen John Dingell (D-Mich.), Ed Markey (D-Mass.) and Mike Doyle (D-Pa.) all urged Martin to reconsider allowing McDowell to vote on the merger.

Inouye is scheduled to take over the Senate Commerce and Science Committee in January while Dingell will be taking charge of the House Energy and Commerce Committee. Markey is set to run the Energy and Commerce panel’s subcommittee on the Internet. Doyle is a member of the Internet subcommittee.

“I urge you to reconsider such drastic action and to return to constructive dialogue with your colleagues,” Inouye wrote Martin, adding he was disappointed over Martin’s “apparent willingness to waive government recusal rules.”

In his letter, Doyle wrote that the November elections were, in part, about ethics in government.

“When public servants have identified and recused themselves from legitimate conflicts of interest, they should be commended for upholding the highest standards of public integrity,” Doyle wrote.

“The recusal option gives the public the fullest possible confidence that agency appointees…will impartially decide upon the issues before them.”

Immediately prior to joining the FCC in June, McDowell worked as lobbyist for CompTel, a trade group of competitive local exchange carriers opposed to the AT&T-BellSouth merger. To avoid the appearance of a conflict of interest, McDowell recused himself from the merger vote.

According to Martin, though, FCC regulations allow a recused commissioner to vote if the government’s interest outweighs concern “that a reasonable person may question the integrity of the agency’s programs and operations.”

Declaring the merger negotiations between the Democrats and Republicans on the panel at an “impasse,” Martin ordered FCC attorneys to determine if McDowell could “unrecuse” himself from the vote. Martin has delayed the vote three times over the last six weeks.

Even if cleared to vote, McDowell could decide to abstain.

Dingell and Markey sent a letter to FCC General Counsel Sam Feder containing a long list of detailed questions about Martin and the agency’s legal authority to allow McDowell to vote.

“This matter can and should be concluded in a timely fashion without compromising the ethical standards of the independent agency or the individual commissioners involved,” Dingell and Markey wrote.

Martin and fellow Republican Commissioner Deborah Taylor Tate want the deal approved with the concessions made by AT&T on Oct. 13.

Democrats Michael Copps and Jonathan Adelstein are holding out for greater concessions, including expanded network neutrality conditions.

AT&T said it is willing to adhere to the FCC’s network neutrality principles for 30 months after the official closing of its proposed merger with BellSouth.

However, those principles do not address the proposed business plan of AT&T to charge content providers based on bandwidth use, creating fast and slow lanes on the Internet.

The merger would give AT&T 70 million landline customers across 22 states. Currently a co-owner of Cingular Wireless with BellSouth, the deal would make AT&T nation’s largest cellular provider.

In a separate statement released Monday, Markey said “forcing a commissioner to participate in a proceeding in which he or she would otherwise be recused is an extraordinary notion for an independent, impartial regulatory agency.”

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