It’s probably not a big deal, since Federal Communications Commission Chairman Kevin Martin seemingly wants bipartisan approval of AT&T Inc.’s $79 billion play for BellSouth Corp. and apparently doesn’t want to force the issue with fellow GOP Commissioner Robert McDowell.
But in the spirit of clarity, transparency and precision, understand that McDowell is not recused from the AT&T-BellSouth merger proceeding and never has been. That’s an amazing thing when you can consider how many times “recuse”-and other iterations of the word-have been used (but mostly misused) by the news media-including yours truly-and others.
McDowell, a relative newcomer to the five-member, Republican-controlled FCC, has become the center of attention because he represents a potential tie-breaking vote on a colossal telecom merger that minority Democratic Commissioners Michael Copps and Jonathan Adelstein claim deserves far more scrutiny than that given by the Justice Department.
McDowell did the right thing from the start and never misled anyone about his intentions. In early August, McDowell said he would act as if he were recused from the AT&T-BellSouth matter. He had little choice, given his background as a lobbyist for a trade group-Comptel-whose members compete against Bell telephone companies and which opposes the merger at hand.
I suppose you could blame the press for not being experts in the nuances of government ethics law, but part of the AT&T-BellSouth merger confusion at the FCC stems from the fact that this recusal business has the potential to evolve into something other than a mechanism to avoid a conflict of interest or even an appearance of one. Indeed, it can be turned into political trump card played in the name of the greater good. Since this is the political season where just about anything goes-especially this year when GOP control of the House and Senate is on the line-one cannot count out the possibility of Martin playing the card. Martin apparently hasn’t counted it out. Why else has not the FCC’s Office of General Counsel neither recused McDowell from voting on the merger nor forced him to do so? The answer: It has not had to. Yet.
When peppered with reporters’ questions last Wednesday about his intentions on the AT&T-BellSouth merger, Dowell tried explaining the issue of recusal is not about him anymore. He did his thing. He pointed reporters to the OGC for further enlightenment. OGC has the power to veto McDowell’s self-imposed disqualification.
As big as the AT&T-BellSouth merger is, Martin and his agency’s top lawyer undoubtedly realize the potential downside of shoving the deal down McDowell’s throat. With some concessions and sweeteners, Copps and Adelstein may well come around. Martin will need McDowell long after all the merger fuss has given way to another controversy at the FCC.
What would Harold Greene have made of all this were he alive today?
