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Recusal of Commissioner McDowell

December 18, 2006 Blog Posts , FCC , Network Neutrality

FCC Commissioner Robert McDowell has announced he would recuse himself from the Commission's deliberations on the AT&T takeover of BellSouth. Gigi commends the decision with the following statement:

Commissioner McDowell should be commended for his thoughtful deliberation over what anyone would consider a very difficult decision. In the end, he was correct to recuse himself from the AT&T takeover of BellSouth. This is too important a transaction to be clouded by the ethical questions that would have come up had the Commissioner taken part in the proceeding. It is now up to Chairman Martin to negotiate a balanced set of terms and conditions with Commissioners Copps and Adelstein that will protect the public interest and the freedom of the Internet. We have every hope he will do so.

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No Help From the General Counsel

December 11, 2006 Blog Posts , Network Neutrality

You've got to hand it to FCC General Counsel Sam Feder. His opinion that supposedly "clears" Commissioner Robert McDowell to participate in the AT&T takeover of BellSouth probably wasn't what Chairman Kevin Martin had in mind.

The idea of the exercise was to put pressure on McDowell to jump into, presumably on the side of AT&T, and force Commissioners Michael Copps and Jonathan Adelstein into a corner. Try as he might, Feder couldn't bring himself to make the air-tight case for McDowell's participation that Martin wanted.

In a news release we put on Friday night, we said Commissioner McDowell made the right decision to recuse himself in this proceeding, and Feder's opinion said nothing that should cause the Commissioner to change his view. The opinion made a tepid case at best for Commissioner McDowell to participate. Feder seemed to go out of his way to stress that it was McDowell's decision to participate. The Feder memo said it was a "very, very close call" whether McDowell should take part, and that reasonable parties could disagree on a decision.

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Ma Bell, May I?

December 8, 2006 Blog Posts , Network Neutrality

A couple of posts ago, we talked about how FCC Commissioner Robert McDowell is being pressured to "unrecuse" himself in the AT&T takeover of BellSouth. Now Chairman Kevin Martin has taken the next step, getting outside permission. [Update: Feder's eight-page ruling came out Friday night. No surprise. It says McDowell can participate, but it's a close call.]

This move is yet another step to try to draw the analogy to case in which then-FCC Chairman William Kennard reversed a recusal to participate in a case in 2000. He noted in a statement that parties which would be most likely to question whether he would be impartial have said he could participate in a proceeding to lift rules on broadcasters dealing with personal attacks and political editorials.

Now we see a letter to FCC General Counsel Sam Feder from AT&T and BellSouth saying they have no objections if McDowell participates in the merger process. What's worth noting when you read is is that it was the FCC that asked for the views of the company.

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A Not-So-Merry Christmas for the FCC

December 6, 2006 Blog Posts , Network Neutrality

It took a little while to brush off the rust, but now it looks as if Congressional Democrats are warming to the task of reclaiming the majority. Federal Communications Commission Chairman Kevin Martin can't be happy. Perhaps he should do lunch with former Chairman Reed Hundt, just to get some idea of how to deal with a Congress turned hostile in mid-term. Hundt had that experience while serving as President Clinton's FCC chairman at the time of the Republican takeover of Congress in the 1994 elections.

To be fair, of course, even when Democrats were in control of Congress with a Democrat in the White House, they still tended to be hard on the Commission. Back then, Congress had more of a sense as an independent branch of government, rather than as a member of the team.

The FCC has had a fairly easy ride for the past few years. As this collection of letters from Congress indicates, that's over. The incoming chairmen of the Senate Commerce Committee and House Commerce Committee sent letters to the FCC protesting the attempt to "unrecuse" Comr. Robert McDowell from the AT&T takeover of BellSouth, as did Rep. Mike Doyle (D-PA), a Telecom Subcommittee member. Rep. Ed Markey (D-MA) issued a statement earlier.

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The Unrecusal of Commissioner McDowell

December 4, 2006 Blog Posts , Network Neutrality

The unseemly political pressure to try to force FCC Commissioner Robert McDowell to participate in the AT&T takeover of BellSouth is increasing with each hour. So far, McDowell has stuck to his decision not to participate because he recently represented CompTel before the Commission and because of ethics concerns from the Virginia Bar Association.

FCC Chairman Kevin Martin has sent a letter to Capitol Hill saying he's asked the General Counsel, Sam Feder, to determine whether it's possible for McDowell to participate, citing a 2000 precedent of then-Chairman Kennard having been authorized to break a 2-2 tie. AT&T sent a letter to the Commission saying that competitors are holding up the merger despite all that AT&T has been willing to concede. These two items, both dated Dec. 1, are of course related. Martin wants the merger, as does AT&T. They are also related in that each makes claims that don't hold up under further scrutiny.

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