One Man, No Vote: Martin Tries to Break Logjam on BellSouth Merger

Eight months. That’s how long it has been since AT&T and BellSouth asked the FCC for permission to merge. Although the merger has since been OK’d by the Department of Justice, and by 18 state regulatory commissions, the Commission has yet to act. It’s not that Chairman Kevin Martin hasn’t tried to get this issue decided: three times in the past two months a vote has been scheduled, only to be put off. (The last delay being just a few days before the mid-term election).

The problem is that the Commission is deadlocked–two members supporting the merger, and two opposing it, reportedly insisting that net neutrality and other conditions be imposed.

Putting two and two together, you get four. But wait–the FCC has five members. The fifth, as it turns out is Robert McDowell, the newest member of the commission. McDowell, however, has been recused from the issue, since he previously worked for CompTel, a trade group that opposed the merger.

In an unusual move, Chairman Kevin Martin has asked the FCC’s general counsel to allow McDowell to vote anyway. Such a step would be unusual, but not unprecedented–for instance Democratic chairman Bill Kennard was allowed to vote on an issue in 2000 on which he was otherwise recused. This request isn’t unprecedented–Democratic chairman Bill Kennard, for instance, was allowed to vote in 2000 on a media issue despite the fact that he previously represented broadcasters. Martin argues that, given the stalemate on the merger, McDowell’s vote is necessary to break the logjam.

Conflict of interest rules, of course, shouldn’t be tossed away lightly. Commissioners after all may be prejudiced in favor of the side they used to work for. But this case has an unusual twist: All indications are that despite his previous employers’ position, McDowell would support the merger. Rather than vote with his old employers, McDowell would likely vote against them. There’s little chance that McDowell would be motivated to vote against the merger because of a salary he drew from folks on the other side.

Martin’s request is both bold and sensible. Hopefully, the GC will approve it, and the FCC will finally vote on this long-pending merger.

SHARE: