Ethics Run Rampant in FCC

FCC Commissioner Robert McDowell courageously elevated professional responsibility over expedience this week in declining to participate in deliberations about the ATT/BellSouth merger.

As has been widely reported, FCC Chairman Martin pressured fellow GOP Commissioner McDowell to vote by producing a letter from his General Counsel expressing the opinion that the need to break a 2-2 “stalemate

Don’t get me wrong; Commissioner McDowell’s recusal helps my side in the fight, which opposes granting permission for ATT and BellSouth to merge, at least without significant conditions to protect competition. However, that’s of secondary importance here. What really matters -- and this is why Commissioner McDowell’s action is so important -- is that his participation in this vote would have seriously undermined public confidence in the integrity of the FCC’s decisionmaking process. Moreover, the skepticism would have been justified.

A year or two from now, no one will remember that communications lawyers were fighting about whether ATT should be required to divest spectrum in the 2.5 gigahertz band, or even that net neutrality requirements were being proposed as conditions for permitting the merger. But no one will have forgotten that Chairman Martin tried to force Commissioner McDowell to cross an ethical minefield.