McDowell May Be Recused from AT&T-BellSouth Merger Vote
FCC Comr. McDowell may be excluded from voting on the AT&T-BellSouth merger because his former employer, CLEC association CompTel, has a stake in the proceeding, he told reporters Tues. McDowell said the FCC gen. counsel will decide if he should be recused, but until then he’s operating as if he’s barred from voting. He’s not reading the docket, and interested parties aren’t visiting him to pitch their positions -- although at this point “I'm not sure they are coming to see anyone” because the issue isn’t very active right now, he said.
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“It’s a matter of law,” McDowell said in answer to a reporter’s question at a news conference: “In an adjudicatory proceeding such as a merger review or petition for forbearance or… declaratory ruling… if CompTel should file, I would be recused for one year.” As for his ability to vote in the AT&T-BellSouth merger, “that remains to be seen.” AT&T and BellSouth filed for merger approval in the spring, before McDowell joined the FCC June 1. CompTel filed a petition to deny June 5.
There’s a fairly good chance McDowell won’t be recused, according to those familiar with the process. Such decisions are made case-by-case, depending in part on how involved the FCC commissioner was in a matter. McDowell concentrated on Capitol Hill at CompTel and, while waiting for confirmation last spring, didn’t appear to be deeply involved in FCC issues. But if McDowell is disqualified, the agency would be down to 4 commissioners on the vote, 2 Republicans and 2 Democrats. That’s not seen as a major problem, but it could give Democratic commissioners Adelstein and Copps more bargaining power to add conditions.
McDowell told the press he’s basically a “wireline phone guy” working to expand his knowledge to include “a lot of brand new issues.” Tues. was his 69th day on the job and “freedom” is his mantra, he said. “My general philosophy is to approach the job from the aspect of freedom,” meaning “to trust free markets and people to make their own decisions.”
He said he doesn’t think it’s necessary for the FCC to turn its net neutrality principles into rules because no harm has occurred -- also FCC Chmn. Martin’s view. “It’s difficult for government to try to address an illness that has not yet occurred,” he said: “Let’s wait and see. Let’s continue to be vigilant. Consumer demand is such a powerful check and balance… Don’t you think if you couldn’t get to Google there would be pitchforks and torches in the streets, and government policy would change?” In response to another question, he said an issue worth watching is “where do you draw the line between network management and discriminatory, anti-competitive conduct?”
On whether the FCC should get involved in video franchising, McDowell said: “Let’s first see what Congress does.” If no action is taken, the FCC “can do a lot to help speed deployment.
‘Phone Guy’ Approaching Media Issues
“There’s a lot of logic” to updating the Commission’s media ownership rules in small pieces, McDowell said. An omnibus order addressing newspaper-broadcast cross-ownership, radio ownership limits and same-market multiple TV station limits would be “a big kidney stone to pass,” he said. Some Democrats and media activists have opposed breaking up the work (CD June 22 p11). “The Commission would have a lot of explaining to do if it chose now to deal with these things disparately,” said Media Access Project CEO Andrew Schwartzman.
Taking the issues one by one might be seen as a way to undercut MAP and other activist groups’ lobbying, Schwartzman said: “Our side benefited a great deal from being able to point out [in 2003 that] ‘all of the major broadcast rules are at stake.’ But I think the public is sufficiently energized that any piece of it will become the subject of considerable attention.” A piecemeal approach could “give us some very strong appeal issues and will not avoid some of the political blowback and Congressional reaction” that the Commission encountered in 2003, Schwartzman said.
The Commission must “thread the needle handed to us by the 3rd Circuit,” in developing any new media ownership rules, McDowell said. McDowell declined to specify what he liked about the 2003 order or what he would like to see included this time. Pressed to disclose his opinion of the 2003 order, he said: “Did I have a strong opinion? No. I was a phone guy.”
The FCC lacks the authority to impose a multicast must- carry rule, McDowell said. “I don’t not believe the statute give the Commission that authority… Should Congress give us that mandate, I would follow it,” he said, explaining publicly for the first time his reasons for not backing a must-carry rule that was pulled from the June 21 agenda.
McDowell touted the Commission’s involvement in the Comcast-MASN dispute as an example of his philosophy of regulation. “It was an agreement that was reached in a private sector setting, he said of the deal. “All we did was to create a little time pressure, and sometimes that’s all that’s needed.”
A similarly light regulatory touch might be appropriate on cable a la carte, McDowell indicated. Consumers may force business to resolve the matter, he said.