Wheeler Recused from AT&T IP Transition Wire Center Trials
FCC Chairman Tom Wheeler plans to recuse himself entirely from involvement in AT&T’s wire center trial experiments, he said Friday. Wheeler was on the EarthLink board for about 10 years until resigning when he was confirmed to the chairman’s position in November. Wheeler’s EarthLink past caused him to recuse himself from the Wireline Bureau’s decision to suspend and investigate an AT&T tariff revision in the special access proceeding (CD Dec 9 p1). Industry observers then wondered if Wheeler would have to recuse himself from parts of other proceedings. One question raised by observers now is whether EarthLink participation on other, more contentious proceedings -- like Comcast’s plan to buy Time Warner Cable -- might force Wheeler’s recusal there as well.
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"It turns out that EarthLink has filed and seeks to participate in this activity, and therefore as a result -- as a former EarthLink board member -- I have decided based upon advice from the Office of General Counsel to recuse myself from this particular activity,” Wheeler said during Friday’s open FCC meeting. Wheeler made the announcement after Wireline Bureau officials delivered a presentation updating the commission on the IP transition trials. AT&T won’t seek the necessary FCC approvals for experiments until second half of 2015, bureau Chief Julie Veach said.
An agency spokesman directed us to two ex parte filings in which EarthLink participated. Last month, an EarthLink official listened in by phone on a meeting between FCC officials and Level 3, Integra Telecom, Cbeyond and tw telecom. “The FCC should ensure that the benefits of AT&T’s proposed Experiment outweigh the costs; those costs are considerable,” read an attached presentation (http://bit.ly/1ug1qCI). AT&T competitors “will likely need to participate in the Experiment itself” if they operate in the wire centers chosen for the experiment, it said. EarthLink also participated in a March 27 meeting of agency officials, Comptel and public interest groups discussing potential limitations of the trial and unknown AT&T replacement products for TDM services (http://bit.ly/1ug1G4E).
EarthLink executives met with FCC General Counsel Jon Sallet and other agency officials March 10 to discuss “the potential format of IP experiments” and “our hope to work with AT&T on wholesale trials,” an ex parte filing said (http://bit.ly/1ug2l6k). The CLEC “expressed concerns that wholesale services might not be available at the outset of AT&T’s proposed experiments."
Wheeler wouldn’t participate in Communications Act Section 214 discontinuance of service petitions by AT&T in the experiment, or other adjudicatory decisions dealing with the experiment, an FCC official said. The recusal period lasts two years from Wheeler’s swearing-in on Nov. 2. Wheeler’s recusal doesn’t pertain to participating in general policy matters concerning the IP transition that are focused on the entire industry, the official said.
Potential Comcast Recusal?
A former FCC official who represents broadcasters said the recusal could have much bigger implications, especially since EarthLink could well file on Comcast/Time Warner Cable. EarthLink was active in the proceeding in which Comcast bought control of NBCUniversal, the lawyer said.
Recusals are not “that uncommon,” but this time it’s surprising because “people did not anticipate that this would count as an adjudication” necessitating the two-year cooling off period, said Public Knowledge Senior Vice President Harold Feld. “What happens if EarthLink files in the Comcast/Time Warner Cable transaction?” he asked. “If they absolutely needed the chairman’s vote ... and it couldn’t be resolved in any way without the chairman,” if commissioners were deadlocked 2-2, there’s a multiple-factor test for how to resolve whether the recused official can participate, he said: It’s “complicated” and depends on what Wheeler’s measure of involvement was in the organization and the proceeding.
Recusal has been an issue at the agency in the past. Famously, former Commissioner Robert McDowell, then new to the FCC, in December 2006 refused to participate in AT&T’s proposed buy of BellSouth because of his role as an officer at Comptel before he joined the commission (CD Dec 19/06 p1). The recusal forced then-Chairman Kevin Martin to cut a deal with commission Democrats to win approval for the transaction. But McDowell faced only a one-year limit. The current Obama administration Ethics Pledge requires an official not to participate for two years in any party specific matter directly and substantially related to a former client or employer, FCC officials said Friday.
The recusal is not that significant for the wire trials, said a former FCC official who represents wireless and wireline clients. Nobody has ever been clear whether the FCC has to take any action at all on the trials, the lawyer said. An FCC official said the recusal came as a surprise Friday and raises some interesting questions. “Who made the decision to put on the presentation today” about the IP transition, asked the official.
"The implications for the IP transition are interesting, but that’s likely to be bipartisan, so Wheeler’s absence probably isn’t a game-changer,” said a former FCC legal adviser who does not represent industry clients. “What about big-ticket items like mergers and net neutrality? I assume Wheeler has thought about this and will be able to distinguish this IP transition situation from other major, industry-defining issues. If not, the next two years could be radically different” from what anyone expected, added the ex-official.
The last significant recusal was McDowell on AT&T/BellSouth, said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. “I have no clear sense how often this will arise, but EarthLink is surely smart enough to stay out of things if it thinks [Wheeler’s] vote is important.”