Democracy & Technology Blog FCC needs better recusal process

Experience should not disqualify FCC nominees, but the agency should have a predictable recusal mechanism to ensure it is perceived as an impartial decisionmaker (and to ensure that federal service is not misconstrued as an opportunity to reward friends and supporters). It does not.

The current FCC nominee, Robert M. McDowell, spent years representing the CLECs and was asked during his confirmation hearing whether he can be objective. McDowell commented that many of the major issues in which he has been involved are resolved. He also promised that he will rely on the opinion of the FCC’s Office of General Counsel in evaluating whether he should recuse himself in the future.
I have never been sure there is a recusal process at the FCC that amounts to much. Former Chairman William E. Kennard recused himself from the Personal Attack and Political Editorial proceeding because he had previously participated in the matter on behalf of the National Association of Broadcasters. Then a funny thing happened. The remaining commissioners deadlocked on the matter, and Kennard announced that he had requested an OGC review of his recusal. OGC concluded that no reasonable person would seriously question Kennard’s impartiality and also advised that another factor normally considered is “the difficulty of reassigning the matter” (5 C.F.R. ยง 2635.502(d)(5).) OGC concluded that this factor was now controlling and issued a waiver. This case simply proves the subjectivity of a recusal determination and that the “difficulty of reassigning” factor can waive disqualification except perhaps in extreme cases. Stated another way, recusal is a good thing unless it is inconvenient.
A couple questions suggest themselves:
(1) McDowell says that many of the major inssues in which he has been involved are resolved. However, issues can percolate at the FCC for years, with evolving vocabulary. “Net neutrality” used to be “open access,” for example. Does recusal analysis presume that “issues” are confined to the particular proceeding in which they originate? Don’t some issues transcend a particular proceeding? This is not an easy area in which to draw lines, and the OGC representative with whom I spoke declined to get into it. I don’t blame them.
(2) Are there any internal guidelines that supplement the Code of Federal Regulations that is applicable to all federal employees (which provides a balancing test that is workable where conflicts are extremely obvious but otherwise can lead to highly subjective outcomes)? There are not.
(3) Are there any other major precedents which should be consulted to get a full picture of what might happen in the future if McDowell’s former employer is locked in a ferocious battle with another industry segment (COMPTEL supports net neutrality and opposes the AT&T-BellSouth merger, for example)? The conversation I had with OGC did not yield any.
None of this is to suggest that McDowell should not be confirmed. He seems well-qualified and deserves to be presumed objective. But McDowell’s nomination is somewhat exceptional and should trigger some serious thought in terms of improving the FCC’s recusal process, such as it is. McDowell could suggest a framework as part of his confirmation process.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.