^{Democracy & Technology Blog} Free the Telecosm

Scott Leith of the Atlanta Journal-Constitution reports it’s “highly unlikely” the FCC will be able to vote Dec. 20 to approve the AT&T/BellSouth merger. Two Democrats who are set to lead the House Energy & Commerce Committee and the subcommittee responsible for telecommunications are trying to push the merger into next year, when they expect to have far more leverage and can damand some consideration for letting the deal go through.

• Dingell, don’t forget, opposes eliminating video franchising, which is an impediment to competition but which mayors see as an important source of revenue and corporate contributions to civic causes.
• Markey wants to construct a net neutrality regime that includes a “fifth principle of non-discrimination” (see my recent post for more on this matter). Markey’s a dreamer, who sees the Internet as a tool for empowerment if managed like the postal or highway systems. He pushed the “Open Video System” provision in the 1996 Telecom Act, which was also intended to give consumers access to many sources of content by regulating the world wide web like a public utility. The thing is, OVS didn’t attract a penny in investment. So even though it was the product of good intentions and appeared like it could become a giant engine for social justice and equality, OVS actually harmed consumers by delaying competitive entry in the video market. But the dream never dies, does it?

The new House of Representatives convenes Jan. 4, so the FCC has a few precious weeks to free the Telecosm, by enacting video franchise reform and approving the AT&T/BellSouth merger, before Dingell and Markey can overwhelm the Republican commissioners with information requests, oversight hearings, media sensationalism and other intimidation. The FCC would be in a far better position to act now, while it still has the chance.

Chairman Kevin Martin and Commissioner Deborah Taylor Tate, both Republicans, are expected to vote to approve the merger. Commissioner Michael J. Copps and Commissioner Jonathan S. Adelstein, Democratts, are thought to not want to approve it unless it includes a strong net neutrality condition. That leaves Commissioner McDowell. He hasn’t been participating in this matter because he used to represent an industry trade association which now opposes the merger. But on Dec. 8, the FCC’s general counsel, Sam Feder, wrote McDowell a letter which authorized him to participate.

In accordance with the provisions of 5 C.F.R. § 2635.502(d), you are hereby authorized to participate in the Commission’s decision on the AT&T/BellSouth merger proceeding described below. To date, you have not participated in this proceeding because you were, until May 31, 2006, employed by the Competitive Telecommunications Association (CompTel), which is one of a number of parties that have opposed the merger. You are now free to participate if you choose to do so.

Dingell and Markey are questioning that conclusion. In a letter they sent previously to Feder, they posed 15 fairly interesting but largely irrelevant questions. The letter was an intimidation tactic, of the type for which Dingell is famous (Bush administration officials are bracing for a torrent of this type of thing beginning next year). That’s because we have an identical precedent in support of McDowell’s participation.
In 2000, the FCC was deadlocked when then-Chairman William E. Kennard recused himself because he had previouslky represented a trade association with an interest in a matter on the FCC’s agenda at the time. The FCC’s general counsel advised Kennard that the issue of “controlling importance” was the public’s interest in getting an outcome on the matter before the commission, one way or another.

The record demonstrates there has been continued deadlock at the Commission on this issue….
Furthermore, our DAEO has told me that another factor that is considered under the OGE regulation is “the difficulty of reassigning the matter.” 5 C.F.R. § 2635.502(d)(5). He has recently advised me that this factor is now of controlling importance in his view. While it is usually possible to find another federal employee to perform a task, it is simply not possible to reassign my authority to vote on Commission matters…

5 C.F.R. § 2635.502(d)(5) provides:

… an agency designee may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations. Factors which may be taken into consideration include:
(1) The nature of the relationship involved;
(2) The effect that resolution of the matter would have upon the financial interests of the person involved in the relationship;
(3) The nature and importance of the employee’s role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter;
(4) The sensitivity of the matter;
(5) The difficulty of reassigning the matter to another employee (emphasis added); and
(6) Adjustments that may be made in the employee’s duties that would reduce or eliminate the likelihood that a reasonable person would question the employee’s impartiality. Authorization by the agency designee shall be documented in writing at the agency designee’s discretion or when requested by the employee. An employee who has been authorized to participate in a particular matter involving specific parties may not thereafter disqualify himself from participation in the matter on the basis of an appearance problem involving the same circumstances that have been considered by the agency designee. (Emphasis added.)

Notice how the regulation bars subsequent disqualification. McDowell is now under an obligation to participate in the merger proceeding, although he could always choose to abstain on other grounds, as Feder’s letter points out. It would be extremely unfortunate if he chooses to do that. He may feel like he’s under tremendous political pressure from Dingell and others now, but he will be under a lot more pressure next year.
For more information on FCC recusal analysis, see “The Regulatory Process: Deadlocks and Commission Recusals,” by Bruce Fein of The Lichfield Group.