You have to wonder if FCC Chairman Kevin Martin actually thought getting the FCC’s in-house counsel to ok the un-recusal of newest Republican commissioner Robert McDowell was all it would take to spring the AT&T-BellSouth vote loose. But after hearing a review of McDowell’s CSFB media week performance—I couldn’t make the session—it seemed fairly clear that this was no rubber-stamp Republican. Sure enough, McDowell sent Martin a five-pager today explaining why getting permission to be unethical, in his view, wasn’t enough to justify a vote. McDowell indicated as much after the counsel invoked the permission-to-vote clause when he said he would review the opinon and encouraged his colleagues to find a solution without him.
McDowell points out that he agreed with an original conflict of interest decision that he would abstain for one year post-confirmation from participating in any matter in which his former employer Comptel is a party or represents a party. Comptel is against the merger. He describes the opinion authorizing his vote as “ethical toin-coss frozen in mid-air ... while I expected the legal equivalent of body armor, I was handed Swiss cheese.” Upshot: “Now, my four colleagues have exclusive and unambiguous ownership of this important merger. ... Sadly, I fear that my recusal from this matter has been used as a pawn by some to forgo meaningful and sincere negotiations. Now that I am removing that chess piece from the board, I hope that the twin pillars of sound negotiations are restored: good faith and sacrifice.” Your move, Mr. Chairman.