Federal Communications Commission member Robert McDowell said Monday that he will not participate in the AT&T-BellSouth merger vote, claiming that doing so would violate an ethics agreement he signed upon entering the FCC job in June.
McDowell, whose vote was needed to break a 2-2 partisan deadlock, spelled out his reasons in a five-page statement that was issued in response to an effort by FCC chairman Kevin Martin to remove ethical constraints on McDowell.
"The American people … demand that public servants operate under the highest of ethical standards," McDowell said. "All too often, especially recently, they have been disappointed by those who hold public office. I hope this is one instance where they are not disappointed."
Martin turned to hand-picked FCC general counsel Sam Feder to establish the legal basis for McDowell to vote. Although McDowell said he wasn't criticizing Feder, he did say that he found Feder's work insufficient to justify casting the deciding vote.
"While I expected the legal equivalent of body armor, I was handed Swiss cheese," he added.
McDowell has been legally barred from the $80 billion telecommunications merger because his immediate former employer, a telecommunications trade group called COMPTEL, is opposing the merger and demanding conditions.
McDowell's move means that AT&T and BellSouth have to navigate the deal past four FCC members, two Republicans and two Democrats. Among other things, Democrats Michael Copps and Jonathan Adelstein have demanded Internet network-neutrality conditions that go beyond the agency's four consumer-centric broadband principles. Several cable companies have demanded that the FCC ensure fair treatment of cable's voice-over-Internet-protocol traffic.
"I urge all of them to resolve their differences as soon as possible," McDowell said, adding that his absence should not be used "as a pawn to forgo meaningful and sincere negotiations."
Incoming House Energy and Commerce Committee chairman John Dingell (D-Mich.), who called McDowell "a man of principle" for staying out, urged the agency to reach closure on the deal through compromise.
"The continued recusal of commissioner McDowell should not be viewed as an opportunity for individual commissioners to extract carte blanche from the merging parties," Dingell said in a prepared statement. "It is in the interest of the public and, in particular, the companies' workers that this matter is brought to a fair and timely resolution."
In a prepared statement, AT&T gave no indication that it would stop bargaining at the FCC, which is the last regulatory hurdle before the deal can close.
“We have sought the support for this merger from every member of the [FCC] since the very beginning and we will continue to do so. We will -- as we have always done -- do our part to bring the merger review to a bipartisan completion as quickly as possible," an AT&T spokesman said.