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From The Nation, December 5, 2006
By John Nichols

The Federal Communications Commission is supposed to be made up of five independent members who serve in the public interest.

But FCC chair Kevin Martin, a Bush White House retainer who reportedly entertains notions of running for the governorship of his native North Carolina with a campaign war chest full of telecommunications-industry contributions, is now attacking the basic structures of the FCC in order to deliver for the corporations he hopes will someday be his political benefactors.

Martin has ordered the commission’s lawyers to come up with a scheme that would force another Republican commissioner, Robert McDowell, to “unrecuse” himself from voting on a massive merger between telecommunications giants AT&T and BellSouth.

Prior to joining the commission in June, McDowell represented a telecommunications corporation, CompTel, that has engaged in lobbying with regard to the merger. As such, McDowell has a classic conflict of interest. He acted appropriately when he recused himself from the merger vote.

Martin, who still hopes to secure FCC approval of the merger this year, is now trying to get McDowell to act inappropriately — and, presumably, in a manner that will please Martin’s corporate masters.

Martin’s move has already drawn rebukes from members of Congress who follow telecommunications issues. “I believe that forcing a Commissioner to participate in a proceeding in which he or she would otherwise be recused is an extraordinary notion for an independent, impartial regulatory agency,” said Representative Ed Markey, D-Massachusetts, a key player on the House Energy and Commerce Committee who is seeking the chairmanship of the Subcommittee on Telecommunications and the Internet. “Agency Commissioners must exercise independent, impartial, and unbiased judgment in matters before the Commission.”

Pennsylvania Democrat Mike Doyle, another well-regarded member of the Subcommittee on Telecommunications and the Internet, wrote to Martin that, “While I take no position on the merger proceeding itself, I feel very strongly that this request to unrecuse Commissioner McDowell would set the Commission on a treacherous course toward an unacceptable precedent.”

“The recent November elections were, in part, about holding our government officials to the highest ethical standards,” added Doyle. “When public servants have identified and recused themselves from legitimate conflicts of interest, they should be commended for upholding the highest standards of public integrity that are required of all government appointees. The recusal option gives the public the fullest possible confidence that agency appointees and other public servants will impartially decide upon the issues before them.”

That’s Government 101 stuff. But Martin — a former telecommunications-industry lobbyist who earned his spurs with the administration when he joined the team that helped swing the 2000 Florida presidential recount in Bush’s favor — is not respecting the signals from Congress.

Rather, the FCC chair is pressing ahead with his extraordinary initiative.

Martin needs McDowell’s vote because the FCC is split on the merger question. Martin and a fellow Republican commissioner, Deborah Taylor Tate, support the merger. Democratic commissioners Michael Copps and Jonathan Adelstein have refused to support the merger because they want network neutrality provisions attached to the arrangement.

Network neutrality is the first amendment of the internet. It prevents telecommunications corporations from rigging the web so it is easier to visit sites that pay for preferential treatment. And it is under attack from internet service providers that want to set up a system of two-tier internet access — with an information superhighway for sites that pay premiums to the providers and the digital equivalent of a dirt road for sites that cannot afford to pay the toll.



The issue is of particular significance to the potential AT&T-BellSouth merger, as approval of the deal would make AT&T the world’s largest telecommunications company. The merger would give AT&T 9.1 million DSL broadband customers, which is roughly the same number of high-speed Internet subscribers as industry-leader Comcast.

To AT&T-BellSouth merger to go ahead without binding and permanent net neutrality protections would set a precedent that is all but certain to undermine basic protections for all consumers who utilize internet services.

Because the issues are so momentous, Markey says that, even if Martin succeeds in forcing McDowell to vote, the commissioner should refuse to cooperate with the scheme.

“If the FCC General Counsel takes action to compel Commissioner McDowell’s participation,” says Markey, “I strongly urge Commissioner McDowell to announce his intention to vote to abstain as a matter of principle.”

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