Monday, December 18, 2006

Robert McDowell and the Public Interest Standard

FCC Commissioner Robert McDowell has decided, based upon the terms of his Ethics Agreement, the independent view of the Office of Government Ethics, the Virginia State Bar ethics counsel and, most importantly, his "own personal sense of ethics," that he cannot participate in the consideration of the AT&T-BellSouth merger application. In the face of a present 2-2 deadlock among the remaining four commissioners concerning the merger, the FCC's General Counsel last week had authorized, but not required, McDowell's participation to break the current stalemate.

I happen to believe the merger should be approved promptly without resort to conditions, such as imposition of net neutrality mandates that have nothing to do with competitive concerns raised specifically by the merger. As I have written many times before, it is only because the Commission considers mergers under the indeterminate "public interest" standard that commissioners are able to range far afield from concerns related uniquely to the merger and consider matters much more appropriately considered in an industry-wide generic rulemaking. The Commission's handling of this case is Exhibit A (or more correctly probably X, Y, or Z) as to why the merger review process needs to be reformed.

While the public interest standard as a delegation of congressional authority to guide FCC decisionmaking is highly problematical, the public's interest in having public officials guided by the highest ethical standards ought always to be of paramount concern. Even though another individual in good conscience and good faith might well have reached the opposite determination, in its thoughtfulness and eloquence, Commissioner McDowell's statement explaining his decision to remain recused from participating in the AT&T-BellSouth merger decision is a shining example of the proper way for a public servant to approach public service.

Long past when this specific merger, as important as it is, is decided one way or the other, Robert McDowell's example will remain a public interest standard that ought to be embraced by all.