WASHINGTON (AP) Two powerful Democrats on Capitol Hill Tuesday night sharply questioned a move by the chairman of the Federal Communications Commission to allow a fellow commissioner who had claimed a conflict of interest to vote on the nation's largest telecommunications industry merger.
Sen. Daniel Inouye, D-Hawaii, wrote FCC Chairman Kevin Martin expressing "disappointment" in Martin's "apparent willingness to waive government recusal rules" to allow former lobbyist and current commissioner Robert McDowell to vote on the proposed merger of AT&T Inc. and BellSouth Corp.
Rep. John Dingell, D-Michigan, along with Rep. Ed Markey, D-Massachusetts, sent a letter to the FCC's general counsel asking 15 pointed questions about past precedent of such recusals and other issues.
Their dismay takes on added significance because the Democrats will take control of Congress in January. Inouye will be chairman of the Senate Commerce, Science and Transportation Committee and Dingell will chair the House Energy and Commerce Committee. Both committees oversee the FCC.
Late Friday, with the commission deadlocked on AT&T Inc.'s proposed $82 billion acquisition of BellSouth Corp., Martin, who favors approval of the deal, told members of Congress that he had asked the FCC's counsel to consider whether to allow McDowell to vote.
McDowell, one of three Republicans on the five-person commission, had recused himself because he is a former lobbyist for a trade group that opposes the merger. Despite that background, Martin is betting McDowell will cast a deciding vote in favor of the deal.
The two Democratic commissioners are demanding the companies offer concessions to ensure the deal won't harm consumers. The Justice Department approved the deal without requiring such concessions.
Inouye, who has been largely quiet on the issue, said waiving the rules and allowing McDowell to vote would derail negotiations over concessions he said were necessary to preserve competition.
He urged Martin to reconsider his decision and "return to serious negotiations with your other colleagues."
In his letter to FCC General Counsel Sam Feder, Dingell and Markey asked what it officially means to be at an impasse and whether it is possible to reach that point since no formal vote has been held.
Neither Inouye nor Dingell have the authority to stop the FCC vote from occurring, but as the chief congressional overseers of the FCC, they are in a position to make life difficult for the chairman.
McDowell once worked for the trade association COMPTEL, which represents companies that compete with AT&T and the other regional Bell phone companies.
Democratic commissioner Michael Copps said allowing McDowell to vote would be "taking a mulligan" and "starting over with a changed set of players." He said the move would "create more problems than it resolves" and "short circuit discussions, and very likely shortchange consumers."
Commissioner Jonathan Adelstein, also a Democrat, said Martin was trying to cut short negotiations "about measures to safeguard choice and competition for consumers."
Federal ethics regulations permit the FCC's general counsel to clear McDowell to vote as long as the government's interest outweighs concerns about how the vote may affect the agency's integrity.
It is unclear how long it will take for the general counsel to reach a determination on whether McDowell should be allowed to vote. The commissioner, who has declined to participate in any conversations about the pending deal, would need time to get up to speed, if he participates.
The next FCC meeting is scheduled for December 20th. Dingell and Markey have asked for responses to their questions by December 11th.