Of Swiss cheese and pot shots

So it was that FCC Commissioner Robert McDowell last Monday delivered his lyrical oratory about why he would continue to forbear from deliberations of the $79 billion AT&T-BellSouth telecom deal. Democrats on Capitol Hill hailed McDowell, a Republican, for maintaining his integrity amid the unseemly politics surrounding his agency’s consideration of the transaction. The FCC’s own Mr. Smith.
Not so fast.
McDowell, a former lobbyist for the Comptel group whose members compete against the Bells, tore into FCC General Counsel Sam Feder’s legal memo authorizing the former’s involvement in the merger review. McDowell, sidelined since August because of conflict-of-interest baggage, was quick to dispel any notion he was criticizing Feder or his staff for a memo amounting to “an ethical coin-toss frozen in mid-air.” McDowell then resumed his diatribe against the Feder memo.
McDowell was aghast the Feder memo failed to disclose a pre-existing ethics agreement disqualifying the newest FCC member for one year from participating in any matter in which Comptel is a party or represents a party-no exceptions. But McDowell and his staff also kept this fact quiet during this merger merry-go-round. Why?
McDowell pointed to the aforementioned ethics agreement as just one factor supporting his decision to remain a spectator in the FCC’s analysis of the AT&T-BellSouth merger, unconditionally approved by the Justice Department in October. McDowell also said he afforded great weight to Office of Government Ethics Director Robert Cusik’s unofficial musing about the former’s merger participation not being such a hot idea. Moreover, McDowell said he was not encouraged by the assessment of the situation from his personal ethics counsel at the Virginia State Bar.
Against this backdrop of advice from the wise men and McDowell’s own inclination at the outset to steer clear of the merger milieu, McDowell candidly proclaimed he expected a memo from Feder making “a strong, clear case” for his participation. But, lamented McDowell, instead of “the legal equivalent of body armor, I was handed Swiss cheese.”
This tragedy is all Greek to me. If ethics experts believed McDowell shouldn’t get dragged into the merger controversy-even if that meant breaking a 2-2 partisan deadlock-how in the world was Feder to write a slam-dunk memo. Quite the contrary. Feder arguably made the best call painstakingly possible under the circumstances. Feder is not the heavy here. Neither is FCC Chairman Kevin Martin nor Democratic Commissioners Michael Copps and Jonathan Adelstein. The AT&T-BellSouth merger is messy, important stuff.
McDowell observed that because the heretofore question of his unsettled status appeared to be used as another excuse for delay and inaction (a not-so-subtle jab at his Democratic colleagues), he would remove that factor from the equation. What valor! It’s poor taste enough that McDowell ascribed motives to unnamed commissioners examining the merger, but just one question: How would McDowell know? He’s supposed to be recused.