McDowell Shows Independence
New FCC Official Unexpectedly Defies Chairman

By Arshad Mohammed
Washington Post Staff Writer
Tuesday, August 8, 2006

Robert M. McDowell had not even taken his seat on the Federal Communications Commission when a curveball came whizzing his way.

Shortly before his June 1 swearing-in, McDowell learned he would soon have to vote on whether to require cable companies to carry more digital broadcast channels -- a controversial issue that has one big supporter in Washington: FCC Chairman Kevin J. Martin.

McDowell concluded that the FCC did not have the authority to force cable companies to do so and, in his third weekend on the job, told Martin, a fellow Republican, that he could not offer his support. In response, Martin issued a terse, Sunday evening press release conceding defeat.

Lawyers who follow the agency closely say McDowell's early record has served notice that he is an independent force at the FCC who is willing to defy the chairman.

His actions have confounded the conventional wisdom that once he became the third Republican on the five-member commission, he would give Martin a reliable majority at the agency, whose decisions can mean billions of dollars to communications companies.

FCC watchers also said McDowell may now emerge as the swing vote on the commission with considerable influence as it weighs decisions such as whether AT&T Inc., the nation's largest phone company, should be allowed to swallow up the third-ranking player, BellSouth Corp., in a roughly $67 billion deal.

"I think he wants to demonstrate his independence," said James H. Quello, who served as an FCC commissioner for more than 23 years.

Before McDowell's arrival, the FCC was often split between Martin and fellow Republican Deborah Taylor Tate on one side and Democrats Michael J. Copps and Jonathan S. Adelstein on the other.

In addition to differing with Martin on the cable issue, McDowell has harshly criticized the agency in public and successfully prodded the FCC -- after more than a year of inaction -- to try to resolve the dispute between Mid-Atlantic Sports Network and Comcast over airing the Nationals' games.

"The FCC has not been doing its job," McDowell said bluntly at the July 13 meeting at which the FCC adopted his proposal giving Mid-Atlantic the right to seek commercial arbitration to settle the dispute. He said Mid-Atlantic's complaint to the FCC about Comcast's refusal to carry the games -- a sore spot for many area fans -- had apparently "been left to rot in some lost crypt inside this building."

A few weeks after McDowell's criticism, Martin proposed that Mid-Atlantic be given a choice between sending the dispute to an arbitrator or to an administrative judge under the FCC's supervision.

The two companies reached a private agreement Friday, the deadline the FCC set for Mid-Atlantic to make its choice.

McDowell said that his criticism was not aimed at Martin and that they had discussed it -- though not the exact phrasing -- in advance. Both men said that they have a good working relationship and that some policy differences were inevitable.

"I have known and worked with Rob for years. . . . Rob's energetic, he knows the telecommunications industry extremely well, so he is knowledgeable about the issues. I think that he is someone who adds a lot of value here at the commission," Martin said in an interview. He said he didn't know McDowell would be confirmed when he floated the cable proposal.

"Kevin Martin and I have been friends for close to a decade and have a strong, durable and resilient friendship. We have a similar conservative philosophy that helps guide our decisions, and the vast majority of the time, we will be in agreement but, perhaps, every now and then, we will disagree," McDowell said. "That's why there is a five-member commission."

"I am not consciously trying to signal anything other than I am trying to do the best possible job that I can do and be thoughtful," he added. "This isn't part of some plan; it is more happenstance."

Whether by accident or design, soon after McDowell differed with Martin on the cable issue, Martin threw him another hot potato.

The next week, McDowell was told by FCC General Counsel Sam Feder that he was expected to vote on a second controversial matter.

The general counsel's office had previously recused McDowell from voting on a request by smaller companies that the FCC restore their access to parts of the big phone companies' networks. McDowell's former employer had lobbied the agency on the matter.

Under government ethics rules, new commissioners are exempted from voting on such matters for a year after joining the FCC to avoid an appearance of impropriety.

The decision to reverse a recusal rarely occurs at the FCC. It put McDowellin a difficult position, where any vote could have exposed him to criticism for bias or inconsistency.

The new commissioner also could have abstained, which would have amounted to publicly differing with Martin twice in his first month at the FCC.

"There were very real legal and policy reasons given as to why I should be 'unrecused' from that proceeding, and I took all of those at face value," McDowell said, adding that he did not believe Martin deliberately put him in a difficult position.

Martin said the decision to withdraw McDowell's recusal reflected a desire to break the commission's 2-2 deadlock. In the end, the companies that brought the matter to the FCC withdrew it, sparing McDowell from a vote.

"At the end of the day, the withdrawal was as much as anything an agreement not to put the newly confirmed commissioner, McDowell, in a very difficult position. The chairman's office had put him in that position and we took him out of it," said Brad E. Mutschelknaus, who represents the smaller telecom companies.

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