Without getting too far afield from our main topic here, FCC Commissioner McDowell did the right thing (PDF): It doesn't matter whether you support or oppose the condition-free merger of AT&T and BellSouth. Robert McDowell shouldn't vote on the matter, and he agrees. I was stunned when President Bush appointed McDowell to the FCC to one of its three Republican seats (the other two are held by Democrats) because McDowell was working for a group representing CLEC, or competitive local exchange carriers. CLECs stand in opposition to the former Baby Bells, the ILECs (incumbent local exchange carriers).

The merger affects Wi-Fi and WiMax because the two ILECs collectively own Cingular, AT&T has deployed a substantial Wi-Fi hotspot network, and BellSouth has pushed out some WiMax and owns 2.3 GHz and 2.5 GHz licenses.

While McDowell can be as fair as possible, he's in a position to know and dislike the games that ILECs play. Further, I wondered how he could vote on a number of major issues involving ILECs. Turns out, McDowell agrees can he can't vote on this matter.

With a 2-2 loggerhead between the other four FCC commissioners, the FCC's chair broached the subject of un-recusing McDowell. An extremely weak set of arguments to allow McDowell to vote issued forth from the FCC Office of General Counsel--which previously had prepared his ethics statement on taking office in which he specifically agreed to not vote on any matters involving Comptel, the trade group he worked for.

It's lovely to know that someone in his position in government, ostensibly appointed in part for partisan and pro-business attitudes, could state the following:

"In all candor, however, I had expected a memorandum making a strong and clear case for my participation. Instead, the Authorization Memo is hesitant, does not acknowledge crucial facts and analyses, and concludes by framing this matter as an ethical coin-toss frozen in mid-air. The document does not provide me with confidence or comfort. Nor does the December 11, 2006, letter responding to the questions posed by Representatives Dingell and Markey. I must emphasize that in no way should anyone interpret my observations as a criticism of Mr. Feder or his staff. As indicated in the Authorization Memo, reasonable minds can differ on this matter. Nonetheless, while I expected the legal equivalent of body armor, I was handed Swiss cheese."

If I were 100-percent in favor of the AT&T-Bellsouth merger--which will inevitably occur--I still would be pleased at this level of ethical behavior.

The likely outcome now is that the FCC will require substantially more conditions for the merger than AT&T and BellSouth want. The Democrats on the commission have consistently demanded something more than "it's good for everyone" as a condition of large telecom mergers.