The political process surrounding the pending merger of AT&T and BellSouth continues to get more complicated. On Friday, Sam Feder, general counsel to the Federal Communications Commission, authorized FCC Commissioner Robert McDowell to vote on the merger in order to break the current impasse. McDowell, a Republican, has recused himself from the merger vote because of his past activity as a counsel to Comptel, the lobby organization of competitive carriers. He could still decide not to vote, however, as he is being urged to do by merger opponents and Democratic lawmakers.

According to the National Journal, McDowell has sought the opinion of the Virginia Bar as to the legality of his voting on the measure at this point. Even if he decides to vote, he may need time to review the issues around the merger and the conditions that AT&T has agreed to, so a final decision at the FCC’s Dec. 20 meeting is not a sure thing.

FCC Chairman Kevin Martin had sought Feder’s authorization of McDowell’s vote under FCC rules regarding what happens when the commission hits an impasse. The FCC has been deadlocked 2-2 on the merger since this fall, when the Department of Justice approved the $89 billion deal without conditions. Martin and fellow Republican Deborah Taylor Tate favor the merger but Democrats Jonathan Adelstein and Michael Copps want to see more conditions imposed on AT&T to protect competition.

Democratic Congressional leaders, including Rep. Edward Markey (D-Mass), who will take over the House Telecommunications and Internet Committee on Jan. 2, and Sen. Daniel Inouye (D-Hawaii), who will become Senate Commerce Committee chairman, both opposed Martin’s move to get FCC recusal rules waived.

In statement, Markey said that “forcing a commissioner to participate in a proceeding in which he or she would otherwise be recused is an extraordinary notion for an independent, impartial regulatory agency.”

Earl Comstock, McDowell’s former boss at Comptel, stressed in his statement following Feder’s ruling that the new commissioner “is free to abstain and that course would best ensure that no party can claim he has taken action that is biased against them.”

Comstock said McDowell also could vote to hold a hearing on the issues currently in dispute, which include the need for Net Neutrality legislation.
“Such a course would ensure that all parties get a fair hearing and would provide the Commissioners with a Congressionally sanctioned means by which to resolve their differences,” he said.

Martin has been accused of trying to push the merger approval through before the Democrats take over Congress and take action to slow it down or stop it.

AT&T officials continue to press for speedy approval of the merger without further conditions – and particularly without tying Net Neutrality to the topic. On Friday, executive from 22 telecom hardware and software makers sent a letter to the FCC urging rapid approval of the merger. In a separate letter, Cisco Systems urged the commission to resolve the merger issue quickly, saying the delay was adversely affecting investments by AT&T, BellSouth and Cingular in broadband infrastructure.

“There’s no doubt that Net Neutrality is the reason this is being held up,” said Ron Spears, senior vice president of business sales for AT&T Global Services, in an interview conducted at the ITU Telecom World 2006 in Hong Kong last week. “That is a solution in search of a problem.”

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