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By Marguerite Reardon, 11 December 2006 08:40

NEWS

The head lawyer for the US Federal Communications Commission (FCC) has paved the way for commissioner Robert McDowell to break the deadlock on the mega-merger between AT&T and BellSouth, despite his recent affiliation with an organisation strongly opposed to the deal.

Samuel Feder, general counsel for the FCC, issued a memorandum late last week clearing the path for McDowell to participate in the vote. Feder said he based his decision on a similar situation the FCC dealt with under then-chairman William Kennard.

The Commission has been split between Democrats and Republicans on what, if any, conditions should be imposed on the merger, which is currently valued at around $83.7bn. The two Democratic commissioners would like to see more restrictions, including a provision to protect net neutrality, which would bar companies from prioritising web traffic or charging extra fees for providing enhanced services over a network.

The deadlock has resulted in the final vote on the merger being postponed three times. McDowell, a Republican, would cast the tiebreaking vote.

McDowell recused himself from the process, however, because just prior to joining the FCC earlier this year, he had been a lobbyist for seven years for a trade organisation called CompTel, which represents companies competing against the incumbent phone companies. CompTel has been one of the strongest opponents to the merger.

While Feder has authorised McDowell to vote on the deal, he emphasised several times in the memorandum he sent to McDowell that it was ultimately McDowell's decision whether to participate in the proceedings or not.

He said: "Balancing competing concerns here was difficult. And reasonable people looking at these facts could disagree about the appropriate result. However, on balance, I find that you should not be barred from participating in the proceeding if you so choose to do so."

McDowell said in a statement that he is reviewing Feder's opinion.

AT&T and BellSouth said they had no objection to McDowell voting on the merger. In a letter to the FCC's general counsel, they said they trusted McDowell to live up to his pledge at his Senate confirmation hearing - to be impartial and fair.

Marguerite Reardon writes for CNET News.com