Likely FCC nominee Robert M. McDowell's filings with the Federal Communications Commission in the late 1990s reveal a scrappy lobbyist who enjoyed direct access to top FCC officials and on more than one occasion scolded them, describing their decisions as "inconsistent and capricious."

For years McDowell has worked as an advocate for two organizations: Comptel, the Competitive Telecommunications Association, and America''s Carriers Telecommunications Association (ACTA). Both groups represent Competitive Local Exchange Carriers (CLECs), upstart phone companies that the Telecommunications Act of 1996 mandated must be allowed to connect to the infrastructures built by Incumbent Local Exchange Carriers (ILECs), many of them Regional Bell Operating Companies (RBOCs).

McDowell took a break from his work in 2000 to serve as part of the legal team for the Bush-Cheney ticket during the 2000 Florida recount crisis. He has unsuccessfully run for Congress. Reuters news service reported on Monday, January 23rd that President Bush plans to nominate McDowell to the last vacant Commission seat on the FCC.

As an advocate for CLECs in the 1990s, McDowell pushed deregulation. He called for "radically revising the [telecom] access system to reflect contemporary economic realities." But just as often he advocated more regulation if it suited the needs of his clients.

Truth, Slamming, and Cramming

The late 1990s saw an uproar over how confusing telephone bills had become since Congress enacted the Telecommunications Act of 1996. McDowell played a role in setting FCC policies that addressed these problems. In 1998, over 60,000 consumers called, emailed, or wrote the Commission "expressing confusion, anxiety and concern about their telephone bills," in the FCC''s own words. Many had been "slammed" by small telephone companies—their carrier switched without their permission. Others had been "crammed"—fooled by misleading information about their telephone bills.

So on April 15, 1999, the FCC set forth its "truth-in-billing" policies. The Commission ordered the telecom industry to "clearly identify" service providers, provide bills "containing full and non-misleading descriptions of charges that appear therein," and make "clear and conspicuous disclosure" about details consumers might need to question or contest the bill's charges.

Five months before the FCC adopted these policies, however, McDowell sent FCC Commissioner Kevin Martin, now the Chair of the Commission, an ex-parte presentation regarding slamming. He urged the FCC to adopt the "Voluntary Code Concept" regarding the problem, which, he argued, "comports with the 1996 [Telecommunications] Act's de-regulatory intent."

McDowell's presentation also asked the Commission not to punish slammers by anything harsher than 30 days of free long distance charges. And he argued that states should not be allowed to establish anti-slamming rules that were tougher than federal rules.

A week before the FCC issued its truth-in-billing policies, McDowell personally met with the FCC. He spoke with representatives of three FCC Commissioners about their impending decision, including an Assistant to then FCC Chief William Kennard. McDowell urged the Commission to issue guidelines, rather than specific rules about truth-in-billing. The latter would impose "compliance costs" on Local Exchange Carriers, he warned in a bullet point list of suggestions. "Bills that are micro-managed by government are likely to produce lengthy documents that actually frustrate policy by being too complex."

McDowell urged the Commission "not to adopt rules mandating the segregation of service providers and types of services" in bills. He opposed billing in which "deniable and nondeniable charges must be distinguished." That requirement, he claimed, "would only embolden subscribers who wish to withhold payment." His list of proposals opposed efforts "to regulate the content of bills in any detailed fashion vis-a-vis description of charges," arguing that some consumers would try to duck their charges by "gaming" the system—repeatedly disputing the accuracy of bills just to get out of paying. "Furthermore, carriers enjoy First Amendment protection of their commercial speech."

A week later the FCC issued truth-in-lending guidelines that echoed McDowell's philosophy. "Our decision to adopt broad, binding principles, rather than detailed, comprehensive rules, reflects a recognition that there are typically many ways to convey important information to consumers in a clear and accurate manner," the FCC declared.

McDowell didn't get everything that he wanted. The FCC still ordered segregation of some charges and rejected a purely voluntary approach. But he got a lot. The FCC declared that their guidelines responded "to the concerns of many carriers that detailed regulations could increase their costs."

McDowell the regulator

But while McDowell urged voluntary codes to deal with slamming and cramming, he encouraged the FCC to get tough when it came to regulating the access charges that Regional Bell Operating Companies charged his clients. On October 26, 1998 he submitted comments to the FCC on "access charge reform" that excoriated the FCC''s policies towards CLECs, calling them "inconsistent and capricious" and "capricious and arbitrary."

In brief, McDowell charged that the FCC had taken too lenient and flexible approach to regulating the access toll rates that the Bell companies charged smaller competitive local exchange carriers. He cited and agreed with earlier FCC studies suggesting that "relying purely on market forces might not fulfill Congress's goal of breaking up the local monopolies," since RBOCs like BellSouth appeared not to be cooperating with the access provisions in the Telecommunications Act.

McDowell demanded that the FCC use stricter formulas for determining rates that established carriers charge CLECs for access to their networks. " . . . it is inconsistent and capricious for the Commission to conclude," he scolded, "that local competition does not exist, and simultaneously opine that competition is sufficient to bring access charges down to true cost . . . "

McDowell also called for tougher regulation on Internet Service Providers (ISPs) that were just starting to get into the Internet telephone business. On March 27, 1997, he submitted comments to the FCC complaining that his clients, interexchange carriers (IXCs), were now competing with ISPS "that do not have to pay for their ride."

Speaking on behalf of ACTA, he argued that IXCs and ISPs were doing the same job "and should therefore bear the same or equivalent infrastructure support obligations." He protested the fact that ISPs did not have to pay access charges to RBOCs or even pay into the Universal Service Fund, a progressive tax on long distance calls that subsidizes low income telephone use. "[T]he Commission has no choice but to treat Internet phone providers in the same manner as it does ''traditional'' IXCs," McDowell's statement concluded.

McDowell the FCC Commissioner?

Even though President Bush has not yet formally nominated Robert M. McDowell to the FCC, industry leaders are praising the choice. "It goes without saying that if McDowell is nominated it will be a big win for consumers in 2006 as I expect McDowell to be pro competition," wrote Rich Tehrani, president of the media news company TMCNet, last week. "Not faux competition with concepts like tiered-Internet services being thrown around in an effort by incumbent providers to hold content providers and consumers hostage." Alaska Senator Ted Stevens (R), chair of the crucial Senate Commerce Committee, also says he supports McDowell.

But once ensconsed at the Commission, McDowell will have to prove whether he is really pro anything besides the clients he has represented over the last decade, alternately using the rhetoric of deregulation or government mediation, depending on which suited his immediate needs.