Republican Commissioner Robert M. McDowell can vote on AT&T's proposed buyout of BellSouth, a Federal Communications Commission attorney has ruled.

"On balance," explained FCC General Counsel Samuel Feder on Friday, "I find that you should not be barred from participating in this proceeding if you choose to do so."

Until now, McDowell had recused himself from the matter because, prior to his appointment to the Commission, he worked for CompTel, a trade association that opposes the merger. But Feder cited a previous case in which an FCC Commissioner had taken part in a proceeding even though he had lobbied on the matter prior to his joining the agency.

In the 1990s former FCC Chair William Kennard voted on an issue involving the Commission's personal attack rules, despite, according to Feder, Kennard's having once represented a group involved in the dispute.

"Chairman Kennard previously participated as an advocate in the very same proceeding, while you never participated in any way in this proceeding on behalf of CompTel," Feder wrote. "And I find the Government’s interest in your participation here to be at least as strong as the Government’s interest in Chairman Kennard’s case."

The decision means that McDowell can break the five member FCC's 2/2 deadlock over whether AT&T can purchase BellSouth, creating an entity that will serve up about half the land lines in the United States and own Cingular Wireless.

But in his ruling, Feder advised McDowell that he does not necessarily have to participate in the decision.

"An FCC Commissioner nominated by the President and confirmed by the Senate is always free to abstain from participating in and voting on a proceeding, and there is no impediment to your exercising that prerogative here," he wrote. "This authorization thus allows you to make your own decision."

In a public statement praising Feder's ruling, FCC Chair Kevin Martin made clear that he obviously expects McDowell to step in on the decision.

"It is in the interest of the government and the American people to move this matter forward in a timely fashion," Martin said on Friday. "To that end, I look forward to working with all of my colleagues here on the Commission to reach a consensus."

Whether a consensus is reached or not, the FCC may vote on the AT&T question at its next Open Commission meeting, scheduled for December 20th. The agency has not posted the meeting's agenda yet.

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