A debate has been raging in the opinion pages of the Wall Street Journal on whether, in the WSJ’s editorial opinion, the FCC has been dragging its feet on approving the Sirius-XM merger, or, as former US Attorney General Dick Thornburgh wrote, it’s the satellite companies themselves who are to blame for the delay.
First off, the editorial writers at WSJ assailed the FCC for “foot-dragging” on the Sirius-XM merger, noting it had then been 451 days since the merger application was submitted. Noting pressure from Capitol Hill against the merger, the newspaper suggested that if the Commission won’t approve mergers without Congressional blessing, “why does it even need to exist?”
Communications attorney David Tillotson wrote in to let the folks at WSJ know that the delay wasn’t really so unusual and that some other matters had gathered dust at the FCC for far longer. “The XM-Sirius delay in inexplicable and unconscionable, but so are numerous other cases which languish at the FCC for no good reason other than administrative indifference, or incompetence, for years,” he said.
Now, former AG Thornburgh does have a dog in this fight. He has been consulting the Consumer Coalition for Competition in Satellite Radio (C3SR), which has aligned with NAB in opposing the satellite merger. In his letter to the WSJ, Thornburgh noted that the FCC would have to change its rules to approve the joining of XM and Sirius. “Approval of this merger also requires the FCC to do something unprecedented – to create a spectrum monopoly,” he wrote. Thornburgh charged that XM and Sirius are themselves to blame for some of the delays for their own foot-dragging in producing all of the documents the FCC needed to review. The former AG also suggested that if the satellite companies think no further review is needed, they should make public information submitted to the FCC under protective order. Sen. Byron Dorgan (D-ND) recently requested access to that material and raised questions about whether the satellite companies had misled lawmakers in hearings on Capitol Hill.
RBR/TVBR observation: Having observed the FCC’s repeated tactic of simply shelving a sensitive license transfer application that, under the Commission’s rules, it had no justification to deny, we were all for Congress pressing the Commission to establish the merger review clock that it now uses. But even with that clock, extraordinary situations take more time. If the FCC had moved quickly and taken action on the Sirius-XM merger request, the companies and their Wall Street cheerleaders would not have liked it. Under the existing rules, the only possible outcome would have been rejection of the application. Since XM and Sirius are requesting a rule change to make such a merger even possible, this is not a routine request by any stretch of the imagination.