FCC Chairman Kevin Martin (R), told reporters Friday he wants the merger vote at the next Commission meeting, but that’s still a hope, not a guarantee. The FCC Chairman also indicated that he would be open to further conditions in order to get two more votes to join him in approving the merger, but that none of the other Commissioners have yet laid out any concrete proposals.
Martin said he thinks he arrived at a fair bargain, referring to concessions the merged entity would make in return for permission to merge. They include subscription caps for three years, open receiver specs so any company that wishes can offer manufacture and distribute consumer equipment, and 4% channel capacity set asides each for minority and non-commercial/educational (NCE) services, amounting to 24 total channels.
None of the other commissioners have weighed in yet with alternative concession packages.
Meanwhile, the minority and NCE community continues to file commentary describing the set-asides each would get from the merged entity as wholly inadequate. Georgetown Partners in particular objects to Sirius using part of its spectrum to deliver video programming, all while claiming there isn’t enough room to provide adequate service to minorities/NCEs. Such groups point to the 20% set-aside policy used for the FM band as precedent, and are asking for 25% of XM-Sirius’s SDARS spectrum.
In fact, Georgetown has asked the FCC Enforcement Bureau to put a stop to Sirius’s video program, saying it constitutes an unlicensed use of the spectrum, which is allocated for audio-only programming. It is requesting an investigation “into Sirius’s misuse of spectrum”
Georgetown tied the two issues together, stating that it "adamantly opposes delivering to Sirius cartfulls of taxpayer dollars by granting spectrum flexibility for it to broadcast television, while at the same time Sirius denies that there is sufficient spectrum to provide for a satellite radio competitor such as that proposed by Georgetown … By Sirius’ own admission, its television service is planned to occupy up to 20% of its spectrum, so obviously 20% of the spectrum is available for something other than digital radio services and could be made available to provide competition. Doing so would go a long way to satisfying the competition requirements of the Commission’s public interest standard that must be met for the merger to be approved.”
State AGs also weighed in on the topic in a meeting with Commissioner Michael Copps. Led by Richard Blumenthal of Connecticut and Robert McKenna of Washington, and with staff members from Iowa, Kansas, Louisiana, Maryland, Missouri, Mississippi, Nebraska, Ohio, Oklahoma, Rhode Island, Tennessee and Wisconsin, objected to the merger on simple antitrust grounds. They argued that the two services were unique and said it was incorrect to simply lump them as direct competitors to every other audio device on the market.
RBR/TVBR observation: And the merger worm inches a few more body lengths ahead. Martin’s most reliable vote is probably Robert McDowell (R), an unabashed disciple of free markets who if anything may think Martin’s concession package excessive. Democrats Michael Copps (D) and Jonathan Adelstein (D), on the other hand, will likely require a much sweeter concession pot in exchange for an aye vote. The wildcard is widely believed to be Deborah Taylor Tate (R), whose own free market tendencies may be balanced by her music/broadcasting intensive Tennessee roots.