It's funny what different news services choose to focus on when reporting the same situation. Thomas Barnett, assistant attorney general at the Justice Department, was asked about the Sirius-XM merger review at a congressional hearing yesterday, yet two media outlets each have an entirely different take on what was said.

The Denver Post is reporting that DOJ officials need more information to determine whether the proposed merger of Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc. would hurt consumers.

"I can't give you an exact time frame," Barnett told Rep. Ric Keller, at a hearing of the House Judiciary Committee's antitrust task force.

Meanwhile Reuters is reporting that the Justice Department is moving "as quickly as possible" in its antitrust review.

"We want to do that as quickly as possible, but we also want to get to the right answer," Barnett told lawmakers.

Bank of America analyst Jonathan Jacoby chose to focus on the former statement in a note issued this morning.

"The big question is what does 'more information' require for the merger process at the DOJ? Will it require more documentation from the companies or just more time by the DOJ to review the submitted documents?" wrote Jacoby. He also noted that Bank of America has not had the chance to speak with their regulatory contacts this morning.

Jacoby pointed out that while the delay could be minimal, "it could also be longer than the market would anticipate." Adding that it would likely take longer than the 15-45 days that the street is hoping on.

Bank of America's contacts put the chances of the satellite radio marriage receiving regulatory approvals before the end of 1Q08 at ~30%.

[Reuters, The Denver Post]

If you missed Mel Karmazin's presentation at the Merrill Lynch Media & Entertainment Conference this morning, and subsequently learned the archived audio is no longer archived, there's a few writeups 'round the interweb you can read... each with their own take.

Forbes focused on how Karmazin discussed the fundamentals of Sirius' business strategy. From the goal of ad revenue reaching 10% of total revenue, to key growth drivers like factory-installations, to Sirius Backseat TV; Forbes actually gives a good rundown of some highlights.

CNN Money Blogs took the merger angle, shining the spotlight on Mel's response to Merrill Lynch media analyst Jessica Reif Cohen introduction. "How dare you say XM is our only competitor?" said Karmazin. "We compete with terrestrial radio and Apple’s iPod in a robust digital entertainment market."

Radio Ink, on the otherhand, decided to point the finger at the Sirius Satellite Radio, Inc. CEO's statement that the XM-Sirius merger would lead to lower costs to consumers, and thus be "good for the country." (Likely in the public-interest sense, and not in the geo-political sense... but ehh, it makes for good headlines.)

Amazingly though, Radio Ink did include Karmazin's statement that Sirius competes "with the Clear Channels and CBS's of the world, and ... we are the fifth-largest radio-revenue company today." SiriusBuzz posted a slide from the presentation illustrating this.

Thanks Gary!

Two class action lawsuits were filed against Sirius and its directors in New York County Supreme Court, according to a recent SEC filing.

The two lawsuits, filed on March 14th and March 20th, allege that Sirius breached their fiduciary duties and engaged in self-dealing by agreeing to merge Sirius with XM at an unfair exchange rate.

Brockwell v. Sirius Satellite Radio, Inc. (Index No. 60019/07) and Johnson v. Sirius Satellite Radio, Inc. (Index No. 600899/07) more specifically allege that in agreeing to merge with XM, the directors failed to adequately account for and consider:

1. The true value of Sirius and XM
2. Certain XM litigation and regulatory liabilities
3. and the impact of concessions that Sirius and XM would need to make in order to obtain antitrust approval for the merger.

Brockwell and Johnson seek an order to prohibit Sirius from consummating the merger with XM and an award of attorneys’ fees.

Shortly after filing the original complaints, Brockwell and Johnson advised Sirius that they intend to file an amended and/or consolidated class action complaint. As a result, on June 11th, Sirius entered into a stipulation requiring plaintiffs to move to consolidate their actions within 30 days, and to file an amended and/or consolidated complaint within 30 days from the date the court enters a consolidation order.

So far, the plaintiffs have not moved to consolidate or amend their actions.

[via Orbitcast Forums]

Investment analysts and the Street are increasingly optimistic over the probability of the Sirius-XM merger going through. The latest comes from Tom Watts of Cowen & Company who issued a client note this morning stating that approval could come as early as October.

Watts also placed the likelihood of approval is being the "best ever."

Citing a strong precedent from the Whole Foods merger, along with the FCC’s rebuttal period being closed, Cowen & Co said that they "expect FCC approval before Dec. 4." In fact, Cowen & Co expects approval of the deal in October is possible.

Watts noted that the arb spread has narrowed to 11.8% from over 20% in only a few weeks, adding that it could be even lower.

XMSR and SIRI are both up in early market trading.

Today, both Sirius Satellite Radio (SIRI) and XM Satellite Radio (XMSR) certified with the DOJ that they are substantially compliant with its Second Request, it was revealed in a recent SEC filing.

The certification was made to the Antitrust Division of the U.S. Department of Justice that they are in substantial compliance with its Request for Additional Information. Last we heard, both XM and Sirius were in the midst of the document productions for the DOJ in response to the second request.

"I think we paid a little bit over $1 million just for photocopying the material that we had to send them, and that doesn't include any of the electronic [filiings]," said CEO Mel Karmazin during Sirius' 2Q07 earnings call.

"Generally in a relatively short period after [certifying], you then get some indications from the DOJ how that is going," said XM Chairman Gary Parsons during XM's 2Q07 earnings call.

[SEC Filing]

The proposed merger between Sirius Satellite Radio (SIRI) and XM Satellite Radio (XMSRS) may have lost momentum in receiving its necessary regulatory approval, according Bank of America analyst Jonathan Jacoby.

The problem, according to Bank of America's D.C. contacts, lies in Sirius-XM's joint reply comments on changing the "rule" that prevents either satellite radio provider from merging (also known as the regulatory "Achillies heel"). Jacoby wrote in the client note that the D.C. contacts felt Sirius and XM's joint arguments "were somewhat weak," while the NAB's comments argued the merger could "set a precedent that would encourage a wave of media consolidation."

Sirius and XM filed their reply comments for the Notice of Proposed Rulemaking (NPRM) to the FCC late last week. You can read the filing here (PDF).

Bank of America's contacts in D.C. saw Sirius/XM's filing as simply a request to repeal the decade-old rule, and "lacked the substance" that the Federal Communications Commission likely would require.

Meanwhile, the NAB's filing told a different story. They argued that if satellite radio is considered part of a great audio entertainment market, then this would set a precedent, and the FCC should abolish media ownership restrictions as well. If the FCC simply waives the rule, they risk losing - again - on ownership issues at the courts.

You can read the NAB's filing here (PDF).

The potential precedent this merger would set - for both the FCC and the DOJ - could very well be the biggest obstacle for Sirius and XM in trying to get this deal to pass. It's also by far the NAB's best argument yet (and a break away from the consistent "merger to monopoly" line), but playing this card also puts their goals for further media consolidation at risk.