The NAB has filed a Reply to Opposition (PDF) with the FCC disputing Sirius-XM's proposed A La Carte packages.

But the notable part doesn't lie in the filing itself, rather in the fact that comments posted to Orbitcast are actually quoted in the filing. So before we continue, let's give a full round of applause for Joe, Flap Jackson, PFreak, JohnG, and Mr. FancyPants.

I think it's a testament to the strong community here, and the encouraged open format for accepting opposing views. That we'd ever see the ridiculous medley of screennames actually being cited in an FCC filing is deserving as well.

Satellite Radio TechWorld puts it perfectly, the NAB has just "immortalized" the commenters here with this filing. It's proof positive that they read, not only what I'm writing, but what you are writing.

And that's the most important of all.

[Satellite Radio TechWorld] 

The NAB has launched a radio ad campaign on some local DC-area radio stations against paying performance fees. The performance fees would require terrestrial radio stations to pay the same royalties that Internet and Satellite Radio pay.

The radio ad, which can be heard by clicking here, contains so many ironies that it truly borders on comedy. Please give it a listen so you can feel the same rage I feel right now.

Yes, welcome to the hypocrisy that is the NAB.

Notice how they position themselves as small "local" radio stations? That they're the ones fighting off the big-bad music giants? I hope that those in Washington see through this line, because it's the same one they're using against Sirius and XM. And it's complete bullshit.

Even the stations this ad is airing on are owned by big radio conglomerates: WMAL-AM (Citadel), WTNT-AM (Clear Channel), WWRC-AM (Clear Channel) and WTOP-FM (Bonneville). Wait, how's that "local" thing work again?

If anyone has a monopoly, it's terrestrial radio. They enjoy government protected localism, a free ride on performance royalties, and over the last 10 years the NAB has spent $55 million in lobbying expenditures to protect these "rights."

Yeah, poor radio.

[Listen to the audio via the NAB] 

Dave Van Dyke, president of Bridge Ratings, yesterday wrote a fascinating entry in a recent blog post about the Sirius-XM merger and his personal take on its chances.

In it, he discusses how Bridge's research shows that sentiment for the merger has leaned more towards the positive side for current subscribers - but that non-subscribers still don't like it. This shows that Sirius/XM have done a good job of marketing the merger - internally. But that's hardly the interesting stuff in Van Dyke's post.

The meat and potatoes comes further into it, when he points that the NAB has essentially proven Sirius-XM's point about whether terrestrial and satellite radio compete.

"In the case of the NAB and Mr. Rehr in particular, he doth protest too much."

"...Mr. Rehr has firmly crystallized Mr. Karmazin's point that a merged satellite company is not a monopoly..."

Youch!

It's no secret that David Rehr has reluctantly become the champion for the Sirius-XM merger, but to hear it from someone within the radio industry? That's impressive. This isn't coming from a nattering blogger waving the Sirius-XM pom-poms (or even rogue bloggers who are trying to wake up the radio industry). This is coming from the head of a research firm that terrestrial closely follows.

"Was the approval of this merger terrestrial radio's to lose? I think so. The strategy was wrong. The NAB made the case for the other side."

The problem for Rehr and crew is that Dave Van Dyke is completely correct. But they've embarked down a path that is impossible to back out of. The damage is done. The NAB has no choice but to continue fighting as hard as they can (though they really do have bigger fish to fry). And the more they fight, the more they prove the opposing side's point.

[Navigate the Future] 

NAB President and CEO David Rehr is once again writing a letter to FCC Chairman Kevin Martin about the Sirius-XM merger. This time he's pulling out the old "sow's ear" adage to prove his point.

"...Sirius and XM announced a series of pledges designed to dress up the proposed merger-to-monopoly as a benefit to the public. But you can’t make a silk purse from a sow’s ear," Rehr wrote.

Undoubtedly this is language that will sway Martin in the NAB's favor. If that doesn't cut it, then the remaining scathing 5-page letter regurgitating the same old argument should do the trick. The harder the NAB tries to claim that satellite radio doesn't compete with terrestrial, the more it appears that they in fact do. A bird in the hand is worth two in the bush don't you think Mr. Rehr?

Now, I don't see calling the first-ever A La Carte offering a "shameless attempt to curry the favor of government regulators," as rubbing Kevin Martin the right way. Martin, afterall, has had A La Carte pricing on his agenda from the very beginning - and this could set precedence for the rest of the media industry. Don't burn your bridges Mr. Rehr, because you can't get blood out of a turnip.

On a personal note, a part of the letter that I truly enjoyed was when David Rehr brought up the "nattering voices of self-interested Wall Street analysts and online bloggers."

Come on Mr. Rehr, was that necessary? I'm hurt! Afterall, you can catch more flies with honey than with vinegar. I can tell you from self-interested experience, when life gives you lemons, make lemonade! Don't worry, your comments are like water off a duck's back.

[Read the full letter (PDF)] 

NAB President and CEO David Rehr wrote a letter to President Bush to "set the record straight" over performance fees that the music industry wants terrestrial to pay for.

The incident that Rehr is referring to occurred last week during Bush's visit to the Opryland Hotel in Nashville. Bush was asked about whether he would support changing the laws to let artists get paid royalties when their songs are played on over-the-air radio.

Bush's response? "I have, like, no earthly idea what you’re talking about."

Watch the video here:

It's a hilarious response. But one I think personifies how many Americans feel about performances rights. Most people don't understand how the system works. Most don't get it that performers don't get paid by radio stations when their songs are played. Nor should they, they just like to listen to the music.

I'm torn here, because it's like sleeping with the devil. On one side, SoundExchange is asking for ridiculous rates from Sirius and XM. But on the other side, I feel that artists should be compensated for their performances. If terrestrial was footing the bill, perhaps the burden of responsibility on satellite radio and internet radio would be less. Equal playing field. All broadcasters should be treated the same, digital or analog. There's no reason why terrestrial should be treated differently just because they dominate the market and are making a profit.

Rehr obviously doesn't see it that way. He sees it as a "symbiotic relationship" that has existed for the past 70 years. Even though these old laws put the United States up there with Iran, China, Rwanda, and North Korea (they don't pay performance fees either).

Isn't it time to rethink 70-year-old rules?

[Read full letter (PDF)] 

The NAB has fired a shot across the bow in strict defiance against the Sirius-XM proposed A La Carte pricing plan, by issuing the following statement:

"Policymakers should not be hoodwinked by today's announcement, since nothing is stopping either XM or Sirius from individually offering consumers a more affordable choice in limited program packages. Moreover, after reading the fine print, one discovers that XM and Sirius customers have to buy a new radio for an undisclosed fee to reap the alleged rewards from today's announcement.

"The history of antitrust law demonstrates that two hotly-competitive companies will promise anything to become a monopoly. That, coupled with the brazen lack of candor displayed by both XM and Sirius in breaking FCC interference and terrestrial repeater rules, illustrates convincingly that this anti-consumer merger ought to be summarily rejected."

It's funny to see comments like the above one coming from the NAB. Ah, the hypocrisy.

"Nothing is stopping them" from offering A La Carte pricing now? Yes, it's called a business case. ARPU may go down as a result of this offering, but that's presumably a direct result of the merger synergies. Mel Karmazin at the NPC Luncheon today said that nearly every line on the P&Ls show a cost savings. Combine that with some economies of scale characteristics, and ta-da! you have a business case.

Then they talk about a "brazen lack of candor"? Oh lord. Here's six letters for you... P-A-Y-O-L-A.

[NAB] 

The NAB yesterday asked the FCC to move forward in releasing information related to XM and Sirius's violations of FCC rules involving their FM modulators and terrestrial repeaters.

"The information at issue here is inextricably linked to the pending application of XM and Sirius to merge," that NAB said in yesterday's 8-page filing (PDF).

Earlier this year, the NAB filed a Freedom of Information Act request with the FCC seeking information related to the satellite radio companies' various rules violations.

"XM and Sirius may operate above the Earth, but they are not above the law. Their continued reluctance to fully disclose key facts related to past violations is yet another example of why these two companies should not be trusted with monopoly power," said Dennis Wharton of the NAB.

What is funny in this debacle is that the information isn't "secret" to the FCC. And the FM modulator and repeater tower issue garnered significant media coverage, so the only organization who benefits from this "unveiling" is the NAB. And the reason? As stated in an earlier letter to the FCC, the NAB wants to evaluate Sirius and XM's "character qualifications."

The NAB has given Douglas Wiley the newly created position of executive vice president of Administration and Agencies. Wiley, who was previously the NAB's executive vice president of Government Relations, will serve as the NAB's chief advocate before the Cabinet and federal agencies.

"Doug has spent more than 20 years in Washington advocating on behalf of the communications industry," said NAB President and CEO David K. Rehr. "His experience working with both the Administration and federal agencies will be of immense benefit to our public policy work promoting local radio and television broadcasting."

The twist comes when you discover that Doug Wiley holds the same namesake as non-partisan Washington powerhouse Wiley Rein LLP. In fact, Doug Wiley is the son of former FCC Chairman Dick Wiley, who also heads up Wiley Rein.

And Wiley Rein, naturally, represents Sirius Satellite Radio in the Sirius-XM merger.

[via Radio Ink]

While former FCC Commissioner Harold Furchgott-Roth (who was retained by XM/Sirius) issued a report saying that a combined XM-Sirius would not be a monopoly; Philip M. Napoli (who was retained by the NAB) subsequently has countered the Furchgott-Roth report.

Napoli, who is one of the NAB's hired guns from back in April, filed a statement with the FCC saying that "the satellite radio market is in fact a distinct market for antitrust purposes." He also concluded that a satellite radio merger "would lead to monopoly conditions in the downstream consumer market, as well as monopsony conditions in the upstream programming market."

Can we hire another gun to counter the counter statements of one hired gun to the other? That would convince the FCC! Or better yet, let's prove that we really mean business, and hang a banner out the window. That'll show 'em.

[Read full report (PDF)]