They're not done yet.

The Carmel Group, commissioned by the NAB, has released yet another "ping-pong" chart to show that Sirius and XM directly compete with each other.

A follow-up to an earlier study by The Carmel Group, this features a more in-depth "ping-pong" chart than before with a huge list of competitive actions and reactions between the two companies.

The study asserts that "without this continued competition, consumers will not be able to obtain substitutable competition from competitors within the all-important vehicle; and importantly, choice, competitive pricing restraints and service will undoubtedly - and significantly - suffer."

And of course, NAB spokesperson Dennis Wharton had his pom-poms in hand with this to say:

"Contrasting XM and SIRIUS's history of competitive behavior with their track record of abusing FCC rules, the central question remains: Should two fierce competitors with a demonstrable record of FCC rule-breaking be rewarded with monopoly power? We -- along with consumer groups, minority organizations, antitrust experts and more than 80 members of Congress -- think the answer is no."

Following the April study release, I discovered an earlier article written by The Carmel Group that was not commissioned by the NAB which stated that satellite radio's "competition comes in the form of traditional analog AM & FM radio, as well as burgeoning services like MP3 players, terrestrial radio, and video- and Internet-to-the-vehicle." This was, in my opinion, a completely opposing position from the NAB-commissioned study. A point that caught the attention of the New York Post.

Now The Carmel Group is back with an extended "ping-pong" chart to prove that Sirius and XM did indeed compete with each other.

But, so what?

Proving that Sirius and XM compete(d) with each other has little to do with disproving that they are part of a broader relevant market. If two radio stations in a single market compete with each other, does that mean that they don't compete with other radio stations in the same market? Of course not.

Further, observing the competitive responses between those two radio stations won't give us any insight into the "continuing proliferation of outlets and rapid pace of technological change in the media marketplace" that the NAB is so worried about.

So all the "ping-pong" charts in the world are simply just exercises in futility.

[The Carmel Group Study (PDF) via AllAccess]
Thanks Derek!

The NAB has been curiously quiet as of late. First they take down the XM-Sirius banner, then a pro-merger piece in Roll Call goes unchallenged... an interesting change in direction considering the vehement opposition we've seen throughout the year (or the past 17 years depending on how you look at it).

Last week, FCC Chairman Kevin Martin expressed his desire to relax media consolidation rules, something that the NAB would very much want. Martin even wants to expedite the agency's review, hoping to conclude the proceeding in November and schedule a vote on December 18th.

Then yesterday, the NAB filed comments with the FCC over a series of research studies regarding media ownership for the Commission's pending quadrennial broadcast ownership review. Unsurprisingly, they urged the FCC to reform media ownership rules, stating that doing so would serve the public interest in light of competition.

"This continuing proliferation of outlets and rapid pace of technological change in the media marketplace further underscores the need for Commission action to update its ownership rules," the NAB wrote in the filing. "Only competitively viable broadcast stations sustained by adequate advertising revenues can serve the public interest effectively and provide a significant local presence." (emphasis added)

The argument that the NAB is using here is nearly identical to the argument that justifies the merger of Sirius Satellite Radio Inc with XM Satellite Radio Holdings Inc. If in fact the fragmentation of media, and the increasing technological choices that enable further fragmentation, were a reason for relaxed media consolidation rules - then the same rules would apply for a merger of Sirius and XM. And vice versa.

But time is running out... and fast.

Martin wants to fast-track the media consolidation decision, a point that has brought on the ire of big names like Barack Obama not to mention the bi-partisan opposition of Sens. Byron Dorgan (D-ND) and Trent Lott (R-MS).

The NAB doesn't need any further opposition, nor do they need the sword of "hypocrite" hanging over their heads during this important juncture. Time is running out, and battles must be chosen. If David Rehr has to pick one to lose, it might as well be to cede to the Sirius-XM merger in order to gain in relaxed media consolidation rules (which do you think its members want more?). A satellite radio merger, in the grand scheme of things, really has little effect on terrestrial radio considering that only 4.1% of total listenership is attributed to Sirius or XM. While relaxed media consolidation rules changes everything for the NAB's members.

As suggested in the Orbitcast Forums, a brilliant move would be if Sirius and XM both filed comments with the FCC in support of the NAB's comments. It would further solidify their arguments to merge, not to mention be a wonderful twist of the dagger in Rehr's side. As the old adage says, you can catch more flies with honey than with vinegar.

And this is afterall, politics.

Congressman Rick Boucher (D-VA) wrote a detailed op-ed piece that was published in Roll Call this morning.

Roll Call, which is published Monday to Thursday while Congress is in session, provides readers with news of the legislative and political maneuvers that occur on Capitol Hill.

In his piece, Rep. Boucher voices his support for the Sirius-XM merger, and points to his reasons as to why the merger would be in the public interest and why the relevant market should be considered in the broader sense.

"In the radio marketplace of both satellite and terrestrially delivered radio services, XM and Sirius occupy less than a 4 percent share of listeners. The balance is held by AM and FM stations. In the broader audio entertainment market of radio and Internet-based news and entertainment, XM and Sirius have an even smaller share. When one concludes that the broader market is the proper measure, it is clear that the merger would not hinder competition."

Now the real interesting part isn't just that Rep. Boucher is lending his support behind the merger. It's not even his arguments that are the point of interest here.

It's the lack of an opposing argument in this issue of Roll Call.

This op-ed piece was featured in the "Communications and Intellectual Property Policy Briefing" section of today's issue. Five subjects were covered in a similar format, and each had a point/counter-point argument.

Only the section on satellite radio ran without a counterpoint.

Apparently Roll Call couldn't get a counterpoint for this piece? Given the NAB's supposed influence on the Hill, this is very surprising.

Read Rep. Boucher's Op-Ed piece here (PDF).

I just received a report that the NAB has taken down the banner opposing the Sirius-XM merger from their Washington D.C. building.

Interesting...

The NAB is darn tootin' mad about Sirius-XM's recent response about the group's request for the FCC to stop the clock. And they're laying down the tough choices for the satcasters.

First, here's what Sirius-XM had to say about the NAB's request to stop the clock:

“The NAB opposes the merger of XM and SIRIUS to protect AM/FM radio from competition, not to protect consumers. As more and more consumers voice their support for the merger, the more fearful of increased competition the NAB becomes and the more desperate their actions in response.

"The NAB's allegations are unfounded and their recent filing is just an attempt to stall the process. We look forward to continuing to work with the FCC and are confident they will weigh the transaction on its merits, recognize that it is in the public interest and approve the merger by the end of the year."

In response to the... err... response, NAB Executive VP Dennis Wharton issued the following statement:

"There is nothing 'unfounded' about NAB's so-called 'allegations.' XM and Sirius have disclosed in public documents that they knowingly and willfully violated interference and terrestrial repeater rules. The central question now is whether XM and Sirius are rewarded for this demonstrable lack of candor with tough penalties or a government-sanctioned monopoly."

Well, given the choice Dennis... I think I'd choose government-sanctioned monopoly, don't you think?

The National Association of Broadcasters has asked the FCC to stop the informal 180-day "clock," in a filing with the Commission today.

The NAB's "Petition to Defer Action" requests that the FCC formally stop the clock, so that the NAB can "review and supplement the record with certain documents related to the serious apparent wrongdoing by XM and Sirius 'executive and senior-level employees' regarding the operation of FM modulators/transmitters and/or terrestrial repeaters."

In other words, the NAB wants the clock stopped so they can review the documents released from a previous FOIA request that the Enforcement Bureau felt were fit for public inspection.

The documents haven't been released yet, because they're still under review by various parties (largely consisting of Sirius and XM). The NAB feels these documents are important to the merger proceedings because of the DirecTV-EchoStar merger proceedings. During the DirecTV-EchoStar case, the FCC felt that EchoStar's compliance record "suggests a resistance to taking steps to serve the public interest that do not serve the company's view of its own private economic interest."

So the NAB wants the time-clock stopped, so as to allow for enough time for them to review the documents whenever they're actually released.

They insist that waiting for these released documents will "shed further light on the nature and scope of [Sirius and XM's] malfeasance and the role of senior management."

"Simply put, the Commission cannot in this proceeding rely on information produced in the enforcement proceedings without the parties to this proceeding having an opportunity to review and comment on that evidence," writes the NAB in the filing.

[FCC Filing (PDF) via Orbitcast Forums]