Despite a report from Bear Stearns analyst Robert Peck, who predicts that a DOJ decision could arrive as soon as today or Monday, Bank of America analyst Jonathan Jacoby advises clients to remain "cautious" - deal or no deal.

Jacoby has remained as the devil's advocate throughout the merger proceedings, which is a good thing because it helps keep some of the more irrationally exuberant investors grounded (to a degree). Historically he's been very skeptical of the merger prospects (putting chances of approval roughly around ~30%). The interesting thing in his most recent research note, though, is that Jacoby does not dispute what Peck is reporting.

Much of the Bank of America analyst's conclusions have been based on information from DC contacts, but we don't hear about them in this note. Instead, Jacoby brings to light the high hurdles that XM-Sirius need to overcome to get approval (and there's no denying that this isn't your rubber-stamp kind of merger). If the deal is not approved, he points to significant downside. And even if the deal is approved, he feels there's not much upside.

"However, we are not ‘naïve.’ We think investors will most likely run these stocks post-merger approval," Jacoby notes.

To me, it's a significant development when the naysayers stop saying "nay."

Peck and Jacoby have been on two sides of the coin for this merger. With no significant information coming from BofA's sources disputing the information of Bear Stearns, well, I'd say that's pretty telling.

A decision by the Department of Justice on the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc. could come as early as today or Monday, according to an analyst note issued this morning.

Bear Stearns analyst Robert Peck issued a research note this morning stating that a decision by the DOJ is imminent. According to Peck, conversations with their contacts in DC suggest that a DOJ decision could come as early as today or Monday.

Further, the Bear Stearns analyst believes that junior staffers at the DOJ are recommending blocking the merger, but that higher officer deputy officials likely disagree with the junior staff recommendation. The analyst expects Tom Barnett likely will rule along with the higher officials and announce that the DOJ will not be blocking the deal.

This is consistent with a Cowen & Co. note issued earlier this month, which also said that Antitrust Chief Tom Barnett is likely to approve the deal, "despite a staff recommendation against the deal."

Bear Stearns' Bob Peck also feels that the FCC has been coordinating its actions with the DOJ, and that an FCC decision will likely come near this year's end.

Oh we've all known that Apple will eventually come out with a 3G iPhone, but when AT&T's Chief Executive Officer Randall Stephenson says, "You'll have it next year," we're all going to listen.

Stephenson doesn't give an indication as to how much it'll cost, that's up to Apple CEO Steve Jobs who "will dictate what the price of the phone is."

Jobs plans to sell 10 million iPhones worldwide in 2008, and so far Apple had sold a "mere" 1.4 million handsets through the end of September. Even with 10 million iPhones in everyone's pockets, that would give Cupertino only 1% of the mobile-phone market.

Of course this is all part of Apple's grand plan.

Introducing a 3G iPhone will still allow for the slower EDGE iPhone to penetrate the market - just at a lower price (and subsequently a faster pace). The 3G iPhone will likely also pack more features, which will make it the must-have mobile phone/music player once again.

And who wants to make bets that a "Mobile iTunes" will be part of the package? At 3G speeds, and unlimited bandwidth packages, streaming music (and talk, and sports) on your iPhone will be commonplace.

Long live planned obsolescence.

[Bloomberg via Engadget]

Wall Street Journal editorial board member Jason Riley talks with Sirius CEO Mel Karmazin and XM Chairman Gary Parsons about their merger plans.

Check out the video below (Email/RSS folks might need to click to watch):

Ford said today that they'll be targeting an approximate 70% factory penetration rate of Sirius radios starting with the 2009 model year vehicles.

In addition, Sirius Satellite Radio Inc. and Ford Motor Company said that they are extending their relationship. Sirius and Ford had previously extended their partnership through 2011, but the exact terms on this deal extension were not announced. We do know that all Ford brands, Lincoln, Mercury, Land Rover, Jaguar, Volvo, and Mazda, are covered by the agreement. So that's good.

Ford had also previously been reluctant to give penetration numbers. With Chrysler at 70%, Mercedes at 90%, and VW/Audio at 80%; everyone has been tapping their collective foot waiting for a commitment from Ford.

At the 3Q07 earnings call, Sirius CEO Mel Karmazin had hinted towards this by saying "there will be an announcement from Ford sometime in the future," and obviously this is it.

And let's not forget Lincoln's installations of Sirius Travel Link as well. A preemptive sign that the Sirius-Ford relationship is nice and healthy.

Over a million Ford, Lincoln and Mercury vehicles have been shipped with Sirius factory-installed. Ford recently launched Sirius on its new Focus, bringing the number of Ford, Lincoln, and Mercury vehicle lines offering factory-installed Sirius to 23.

Sirius equipped vehicles are packaged with a six-month prepaid subscription, and the vehicles covered under this new agreement will be available next year at dealers.

Yesterday, the Thanksgiving Day post lightly touched upon what the Washington Post uncovered recently: that many of the "comments" submitted to the fcc against the Sirius-XM merger were simply generated through a dubious pop-up ad campaign.

This issue goes far beyond the use of form letters. I'm no lawyer, but this appears to border on all out fraud.

Form letters can be a "useful" tool for large groups to assemble their thoughts en masse. I don't necessarily like them (I would much prefer the public submit in their own words), but at least the submitter is voicing their opinion and is aware of it.

But what the NAB has done here is not at all a case of "form letters."

The Washington Post discovered that out of the 60 people they contacted - many of the phones were actually disconnected, or went unanswered. Out of the 10 people they were actually able to talk to (which - in itself - is a ridiculous rate of failure), only 1 person - ONE PERSON - even remembered filling out something remotely related to satellite radio (and not even being merger related).

So how did those comments get submitted to the FCC?

According to the Washington Post article, the NAB bought pop-up ads on websites like CarMax.com, Staples.com and PriceGrabber.com in August and September. The ad ran the headline, "The XM Radio/Sirius Merger will create higher prices. Stop the Monopoly!" - and users could click either, "Yes, I'd like to help stop the monopoly" or "No, thank you."

Those who clicked "yes" were asked to type in their contact information and later received a confirmation e-mail "detailing their action and providing a copy of the letter to be sent to the FCC," according an NAB spokesperson. Respondents were given the "opportunity to opt out of the process" and cancel submission of their letter.

If I'm reading that correctly... it means that any inaction to the email was considered confirmation. So if these emails were sent to the Spam folder, or were inadvertently deleted, the submission was still considered confirmed.

And there's another question...

So far only a little over 5,000 computer generated emails have hit the FCC and, as the article points out, many with the names and addresses of people who said they never filed any comments regarding the merger. But the NAB states in the article that 8,500 comments were "inspired" by this campaign.

That means some 3,500 more "comments" with dubious provenance are waiting to appear. Where are they? When will they show up? Why have they been withheld?

I don't care if you're pro- or anti-merger. If you have an opinion on the merger - whatever it may be - you should have submitted your comments to the FCC. That is your right as a citizen, and it's the whole purpose as to why the FCC has a public comment submission process.

These phony letters corrupt this entire process and are in sharp contrast to the thousands of Americans who took time to write genuine, thoughtful letters to the FCC.

The fact that the NAB - which advocates on behalf of over 8,300 radio and television stations and networks, and has an annual NAB Radio Show which reportedly is attended by over 110,000 industry professionals - simply cannot garner enough genuine public support for their agenda is telling. Very very telling.

But just because the public isn't agreeing with a lobbyist's position doesn't mean they should resort to these tactics. It is the public who should decide how to voice their opinion, not a special interest group.

A Call To Action:

The more I think about this, the more angry I get. Again, we're not talking about form letters (which, sadly, is a standard lobbying practice) - I'm talking about people participating as part of a legal process without knowing they are. In the Washington Post article, it was pointed out that a poll of 350 congressional staffers conducted by the Congressional Management Institute in 2005 indicated that half of them did not believe that form-letter messages were sent with the knowledge or approval of constituents.

How long has this been going on? How many other comments from "the public" aren't genuine? How exactly are all these comments being extracted, especially considering WaPo's astonishing rate of failure in contacting submitters? Are these in fact even real people?

We need to ask Congress and the FCC for an inquiry. There needs to be some accountability here.

Regardless of whether you support or oppose the merger, we need to know the extent of these practices. How exactly were these comments were "inspired" by the NAB? If you feel the same way as I do, then please voice your opinion and contact Congress/FCC to demand an inquiry.

There's several ways to do this (like, contacting the FCC directly or check out the EFF's guidelines for contacting Congress). XM and Sirius also have handy-dandy pages that submit your comment to the FCC and copy your state's representatives (here's XM's version, or Sirius' version - they both do the same thing).

However you do it, just remember this issue is not about the merger itself, rather an inquiry into these deceitful and dubious tactics. Those of us who's actually spent the time to submit a unique and thoughtful comment shouldn't be undermined by a pop-up ad.

If you've deactivated an XM radio in the past, you have the opportunity to get 3-months of free service as part of a holiday promotion. Starting on Friday, November 23rd, anyone with an inactive XM radio (purchased at retail) can get three free months of XM Satellite Radio service - regardless of when the radio was purchased or received.

The value of the three months of service is applied over the first six months of a subscription when activating between November 23rd and December 31st, 2007.

It's a neat promotion to bring back customers who have deactivated receivers just sitting around. It's also a blanket promotion for folks looking to buy satellite radio this holiday season - so if you buy a receiver for someone this year, they can use this promotion.

Very smart.

If you want to take advantage of the offer, just go to visit xmradio.com or call 1-800-XMRADIO. This offer also applies to subscriptions added to existing accounts under the XM Family Plan. (Wow)

The offer is not valid for those radios purchased under a separate promotion. All other radios are eligible for this promotion only when they are activated (or reactivated) between November 23rd and December 31, 2007.

Terms: The value of three (3) months free service will be applied over the first six (6) months of service. Offer applies when you activate service on any eligible XM radio between 11/23/07 and 12/31/07 and maintain uninterrupted service for at least six (6) months. Subject to penalty fee if six (6) months of continuous service is not maintained. Offer valid for purchases made in continental US only. Offer subject to additional terms, fees, and eligibility restrictions available at xmradio.com.

I'm really impressed with this promotion. That's one heck of a deal and really great idea. The fact that it applies not only to new radios, but it applies to older inactive radios as well. Really, really impressed.

The FCC has issued a second Protective Order to ensure that prying eyes do not see "highly confidential and competitively sensitive documents" coming from Sirius and XM.

In the beginning of this month, the Commission asked for additional information in regards to the merger. Later that week, Sirius and XM stated that there are certain documents and information related to the request which constitute some of their most sensitive business data, releasing them would place the companies at a significant competitive disadvantage.

As a result, the FCC has issued a Second Protective Order. Anyone who wants to gain access to these sensitive documents must sign an Acknowledgement of Confidentiality.

Today is the due date that Sirius-XM needed to have all of their documents submitted to the FCC.

[FCC Protective Order (PDF)]

Ford will be the first auto manufacturer to offer Sirius' new data services product, which is officially called Sirius Travel Link.

Sirius' technology is being showcased at the annual Los Angeles auto show.on the 2009 Lincoln MKS (pictured above).

I had the chance to play with the retail version of Travel Link, which streams information like weather, local fuel prices and movie time information direct to your vehicle. This is essentially the OEM version of the technology.

Features include:

• Traffic Data - Real-time traffic speed and flow data with accident and incident information
• Weather - Displays current conditions plus 5-day forecasts, as well as storm cell info, hurricane/tropical storm tracking, local wind speeds, and event ski resort conditions.
• Fuel Prices - Sirius Travel Link sorts fuel options by price, distance, or alphabetically from over 120,000 gas stations
• Sports - Stream scores and schedules personalized to your favorite teams
• Movies - Movie times, theater addresses, ratings, and run lengths from over 4,500 movie theaters

Travel Link is impressive because it's really a jump in technology for Sirius, and it takes the data services a step further than most anything we see currently on the market.

It's also nice to see that Ford has solidified its dedication to their partnership with Sirius. With the Ford SYNC and HD Radio partnerships, there was an air of skepticism that Ford is really devoted to satellite radio. The introduction of Sirius Travel Link through Ford is a good sign that the partnership between the two is healthy.

Thanks Rich!

XM Satellite Radio Holdings Inc. stockholders have voted to approve the merger with Sirius Satellite Radio Inc, at its special meeting of stockholders today.

The preliminary tabulation indicates that 99.8 percent of the shares voted were cast in favor of the merger with Sirius.

So there's the stamp of approval from the shareholders, next up is the DOJ and FCC.

UPDATE: You may have seen this post earlier today with some slightly different numbers. They were incorrect and the post was temporarily pulled until the real numbers came in. Sorry for the confusion.