Jim Cramer has, once again, used his bully pulpit to criticize the Feds over the protracted delays for the Sirius and XM merger.

This time, he focuses on the Congressmen who came out in opposition to the merger, but who just happen to have received donations from the NAB. The picture you see right there is Cramer raising his eyebrows.

I don't just like this video, I love this video... and it's well worth the 13-minute watch.

[CNBC via Orbitcast Forums]

A recent filing to the Federal Communications Commission could be giving us the best hints towards concessions required to allow the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc. to be approved by the agency.

The ex parte filing by Public Knowledge, which was made public late last week, disclosed that representatives from the non-profit group (including its President Gigi B. Sohn), met with Michelle Carey (the Senior Legal Advisor on Media Issues for Chairman Kevin Martin).

The purpose of their meeting was to reiterate Public Knowledge's support for the Sirius-XM merger.

Public Knowledge has supported the merger, but with 4 conditions:

• A La Carte tiered programming packages be made available (done)
• Sirius-XM dedicated 5% of capacity to educational/informational programming
• Price freeze for 3-years after the merger is approved.
• Sirius-XM make its devices "open" to allow any manufacturer to develop compatible products

Public Knowledge disclosed that a majority of the discussion was on the 5% of dedicated public channel capacity.

But the most interesting part of the filing is that the FCC asked Public Knowledge about Georgetown Partners' proposal.

Here's a snippet from the filing:

"Ms. Carey asked us whether we supported the proposal of Georgetown Partners L.L.C. that the Commission require the merged company to lease 20% of its channel capacity and a portion of its infrastructure to a minority owned corporation. I replied that the Public Knowledge 5% set-aside proposal was likely to lead to greater program diversity and to programming that would not otherwise be heard on a national satellite radio service. However, we would be open to the Georgetown Partners proposal to the extent that it was conditioned on a requirement that part of that capacity be dedicated to noncommercial programming over which the lessee has no editorial control."
(emphasis added)

In other words, if Georgetown Partners' proposal is approved, PK asks that Georgetown also should dedicate 5% of their own broadcast infrastructure to educational/informational programming. A sound request.

What's interesting is that Public Knowledge was even asked the question to begin with, and that their proposal was being discussed in-depth at this point in time (PK suggested these concessions nearly a year ago).

To me, this is an indication that we're nearing the final stretch (let's hope) and that the FCC is seriously considering Public Knowledge's suggestions. And this is a good thing. I've always found PK's requests to not only be reasonable, but also squarely in the public interest (as opposed in the special interest).

The Washington, D.C.-based public interest group punctuated their filing by pointing that the FCC's denial of DirecTV-EchoStar merger was actually not in the public interest, stating that "as separate companies, the DBS providers have not been able to compete against cable in a way that has lowered the latter's prices."

[Read FCC Filing (PDF)]
Thanks to everyone who sent this in!

A quick glimpse at the Merge-O-Meter shows that it has been 367 days since the Sirius-XM merger was announced.

And the Wall Street Journal Deal Journal Blogs has assembled together an interesting set of metrics that put the whole transaction into perspective.

What Deal Journal did was take a look at all the merger/acquisition activity (courtesy of FactSet MergerMetrics) since the Sirius-XM merger was announced, and they came up with a series of numbers. And since I'm a LOST fanboy, I figured I'd make those numbers look like the countdown clock... just because.

So here goes...

349: The number of announced definitive full acquisitions of US publicly traded companies, since the Sirius-XM announcement.

230: The number of those deals that were completed.

97: The number of those deals still pending.

22: The number of those deals that were withdrawn.

The American Antitrust Institute the other day asked the Department of Justice to file suit against the proposed merger of XM Satellite Radio Holdings Inc. and Sirius Satellite Radio Inc.

AAI, which filed against the Sirius-XM merger back in June, holds strong to its assertion that the merger would "lessen competition, or to tend to create a monopoly," in violation of Section 7 of the Clayton Act.

As far as I can tell, the American Antitrust Institute holds absolutely no relationship to the NAB, or has any ulterior motives here. They are simply a nonprofit organization that advocates an aggressive stance toward antitrust enforcement.

Under AAI's definition, satellite radio stands alone in its relevant market:

"Although the merger parties posit many alternatives, including everything audio from AM/FM radio, to Internet radio, to MP3 players and iPods, none of these offer the unique nationwide coverage of satellite radio, content, features, and ability to aggregate demand. There is no evidence, as required under the Merger Guidelines, that any of the audio alternatives proposed for inclusion in the market definition by the merger parties constrain the ability of the merged firm to increase prices."

Oddly, I don't see any mention of mobile audio (streaming audio to cellphones) in their letter. Mobile audio, in my opinion, is the most direct form of competition if you want to define it as a "nationwide multichannel mobile audio entertainment subscription service" as the NAB calls it. And with companies like mSpot, who already have over 1 million subscribers (not to mention the backing of several terrestrial radio companies like ABC Radio, Clear Channel and others), it's hard to say that mobile audio is "burgeoning."

Still, of all the arguments against the merger, AAI has consistently given the best ones to support their views. I know I'm from the "pro-merger camp" and all, but I have to give AAI credit for stating their case better than most. It all boils down to how the relevant market is defined, and that ultimately, is up to regulators to decide.

[FMQB, Wired]

Aside from having some of the most entertaining photos in mainstream media, the New York Post also has a source "familiar with the situation" that has provided the publication with a status update at the DOJ.

According to this source, junior staffers were given a final chance to make their case against merger approval - known as "last rights" - to Antitrust Division Chief Thomas Barnett, before he signs off on the deal.

The results of these "last rights" are unknown - but this is fairly consistent with what the analyst community sources have been hearing for some time now.

In early November, Cowen & Company issued a report stating that the Antitrust Chief would approve the merger, "despite a staff recommendation against the deal."

A few weeks later, Bear Stearns wrote that junior staffers at the DOJ are recommending blocking the merger, but that higher officer deputy officials likely disagree and that Barnett will rule along with the higher officials in approval of the deal.

That was several months ago, and if the Post's sources are correct, then the DOJ's tune hasn't changed. Only time will tell for sure though.

[New York Post via Orbitcast Forums]
Thanks Squeaky!

Federal Communications Commission chairman Kevin Martin confirmed recently that the agency was coordinating efforts with the Department of Justice, but had yet to reach a final decision on the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc.

Speaking informally at the NBA Tech Summit, Martin also said that while the Commission has received all the necessary information from the two satellite radio companies, they have yet to set a timeline in reaching a final decision.

According to paidContent:

"Traditionally the commission doesn't act on those after the Department of Justice --99 out of 100 times the Department of Justice goes first and the Department of Justice hasn't acted yet on that merger. We have some more information we requested at the beginning of the year from the companies so that we're trying to finalize our conclusions but we're coordinating with Department of Justice. I don't have a timeline."

Today marks the exact one-year anniversary since Sirius-XM merger was announced.

[paidContent]

The National Association of Broadcasters (NAB) fear that satellite radio may have "different needs and incentives for the use of terrestrial repeaters" as a result of the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc.

One of the NAB's concerns is the "heightened desire to offer locally oriented programming, including local advertising" through the repeater network. So the NAB is asking the FCC to adopt final repeater rules that block Sirius-XM from offering local content on their repeater networks.

This isn't anything new.

Over a year ago, an NAB-backed bill (H.R. 983) was introduced to Congress, meant to "preserve local radio" and in effect would stop the airing of Amber Alerts and other emergency services on Sirius and XM. Somehow I don't see this as being in the public's interest.

In the its recent FCC filing, the NAB continues, "In adopting final rules for [satellite radio] repeaters, it is also necessary that the commission be mindful of the SDARS licensees' record of misbehavior in this area."

They go on to highlight violations regarding Sirius and XM repeater towers. Of course, this ignores terrestrial radio's own history of FCC violations.

Oh I get it: Do as I say, not as I do.

How about this instead. If regulators do feel that terrestrial radio is a substitute for satellite radio, and that they compete in the same relevant market, then satellite radio should be permitted to provide more - not less - localized programming. There is absolutely no need for an 80-year old government-granted monopoly over local programming to continue to exist in this day and age.

But that's exactly what the NAB wants. In their on-going attempt to save itself - rather than actually trying to innovate and provide a compelling product - they want to prohibit other local programming, and secure they're stranglehold on "localism." Now that's anticompetitive.

[via Radio Ink]

Georgetown Partners may have possibly violated bribery law, and supporting members of Congress may have performed ethics violations as well, according to a letter obtained by Orbitcast.

The letter - which was addressed to Sirius CEO Mel Karmazin and sent to Sirius Chairman Joseph Clayton, XM CEO Nate Davis and XM Chairman Gary Parsons - claims that Georgetown Partners may have violated U.S. Code and H.O.R. Code of Official Conduct by contributing money to three politicians, who in turn supported Georgetown in their recommendation to the FCC.

In question are Reps. Gregory Meeks (D-NY), Albert Wynn (D-MD) and Bennie Thompson (D-MS) who all received campaign contributions from executives of Georgetown Partners and subsequently supported Georgetown’s attempt to gain broadcast infrastructure of a combined Sirius-XM.

Georgetown has repeatedly urged the FCC, should the agency approve the Sirius-XM merger, to require that 20% of a combined Sirius-XM infrastructure be leased to a minority-controlled entity.

Rep. Gregory Meeks, in fact, originally supported the Sirius-XM merger, but changed his position to support Georgetown.

• Meeks received a $2,000 campaign donation from Chester Davenport, the managing director of Georgetown Partners on October 7th, 2005.

In a separate letter to Chairman Martin, six members of Congress also sided with Georgetown Partners' agenda, claiming they feel that "a minority-controlled entity should have rights to the broadcast infrastructure."

Of those six Congressmen, two received campaign contributions from executives of Georgetown, according to the letter:

• Rep. Albert R. Wynn received a total of $27,000 from executives of Georgetown between June 24, 1999 and September 6, 2006.
• Rep. Bennie G. Thompson received a $1,000 campaign contribution from Chester Davenport, just five months before supporting Georgetown in the letter to the FCC Chairman.

The letter obtained by Orbitcast claims that this activity raises the question of possible bribery law violations, citing Rule XXIII Clause 3 of the Code of Official Conduct for members of the U.S. House of Representatives:

A Member…of the House may not receive compensation and may not permit compensation to accrue to his beneficial interest from any source, the receipt of which would occur by virtue of influence improperly exerted from his position in Congress.

In addition, the letter points to other merger-related activities by Georgetown and the Rainbow-PUSH Coalition, who has supported Georgetown in their pursuit for Sirius-XM infrastructure. Particularly mergers like SBC-Ameritech and the CBS-Viacom merger, where Chester Davenport "[pressured] companies in merger regulatory reviews to sell a portion of the merged company to Georgetown," with the help of the Reverend Jesse Jackson.

While I am no lawyer and cannot attest to the legalese surrounding these claims, it all raises serious doubt over the motives of the parties involved.

[Read the full letter here (PDF)]

Sirius Satellite Radio Inc. and Chrysler LLC have extended their relationship through September 2017.

Sirius is currently available in most Chrysler, Jeep and Dodge models. This agreement targets a factory-installed penetration rate of more than 70% of Chrysler vehicles.

"Sirius is proud to extend our exclusive relationship with Chrysler, Jeep and Dodge," said Sirius CEO Mel Karmazin. "Chrysler will be selling millions of vehicles with Sirius and we look forward to a very significant number of Chrysler customers becoming part of our already very satisfied Sirius family of more than 8.3 million subscribers."

Stanford Group analyst Paul Gallant wrote in a recent research note that the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc. is nearing a likely approval.

"We believe the Department of Justice (DOJ) is near a ruling on the XM-Sirius merger, and we reiterate our belief that it is likely to win regulatory approval," Stanford Group wrote in the report.

"As for timing, DOJ’s ruling could come any day now. Shortly after DOJ rules, we expect FCC Chairman Martin to recommend to his fellow commissioners the same outcome reached by DOJ."

It was also noted the opposition group meetings with the DOJ are likely a last ditch effort, and that this is usually parties who are likely to lose the battle.

[24/7 Wall St. via Orbitcast Forums]