In the recent arguments against the XM-Sirius merger, the NAB continuously is trying to smear the satellite radio industry as being "unlawful" companies.

Afterall, they can't go ahead and say that satellite radio isn't competing with terrestrial (see why here). So they instead need to frame satellite radio as being an irresponsible industry not capable of handling the responsibility of being a 'monopoly' (something that terrestrial radio is well versed in).

Take for example their recent ad campaign, where the NAB highlights troubles with satellite radio repeater towers, and receivers with over-emitting FM modulators. These are items that are either already resolved or that XM/Sirius are working with the FCC to resolve.

Yet, as Mel Karmazin poignantly highlighted at yesterday's hearing, four major terrestrial radio companies are settling payola charges with the FCC. What did the pot say to the kettle again?

David Rehr, the NAB's cabin boy Chairman, stated in his testimony to House Judiciary subcommittee that XM and Sirius haven't complied with an "FCC rule to develop a device that works with both services" -- but yet, they have. The 1997 FCC license simply states that XM/Sirius must develop an interoperable receiver - not bring it to market. Mel Karmazin yesterday explained that while a radio capable of receiving both XM and Sirius exists, it doesn't make financial sense to subsidize a radio that can receive another company's signal.

But is all this whining working?

At the recent Bear Stearns Media Conference, where FCC Chairman Kevin Martin Keynoted, it was stated that the FCC would be serious about enforcing rules, but that past infractions do not necessarily have "character implications."

A recent note from Robert Peck at Bear Stearns, highlighted that Chairman Martin stated that the key issue would in fact be defining the market and that concessions would depend on the harms identified.

And when it comes to "defining" the market, well then, terrestrial radio has already done that for us.