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Satellite radio companies XM and Sirius may have to swallow some new restrictions to win final approval to merge, but the Federal Communications Commission (FCC) is unlikely to stand in the way of the deal, analysts said Tuesday.
“It is quite possible, if not likely, that there are some issues that [the FCC] would want addressed as part of their action. [But] it wouldn’t be their goal to do something sufficiently onerous to block the deal,” said James Goss, a media analyst at Barrington Research .
The Justice Department on Monday approved a no-strings-attached merger of XM and Sirius, despite the companies’ pledge never to combine back in 1997, when the FCC issued them satellite-radio licenses.
However, key Democrats in Congress who have decried the proposed merger as an assault on competition will prod the FCC to impose certain conditions to satisfy consumer and public interest groups and terrestrial broadcasters.
Lawmakers believe they hold more sway over the FCC than they do over the Justice Department, which sees itself as a law enforcement agency unaffected by public opinion, said Rick Rule, a former assistant attorney general responsible for running the department’s antitrust division.
In this case, they may have a point, he argued, because the FCC must weigh the “public interest” in approving a merger, a broader standard than the Justice Department’s.
“You could argue when it is the public-interest standard being applied, what Congress says as the voice of the people is in some sense more relevant,” said Rule, who now runs the antitrust practice at the law firm Cadwalader .
Congress is already ratcheting up the pressure. The chairman of the House Energy and Commerce panel’s telecommunications subcommittee, Rep. Edward Markey (D-Mass.), on Monday called on the FCC to impose conditions on XM and Sirius if it decides to approve the merger.
Markey stopped short of dictating the conditions, saying only that the agency should “ensure consumer welfare” with regard to the pricing of long-term service plans and equipment and require the new company to meet standards for diversity and local content in its programming.
The FCC could meet such standards by leasing channels to outside groups.
According to Goss, the FCC may also require the combined satellite radio company to sell off some of its spectrum, which could limit its programming.
Such conditions may not be enough to mollify the National Association of Broadcasters (NAB), which is keeping up its fierce campaign to kill the deal.
The group last year set up a website in opposition to the merger: xmsiriusmonopoly.org . On Tuesday, it called the Justice Department’s nod to the deal “breathtaking” even though it was widely expected by industry watchers, given the Bush administration’s record of approving mergers.
The NAB has also showered money on lawmakers. It donated $243,000 to federal candidates so far this cycle, with 59 percent going to Democrats, according to the Center for Responsive Politics. By contrast, XM Radio has contributed only $5,000, according to the center.
Meanwhile, the NAB spent $8.9 million on lobbying in 2007, compared with $1.16 million by XM. Sirius spent $1 million to lobby Congress last year.
The NAB decries the proposed merger as a monopoly that breaks the companies’ own vows not to merge. But the companies and their allies argue that satellite radio faces competition not just from terrestrial radio but from Internet radio and all the portable devices that have proliferated since satellite radio entered the market.
“What’s happened over that period of time in terms of technology? Well, quite a lot, actually. The Internet was a new thing back then,” Goss said.
XM and Sirius have taken steps to appease regulators. The chief executive of Sirius, Mel Karmazin, last year pledged to freeze the $12.95 monthly subscription price, without specifying for how long. Then, the companies proposed a series of tiered and a la carte pricing plans they said would benefit consumers.
FCC Chairman Kevin Martin, who has not yet weighed in on the merger, has signaled that he likes the a la carte plan, which could be viewed by regulators as a hedge against rising prices because consumers would be able to pay for only the programs that they want.
In addition, a la carte pricing would allow Martin to claim a partial victory because he has pushed incessantly for the cable industry to offer the same plan to consumers.
However, Martin is under pressure to appease Democrats undertaking a rigorous review of processes at the commission. The House Energy and Commerce subcommittee opened an investigation of the agency following criticism of Martin’s handling of new rules governing media consolidation. Rep. John Dingell (D-Mich.), the chairman of the full committee, said the review was prompted by a “breakdown in proper procedure." |