Will Tate Approve Radio Merger with $20 Million Fine?
[update below] With four of the five FCC commissioners having cast their votes, two in favor and two against, the audio entertainment world is now waiting on FCC commissioner Tate to cast her deciding vote. The events of Wednesday actually help us better understand exactly where the merger stands. The fact that democrat commissioners did not wait and delay the process by 10 days bodes well for the process.
Thus we wait on commissioner Tate, and a number of headlines, some of which are Howard Stern type material, come to mind.
- “Tate Is Late, Sirius (SIRI) and XM (XMSR) Expecting”
- “Tate Plays Hard To Get”
- “Tate Will Be Casually Late For The Event”
- “Can’t Consummate Without Tate”
The list could go on and on, but the bottom line is that commissioner Tate is holding all of the cards. In the minds of many, the outcome is already known, it is just a matter of how much Tate grows the pot in the process. Most think that Tate will not be too greedy, but only time will tell.
The positive in recent events, is that once Tate votes, the process is complete. People are now betting on the mindset of Tate, and her decision could come at any time.
Update:
According to the Wall Street Journal, FCC commissioner Tate is set to approve the proposed merger of Sirius and XM with a fine of $20 million that is said to resolve several enforcement issues surrounding satellite radio.
Should this news be accurate, the satellite radio companies now have the green light to move forward with their merger.
Once the deal is consummated, each share of XM will receive 4.6 shares of Sirius.
Position: Long Sirius, XM.
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This article has 83 comments:
What that Wall Street article also mentioned that scares me is that the NAB could, and likely will, file an appeal with the DC court of appeals which may be them enough time for the November elections. If Obama wins the election, Martin will be likely replaced by a Democrat which gives them the majority in the FCC and then they will block the merger. Aint that something?
Prophecy
9:17 AM ET FCC chair says agreement reached to OK XM-Sirius deal
Here we go!
SICKENING.
FCC = The SDARS Mafia
"Should I not trust the WSJ?" I'm sure you've heard this before - don't believe everything you read, even in the WSJ...
"XM-Sirius deal could be bad for consumers"
Now you can get Stern, Oprah, NFL, and MLB all on 1 radio and 1 subscription. How can that be bad anyway for the consumer? On my home tv cable, I can get ESPN, CNN, FOX, and all other channels without having to use 2 different cable providers. It just makes sense. The competition is the ipod, regular radio, and others for SadRadio and its Direct TV and fiber optics for cable.
oma
of Value
et cetera
As to the lawsuit questions, as a securities lawyer this is not my area, but as I understand it, the NAB would have to prove an immediate and irreversible harm to get an injunction. Since this merger could theoretically be undone, that is probably not going to happen. I'm not sure if the NAB could appeal either/both of the DOJ and FCC decisions. I suppose they could initiate private antitrust action, since the DOJ review is intended to protect consumers, not competitors. Either way, any lawsuit on a subject this complex and a merger already exhaustively vetted by two federal agencies will take several years to wind its way through the system. Then, even if they win, what are the damages? The USFL sued the NFL, won, and was awarded $1.00 (by statute damages are tripled, so they got $3.00). If the goal is to delay the merger, I don't see how it works. If the goal is to get damages, well, it may possibly cost SiriusXM (or whatever they go by at that point--GoogleRadio?), but so what?
I say, rest easy. You can sue anyone for anything. It usually comes to nothing except legal fees for both parties.
stinkaroo, go to the WSJ article look what I said yesterday under "jt". I am not a lawer and I said the same thing "omagod5oo" said. God dam common sense thats all it takes. You can also go to the Sirius Buzz forums, zurcran, homer and I, talk about this in more detail. homer985 as usual gives a detailed lay out (goto "NAB: National Appealing Broadcasters?") All in all it says what I was saying on the WSJ article.
Is anyone else's receiver acting strange? Mine did the "updating channels" thing yesterday, which it has done once or twice before in the three years I have owned it - then it did it again today, and when it did it today it reset my reciever, and I lost all my presets and all artists and songs stored to memory...
Is it possible to add an artist or song without catching it on the radio and storing it to memory?
These are hard cases. The FCC would be represented by the US Solicitor Generals office and they would be bound to defend the decision. The Standard of Review, becuase this was a fact intensive review, is "abuse of discretion" and "substantial evidence"--that is, if there is a "scintilla of evidence" that supports the findings of the FCC that it was in the public benefit to grant the licence amendment to allow both XM and Sirius to have a license, then it will be upheld. The courts cannot substitute their judgment for that of an agency. They can only review errors of law. The FCC did not make independent legal findings related to the issue of whether XM-Sirius was a monopoly. That was the Justice Department. Since the Justice Department is not pushing the issue, it is a non-issue. A non-governement party does not have standing to bring a antritrust claim in an FCC administrative licensing proceeding, IMO. With the fact that it is a "concent decree",--basical... a contractual agreement between XM-Sirius and the FCC that also makes this really hard to appeal for the NAB. That is why they are so pissed.
I think that a lawsuit will go no where. When I advise clients to do an appeal of an administrative case, we always have to appeal on issues of legal error. This is a case where there is no real legal error.
As far as trading today goes, as I said earlier and others above have added, the stock price of both companies is seeking equilibrium around the spread. I agree that after the pop yesterday with SIRI that any further rise will not take place until after XM stops trading. That's why earlier I said XM is a buy.
Killerkaul I think you'll be please when the deal is done with you XM purchase. We need Tate to vote and all of the Opposition whining to settle out.
I think it is likely and that the press will make a big deal out of it. That is why XM is moving fast to consummate the deal by selling bonds to refinance notes so that they can argue to a court that they would be irreperrably injured by a frivolous judicial review and request for a stay by a non-party appellant. It is hard to say how the street would react. We need to have lawyers by the Sirius and XM people jump in prepared to argue that any appeal would be frivolous and merely seen as a politically motivated attempt to make the cost higher to subscribers and ruin the football seasons of XM and Sirius subscribers. They nees to have the PR people on deck.
Working off memory - the landmark case is Chevron v. EPA, (pollution bubble case). More recently there have been many cases involving the FCC. The most important one (i think it was Brand X Cable v. FCC or something similar) involved the FCC's classification of cable modem service as an information service rather than a communication service for the purpose of the Telecommunication Act of 1996, which meant that the cable modem companies did not have to share their lines with smaller startups, as phone companied do. Brand X challenged the FCC's decision all the way to the supreme court and lost, if i remember correctly. I welcome any corrections.
The funny part is you can see that the FCC has a history of playing for the big guys (NAB) by beating down the small guys (SIRI) with their decisions.
I guess here (assuming Tate approves) supporters of sat radio should be please that they approved the deal at all.
Attorneys for the FCC, XM & SIRI will have a flurry of paperwork to define the where, when, how, and who's of providing the 19+ million to the government. Don't expect the official announcement from the "commish" until Friday at the earliest.
Country for
26 yrs
fjallfoss.fcc.gov/prod...
This is an interesting move becuase they want rulemaking on this now by the FCC. This could be why there is some delay in the decision. That would REALLY screw the NAB big time and take out any monopoly argument. Also, it shows how much spectrum is valuable and just how many cards satellite has to play with. I dont think the market understands this.
Also, Reuters upgraded to Neutral. Not covered at all. Only the downgrades have gotten any press.
et cetera
Yes and if you did not go missing for a month you would know we covered it, but please no more information like that until the decision, please.