Can XM Sue Clear Channel?

We're now 17 months into the courtship between XM Satellite Radio (Nasdaq: XMSR) and Sirius Satellite Radio (Nasdaq: SIRI), but it's hard to tell whether the church bells signal a wedding or a funeral.

The Federal Communications Commission appears ready to approve the deal this month, with a few stipulations -- but is it too late?

Goldman Sachs analyst Mark Wienkes certainly seems to think so, dramatically lowering his price target for both companies last month, despite the deal's likely completion later this year.

"The process appears to be broken," former FCC media bureau chief Ken Ferree is quoted as saying by Associated Press reporter -- and former Fool -- Chris Rugaber over the weekend. Ferree suggests that the commission's goal to nix or approve deals within 180 days has become meaningless.

I'll say. The proposed pairing is about to hit the 500-day mark later this month.

This is certainly a unique and controversial deal, and hardly one to be rushed, but XM and Sirius agreed to many of the concessions last summer. Two hundred days should have been plenty. Three hundred would have been a travesty. But five hundred days? It would be laughable -- if it didn't feel downright criminal.

Unfortunately, the deal's delay has left satellite radio, particularly XM, in bad shape. XM has had to tap new credit lines in recent months. Losses are mounting, even as the two former competitors miss out on merger synergies.

Someone will have to dust this crime scene for fingerprints if XM and/or Sirius falter before they get a chance to seal the nuptials. XM and Sirius investors won't get anywhere by pursuing the slow-footed FCC, but they may have a shot at remuneration by targeting terrestrial radio.

After all, the National Association of Broadcasters is still lobbying against the deal. The group, which represents traditional radio broadcasters like Clear Channel (NYSE: CCU), Citadel (NYSE: CDL), and CBS (NYSE: CBS), seems to be the lone organizational holdout in accepting the merger as fair. If those lobbying efforts have delayed regulatory decisions by creating frivolous hoops of flame for XM and Sirius to jump through, shouldn't a giant like Clear Channel be financially liable for the substantial synergies currently being denied Sirius-XM?

Legally speaking? Probably not. But wouldn't it be a hoot to see satellite radio make terrestrial radio sweat for a change? If nothing else, it would help break down the fading notion that satellite and terrestrial radio aren't competitors.

What do you think? Chime in using the comment box below.

More news than static on the Sirius-XM delays:

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Longtime Fool contributor Rick Munarriz subscribes to both XM and Sirius. He does not own shares in any of the companies in this story. He is also part of the Rule Breakers newsletter research team, seeking out tomorrow's ultimate growth stocks a day early. The Fool has a disclosure policy.

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Comments from our Foolish Readers

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  • On July 07, 2008, at 4:12 PM, dtam1 wrote: Report this Comment

    I think XM and Sirius should sue the FCC

  • On July 07, 2008, at 4:23 PM, Blumpkins4all wrote: Report this Comment

    What a joke this merger is. What a joke. It goes to show how ridiculous the FCC is. What is a bigger shame, is the unfortunate people who believed in this merger and invested good money in something they believed in, and are now paying the price for it. I applaud the FCC for making a complete joke out of something that would benefit all.

    Terrestrial radio is horrible. Who wants to hear the same 5 songs over and over again, every hour, and then listen to 40 minutes of commercials. Ugh its terrible. If satellite radio folds as a whole, I will listen to my ipod in the car.

  • On July 07, 2008, at 4:47 PM, mvflaim wrote: Report this Comment

    As a long time SIRI investor, I would have rather like to see XM go out of business instead of SIRI taking on it's debt but the merger is what it is. Some day this decade it will be approved by the FCC but I'm not lining up to buy more shares anytime soon.

  • On July 07, 2008, at 4:49 PM, vatech9193 wrote: Report this Comment

    I do own Sirius stock, so that being said, I agree the merger deliberations have been an absolute travesty and have only demonstrated the perversion of the golden rule (the one with the gold makes the rules). The NAB and those that it represents have wasted time and money to combat a competitor that they intially refused to even accept the existence of. I have yet to hear even a minutely compelling argument against the merger and yet some nearly 500 days later, here we are.

  • On July 07, 2008, at 4:56 PM, Matt8265 wrote: Report this Comment

    I'm embarrassed for the FCC, and agency that I previously respected under Mr. Powell and Mr. Hundt. Mr Martin and company have sold their souls for their personal benefit. In Mr Martin's case, he sold the FCC back to the Congress two years ago.

    Besides Mr. Hundt's strong support of the merger, consider the following from the highly respected T.W.Hazlett;

    Former Federal Communications Commission Chief Economist Thomas W. Hazlett's advocacy of the proposed XM/Sirius satellite merger centers around a single irony: nothing makes the case for the application better than terrestrial broadcaster opposition to the union.

    "These interests emphatically claim that they oppose the merger because it will lead to a monopoly that will harm consumers," Hazlett writes in a brief filed today with the FCC. "This fierce opposition is powerful evidence in itself that AM/FM radio—'free radio'—competes with satellite radio, and reveals the true concern of terrestrial stations: that the merger will create a stronger rival better able to meet the needs of consumers."

  • On July 07, 2008, at 4:59 PM, Matt8265 wrote: Report this Comment

    BTW.. this was posted @ Orbitcast... the only name you need to know for Satrad...I cleaned it up somewhat for the children.. Mucho anger over the public interest being sold out

    ---

    With XM-Sirius merger dragging as long as has, why has the decision not been made? The Dept. of Justice made their decision in March, yet you all keep dragging your feet. This decision should have been made shortly after the DOJ's.

    It is time to stop listening groups like NAB, Gerorgetown Partners, and others to block the merger and delaying the process. They had enough time to post their opposition that was to end July 24,2007

    ---

    If time frames are set, you need to abide by them. The link below will show that all groups had the opprituniy.

    http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-2417...

    ----

    Ms. Tate – 202-418-2500

    Dtaylortate@fcc.gov

    Mr. Adlestein – 202-418-2300

    Jonathan.adlestein@fcc.gov

    Mr. Copps – 202-418-2000

    Michael.copps@FCC.gov

    Mr. McDowell – 202-418-2200

    Robert.McDowell@FCC.gov

    Mr. Martin – 202 –418-1000

    KJMWEB@FCC.gov

  • On July 07, 2008, at 5:16 PM, jfcg82 wrote: Report this Comment

    Can we as investors sue the FCC?... I think we should be allowe to do it

  • On July 07, 2008, at 5:20 PM, edpeters2000 wrote: Report this Comment

    I Bought Sirius at 7, then bought some more at 3, after the DOJ approval I bought more at 2. Someone should be held responsible for this disaster of an organization called the FCC. If the merge is approved the combined company would be with in their legal rights to sue NAB. Since this is political, G. Bush should step in and add his two cents, I bet that would light a fire under Martin's ass.

  • On July 07, 2008, at 6:00 PM, dicksonround wrote: Report this Comment

    In case you all don't know, it is an ellection year. Congressmen and Senators do lots of advertising on local radio stations, and none on satelite, because they are local races. That is what is behind most of the delay, the link between corrupt members of congress and terestrial radio. Somebody needs to look into who got free air time from what terestrial stations in exchange for screwing up this deal.

  • On July 07, 2008, at 6:27 PM, Got1toBurn wrote: Report this Comment

    I think we should get rid of the FCC. it doesnt seem criminal what they have done to these companies, it DOWN RIGHT IS CRIMINAL!! Why is it OK for the governmnt to kill a company and it's hard working investor? But EXXON MOBIL can merge quick and quietly when gas is something i need and satellite radio is now. SOMEONE Please explain!!!

  • On July 07, 2008, at 7:27 PM, mojoworkun wrote: Report this Comment

    Munarriz you need to smell the coffee and get over your lousy pick of XMSR. One of the Gardner Bros was right to have shorted SIRI in the earlier part of this decade down to below $1. The holes in the business plan of SIRI/XMSR are patently obvious to anyone with sense enough not to be duped by Wall Street hype for their gravy train of financial issue floating revenue.

    A free press (diverse) is mentioned by the framers of the American government as a vital check for the health of a democracy. Even considering letting XMSR and SIRI merge at the outset was potentially perilous for our country. With the holes in the satellite radio business plan it seems likely they will end up being just a sliver of some media behemoth one day. A too concentrated media is a risk for our freedoms.

    CCU has had to contend with the perils of too much media concentrations since its development unfolded. You can bet the FCC is breathing a sigh of relief that CCU will divest some radio stations as part of their privatization. CCU/NAB, whomever, is merely in the marketplace seeing that they give what they already have gotten by being a consolidator of just like 10% of the broadcast radio spectrum. To give one operator the entire satellite radio spectrum could end up being part of a media behemoth that could lead to the undoing of what the founders of this country envisioned the way things should be. The FCC panel should be replaced for even pondering allowing such a merger.

    Just because some SIRI owning dupe was sold a hyped bill of goods by an avaricious Wall Street is no reason to imperil the foundations of how media in our country operates. A free press, which also means diverse media opinion, is a cornerstone of a healthy democracy folks. Wake up and quit crying in your beer that you own a lousy satellite radio stock pick, and think a little bit about what is good for this country.

  • On July 07, 2008, at 8:16 PM, Matt8265 wrote: Report this Comment

    Funny, but cruel... cruel..

    Google..ORBITCAST

    Is it me, or does this particular picture of Ms. Taylor-Tate make her look like Irene Dunn, the lovable "Granny" on the Beverly Hillbillies? I wonder if when back at home in Tennessee if Ms. Taylor-Tate's car has a couch strapped on the back and a bottle of elixir at her side?

    Come to think of it, Her legal adviser, Ms. Blankenship ( the one that worked for Sam Brownback ..small world isn't it) could be the buxom Ellie May with Michael Copps as Uncle "Jed", Kevin Martin as "Jethro Bodine" and Mr. McDowell as "Mr. Drysdale " to round out the bunch.

    And while on that front ....

    Come and listen to a story about a girl named Deb

    A poor mountaineer, the NAB kept her family fed

    Then one day she was primping in the mirror

    And in through the door came a fellow named Rehr… Dave that is …

    Limousines, trips.. speaking fees !

    Well the first thing you know Old Deb’s a millionaire

    Rehr said Deb let’s move away from here

    He said “In Congress” is the place you ought to be

    So they loaded up the Lexus and moved on up the street

    K Street that is … Lobbyists, parties… trips to Africa …Swimmin pools, movie stars.

    The FCC Hillbillies!

    Well now its time to say good-bye to the FCC and all their friends

    They would like to thank you folks for buying in with them

    You're all invited back again to this locality, to watch the constipation and mediocrity

    Politics that is. Set a spell. Take your wallet out . Y'all come back now, y'hear?

  • On July 07, 2008, at 8:27 PM, OldGaDawg wrote: Report this Comment

    Go-A-Head.... SUE!!!!!!

    May be set a fire under these folks A$$'s in the FCC and let them sweat!!!!!!

    Bring in the Clear Channel, The NAB, Those politicians that have filled there pockets for delaying this with all the others to whom had stuck there two cents worth in this as well.

    OldGaDawg 07-Jul-08...

  • On July 07, 2008, at 11:10 PM, mdkleinco wrote: Report this Comment

    How many times has the FCC changed the rules so that Clear Channel could own every station in every market place? I guess some monopolies are more equal than others. At the very least there should be an investigation and total transparency on the payoffs that have been made. There is no doubt in my mind there is room for a criminal investigation.

  • On July 08, 2008, at 8:25 AM, SATMOJ wrote: Report this Comment

    Well, I got to tell ya Rick, As usual with Sat Rad.. you missed the oportunity to be fair.

    XM refinance some debt that was due, Sirius has much more than that to do next year. XM had to borrow 100 million for the Escrow account for MLB,

    What Will sirius do when they need to refill thye Escrows for NFL, NBA and issue shares to Stern?

    So Rick, Why is it allways what a bad place XM is in? Why is Sirius the "Golden Child" who can do no wrong? what Will Sirius do when they need the new satellites? XM has finished replacing theirs at a hefty cost. Sirius has Huge CapEx in the near term.

    So Again Rick, Why is XM on its Death bed? Almost as if your saying that Sirius is fine?

    XM Sure Clear Channel? Sue the FCC.... Why? They are asking for the FCC to combine licences that were issued as 2 for a reason.

  • On July 08, 2008, at 10:27 AM, Matt8265 wrote: Report this Comment

    You know what's sad here... and this is bigger picture than satrad. At what point does the ineffectiveness and failure of Washington to address the people's will, warrant violence and revolt?

    The war, the economy, the health care system, this little piece of FCC incompetence... at some point the people will have had enough ...just like 1776.

  • On July 08, 2008, at 11:01 AM, Phillip944 wrote: Report this Comment

    Wikipedia: In law, a class action or a representative action is a procedural device used in litigation to determine the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and/or fact.

    We all sit in our homes & offices and complain about the FCC, Clear Channel, etc. No one does anything about it.

    There was a time when Americans weren't afraid to make a stand. What happened to us?!

    Unfortunately, I've opened myself up to the "talkers". Hopefully, the people who are fed up will show themselves.

    If any other share holders want to actually act rather than talk, I'll stand with you.

  • On July 08, 2008, at 11:34 AM, Barry456 wrote: Report this Comment

    What people don't realize is that a merged Sirius and XM would actually create MORE choices. Here's how: Between the two services there is a lot of duplication. Both operators carry a number of CNN, Fox News, and there is a great deal of overlapping music channels. This duplication would be eliminated when the companies merge, BUT they would have to fill the newly-vacant channel with something.

    New sports channels would be a likely choice for new programming, along with a great variety of new services not found now on either XM or Sirius.

  • On July 08, 2008, at 1:37 PM, snazzy44 wrote: Report this Comment

    I agree with some of the other comments in that Sirius and/or XM should be able to sue the FCC for the losses dealt by the delay. From what I understand, both parties acted in timely fashion with supplying what ever documents were requested by the dates dictated by the FCC. It should be a two-way street and the same rules should apply. Approve or disapprove already. Another one of those classic Government red-tape double standard hurry up and wait games.

  • On July 08, 2008, at 2:26 PM, mailinator wrote: Report this Comment

    To bad the FCC has been stuffed full of political hacks. How can the republicans afford to allow competition against Clear Channel (one of their largest supporters)

  • On July 08, 2008, at 4:50 PM, jimmy1stitch wrote: Report this Comment

    if it was oil companys that wanted to merge it would have happened the next day.the fcc is wrong for the delay,this is about 2 companys that most likly fail with out this.

  • On July 08, 2008, at 10:30 PM, jebr1012 wrote: Report this Comment

    I would have to agree with Matt8265. A little off the topic but this is just another issue. I have made the same comment about revolt. I am a servicemember that is trying to get a business off the ground. everytime you turn around business tax, sales tax, business license, llc license, payroll tax, etc. then after bringing home less than 20000 you have to pay federal tax, county tax, school tax, state tax. Come on already. The politians do nothing for the people just what can make them richer. This is just another example.

    What happened. I thought we revolted "taxation without representation"

    Sorry for the tagent just seen the post and had to put my 2 cents in.

    The one thing I enjoy is being able to drive from point a to point b and listen to clear radio all the way without having to switch every hour. Now the government is going to cost me that too. For people that dont like the merger and are afraid of higher prices. Nothing is making you subscribe to it. If prices go up and people drop subscriptions they kill themselves anyway. Let the company decide not the politicians.

  • On July 10, 2008, at 12:00 PM, bgolden13 wrote: Report this Comment

    Mojoworkun, you must be joking. Do you really believe that if the SIRI/XMSR merger goes through, this will create a "media behemoth that could lead to the undoing of what the founders of this country envisioned the way things should be?" WOW you are dramatic. In the grand scheme of things this merger is totally irrelevant to the citizens of this country. This merger wont hinder "Free Press" or prevent " Diverse Media Opinions." This is a paid service. If you don't want to listen, then don't buy it. Get your news and entertainment from the 1000 other media outlets available to you. You are crazy if you think this is a monopoly. Please explain to me why the NAB would invest millions of dollars to lobby against this merger if they weren't competing with Satellite Radio? This by itself proves there is atleast one other competitor nullifying the ludicrous notion that this is a monopoly. This is a business that competes with everything from conventional radio to Apple's IPod. All of the 17 Million subscribers as well as the countless millions of investors want this merger to go through. This merger will undoubtedly benefit the consumer with increased content and more choices. You need to "Wake Up"! .

  • On July 11, 2008, at 4:53 PM, jakedoinggood wrote: Report this Comment

    Please remember a few things.

    1) Way back when, these companies promised the FCC they would never merge, that in exchange for their ability to brodcast nationaly. The equipment they use is not proper. Their in car "rebraodcaster" is to strong. One I was listening to NPR and stern bleed over from the car next to me so my son heard all kinds of things. I contacted the FCC, no recorse was taken. If a radio station did this they would be fined through the teeth.

    2) They have flaunted FCC time and time again. They use repeaters that are too srong, have failed to maintian proper record keeping, and numerous other issues. Last year it was announced over 30% of their repeaters were not in the proper locations, a huge issue.

    3) They promised they would never do local news / weather / traffic, they do now but run the local info nationaly to get around the intent of the rule.

    You have to understand the FCC keeps all radio in line, or it would be a mess. Their rules ensure fair play (or try too) these two companies have done nothing but flaunt them.

    I agree the FCC should have ruled last year, but to deny. Yes, before you start, I do work in radio. But we have our hands tied everyday by the FCC as we have to follow the rules.

    They agreed not to merge in return for their ability to broadcast nationaly, stick to it.

  • On July 23, 2008, at 8:16 PM, snowfreeze wrote: Report this Comment

    You can sue anyone you want, for any reason that you want. It doesn't mean that you are going to win though...

  • On July 23, 2008, at 8:17 PM, snowfreeze wrote: Report this Comment

    You can sue anyone you want, for any reason that you want. It doesn't mean that you are going to win though...

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