Questions linger over satellite radio merger
WASHINGTON (AP) - April 2, 2008 That may be true, but it's not what government regulators
intended.
Justifying its decision, the Justice Department said customers
of XM Satellite Radio Holdings Inc. and Sirius Satellite Radio Inc.
generally stick to one service once they have signed up, because if
they want to switch, they have to buy a new radio. XM's receivers
don't get Sirius signals, and vice versa.
When the Federal Communications Commission approved rules that
created the business in 1997, it insisted that the two licensees
"certify" that their radios would receive both services. The rule
was meant to promote competition by making it easy for consumers to
switch between satellite radio providers.
"At the very least, consumers should be able to access the
services from all licensed satellite DARS (digital audio radio
service) systems and our rule on receiver inter-operability
accomplishes this," the FCC's 1997 decision reads.
Eleven years later, that goal has been all but abandoned.
Subscribers to XM buy one type of radio, subscribers to Sirius buy
another. Auto makers install one system or the other, depending on
which company they have an exclusive contract with.
The failure to deploy radios that work with both systems was
cited by the Justice Department as part of its justification to
clear the merger.
It said "there has never been significant competition" between
the companies for customers who already subscribed to one of the
services. While the companies "made some efforts" to develop an
interoperable radio, it said, "no such inter-operable radio is on
the market and that such a radio likely would not be introduced in
the near term."
Gene Kimmelman, vice president for federal and international
affairs for Consumers Union, nonprofit publisher of Consumer
Reports magazine, accused the government of failing to protect
consumers.
"If the DOJ truly believes the failure to develop an
inter-operable radio is diminishing competition between XM and
Sirius, it should be promoting aggressive steps to market that
inter-operable radio rather than allow the two companies to combine
into a monopoly," he said.
Thomas O. Barnett, assistant attorney general for antitrust at
the Justice Department, told The Associated Press that the
interoperable radio issue was a part of the investigation, but he
declined to pass judgment on what the companies' FCC obligations
were.
"We focused on what was actually happening in the marketplace
and what was likely to happen in the marketplace going forward,"
he said.
"The parties did in fact develop an inter-operable radio and my
understanding is they have one," he continued. "But there's a
difference between developing something and market acceptance of
something."
The companies subsidize the cost of equipment, which reduces the
upfront cost to subscribers. An inter-operable radio might lead to
a more expensive radio, Barnett said, and it would be unclear who
would subsidize the cost.
The $5 billion buyout of XM by Sirius still needs approval from
the FCC, which prohibited a merger when it granted satellite radio
operating licenses in 1997. The companies argue that the
prohibition was a "policy statement" rather than a "binding
commission rule."
The companies say that ample competition is provided by other
forms of audio entertainment, including "high-definition" radio,
Internet-based radio stations and even devices like Apple Inc.'s
iPod, an argument the Justice Department found convincing.
The FCC has the authority to block the sale or impose conditions
on pricing or program offerings.
Mel Karmazin, who would assume the role as chief executive
officer of the merged company, told a House subcommittee that the
two companies have spent $25 million and successfully developed an
inter-operable receiver, but manufacturers are not interested in
making it.
"We've developed it, we've lived up to our license. There's not
a question," he said.
There is nothing in the license that says the company has to
subsidize such a radio and bring it to the market. And to expect
the companies to do that on their own isn't realistic, Karmazin
said.
It is uncertain when the FCC will act on the merger, and the
agency declined to comment for this story.
FCC Chairman Kevin Martin said when the companies announced the
merger that "the hurdle here, however, would be high" for the
companies to receive approval because of the agency's no-merger
rule. The companies will have to demonstrate that "consumers will
be clearly better off with both more choice and affordable
prices."
On Nov. 2, the agency sent extensive requests for documents to
both companies, including a request for them to "provide a
description of all efforts to develop and commercialize
inter-operable satellite radio receivers and any difficulties in
such development and commercialization."
Through the end of 2007, Washington, D.C.-based XM reported 9
million subscribers and New York City-based Sirius reported 8.3
million subscribers.