The FCC has asked for comment on whether a statement that it made ten years ago should be deemed a "binding rule" and if so, whether that rule should be changed or waived to permit the proposed merger of the only two U.S. satellite-delivered radio services, XM and Sirius. The notice of proposed rule making (NPRM) may be found here.

If you’ve been living in a sensory deprivation tank for the last couple of months, you may not have heard that XM and Sirius are proposing to merge. Back in the misty ages of time, when the Satellite Digital Audio Radio Service (SDARS) was barely a glimmer in the eyes of some visionaries – that is, back in 1997 – the Commission had occasion to contemplate the possibility of future consolidation in the SDARS business. At that time, the FCC held in unequivocal terms that "one [SDARS] licensee will not be permitted to acquire control of the other remaining satellite DARS license" (emphasis added).

Fast forward ten years to 2007. There are only two SDARS licensees, and they are proposing to merge into a single entity – precisely what the FCC declared would not be permitted. What about that pesky old prohibition? Not to worry. Echoing the famous words of the pirate Barbossa (in Pirates of the Caribbean: The Curse of the Black Pearl), XM/Sirius argue that the FCC’s words weren’t really rules, but more what you might call guidelines. And even if they were really rules, they should be waived, or modified, or whatever, in order to let the merger proceed.

The Commission wants to know what the Great Unwashed – that is, anybody who isn’t XM or Sirius – thinks about all this. The deadline for filing comments is 30 days after the NPRM is published in the Federal Register; reply comments are due 45 days after FedReg publication.

Let us know if you have any interest in sharing your thoughts on these topics with the Commission.