Loony Advice from Our Legislators

I rarely cover satellite radio, but I've been following the Sirius/XM merger and the related governmental sideshow. I've been an XM subscriber for a long time, and I'm frankly disappointed by the merger; nevertheless, it's clear to me that XM and Sirius are probably never going to get to critical mass separately. The U.S. Justice Department has approved the merger, and the Federal Communications Commission has yet to rule, but FCC Chairman Kevin Martin has said that he's ready to approve the merger with some restrictions on the new company.

Today, three U.S. Senators (Claire McCaskill (D-MO), Ben Cardin (D-MD) and John "Snatching defeat from the jaws of victory" Kerry (D-MA)) asked Martin to impose two restrictions on the merger: First, the merged company would have to allocate no less than 20%, and preferably 50%, of its channels for leasing to minority and noncommercial information programmers. Second, satellite receivers would have to include electronics for receiving terrestrial HD Radio signals.

There's no question that the merger will create a monopoly in satellite radio, but the vast majority of consumers in the U.S. get their audio entertainment from terrestrial radio, CDs and digital media players such as iPods, not satellite radio. The Justice Department decided that the relevant market for determining whether or not a monopoly exists is audio entertainment, not satellite radio. Requiring the merged company to make as much as 50% of its channels available for leasing would effectively destroy its ability to reach profitability in any reasonable time. As for making the merged company's receivers also receive HD Radio, that would be like demanding that Comcast modify its set-top boxes so that they could also be used by DirecTV, or vice versa. It's up to terrestrial broadcasters, and not Sirius and XM, to make HD Radio successful.

As I said, I'm not a fan of the Sirius/XM merger; I think that it will reduce competition and consumer choice. Nevertheless, the remedy suggested by Senators Cardin, Kerry and McCaskill doesn't address these issues at all; it simply cripples the competitiveness of satellite radio versus terrestrial broadcasters.