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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-09-SE-221
)
Sirius XM Radio Inc. ) Acct. No.: 201232100028
)
) FRN: 0006345730
ORDER
Adopted: July 3, 2012 Released: July 3, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) and Sirius XM Radio Inc. (Sirius XM). The
Consent Decree resolves and terminates the Bureau's investigation into
Sirius XM's compliance with the conditions imposed by the Commission
in its approval of the merger application of Sirius Satellite Radio
Inc. and XM Satellite Radio Holdings, Inc.
2. The Bureau and Sirius XM have negotiated a Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of new material evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Sirius XM possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and Sections 0.111 and 0.311
of the Commission's rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to James S. Blitz, Vice President and Regulatory Counsel,
Sirius XM Radio Inc., 1500 Eckington Place, N.E., Washington, D.C.
20002, and to Jennifer D. Hindin, counsel for Sirius XM Radio Inc.,
Wiley Rein LLP, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-09-SE-221
)
Sirius XM Radio Inc. ) Acct. No.: 201232100028
)
) FRN: 0006345730
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Sirius
XM Radio Inc., by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
investigation into Sirius XM's compliance with the conditions imposed by
the Commission in its approval of the merger application of Sirius
Satellite Radio Inc. and XM Satellite Radio Holdings, Inc.
I. definitions
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms
of this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal
Communications Commission.
d. "Commission" or "FCC" means the Federal Communications Commission
and all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and
the published and promulgated orders and decisions of the
Commission to which Sirius XM is subject by virtue of its
business activities.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
letter dated May 15, 2009 concerning Sirius XM's compliance with
the conditions contained in the Merger Order, including the
company's voluntary commitments as set forth in Appendix B to the
Merger Order.
h. "Parties" means Sirius XM and the Bureau, each of which is a
"Party."
i. "Rules" means the Commission's regulations found in Title 47 of
the Code of Federal Regulations.
j. "Sirius XM" means Sirius XM Radio Inc., its
predecessors-in-interest, and its successors-in-interest.
II. Background
2. On July 25, 2008, the Commission approved the consolidated application
of Sirius Satellite Radio Inc. (Sirius) and XM Satellite Radio
Holdings Inc. (XM) for consent to the transfer of control of the
licenses and authorizations held by Sirius and XM, and their
subsidiaries, for the provision of satellite digital audio radio
service in the United States. In doing so, the Commission conditioned
its approval on Sirius XM's compliance with the conditions contained
in the Merger Order, including the company's fulfillment of its
voluntary commitments as set forth in Appendix B to the Merger Order.
3. On May 15, 2009, the Bureau sent Sirius XM a letter seeking
information about Sirius XM's compliance with the Merger Order. The
Bureau asked Sirius XM to provide a statement detailing the company's
efforts to comply with certain Merger Order conditions and voluntary
commitments. In its June 15, 2009 response, Sirius XM described the
steps the company was taking to comply with the other Merger Order
conditions and voluntary commitments. The Bureau subsequently issued
follow-up letters of inquiry to Sirius XM, to which the company
responded.
4. On July 27, 2011, after soliciting public comment, the Commission
released a Memorandum Opinion and Order determining that the record
evidence did not support taking action to extend the three year
pricing condition contained in the Merger Order. The Commission noted,
however, that its decision did not limit the Commission's ability to
take enforcement action against Sirius XM for failure to comply with
the Merger Order or any of Sirius XM's voluntary commitments.
III. terms of Agreement
5. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
Sirius XM's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Adopting Order.
6. Jurisdiction. Sirius XM agrees that the Bureau has jurisdiction over
it and the matters contained in this Consent Decree and that the
Bureau has the authority to enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. As of the Effective
Date, the Adopting Order and this Consent Decree shall have the same
force and effect as any other order of the Commission. Any violation
of the Adopting Order or of the terms of this Consent Decree shall
constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
8. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, Sirius XM agrees to the terms and conditions contained
herein. The Bureau further agrees that in the absence of new material
evidence, the Bureau will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any new proceeding,
formal or informal, or take any action on its own motion against
Sirius XM concerning the matters that were the subject of the
Investigation. The Bureau also agrees that in the absence of new
material evidence it will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal
or informal, or take any action on its own motion against Sirius XM
with respect to Sirius XM's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission authorizations.
9. Voluntary Contribution. Recognizing that the Parties expended
resources in connection with this investigation and to avoid further
expenditure of resources, Sirius XM agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
Two Hundred Forty Thousand Dollars ($240,000). The payment must be
made within thirty (30) calendar days after the Effective Date. The
payment must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the Account Number and FRN referenced in the caption to the
Adopting Order. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox # 979088 SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and Account Number 27000001.
Sirius XM must also send electronic notification to Kevin Pittman at
Kevin.Pittman@fcc.gov, JoAnn Lucanik at JoAnn.Lucanik@fcc.gov and
Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is
made.
10. Waivers. Sirius XM waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Bureau issues an Adopting Order
as defined herein. Sirius XM shall retain the right to challenge
Commission interpretation of this Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Sirius XM nor the Commission shall contest the
validity of this Consent Decree or the Adopting Order, and Sirius XM
shall waive any statutory right to a trial de novo. Sirius XM hereby
agrees to waive any claims it may have under the Equal Access to
Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et seq., relating
to the matters addressed in this Consent Decree.
11. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
12. Subsequent Rule or Order. The Parties agree that if any provision of
this Consent Decree conflicts with any subsequent Rule or order
adopted by the Commission (except an order specifically intended to
revise the terms of this Consent Decree to which Sirius XM does not
expressly consent) that provision will be superseded by such Rule or
Commission order.
13. Successors and Assigns. Sirius XM agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. The Parties further agree that this
Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the requirements of the
Communications Laws.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
17. Authorized Representative. The individual signing this Consent Decree
on behalf of Sirius XM represents and warrants that he is authorized
by Sirius XM to execute this Consent Decree and to bind Sirius XM to
the obligations set forth herein. The FCC signatory represents that
she is signing this Consent Decree in her official capacity and that
she is authorized to execute this Consent Decree.
18. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
_________________________
P. Michele Ellison
Chief
Enforcement Bureau
__________________________
Date
__________________________
Patrick L. Donnelly
Executive Vice President, General Counsel and Secretary
Sirius XM Radio Inc.
__________________________
Date
Applications for Consent to the Transfer of Control of Licenses, XM
Satellite Radio Holdings, Inc., Transferor, to Sirius Satellite Radio
Inc., Transferee, Memorandum Opinion and Order and Report and Order, 23
FCC Rcd 12348 (2008).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
Applications for Consent to the Transfer of Control of Licenses, XM
Satellite Radio Holdings, Inc., Transferor, to Sirius Satellite Radio
Inc., Transferee, Memorandum Opinion and Order and Report and Order, 23
FCC Rcd 12348 (2008) (Merger Order). The Merger Order was effective upon
adoption, on July 25, 2008.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, to James S. Blitz, Vice President and Regulatory
Counsel, Sirius XM Radio Inc. (May 15, 2009).
Merger Order at 12428, para. 180.
See supra note 2.
Letter from James S. Blitz, Vice President and Regulatory Counsel, Sirius
XM Radio Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau, (June 15, 2009).
Id. at 4-6.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, , to James S. Blitz, Vice President and Regulatory
Counsel, Sirius XM Radio Inc. (Apr. 12, 2010); Letter from John D.
Poutasse, Acting Chief, Spectrum Enforcement Division, FCC Enforcement
Bureau, to Richard E. Wiley, Wiley Rein LLP, Counsel for Sirius XM Radio
Inc. (July 1, 2011).
See Letter from James S. Blitz, Vice President and Regulatory Counsel,
Sirius XM Radio Inc., to Jacqueline Ellington, Esq., Spectrum Enforcement
Division, FCC Enforcement Bureau, (May 12, 2010); Letter from James S.
Blitz, Vice President and Regulatory Counsel, Sirius XM Radio Inc., to
Jacqueline Ellington, Esq., Spectrum Enforcement Division, FCC Enforcement
Bureau, (Dec. 3, 2010); Letter from James S. Blitz, Vice President,
Regulatory Counsel, Sirius XM Radio Inc., to Kevin M. Pittman, Spectrum
Enforcement Division, FCC Enforcement Bureau, (July 15, 2011); Letter from
James S. Blitz, Vice President, Regulatory Counsel, Sirius XM Radio Inc.,
to Kevin M. Pittman, Spectrum Enforcement Division, FCC Enforcement
Bureau, (July 26, 2011); Letter from James S. Blitz, Vice President,
Regulatory Counsel, Sirius XM Radio Inc., to Kevin M. Pittman, Spectrum
Enforcement Division, FCC Enforcement Bureau, (Aug. 5, 2011). Separately,
in response to a verbal request from Bureau staff, Sirius XM produced
information regarding its previous document production in the class action
litigation, Carl Blessing et al. v. Sirius XM Radio Inc., formerly pending
in the United States District Court for the Southern District of New York.
Applications for Consent to the Transfer of Control of Licenses, XM
Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio Inc.,
Transferee, Memorandum Opinion and Order, 26 FCC Rcd 10539 (2011).
Id. at 10543, para. 9.
Federal Communications Commission DA 12-842
2
Federal Communications Commission DA 12-842