Waiver Request

0020-EX-TU-2012 Text Documents

Sirius XM Radio Inc.

2012-08-17ELS_128636

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 ) Application of ) ) Liberty Media Corporation ) File Nos. ) For Consent to Transfer of De Jure ) Docket No. Control of Sirius XM Radio Inc. ) ) LIBERTY MEDIA‘S REQUEST FOR WAIVER OF TRANSFEROR/LICENSEE _ SIGNATURE REQUIREMENTS FOR APPLICATIONS FOR CONSENT TO TRANSFER OF DE JURE CONTROL Liberty Media Corporation ("Liberty Media") requests the limited waiver of the Federal Communication Commission‘s ("Commission") rules as set forth herein. Liberty Media is filing an Application for Consent to Transfer of De Jure Control ("Application") of Sirius XM Radio Inc. (“Sirius”) and thé spabe station, satellite earth station, wireless, experimental and other FCC licenses‘ and authorizations held by Sirius and/or its subsidiaries. As described in Exhibit 1, which was prepared by Sirius, Sirius has declined to execute the Application. Sirius has represented that it will cooperate fully with the Commission‘s ‘evaluation of theA Application. Id. More specifically, Liberty Media respectfully requests, pursuant to Sections 1.3 and 1.925 of »the Commission‘s Rules, a waiver of the Commission‘s rules to allow the eiectronic filing of Form 312, Form 603 and Form 7037 applications for consent to transfer of de jzgre control of the Sirius PCC licenses and authorizations without the transferor and/or licensee ! _A list of the FCC licenses and authorizations held by Sirius and/orits subsidiaries and subject to this waiver request is annexed as Schedule 1.

electronic signatures. Each of the applications includes all transferor/licensee information. Siritus has reviewed the transferor/licensee portions of the Form 312‘ applications, and Sirius has prépared the transferor/licensee portions of the Form 603 and Form 703 applications. The Commission should grant this waiver request and accept the application forms without the transferor and/or licensee authqrized electronic signatures because the application forms include all transferor/licensee information and Sirius has agreed to cooperate fully with the Commission in its evaluation of the applications. Libefty Media respectfully submits that this approach will conserve the Commission‘s administrative resources and enable each Commission Bureau to consider its 1‘espe¢tive electronic applications in the normal course. Section 1.3 of the Commission‘s Rules states that the Commission may waive any provision of its Rules, either on its own motion or in response to a petition demonstrating "good cause" for the waiver requested. 47 C.F.R. §1.3. The Commission generally finds that good cause exists for a waiver of its rules "where the particular facts make strict compliance inconsistent with the public interest" under the circumstances presented, and "when the relief requested would not undermine the policy objective of the rule in question." See, e.g., Enhanced 911 Calling Systems, 20 PCC Red. 7709 (2005), at 9. The party seeking a waiver must show that, due to "unique or unusual factual circumstances," application of the rule would be "inequitable, unduly burdensome or contrary to the public interest," or would leave the applicant with "no reasofiable alternative." See 47 C.F.R. §1.925(b); see also WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), appeal after remand, 459 P.2d 1203 (D.C. Cir. 1972), cert. denied, 409 U.S. 1027 (1972) (agency discretion to proceed through general rules "is intimately linked to the existence of a safety valve procedure for consideration of an application for exemption based on special circumstances").

As set forth in the Application, Liberty Media is seeking Commission consent to the transfer of de jure control of Sirius from the current shareholders of Sirius to Liberty Media. Liberty Media already owns 47.3% of the total outstanding shares of Sirius common stock 6n an as—converted basis" and has stated in its Application that it will have purchased sufficient shares of Sirius‘ common stock and will convert its Preferred Shares such that the transfer of control will be completed within 60 days of Commission consent. However, Liberty Media will not convert its Preferred Shares in sufficient quantities to own more than 50% of the outstanding common stock of Sirfus until the Commission grants its de jure transfer of control applications. Here, Libgrty Media is unable to file the necessary electronic vapplications for consent to the transfer of .de jure control of the Sirius FCC licenses and authorizations with electronic transferor and/or licensee signatures because as described in Exhibit 1 Sirius declines to execute the application forms and become a party to the applications. Consequently, in order to file the application forms required to obtain Commission consent, Liberty Media respectfully requests a waiver of the following Commission regulations requiring transferor and/or licensee signatures of application forms:A | e Section 1.917 requiring electronic signatures for wireless license. applications (47 C.F.R §1.917); e Section 5.57 requiring electronic signatures for experimental authorization applications (47 C.F.R. §5.57); and e Section 25.112(a) requiring electronic signatures for satellite and earth station license applications (47 C.F.R. §25.112(a)). " Pursuant to a second forward purchase contract into which Liberty Media entered, Liberty Media intends to acquire 41,087,753 common shares on the settlement date, which is scheduled for October 14, 2012, As explained in the Application, Liberty Media will own 48% of the total outstanding shares of Sirius (on an as— converted basis) after the October 14 settlement date.

Conclusion Liberty Media respectfully requests that the Commission waive its application signature rules and accept the application forms for filing. Each of the application forms includes all of the required information for the transferor/licensee which Sirius has confirmed or provided. Only Sirius‘ signature as a party to the application forms is lacking, for the reasons described in Exhibit 1. Grant of this waiver request is fully justified to enable Commission review of the application forms required of Liberty Media. Further, such grant will conserve the Commission‘s administrative resources and permit use of the Commission‘s standard electronic application filing systems. Respectfully submitted, LIBERTY MEDIA CORPORATION Robert L. Hoegle, Esquire //f2 Timothy J. Fitzgibbon, Esquire Thomas F. Bardo, Esquire Nelson Mullins Riley & Scarborough LLP 101 Constitution Avenue, N.W., Suite 900 Washington, D.C. 20001 (202) 712—2800 August 16, 2012

Schedule 1 FCC LICENSES & AUTHORIZATIONS Sirius XM Radio Inc. E040363 Earth station 10/19/2019 E060276 Earth station 9/5/2021 E060277 Earth station 10/3/2021 E060363 Earth station 10/30/2021 EO80168 Earth station 2/17/2024 EO80185 Earth station 10/9/2023 E110172 Earth station 211572027 E990291 Earth station 3/20/2026 $2710 Satellite 8/25/2017 wWQK1298 Business radio 5/29/2019 WQPD459 Business radio 4/13/2022 WE2XSS Experimental XM Radio LLC S2118 > Satellite 5/31/2014 $2119 Satellite 3/31/2014 S2616 Satellite 12/15/2014 S2617 Satellite 4/20/2013 $2786 Satellite 12/2/2018 E040204 Earth station 8/6/2019 E000724 Earth station 1/22/2026 E000158 Earth station 3/20/2026 WQIP534 Wireless 10/1/2012 WB2XCA Experimental 9/1/2012 Satellite CD Radio LLC CallSign s2105 Satellite 2/11/2017 S2812 Satellite


Document Created: 2012-08-17 15:13:00
Document Modified: 2012-08-17 15:13:00
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