Attachment supplement

supplement

SUPPLEMENT submitted by Mt. Wilson FM Broadcasters

supplement

2008-03-24

This document pretains to SAT-T/C-20070320-00054 for Transfer of Control on a Satellite Space Stations filing.

IBFS_SATTC2007032000054_631554

BEFORE THE geberai Cornmunitattons: Comrnt~$ton In the Matter of ) Satellite Space Stations ) SAT-T/C-20070320-00054 ) Sirius Satellite Radio, Inc. and ) SAT-T/C-20070320-00053 X M Satellite Radio Holdings, Inc. 1 for Transfer of Control of the FCC ) Satellite Earth Stations Authorizations and Licenses i SES-T/C-20070320-00380 SES-T/C-20070320-00379 MB Docket No. 07-57 To: Office of the Secretary Federal Communications Commission SUPPLEMENT TO PETITION TO DENY Mt. Wilson FM Broadcasters, Inc., licensee of radio stations I<KGO(FM), Los Angeles, California; KMZT(AM), Beverly Hills, California and FM translator station I<288CS, Kawaihae, Hawaii (“Mt. Wilson”) timely filed a Petition to Deny the above- referenced SiriudXM transfer of control applications. On March 12, 2008, Clear Channel Communications, Inc. (“Clear Channel”) filed a “Notice of Ex Parte Presentation (“Notice”) in MB Docket No. 07-57. Mt. Wilson hereby in part supports the Clear Channel position. Clear Channel opposes the grant of the pending transfer applications and/or in the event that the Commission is disposed to grant the applications, proposes that conditions be imposed as set forth in Appendix 3 to the Clear Channel Notice. Specifically, with

respect to Condition 1, Clear Channel proposes that at least 50% of the satellite capacity should be set aside for third parties. While Mt. Wilson strongly endorses the concept of setting aside 50% of the spectrum (or at least that portion of the spectrum controlled by Sirius or XM - but not the totality of both parties), Mt. Wilson submits that the 50% “set aside” should be further conditioned by limiting the acquisition to a party which has no attributable interest in terrestrial radio. In support of its position, the Clear Channel “Notice” devotes considerable argument to the adverse economic impact (competition/anticompetitive) on local free, over-the-air broadcast radio. However, if the 50% “set aside” (or any portion thereof) is acquired by a terrestrial broadcaster and such acquisition equates to an attributable interest (as that term is defined by the Commission rules), such interest would be essentially identical to the threat posed by the merger or as Clear Channel states “. . . concentrated in the control of one essentially unregulated entity. . . creating a genuine threat to the economic framework of broadcast radio.”l Mt. Wilson also strongly endorses Condition 3 requiring the merged applicants to adhere to the Commission’s indecency rules. The proposed “Condition” if accepted can -1 Clear Channel March 12, 2008 “Notice” second paragraph. The difference between “regulated” or “unregulated” at the Commission level is irrelevant. The FCC test for establishing alleged anticompetitive conduct (applicable to a “regulated” broadcast station) mandates that FCC evaluation of such activity must be preceded by an “. . .adjudicated violation of either anticompetitive or antitrust laws. In Re Existing ~- Stockholder of Clear Channel Communications, Inc., Memorandum Opinion and Order, FCC 08-3, Para. 28 (2008). The fact that the Petitioner supplied affidavits and argued that the local Department of Justice office would not fikely pursue “white collar” matters involving relatively small dollar amounts was of no consequence. The FCC test (to establish a prima facie case) requires an “adjudicated violation” as a prerequisite for FCC evaluation - which pragmatically negates any difference between a “regulated” or “unregulated” entity. L \ I 124\003\PLD\Supplement to Petition to Deny doc -2-

be fairly characterized as a voluntary act, not a Commission rule, thereby avoiding the issue of FCC authority.' Respectfully submitted MT. WILSON FM BROADCASTERS, INC. By: - !,Q& . j kZ--.& Robert B. Jacobi * Cohn and Marks LLP 1920 N Street, N.W. Suite 300 Washington, DC 20036 (202) 239-3860 Its Attorneys Dated: March 24, 2008 -2 As the Commission is aware, satellite radio broadcasts have indeed been received on standard automobile radios. Arguably, the indecency rules could and should be enforced in the event that (for whatever reason) indecent programming originated by a satellite service is aired on spectrum reserved for the traditional free over-the-air terrestrial broadcasters . L \ I I24\003\PLD\Suyplemeiit to Petition to Deny.doc -3-

CERTIFICATE OF SERVICE I, Brenda Chapman, hereby certify that on this 24t” day of March, 2008, a copy of the foregoing “Supplement to Petition to Deny” was delivered via first class, U.S. mail, postage prepaid or via hand delivery where indicated to the following: Jennifer D. Hindin, Esq. Willey, Rein, LLP 1776 K Street, N.W. Washington, D.C. 20006 Counsel for Sirius Satellite Radio, Inc. James H. Barker, 111, Esq. Lathan & Watkins 555 Eleventh Street, N.W. Suite 1000 Washington, D.C. 20004-1304 Counsel for XM Satellite Radio Holdings, Inc. Lawrence A. Walke, Esq. National Association of Broadcasters 1771 N Street, N.W. Washington, D.C. 20036 Best Copy and Printing, Inc. ** The Portals I1 445 - 12th Street, S.W. Room CY-B402 Washington, D.C. 20554 Rosemary C. Harold* * Media Bureau Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 3-C486 Washington, D.C. 20554 Tracy Waldon** Media Bureau Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 3-C488 Washington, D.C. 20554

Royce Sherlock** Media Bureau Federal Communications Commission The Portals I 445 - 12th Street, S.W. Room 2-C360 Washington, D.C. 20554 Jim Bird** Office of General Counsel Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 8-C824 Washington, D.C. 20554 Gardner Foster* * International Bureau Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 6-C477 Washington, D.C. 20554 Marilyn Simon** International Bureau Federal Communications commission The Portals I1 445 - 12th Street, S.W. Room 6-A633 Washington, D.C. 20554 Marcia Glauberman* * Media Bureau Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 2-C264 Washington, D.C. 20554 Amy Brett* * Media Bureau Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 2-C 134 Washington, D.C. 20554 L \ I I24\003WLD\SuppIeinentto Petition to Deny.doc -5-

Erin McGrath* * Wireless Bureau Federal Communications Commission The Portals I1 445 - 12th Street, S.W. Room 6338 Washington, D.C. 20554 Lawrence R. Sidman Paul, Hagings, Janofsky & Walker, LLP 875 - 15 Street, N.W. Washington, D.C. 20005 ** VIA HAND DELIVERY L \ I 124\003\PLD\Supplement to Petition to Deny.doc -6-


Document Created: 2008-03-25 15:08:16
Document Modified: 2008-03-25 15:08:16
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