A group of state attorneys general made a last-ditch effort this week to convince the FCC's wild-card to oppose Sirius Radio's proposed merger with XM.
The AGs told FCC commissioner Deborah Taylor Tate in a phone call July 1 that the combination would deal a "stacked deck" to consumers despite voluntary conditions the companies have agreed to that they contend would ameliorate anti-competitive concerns.
Their focus on Tate comes as FCC chairman Kevin Martin told reporters late last month that he would support the merger and was hoping that his colleagues would go along with it. While it is unclear exactly where the votes line, the commission's two Democrats, Michael Copps and Jonathan Adelstein, have been skeptical about the deal. Republican commissioner Robert McDowell has been more accommodating.
While the state AGs have expressed their concerns before, the phone call from the top law-enforcement officers in a baker's dozen states -- including Tate's home state of Tennessee -- come as the panel is expected to make a decision on the deal.
In a letter to Tate made public late Monday detailing their conference call, the AGs noted that while many think the deal is a bad idea, the commission should approval the deal only of it includes a condition that would sets aside at least 20 percent of the frequencies the combined companies would use for a third party.
"A lease of spectrum and facilities could produce competitive benefits akin to an outright divestiture and, most importantly, could do so quickly in the absence of a full-fledged new entrant able to launch its own competing system," the AGs wrote.
The Justice Department approved the merger in March, saying a monopoly satellite radio provider would not harm consumers because there are other alternatives.
Several lawmakers, including Sen. Herb Kohl, D-Wisc., chairman of the Judiciary Committee's antitrust panel, balked at the Justice Department's decision and urged the FCC to reject the merger.
The most vocal critic of the merger has been the National Association of Broadcasters, which said having just one satellite radio company would hamper competition.