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CONTACT: Amy Smorodin
March 30, 2008
(202) 289-8928
"Set-Aside" Infringes on Equal Protection, Free Speech Rights
Ferree Submits Comments on XM-Sirius Satellite Radio Merger Condition

WASHINGTON D.C. - Implementing a condition included in the XM-Sirius merger order that would require the entity to lease a percentage of its capacity to third-party minority programmers would contravene constitutional protections of equal protection and free speech, explains Kenneth Ferree in comments filed today with the Federal Communications Commission.  The Commission should stay enforcement of the condition or, at the very least, eliminate racial eligibility restrictions and allow the company a substantial role in selecting the programmers to whom it must grant access.

In the comments, Ferree, President of The Progress & Freedom Foundation, explains the "set-aside" condition contained in the merger approval of the two satellite radio companies "has set in motion a process to trample the Bill of Rights."  The FCC has adopted a specifically race-conscious requirement, the likes of which the courts have repeatedly struck down.  The FCC has done so while failing to consider whether there may be other, race-neutral, means of addressing perceived shortcomings in the media marketplace.  Moreover, because the merged companies are entitled to full protection under the First Amendment, implementation of the condition will unconstitutionally impinge upon the free speech rights of a media organization.  As a result, Ferree states, "The Commission should, on its own motion, stay the effectiveness of the Set Aside and terminate this aspect of the proceeding."

At a minimum, the author states, the Commission should attempt to remedy the constitutional concerns in the order.  "First, the Commission should not define the entity or entities eligible for third-party access to the XM-Sirius platform based on race or ethnicity," Ferree states.   "Second, the management of XM-Sirius should have a substantial role in the ultimate selection of those to whom the set aside channels will be awarded." 

The comments are available on the PFF website.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation