FCC dismisses Liberty Media request for control of SiriusXM

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Score one for Mel Karmazin, the chief executive of Sirius XM Radio Inc.

The U.S. Federal Communications Commission on Friday dismissed Liberty Media Corp.'s request for the operating licenses that would have given the company control over SiriusXM.


Liberty’s request, made in March, argued that because it had 40% of SiriusXM’s shares, along with five out of 13 seats on the company’s board, Liberty effectively controlled SiriusXM, a New York-based satellite radio service with 22.3 million paying subscribers. Sirius strenuously protested with the FCC, and Karmazin in a recent call with investors mocked Liberty’s argument as ’40 is the new 50.’

The FCC, in a letter to Liberty’s lawyers, rejected the application. Here’s the relevant rationale:

We find Liberty Media’s applications to be unacceptable for filing because they are defective with respect to “execution” and “other matters of a formal character.” Specifically, Liberty Media was unable to obtain the passwords, signatures, and other necessary information from Sirius to properly file an electronic transfer of control application. Furthermore, we conclude that a waiver of basic filing requirements is not warranted, as the facts disclosed in the referenced applications are not sufficient to establish that Liberty Media intends to take actions, such as conversion of preferred to common stock and installation of a board majority, that would constitute exercise of de facto or de jure control.

Translation: In order to get its hands on SiriusXM’s operating licenses, Liberty Media would have to get the passwords and approval of executives and board members who run SiriusXM. Eddy Hartenstein, publisher of the Los Angeles Times, is a non-executive chairman of the SiriusXM board.

Calls to SiriusXM and Liberty Media were not immediately returned.

John Malone, the chairman of Liberty Media, isn’t one to give up easily, however. The FCC option was simply the least expensive path to gaining control of SiriusXM.

Liberty now has other, albeit costlier, options including accumulating enough shares of SiriusXM to boost its stake above 50% and staging a boardroom coup by calling a meeting of Sirius stockholders and putting the matter to a vote. But doing so could trigger a big tax bill for Liberty Media if the transaction is deemed to be an acquisition.

Liberty’s executives, including Chief Executive Greg Maffei, have suggested to Wall Street investors that it could also execute a complex, but tax-free, Reverse Morris Trust, which would require Liberty to increase its share of SiriusXM above 50%.

Your move, Mr. Malone.


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-- Alex Pham