Shareholder Files Appeal Of Sirius XM Merger
As I reported last week here on SiriusBuzz, September 4, 2008 was the final appeal date regarding the merger. It was met with some skepticism to say the least. In fact, I was challenged, as was my credibility when I reported the appeal date. Now it’s my turn.
SiriusBuzz has learned that Mr. Michael Hartlieb, a long time shareholder, has in fact filed a “pro se” appeal of the merger decision. Mr. Hartlieb has named the FCC itself as the defendant, and not Sirius XM with the D.C. Court of Appeals.
An appeal of an FCC decision must challenge the FCC, and not the companies that the decision was made about. I hope to be interviewing Mr. Hartlieb on the matter, and will report further as details continue to be made public.
SiriusBuzz has created a discussion thread to keep you updated on events at SiriusBuzz.com!
Case No./Title | Opening Date | Party | Last Docket Entry | Originating Case No. |
08-1289 Michael Hartleib v. FCC, et al | 09/03/2008 | Michael Hartleib | 09/05/2008 10:08:40 | FCC-07-57 |
General Docket United States Court of Appeals for DC Circuit |
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Petition for Review
Petitioner petitions for review of the Commission’s Merger Order on the grounds that:
(1) the Commission violated its obligations under law by excluding from the record evidence directly related to its obligations to determine whether the Merger would serve the public interests;
(2) arbitrarily and capriciously ignored the Applicants’ failure to comply with the Commission’s order mandating the provision of interoperable satellite radios;
(3) arbitrarily and capriciously ignored the Applicants’ disclosures of their active concealment of and misrepresentations about their failure to comply with the Commission’s order mandating the provision of interoperable satellite radios (“Disclosures”);
(4) arbitrarily and capriciously failed to consider whether these Disclosures revealed a conspiracy by the Applicants to violate the antitrust laws by eliminating the opportunity for competition that compliance with the interoperability mandate would have provided;
(5) arbitrarily and capriciously failing to inform the Department of Justice of these Disclosures or to seek its opinion on whether actions described in the Disclosures provided evidence of a conspiracy to violate the antitrust laws;
(6) arbitrarily and capriciously refused to follow its procedures governing petitions for declaratory ruling;
(7) arbitrarily and capriciously denied Petitioner’s Petition for Declaratory Ruling seeking the Commission’s declaration whether the Applicants’ failure to comply with the interoperability mandate required the Commission to determine whether the public interest could be served in light of such failure;
(8) arbitrarily and capriciously adopted consent decrees that excluded consideration of the Applicants’ violations of the interoperability mandate thereby exonerating them for their violations;
(9) arbitrarily and capriciously denied Petitioner his right to be heard on the record;
(10) arbitrarily and capriciously selected facts without reasonable investigation and analysis that favored approval of the Merger while systematically ignoring facts requiring its rejection; and
(11) otherwise acted arbitrarily and capriciously and contrary to law.
Petitioner requests that this Court find the Merger Order and the XM/Sirius Sanctions Orders are unlawful, and vacate, enjoin and set them aside the Commission’s Merger Order and XM/Sirius Consent Decisions and order all such other relief as may be just and proper.
Respectfully submitted,
_______________________________
Michael Hartleib, Pro se
UPDATE – (By Tyler Savery) The challenge of the merger is a natural extension of the litigation that Mr. Hartleib has brought against Sirius and XM. My opinion is that legally speaking, Mr. Hartleib had to file the appeal of the merger in order for his legal suit to proceed. His legal suit, without a merger appeal would have less standing. I am not saying Mr. Hartleib is right or wrong in his actions. I am simply pointing out the legal steps that would seem natural in his litigation. I would recommend that before anyone arrives at a conclusion regarding the appeal, that they look into the suit that was filed. Only by looking at the litigation together with the appeal can anyone even begin to arrive at an informed opinion of these actions.
Position: Long SIRI
Dismissed. Next.
This is a ‘hail mary’ for the grandest proportions. It give you a laundry list of issues, all of which (my my reading) are ridiculous on their face. This should be dispensed with quickly by the court.
Nothing is dispensed with quickly by the court.
One word to Mr. Hartleib…..JERK!!!!!!!!
SIRI and XM were fined aproximately $19 million to cover their discressions and violations. This idiot is wasting my time.
Mel, just buy him off
I think he should sue the economy. Oh wait, he won’t get much money from that.
As the date of September 4th has passed with the FCC, there would seem to be no other filings. They formally approved the merger yesterday.
Anyone else want to challenge my credibility?
Finally – hopefully some pressure lifts from this stock with this official news.
I have to believe that Mel with announce CC date early next week.
Is this guy a lawyer?
Has the NAB decided to now work with SIRIXM in pursuit of HD Radio inclusion/cross promotion? Would this be the reason that the NAB has not filed an appeal? Does anyone find it odd that the NAB has not filed an appeal?
NOT AN APPEAL:
first, this is NOT an appeal. an appeal is filed in the court or agency that issued the opinion against the prevailing parties, not against the court or agency.
this is, however, a writ petition for review, which is filed in the reviewing court against the court or agency issuing the order.
(if it was supposed to be an appeal, and the filer messed up, it is likely the court of appeal will convert it to an appeal, as they are usually liberal in this regard).
but, hey, why be precise here….an appeal, a writ, what’s the difference, not! actually, there is quite a bit of a difference…
TIMELINESS:
Matthew, you use the filing itself as support or evidence that your argument of the due date for an appeal was correct. That’s not correct, however, my friend. I don’t know if you or homer is right as to the due date for an appeal…I will let the courts decide that. When you file an appeal or writ, the court clerk does NOT determine whether your appeal is timely or not, the clerk is mandated by law to accept your filing if it is substantially in proper form. However, the reviewing court will usually check timeliness, even before before briefing is allowed, and if it believes the writ or appeal untimely, they would likely issue an Order to Show Cause (“OSC”) as to the issue, meaning the party must file a response or the court will dismiss the appeal or writ. Timeliness has not yet been decided, so whether you or homer is correct, none of us really know, unless you have independently researched the issue legally.
DIFFERENCES BETWEEN WRITS AND APPEALS:
What’s the difference between a writ and an appeal…who cares? the court cares and we care. aren’t they the same? NO, while similar, they are VERY different in certain important respects.
FIRST DIFFERENCE–APPEALS BY RIGHT, WRITS NOT.
Appeals are by right, writs are, however, not. Unless there is a statute granting you an automatic right to review by writ (there are not many of these; I don’t know of any here, but I did not research this or anything else here), writ review is solely by the reviewing court’s AGREEING to review the matter. For an appeal, if you had a right to file an appeal in the first place, you just file it the appeal, and the court must review the lower court’s/agency’s decision. For a writ, you not only need to have either the statutory or common law right to file a petition for writ, but you also need to convince the court of appeal to accept your writ petition.
NINE OUT OF TEN WRIT APPLICATIONS DISMISSED WITHOUT ANY FURTHER REVIEW:
While appeals sometimes have only a 1 out of 10 chance of reversal, (although I tend to have a 1 out of 2 reversal rate on those I file), writ petitions generally have only a 1 in 10 or less chance of even reaching the review stage. IN GENERAL, NINE OUT OF TEN PETITIONS FOR WRIT ARE DISMISSED WITHOUT ANY FURTHER BRIEFING AND WITHOUT FULL CONSIDERATION BY THE COURT OF APPEAL!
So, in sum, unless this was a mislabeled appeal filed in the wrong court, I believe (please don’t rely upon my belief, do your own due diligence) the petition for review (again, this is not an appeal) to be dismissed within a couple of weeks or less.
>>>September 6th, 2008 at 12:34 pm Brandon Matthews Says:
>>>As the date of September 4th has passed with the FCC, there would seem to be no other filings. They formally approved the merger yesterday.
>>>http://www.tradingmarkets.com/.....s/1865946/
>>>Anyone else want to challenge my credibility?<<>>As the date of September 4th has passed with the FCC, there would seem to be no other filings. They formally approved the merger yesterday.<<<
Interesting, how did the FCC do that if there was an appeal of that decision filed?
As to the date, just because someone publishes something does not necessary make it true.
Back to the main point, doesn’t this comment of yours contradict your article? How did the FCC do what they are said to have done if an appeal was already timely filed?
Apparently, there was NO appeal filed.
What was filed was a Writ Petition for Review, similar, but different than an appeal.
your system somehow “censored” two paragraphs of my last response out of the post:
(it happened to fast to be done by you personally, but had to have been done by the system you use, maybe the coding caused the deletion, but it was sure weird, particularly considering the paragraph in question)
After the quote “…challenge my credibility?” and before the quote “As the date of September 4th … the merger yesterday,” I had the following two paragraphs:
Brandon, you should not be so sensitive….Tyler is not as sensitive as you; he seems to take comments better than you….remember, we all (or most of us) are seeking the truth, just as you are seeking the truth….
That said, yes, I’d like to challenge your facts, but not your credibility:
>>>Merger Supporter Says:
Dismissed. Next.<<>>September 6th, 2008 at 9:51 am Jon Says:
Nothing is dispensed with quickly by the court.<<<
Merger Supporter is probably correct.
Jon, there is one thing that is dispensed with quickly by courts, and that is Petitions for Review.
Courts of Appeal generally accept less than 1 in 10 Petitions for Review that are filed. Usually, they just issue a short one page order that says something to the effect that they do not accept the case.
And, assuming that he goes the next step thereafter and files with the U.S. Supreme Court, it is my understanding that they now accept only about 1 in 100 Petitions for Review filed to their Court.
Hail Mary pass to the one yard line, ball dropped…game over.
Thanks Shark for your informative comments. Also, with the “et al” in the caption of the case, isn’t it to be assumed that the case is FCC “and others”? (If so, might not the “others” logically include Sirius and/or XM and/or Sirius XM?
Shark…
An appeal can only be filed by a party to the original action, i.e, Sirius and XM
Any outside party MUST file a petition for review. This is an appeal by an outside interest.
Brandon, you are partially correct…
Okay, if he was not a party to the original action, true he can’t file an appeal.
However, it is NOT “an appeal by an outside interest.”
It’s called a PETITION FOR REVIEW.
A Petition for Review and an Appeal are NOT the same, even if the media or even some lawyers don’t understand the difference.
You can call it a “Petition for Review by an outside interest” if you like, but calling it an “appeal by an outside interest” is technically incorrect. Petitions for Review can be filed by parties, and are different than appeals.
Your comments here only strengthen my prior thoughts…because the fact that he is a NON-party will only make his convincing the Court of Appeal to accept his case that much harder.
In my view, the Court of Appeal could just say that you did not make yourself a party in the action below, so why should we allow you to do so here?
Or, the Court of Appeal may say that his Petition for Review is UNTIMELY as his deadline to file an appeal LONG SINCE PASSED, making the current discussion of the deadline to appeal irrelevant.
***His deadline to file a Petition for Writ likely COMMENCED from the DATE he was DENIED party status, not the date of the final decision with respect to true parties Sirius and XMSR, IMHO.***
He should have filed his Petition for Writ to become a party while the action was still pending, not after it was over! Too late! Laches! Bye-bye.
This is what the Court of Appeal is going to say, IMHO, that is if they say anything, they might just issue a one-line minute order…No cause found, case dismissed.
Brandon, as for censoring my post,
think it had to do with my placing text between
<<>>
think it may wipe out all text between those symbols….if I am correct here, the word “and” will be deleted from this post between those two sets of symbols.
yep, the word “and” was “censored” from my last post…
careful in posting with the use of
“<<>>” symbols, as the system deletes everything between them.
Steve,
You asked about the “et al” in the caption of the case.
Generally “et al.” is only used in later filings, not the original filing, to incidate, as you suggest, “and others.”
If this were an appeal, (and as stated by myself and now Brandon, this is not an appeal), yes, it would likely be liberally read to include Sirius and XMSR.
However, since it is a Petition for Review, not an appeal, and a Petition for Review is an initial filing, I am not sure what it really means,…
if it were in the original document (i.e., the Petition for Review), it was likely a mistake (albeit, a minor one that I have probably made myself before) as all of the parties should have been listed.
if it is merely in the caption on the docket listing with the Court of Appeal, they are just using it to indicate there are other parties.
I would really need more informationm to know what it means here.
Shark…
I don’t want to guess on the outcome because I am not familiar with the facts of the case per se. Even a 1 in 10 chance is a chance. I just spoke with Mr. Hartlieb and I can assure you that the final date was in fact September 4th and that this is an appeal…the only possible route to take. There is no other way in which he could have filed an appeal.
The reason the FCC put out the official release is that the appeal was not made to the FCC. It was made through the DC court of appeals. Service may not have been made to the FCC as it was just filed with the court. Just guessing on that one. In fact I may have broken the story before the FCC was served.
I would also venture a guess that the NAB will be quick to join in by asking for party status as well…but that’s only my opinion.
Brandon I am going to throw my two cents in seeing how I tried to follow the debate the other night. Homer was referring to the News Release of July 28th as being the “Official Action” date of the FCC. I went back and inspected this document again and can tell you that you are correct and Homer is incorrect as was I.
In the small print under the title the News Release of July 28 states: “This is an unofficial announcement of a Commission action. Release of the Full Text of a Commission Order constitutes and Official Action”. That full text release was on August 5th making the Appeal end date September 4th.
So I am totally convinced and you are completely correct. Good Job.
Brandon if anyone wants the case information on what constitutes and official commission action as a stated above: see MCI vs FCC 515F 2d385 (D.C. circ 1974) as referenced on the news release of July 28th. In the end I am sure, as Shark said above, Timeliness will be decided by the court.
Thanks Shark, for your explanation. I, too, was wondering if it was, in fact, just a short-form citing to an action with a longer caption. I, unlike you, am not an attorney, so I have no other insight. Thanks again!
Wow….
A Lot of debate here. The central issue is that the merger is being challenged in the only manner in which a non-direct party can challenge it.
Knowing Mr. Hartleib, he is not against the merger per-se, but this filing would be a natural extension of his ongoing litigation with Sirius and XM.
As to whether this filing will have legs, and how long it will take…..
I am sure that the FCC will ask for a dismissal. If a dismissal is not allowed, this will drag on for some time, as the sides seek information, extensions, etc.
Additionally, should Hartleib’s litigation with Sirius and XM be settled, he could drop his action against the FCC.
There are a lot of variables and a lot of moving parts.
As to the credibility of the site and our writers. We try very hard to ensure that what we publish is accurate and timely. We also try very hard to think through a lot of information. This site is not a full time job for any of us, but it does consume a lot of time and effort.
I, as well as Brandon, have spoken with Mr. Hartleib on numerous occasions, and we both knew there was a good chance that this action would happen, and had researched the timetables for which this action could happen. Therein likely is the issue with challenges to credibility. We received emails and other communications saying that we were fear mongering, and that we did not have our facts about this filing straight. Having discussed the issue at length with Mr. Hartleib, we knew that chances were high for the filing, as well as about what date that filing might happen. As it turns out, the filing did happen on the date we thought it would, and by the person we thought would do the filing.
That being said, we are not financial or legal advisers. We do at times offer speculation and/or opinion, and what we have for an opinion should be taken with a grain of salt.
We feel strongly that we deliver a good product given the time constraints that we have. Getting attacked for it can be very frustrating.
We have a legal action, and a filing that seeks to reconsider the FCC approval. This is where the situation currently stands
Brandon,
You say you “don’t want to guess on the outcome because I am not familiar with the facts of the case per se,” and “Even a 1 in 10 chance is a chance.”
What I was speaking of was NOT a 1 in 10 chance of winning, but a 1 in 10 chance that the Court of Appeal even looks at the case. Petitions for Review (unlike appeals, which this is not) must be accepted by the Court of Appeal (in most cases), in order to be given case status. If the case is accepted, he still would have to convince 2 out of 3 (or a majority of the court panel this district uses) that he was right with whatever appropriate review standard is applicable here. He has multiple hurdles to jump here. It’s not Siri/XM that needs to jump these hurdles, but the filer of the Petition for Review.
You say you “just spoke with Mr. Hartlieb and I can assure you that the final date was in fact September 4th and that this is an appeal…the only possible route to take. There is no other way in which he could have filed an appeal.”
First off, I could care less what a party (or, non-party, as the case may be) tells you, file that under the party (or non-party, in this case) told me this or that, that’s the party’s publicly stated opinion on the issue, it does not make it fact. Fact is, I would not even necessarily believe what Sirius/XM stated in this regard either.
Second, it’s NOT an appeal, a point which you ADMITTED, but for some reason kept going back on. There is NO automatic right to appeal anything in any Court anywhere unless there is some rule, code, law, statute or case that says you have such a right. And, you are saying by your own ADMISSION that he has NO right to appeal as he was NOT a party to the case. So, why do you continue to mislabel this an appeal? The fact that it may have been “the only possible route to take,” or that “There is no other way in which he could have filed an appeal,” is irrelevant, and certainly does NOT make another procedure, a Petition for Review procedure, into an appeal.
You say that “The reason the FCC put out the official release is that the appeal was not made to the FCC,” and that “It was made through the DC court of appeals,” that “Service may not have been made to the FCC as it was just filed with the court,” and that you are “Just guessing on that one.”
Yep, you are “just guessing” and probably wrong on that one. Only an Injunction issued by the Court of Appeal could have stoped that one, and that did not happen.
You say that “In fact I may have broken the story before the FCC was served.” Served, or not served, there was NOTHING he could have done to stop the FCC, unless he convinced some Court of Appeal BEFORE THEY ACTED to issue an Order enjoining the Court of Appeal from acting. Now the status quo is merger, and asking a Court of Appeal to order the FCC to undo something they already did no longer preserves the status quo.
You say that you “would also venture a guess that the NAB will be quick to join in by asking for party status as well…but that’s only my opinion.”
How are they going to do that if, as you say, the deadline to file this was September 4th? The NAB would be too late, would they not, if they have yet to file? Also, the NAB is too embarrassed by this whole merger thing to get further involved in this…and, they already got most of what they wanted by the unprecedented delay…they are out of this for good, except for those other FCC proceedings (e.g., HD tuner requirements).
This whole thing makes good story, but on the scale of things, it is a little pimple, actually it’s not even a pimple, it’s a little ink dot from your pen that you can wash off with water. Get over it, it’s meaningless.
No Legal.
Now you are going even further and telling me what it is I said out of some sort of context you are reading into.
Fact 1. This is the appelate division. The court of APPEALS. I said the only way for an outside party to APPEAL was through this type filing. I admitted nothing.
Fact 2. When I was speaking of 1 in 10 I was not referring to winning, but rather the case being heard. Again, you are making false assumptions.
Fact 3. I refer you to cos1000 statement above. The date was the 4th. Period.
Fact 4. You know nothing about the case except that which I have told you. I happen to know MUCH, MUCH more. When you have a fact, just one of the dozens that I have notated, there will be room for discussion. Until then, Know that I know more than you do about this case, and all the long winded responses you can muster are irrelevant.
I will not reply to your long winded speculation regarding the NAB that follows.
http://www.his.com/~israel/loc.....actips.htm
Practice Tips and Links to Applicable D.C. Circuit Rules
1. About a Petition for Review
A “petition for review” initiates judicial review (i.e., an appeal, of a decision or order issued by a federal administrative agency. The deadline and other requirements for seeking review are governed by the specific agency’s enabling legislation. Because the deadline for seeking appeal of an agency order is set by a statute, the court cannot waive the deadline or make exceptions if it is missed.
Tyler,
You say “Wow….A Lot of debate here.”
That’s good? Isn’t it? That’s why you created this blog, I assume
You say “The central issue is that the merger is being challenged in the only manner in which a non-direct party can challenge it.”
True, I agree here.
You say “Knowing Mr. Hartleib, he is not against the merger per-se, but this filing would be a natural extension of his ongoing litigation with Sirius and XM.”
No comment; however, I can say I clearly cannot understand Mr. Hartleib in the least.
You say “As to whether this filing will have legs, and how long it will take….. I am sure that the FCC will ask for a dismissal,” and that “If a dismissal is not allowed, this will drag on for some time, as the sides seek information, extensions, etc.”
As to this point, I think you both lack sufficient legal information to understand any of this.
The fact that the FCC is a named party in the Petition for Review does NOT mean that the FCC has any right to (or even wants to) take part in the proceeding…The named defendant in Petitions for Writ are usually just Defendants in Name Only, with the parties to the original action being the Real Parties in Interest.
If this last point is true here, the correct full caption to the case would be:
Michael Hartleib v. Federal Communications Commission (XM Satellite Radio and Sirius Satellite Radio, Real Parties In Interest).
[And, Steve, this changes my prior response to you, now, yes, I think XM and Sirius would be parties to the Hartleib Petition for Review proceeding].
In fact, if I understand this new proceeding correctly, I believe IMHO that it is NOT the FCC that would respond to the Petition, but instead Sirius and XM (or Sirius/XM) that would respond.
You say “I am sure that the FCC will ask for a dismissal,” nope, IMHO, it’s not the FCC that will ask for dismissal, but instead Sirius/XM will be asking for the dismissal.
You say “If a dismissal is not allowed, this will drag on for some time, as the sides seek information, extensions, etc.”
Wrong on all points here. It’s up to the flier (i.e., Hartleib) to convince the Court of Appeal to accept his case. Sirius and XM may (or may not) respond by asking the Court to dismiss his case. They may choose to ignore it if they did not want to give it any mroe credit than it deserves, expecting that it will be dismissed. Likely, if they took this later approach they would merely send a letter to the Court of Appeal saying that the Petition is without merit and should be dismissed, but that they are not filing a full response at this point, and if the Court wants a full response that they would be happy to supply it to the Court.
You also say “If a dismissal is not allowed, this will drag on for some time, as the sides seek information, extensions, etc.”
First, unless there is some right to de novo review, meaning tried again by the Court of Appeal, rather than merely reviewed by some other appellate standard, the case information has already been set before the FCC.
There is generally NO right to discovery or information when you are before the Court of Appeal…the time for that was when you were in the lower court or agency.
There could be extensions; however, first the filer must convince the Court of Appeals to accept his case!
You say that “Additionally, should Hartleib’s litigation with Sirius and XM be settled, he could drop his action against the FCC.”
So, what is he looking for money from Sirius/XM? Is that the game here?
You say that “There are a lot of variables and a lot of moving parts.”
Not really, this is very simple from the Court of Appeal standpoint. First, does he have an automatic right to appeal? Sounds like Brandon says he admits to not having such a right.
Then, second, does he have a right to file a Petition for Review? Probably, but this does not really mean anything as practically anyone could have filed such a Petition.
Then, third, will the Court of Appeal accept his case? This is the REAL issue here, and IMHO, I say NO, the Court of Appeal will NOT accept his case….we are talking about days, weeks here, not months, years.
You say that “As to the credibility of the site and our writers. We try very hard to ensure that what we publish is accurate and timely. We also try very hard to think through a lot of information. This site is not a full time job for any of us, but it does consume a lot of time and effort.”
I am not sure who questioned your “credibility,” but certainly this discussion and others similar posts does not relate to questionning your credibility. More often than not, you are right, but certainly not always.
Finally, you say that “We feel strongly that we deliver a good product given the time constraints that we have. Getting attacked for it can be very frustrating.”
That’s just a sign of your success. The more successful you get, the more you will be attacked. There is no way around this.
And, you say that “We have a legal action, and a filing that seeks to reconsider the FCC approval. This is where the situation currently stands.”
At least for the time being….however, IMHO, the case will be SUMMARILY DISMISSED within the next several days to few weeks without any explanation, other than it did not meet some generic statement of the law.
AHA! Do you know what makes me a good writer? (If I do say so myself?)
I’m able to ask the right questions from the right people and put all the responses together to form the bigger picture.
The credibility attack I was referring to came from a poster named homer in this thread…
https://siriusbuzz.com/wheres-the-sirius-xm-post-labor-day-conference-call.php#comments
Ironically, the writing style, including symbols that were used in the other attack threads are EXACTLY the same as the posts by shark in this one! Except now the poster has a different name! Note the use of <<<>>> in both threads. Note the paragraphing and writing styles.
It does not take a rocket scientist to figure this one out. Homer or shark or whatever name you use next, you’ve been outed.
Steven,
You asked about the “et al.” I have further information that answers your question.
The FULL CAPTION of the case is as follows:
Michael Hartleib,
Petitioner
v.
Federal Communications Commission; United States of America,
Respondents
I obtained this information from the General Docket for the United States Court of Appeals for DC Circuit.
Here is the bottom line, both suits by Hartleib are frivolous suits and more than likely will be thrown out. He is paid by an outside source to file these suits. How many shares does Mr. Hartleib own?
Brandon,
You cite to some Practice Tips and Links to Applicable D.C. Circuit Rules as if it were an official Court website…it’s not.
In actuality it’s part of the website of lawyer Carolyn Elefant:
http://www.his.com/~israel/loc.....index.html
So another lawyer would agree with me, is that your point? Seems everyone agrees with me, except you.
CENSORSHIP!
Brandon…why did you remove my posts responding to your false suggestion that I am homer?
I am again asking you for a retraction.
Tyler, you had better look into this!
Brandon,
I am not sure why you started a “fight” with me…I was merely posting food for thought on this matter, but you want no dissent.
And, again, STOP CENSORING and removing my posts responding to your frivolous and false accusation that I am homer.
Real fair journalism, bash someone, and when they respond, remove their post.
not that it matters, but I still think you have the wrong court emblem…
think yours is from the District of Columbia Court System, not the U.S. Courts of Appeal.
Don’t feel bad, I couldn’t find the real emblem either.
The back and forth is great, but we should not lose sight of the main issue at hand. There has been a filing.
Shark, I do not believe that you are Homer or any other poster.
I do believe that Sirius, XM, as well as the FCC could all respond to the case. This situation directly involves the FCC in that certain filings by Mr. Hartleib during the merger process were, in Mr. Hartleib’s opinion, not handled as they should have been.
Mr. Hartleib was for the merger, but also felt:
1. that there was potential for a better deal for shareholders of Sirius. I am not saying that I agree, but this was his stance.
2. The FCC failed to act on an interoperable mandate, and failed to consider his motion for declaratory ruling on the mandate. Had a ruling been made on the mandate, his opinion is that shareholders could then make a fully informed decision.
3. While the time for discovery was during the process, Mr. Hartleib contends that while he tried to obtain information and follow procedure, that he was “stonewalled”. Again, I am not saying he is right or wrong, but may aspects of his filing will seek out information. Whether the court, the agency, or Sirius XM give that is yet to be seen.
4. Legal matter can drag on for quite some time. Often it depends on the willingness of the parties to drag things on. Personally I once dragged a speeding ticket out for about 15 months. In the end I won, but it was a long and drawn out process. If you want to drag things on, it is easy to do. It does not mean that it has to be Hartleib that is dragging things out, typically it is the named parties that do the delay tactics.
5. My opinion is that Mr. Hartleib basically had to appeal the decision of the merger because it is central to his other litigation. Should that other litigation go away, then he would no longer need to appeal.
6. My comment relative to a lot of moving parts was piggybacked on the point if the dismissal did not happen. This is not just a simple appeal of the merger decision. In fact, Mr. Hartleib supports the merger. Instead, he wanted certain aspects of these companies to be decided upon prior to a shareholder vote. That did not happen to his satisfaction.
Personally, I do not really mind people being inquisitive and even questioning an opinion. I was not saying that you were questioning credibility here, but some were, who have not even been involved in the thread. In the end, a filing was made, as was speculated.
A debate into minutia solves nothing. A discussion about the merits of the case is constructive for everyone. My suggestion is that all parties in the thread should concentrate on the filing, the other litigation, and whether the issues have any legs.
Tyler says “In fact, Mr. Hartleib supports the merger.”
On that note, I am finally leaving after having finally gotten off the floor, rolling in my own laughter for the last fifteen minutes….
sure a strange way to show his support for the merger.
Well folks I just have to say that all this was very, very entertaining and informative, even if it was not all on point. I appreciate all the comments and believed it to be a healthy debate. For me the filing for appeal date issue is settled and past and the timeliness of the Hartleib filing will be determined by the courts.
I was and have discussed and debated with Homer and I must say that I do not believe Shark is Homer nor do I find their styles similar. JMHO.
A. I am not the topic of the post. If I wanted to put up with such nonsense, I’d write on the yahoo boards.
B. I will not tolerate multiple postings questioning my credibility. This is not yahoo. I have made my case. I used links to support my case.
C. I have received not 1 link to disprove anything I have stated, only criticism. A lawyer would present evidence and not here-say.
D. The only “fight” was started by shark, who is incapable of admitting that an appeal was filed; instead digging into the minutia of legal mumbo-jumbo, and taking over the discussion. Finally, resorting to personal attacks.
Tyler, thanks for your post.
Also, let Brandon know I was not picking on him, just I am sick with a bad cold and can’t go out, so I have been posting a lot more than usual…what’s your guys excuse for being in on Saturday?
Before I leave here for the night I wanted to add to your last post:
You say “There has been a filing.” True, but what does it mean? Whenever clients, or even the press, asks if you can file something, the answer is always, “Yes, but that is not the right question because anyone can file anything, the question is what will happen to it after it is filed.”
You say that “While the time for discovery was during the process, Mr. Hartleib contends that while he tried to obtain information and follow procedure, that he was “stonewalled,” and that “ma[n]y aspects of his filing will seek out information,” and “Whether the court, the agency, or Sirius XM give that is yet to be seen.”
The Court of Appeals is not a trial court, and will not allow discovery to be conducted while the case is pending before it. What the Court of Appeals would do, if it thought more discovery was necessary, is to order the lower court, in this case, the agency (the FCC), to allow such discovery.
You say that “Legal matter[s] can drag on for quite some time,” and that “Often it depends on the willingness of the parties to drag things on,” and that “Personally I once dragged a speeding ticket out for about 15 months,” and that “If you want to drag things on, it is easy to do.”
Not so in the Court of Appeals. To the extent that this is true in the lower court, or administrative arena, (and there is some truth to it there), this won’t fly in the Court of Appeals. There is really not that much to do in a Court of Appeal…you file your appeal (or in this case, your Petition for Review), the record from the lower agency/court is secured, briefs are filed, and the matter is argued orally (in most cases), and the court rules on the matter. Yes, extensions to file briefs are common, but there is really not that much going on (in the case) in the Court of Appeal to allow such unlimited extensions.
You state that your “comment relative to a lot of moving parts was piggybacked on the point if the dismissal did not happen.” Yes, I understood that. However, he has got to first convince the Court of Appeals to take the case, and even if he does that he has to convince them that their were material errors. And, again, I am not sure how he gets beyond the argument that he is time barred by not filing earlier, during the FCC’s investigation, when the FCC refused to do what he wanted on numerous occasions. Why did he sit back and wait until the case was over and remedial relief to him has now become a virtual impossibility.
You said that you were “not saying that you were questioning credibility here, but some were, who have not even been involved in the thread.” I knew that, but made the comment so that others who read my comment would know it was not me that questioned your credibility.
Brandon, go out and grab a beer with Tyler.
shark….
I have had many conversations with Mr. Harltleib dating back to the announcement of Mek k. as CEO.
He supported the merger. He also felt that Sirius could have gotten a better deal. To that end, he began his filings with the FCC in an effort to get certain items that he felt were important in front of shareholders.
I am not trying to speak for him, nor would I be right in doing so.
He has his concerns, and he is taking the avenues he feels are available to him to either have those concerns met, or not have them met.
He believes he is between a rock and a hard place, and his options at this point have boiled down to what is currently happening.
He played a major role in getting the class action suit pulled.
If Hartleib was a true shareholder and was a merger supporter, why does he want to appeal the merger? Leave well enough alone. I don’t care what you or BM think of Hartleib, in my opinion he is a wacko. He is being paid by someone to file this suit. Think about it, what does he have to gain? For all we know he may own 1 share of this company. What is his ultimate goal? Ask him these questions.
Brandon, I find I must respond once again…I hope that my post is not censored and deleted as were some of my other posts responding to your assertions against me.
You say that you are “not the topic of the post.” I never made you the topic of any post, until you made untrue accusations against me that I was another poster.
You say that you “will not tolerate multiple postings questioning my credibility.” I have NEVER made any post questioning your credibity until you falsely accused me of being homer. In fact, I have found Tyler’s and your articles to be highly informative and credible. I am not sure what’s going on here, or why you think I am another…but, I only post under the names legal.shark, [email protected] or shark. Find me a post I have made that questions your credibility; unfortunately, you won’t find any as they don’t exist.
You state that you “have received not [one] link to disprove anything I have stated, only criticism.” Fact of the matter, is I have agreed with nearly most of what you have said, but you only appear to see those things I disagree with you.
Brandon, please don’t accuse me of starting a “fight,” or “resorting to personal attacks.” I have never attacked you personally, and the closest I could have come to it would be after you falsely accused me of being someone I am not, which was a personal attack by you against me.
As to whether a Petition for Review is an appeal or not, you forgot to make your best argument, so I will make it for you: If it looks like a duck and quacks like a duck, regardless of what you call it, it’s still a duck. Brandon, I will admit that while technically and legally a Petition for Relief is not an appeal, here it seems to quack like an “Appeal,” so you got me, it’s an “Appeal Duck.”
Finally, and I hope this does not get this post censored and deleted as some of my others have been (some so bland, I don’t know why you deleted them), keep in mind that while this is your website and blog, and I do respect that it is your website and not mine, and therefore, you will always get the last word, treating posters like you treated me tonight will not cause your site to become more popular, but instead will merely cause it and your audience to go the way of Cramer and his former audience. I will not stand for you bashing me because I point out minor disagreements I have with some of your posted information. Sometimes I have even pointed out minor errors so that you could correct them and make your site better and more authoritive. Tyler never complained that I corrected his spelling of Marina del Rey. I have given you a couple of other such minor corrections, most of the time you appear to fix. I go to your site practially first for information about Sirius, and thought by helping you, I was helping everyone here.
SiriusXMInvestor:
You say that “For all we know he may own [one] share of this company.”
I thought similarly until I ran an Google internet search on him, and found that he had owned a pretty substantial stake in the company, albeit, it is by no means major!
Whether he still owns those shares or not, I don’t know, but he seems ligit in being a shareholder, at least he was such a shareholder at one time.
In the
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________________________
)
MICHAEL HARTLEIB )
)
Petitioner, ) Petition for Review
) Case No. _____________
v. )
)
FEDERAL COMMUNICATIONS )
COMMISSION AND )
UNITED STATES OF AMERICA )
)
Respondents. )
)
____________________________________)
Pursuant to 47 U.S.C. §§ 402(b)(6), 402(c), 28 U.S.C. §2343, and Federal Rule of Appellate Procedure 15(a), Michael Hartleib, hereby petitions for review of the order of the Federal Communications Commission (“Commission”) approving the transfer of satellite radio and related licenses from XM Satellite Radio Holdings Inc., et al to Sirius Satellite Radio Inc., (collectively, the “Applicants”) in In the Matter of Applications for Consent to the Transfer of Control of the Licenses XM Satellite Radio Holdings Inc., Transferor to Sirius Satellite Radio Inc., Transferee, MB Docket No. 07-57, August 5, 2008, (the “Merger Order”); and the orders of the Commission adopting consent decrees against the Applicants for violations of Commission rules in In the Matter of XM Radio, Inc., File Nos. E|B-06-SE-148 and EB-06-SE-356, Acct. No. 200832100062, FRN No. 0007714579, August 5, 2008, and in In the Matter of Sirius Satellite Radio Inc., File Nos. EB-06-SE-250 and EB-06-SE-386, Acct. No. 2008832100061, FRN No. 0006345730, August 5, 2008 (collectively, the “XM/Sirius Sanctions Orders”).
Petitioner petitions for review of the Commission’s Merger Order on the grounds that: (1) the Commission violated its obligations under law by excluding from the record evidence directly related to its obligations to determine whether the Merger would serve the public interests; (2) arbitrarily and capriciously ignored the Applicants’ failure to comply with the Commission’s order mandating the provision of interoperable satellite radios; (3) arbitrarily and capriciously ignored the Applicants’ disclosures of their active concealment of and misrepresentations about their failure to comply with the Commission’s order mandating the provision of interoperable satellite radios (“Disclosures”); (4) arbitrarily and capriciously failed to consider whether these Disclosures revealed a conspiracy by the Applicants to violate the antitrust laws by eliminating the opportunity for competition that compliance with the interoperability mandate would have provided; (5) arbitrarily and capriciously failing to inform the Department of Justice of these Disclosures or to seek its opinion on whether actions described in the Disclosures provided evidence of a conspiracy to violate the antitrust laws; (6) arbitrarily and capriciously refused to follow its procedures governing petitions for declaratory ruling; (7) arbitrarily and capriciously denied Petitioner’s Petition for Declaratory Ruling seeking the Commission’s declaration whether the Applicants’ failure to comply with the interoperability mandate required the Commission to determine whether the public interest could be served in light of such failure; (8) arbitrarily and capriciously adopted consent decrees that excluded consideration of the Applicants’ violations of the interoperability mandate thereby exonerating them for their violations; (9) arbitrarily and capriciously denied Petitioner his right to be heard on the record; (10) arbitrarily and capriciously selected facts without
reasonable investigation and analysis that favored approval of the Merger while systematically ignoring facts requiring its rejection; and (11) otherwise acted arbitrarily and capriciously and contrary to law.
Petitioner requests that this Court find the Merger Order and the XM/Sirius Sanctions Orders are unlawful, and vacate, enjoin and set them aside the Commission’s Merger Order and XM/Sirius Consent Decisions and order all such other relief as may be just and proper.
Respectfully submitted,
_______________________________
Michael Hartleib, Pro se
Michael,
Thanks for posting that…
now we can at least refer to your actual filing.
do keep us updated with what you do.