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.|
Michael Hartleib v. FCC, et al
|09/03/2008||Michael Hartleib||09/05/2008 10:08:40||FCC-07-57|
United States Court of Appeals for DC Circuit
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.
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