whistle.jpgBack in August of this year I noticed something a bit funny with the comments being filed with the FCC, and wrote an article titled "Anti Merger Camp Slams FCC With Form Letter". Because I tracked the comments on a daily basis, and have read them all, it was quite obvious that a form letter campaign had begun. At the time the form letters began to hit the website, the percentage of comments favorable to the merger were at about 75%. Ultimately, the form letter campaign drove that percentage down to 50%. Sirius Buzz continued to follow the story with a follow up article, "Anti Merger Camp Form Letters Continue To Arrive At The FCC", and even identified that many who had supposedly made comments had no idea that they had done so.

Today the Washington Post in and article titled "Constituents E-Mail on XM Deal Not Well Received" pointed the finger directly at the National Association of Broadcasters, and came to a very similar conclusion that I arrived at back in August and September.

The article quotes several people ( 9 out of 10) who allegedly filed comments that had no idea they had done so, and gets the NAB to acknowledge their participation in the campaign. The National Association of Broadcasters did the underhanded stunt by buying pop-up ads on websites such as Carmax, Staples, and PriceGrabber. The Post quotes NAB executive David Wharton as stating that the NAB has the records to show that the comments came from actual people. How wonderful. Why is it that Mr. Wharton is not concerned that 90% of the respondents had no idea that a comment would go to the FCC?

INTERESTING ITEMS FROM THE POST ARTICLE AND MY COMMENTS

"I have a high degree of confidence in this," Wharton said. "They [the e-mailers] had to physically type in their name and address. It was a fairly rigorous process."

Physically typing in your name and address is rigorous? Did an executive of the NAB actually say this? Was he smirking as the words came out of his mouth? Give me a break!!!

Sirius and XM spokeswoman XM Kelly Sullivan stated, "The timing and pattern of delivery of these comments is highly unusual and suspicious. The letters lack any apparent common tie or indication of the source of the effort, all of which calls into question the legitimacy of the filings."

Miss Sullivan is speaking with tact and class. I will be more frank. The people behind the campaign wanted to hide from it. They wanted to hide from it because they knew it was underhanded. As it turns out it is the NAB who was behind the campaign

Wharton said the e-mails were sent to the FCC after people clicked on an ad with the headline, "The XM Radio/Sirius Merger will create higher prices. Stop the Monopoly!" The ad invited users to choose either, "Yes, I'd like to help stop the monopoly" or "No, thank you."

Mr. Wharton - YOU DO NOT DECIDE IF IT IS A MONOPOLY. That job rests with the DOJ. Perhaps you can borrow that dictionary that the RIAA sent to Mr. Rehr. You state as a matter of fact that higher prices will be created. Contrary to that statement the merger will bring about several lower priced options. You were well aware of this, but perhaps creating an accurate headline was to rigorous a task for you. The NAB did not exercise a very truthful campaign here. That is obvious.

Those who clicked "yes" were asked to type in their contact information and later received a confirmation e-mail "detailing their action and providing a copy of the letter to be sent to the FCC," Wharton said. Respondents were then given "another opportunity to opt out of the process and cancel submission of their letter," he added. Nevertheless, none of the people contacted by The Post whose names reached the FCC remembered going through that process. All but one said they had not agreed to send any e-mails at all.

I get it. An unexpected e-mail clogs the inboxes of people who answered "YES" (seems the FCC system was clogged as well). They are not familiar with the sender because the original ad said nothing about the NAB. Mr. Wharton, what do you do with e-mail from people you do not know? Chances are you delete it. Just like all of the people who sent you "confirmation" to. Mr. Wharton, do you expect us to respect your actions here? Pop Up ads? Unwanted e-mails? Come on now.

"I don't know what the merger is about and I don't care," said Tom Biniecki, a retired steel worker from Winamac, Ind. "I have no idea what you're talking about."

Wow Mr. Wharton. You have a real good one here. Seems that your form letter to the FCC did not reflect this mans opinion!

Desiree Beck of Omaha, expressed alarm when she was told that her name was on an e-mail filed with the FCC. "Where did they get my name?" she asked. She said she has read one or two news stories about the merger but did not send anything on the Internet about it. "If anything, I'd be for it," she said of the proposed merger. The firms, she said, "clearly need it to survive."

Mr. Wharton......Any Comments here?

Betsy Vargovich of Orofino, Idaho, did remember visiting a Web site about Sirius but did not recall what side of the issue she took. "When I saw Sirius pop out, I picked it up to see what it was," she said, adding that she was eager to do anything she could to keep her Sirius service without interruption. The e-mail at the FCC was in her husband's name, but Vargovich said she was behind it.

Mr. Wharton...Mr. Wharton...Are you still there? Is answering to this to rigorous?

Clearly the National Association of Broadcasters has been exposed here. They took an underhanded approach in an attempt to sway favor with the FCC. The National Association of Broadcasters has sent the names and addresses of thousands of people to the FCC. Those names and addresses are now in the public file. That is how I, and now the Washington Post was able to contact these people. Are these people victims? I would venture to say that they are. Has their identity been stolen? Perhaps to an extent this argument could be made. Will the NAB get into any trouble? Perhaps the FCC will slap their wrist, but if I was a young class action attorney, I would be salivating just thinking of not only the thousands who had their name attached to the form letter, but the nearly 1,000,000 shareholders of XM and Sirius who, it could be argued, were caused damage by this underhanded tactic.

Now that it has been confirmed as an NAB operation, I would suggest that those in favor of the merger make it a point to let the FCC know how you feel again, but this time expose this operation in your comment. Readers can make that happen by visiting SiriusMerger.com or XMMerger.com

Position - Long Sirius, XM