They made an Error in judgement
When XM developed the Inno they wanted some capabilities that were not present on the S50.
1. The ability to have an artist seek
2. The ability to record blocks, and VIEW the songs recorded and SAVE those songs without having heard them as originally broadcast.
If you notice, the S50 did not have artist seek. The RIAA feared that someone would be able to get the entire U2 collection (for example) in a short timeframe without additional fee. Sirius agreed to keep artist seek off of the S50. XM insisted that it be available on the inno.
With an S50 you could record blocks of songs, but could not view and scroll through what was recorded to cherry pick your favorites. Thus, if you recorded 4 hours of a channel, you would have to play the block to be able to record it. Thus, you would play the block. If you did not like the first song, you could skip forward, if you liked the second song, you could hit the love button and save it (takes about 10 seconds). One the heart disappeared from the screen, you could fast forward to the next song and so on and so forth. Getting 10 songs saved from 4 hours of block recording takes about 5 minutes, BUT you at least had to listen to the content (or part of it) to accomplish it.
With the inno, record a four hour block, then scroll through the songs on your screen, save the ones you want. You can save 10 songs in about 2 minutes. BUT, you never actually even made an attempt to listen to the song as it was originally broadcast.
XM was rumored to offer the RIAA an additional bounty of $3 per inno (on to p of the $15 bounty Sirius was paying) for these added capabilities. The RIAA said no. XM went forward anyway. The RIAA sued for $100,000 per saved song.
In my opinion, the benefits of these two capabilities were not worth the risk taken. In particular, the second capability, which consumers would have never even known to ask for (it did not exist on any unit prior to the Inno).
Thus, each inno that is sold adds to the potential liability in the RIAA suit. Makes it hard to promote a product when each one you sell could be used against you in the suit.
Now, they are in a pickle. Can't make anything new, and gunshy of pushing the existing product because of liability. Additionally, if they lose, they may have to update receivers via firmware taking away these capabilities. Now they will have angry consumers on their hands.
I hope XM wins the case, but the length of time this case is taking is now taking a real toll on XM.
No real good solution at this point.
XM Negative NET Retail Additions in Q3?
After seeing the August NPD data, I have come to the conclusion that there is very little chance that we see a positive number in retail NET additions from XM in Q3.
I am long XM, and this news, while somewhat disturbing, does not change my overall long term outlook for satellite radio. However, the street reaction can be brutal on things such as this, and if you are invested in this equity you should be prepared for it.
How I play this will depend on merger arbitrage at the time, as well as where we stand in the merger process. I want to protect my gains, and maintain the arb advantage, but also do not want to take what could be a very predictable hit.
Unless XM puts together a strong September at retail, or directly sells a ton of units, I just do not see how they will report a positive retail subscriber number.
Better to be prepared than not.
