Having spoken with Michael Hartleib, I will not write anything regarding our conversation as he has already offered his own opinion in the original story, but I would like to offer my own opinion on the case.

One of the questions I posed to him was; “Why did (he) wait so long.” I told him he would have had a much better chance had he filed before the two companies officially merged. Sirius XM is a brand new company now. Even the old stock certificates are no longer valid. They can’t go back and do a “do-over.”

I explained to him my opinion that in waiting so long to file, it gives the appearance that this appeal is from a disgruntled shareholder rather than a concerned one. If I were an attorney, I would argue that the appeal would not have been filed had the company stock risen to $10.00 a share. Waiting in my opinion has killed any chance of an outcome other than dismissal.

Further, a large part of the FCC’s order dealt exclusively with the interoperability issues brought up by Mr. Hartleib in his appeal, and were acknowledged in the memorandum dated 7/25/2008. Pages 50 -56 of the order deal exclusively with the issues raised by Mr. Hartleib, C3SR and the NAB.

Page 52 of the order demonstrates that the FCC acknowledges the argument made by Mr. Hartleib;

“Another commenter claims that existing receivers made available to the public are already capable of interoperability, despite claims by Applicants to the contrary. 362 ” Letter from Michael Hartleib, to FCC at 4; see also  Hartlieb Apr. 22, 2007 Petition at 4.”

362 -( Michael Hartleib argues that many of the XM and Sirius radios in service today are capable of receiving “either/or” service and signals via a firmware update to the receivers. )

 The issue was attributed directly to Mr. Hartleib and offers proof that the FCC did in fact consider the matter thoughtfully. The C3SR redacted documents referred to were also found to be deficient:

“Based on our examination of the record, we are also not persuaded that C3SR’s filing raises a substantial and material question of fact that requires a hearing before the Commission can make the required public interest determination in this proceeding.  First, neither the references to [REDACTED] nor the information that the documents reveal as to the joint venture company’s activities reflect a lack of candor. “

“Contrary to C3SR’s argument, the requirement that Applicants make an interoperable receiver commercially available was not “unambiguous,” as the above analysis indicates, and the general language of the joint venture agreement does not cast significant doubt on Applicants’ contention as to how they interpreted that requirement.”

Based on these facts, it appears to me that the appeal has no real grounds to move forward. The FCC did in fact take into consideration most of Mr. Hartleib’s complaints, in which a lack of consideration is the basis for his appeal.

Position: Long SIRI