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Who Could Lease Sirius XM Channels Is in Dispute

Spanish-language broadcaster urges FCC to reject MMTC petition, which Radio One supports

Radio One, whose programs aim at black and urban audiences, has joined the Minority Media and Telecommunications Council in questioning the definition of who qualifies to lease a channel from Sirius XM. However, RSS Network, a Hispanic-owned Spanish-language programmer, says reopening that question would delay the whole process and urged the FCC this week to reject MMTC’s petition.

The satellite radio company recently posted information about who might qualify. Proposals are due by Jan. 7, 2011; the FCC wants the leases to be issued by April 17.

The idea for the set-aside channels is to seek new sources of content and new entrants to mass media; Sirius and XM agreed to the “voluntary” program before regulatory approval of the satellite merger in 2008.

Sirius XM states: “In selecting programming for this set-aside, we are looking for the following: Programming representing diverse viewpoints and/or diverse entertainment content; improved service to historically underserved audiences; original content of a type not otherwise available to Sirius XM subscribers; access to new sources of content and new entrants to mass media.”

Recently the FCC set out a revised definition of “qualified entity” that is race- and gender-neutral. It also says any company that leases a channel cannot be owned by, or share common employees with, Sirius XM or have supplied programming to the satcaster in the past two years.

The Minority Media and Telecommunications Council said the definition is vague and asked the commission to clarify it, as we’ve reported. The MMTC wants the FCC to define “relationships” that would disqualify a company from leasing a satellite radio channel. Specifically, the definition does not address whether programmers who have provided only modest amounts of programming, or have swapped content with Sirius XM, should be precluded, according to MMTC.

Radio One agrees that the disqualification criteria are “vague and ambiguous,” saying they fail to consider limited “relationships” between Sirius XM and “clearly” independent programmers. It made the statements in a filing to MB Docket 07-57. The definition should allow programmers who have had only limited or nominal relationships with Sirius XM, such as those resulting from a programming barter or swap, it said.

MMTC also had said the FCC should direct Sirius XM to consider qualified entities that would promote diversity but that are defined non-racially, “such as historically black colleges and universities, and institutions serving Hispanics, Asian Americans and Native Americans that are based on mission, not race,” MMTC proposed.

But the RSS Network opposes re-opening the definition.

The company was formed with an eye toward creating and distributing Spanish-language satellite-delivered audio programming to American Hispanic audiences; but its law firm, Lerman Senter, told the FCC in 2009 that repeated delays on the leasing channel issue had “stalled RSS’ business in its tracks.”

Now it tells the FCC that it “would benefit from a race-based classification as a 100-percent Hispanic-owned entity or a language-based classification as a Spanish-language programmer.” RRS is skeptical that the classifications MMTC wants “could reasonably be found to be non-racial or race-neutral.”

RSS says an entity that meets more than one of the “special consideration” categories should not necessarily be entitled to more consideration than an organization that meets only one. For example, it said, an entity that offers non-English programming and is Native American-owned would not necessarily promote programming diversity better than one that serves a non-English-speaking audience yet has no Native American or treaty-based connections.

RSS said reopening the qualified entity definition could drag the FCC, Sirius XM and the potential lessees “back into the constitutional quagmire” the commission had hoped to avoid. “The commission should reject MMTC’s request as a flawed proposal that would stop that achievement in its tracks.”

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