National Public Radio has asked the Federal Communications Commission not to approve the proposed merger of XM and Sirius radio, a move that would require the FCC to waiver its anti-monopoly language for satellite audio.

"While the Commission possesses the authority to waive its rules," NPR attorneys conceded in their August 10th filing, "we do not think it can or should do so here. A waiver is appropriate in particular circumstances when application of the rule would produce harsh results."

NPR contends that neither XM or Sirius are harmed by the restriction, included in the FCC's original Order creating a Digital Audio Radio Satellite service (DARS or SDARS):

"Even after DARS licenses are granted, one licensee will not be permitted to acquire control of the other remaining satellite DARS license," the agency's 1997 authorization declared. "This prohibition on transfer of control will help assure sufficient continuing competition in the provision of satellite DARS service."

NPR says a waiver is not justified because:

• Both services have exceeded expectations. "That success is directly attributable to competition between the Applicants, which has resulted in a significant expansion of SDARS channel capacity, an incomparable array of program offerings, and an impressive consumer response," NPR writes.
• Although, as XM and Sirius argue, the marketplace now offers competitive new options like MP3 players, this is nothing new. For years terrestrial radio has faced challenges such as CD players. "On balance, then, while circumstances have changed to some degree since the initiation of SDARS, those changes reflect the continuing evolution of communications and consumer electronics rather than a fundamental marketplace shift." XM and Sirius do not need merger relief for conditions that have always prevailed in one form or another.
• XM and Sirius have not assured the FCC that their proposed merged pricing schedules will survive in the long run. Although they have promised affordable monthly rates and "a la carte" packages for consumers after they merge, NPR notes that their filings warn that "[t]he companies do not have a predetermined time period during which the new prices will remain in effect."
  " The net result," NPR concludes, "is a set of promises of dubious consumer benefit and no enduring substance or duration."

Ironically, like Clear Channel Communications, also opposed to the merger, NPR offers programming on several Sirius channels. "NPR's member stations are, themselves, both producers of noncommercial educational programming and suppliers of programming to the SDARS market," the radio services' filing notes.

NPR submitted their comments about two weeks after the formal conclusion of the FCC's comment period on the XM/Sirius merger.