The Center for Public Integrity Takes on Jerry Kilgore

Former Virginia Attorney General Jerry Kilgore has been hired to lobby the Federal Communications Commission against approval of the merger of XM and Sirius Satellite Radio, according to agency disclosure documents.

Kilgore, the Republican nominee for governor of Virginia in 2005, lost the election to Tim Kaine, a Democrat, who is now the governor. On Monday, April 16, Kilgore visited with Commissioner Deborah Taylor Tate on behalf of an organization called the Consumer Coalition for Competition in Satellite Radio (C3SR).

C3SR bills itself as a "consumer advocacy group dedicated to ensuring continued competition in the digital satellite industry." The National Association of Broadcasters, which has been leading the fight against the merger of XM and Sirius, has acknowledged that it is financially supporting the organization.

In fact, all of the lobbying on behalf of C3SR takes place out of the offices of the law firm of Williams Mullen. Attorney Julian L. Shepard chairs the firm's communications practice, and is the former assistant general counsel for NAB. Kilgore is an attorney at the firm.

Although Tate has not expressed a point of view on the merger, last week she received a series of talking points from Clear Channel, the country's leading radio broadcaster, about how she could consistently oppose the XM-Sirius merger.

For traditional broadcasters, perhaps more significant than Monday's visit with Tate are the ties that Kilgore has with FCC Commissioner Robert McDowell, the third Republican on the commission.

McDowell, formerly a telecommunications attorney at Comptel, an association of Bell company rivals, ran for office in Virginia as a Republican. He was narrowly defeated in a contest for an open seat in the Virginia House of Delegates in November 2003.

Prior the 2003 election, Kilgore's candidate committee donated $12,500 to McDowell's campaign. The amount from Kilgore's committee was surpassed only by financial support provided by Rep. Tom Davis, R-Va., and from a committee controlled by Virginia House Speaker Bill Howell, a Republican, according to the Virginia Public Access Project.

McDowell returned the favor to Kilgore by hosting a fund-raising barbeque for Kilgore in Vienna, McDowell's home town on October 29, 2005. "I sense a lot of energy in our base," McDowell was quoted as saying in a Washington Post story about the event. "They're eager to show Jerry Kilgore is a terrific guy, both smart and honest."

The event was described on Kilgore's old campaign Web site as a Boots 'n' Barbecue with U.S. Senator George Allen, R-Va. Before Allen lost his seat in the Senate in November 2006, Allen introduced McDowell at his FCC confirmation hearing before the Senate Commerce Committee.

Before XM and Sirius may merge, the transaction must be approved by both the Justice Department Antitrust Division and the FCC.

FCC Chairman Kevin Martin has said that XM and Sirius face a high burden to meet for the merger to clear his agency. Martin has also criticized Sirius CEO Mel Karmazin for misleading statements about how much consumers would pay for satellite radio after the merger.

If Martin statements indicate that he is inclined to vote against the merger, and if Tate also voted against the merger, only one more vote at the agency would be necessary to scuttle the deal. A spokesman for McDowell said that McDowell had not not taken a position on the XM-Sirius merger.

In its quest to scuttle to deal, NAB compares the satellite radio bid to a prior satellite merger proposal that failed to pass muster: the 2001 combination of EchoStar and DirecTV, the two direct broadcast television providers.

Both the Justice Department and the FCC rejected the acquisition, citing excessive concentration in the market for video programming. DirecTV was subsequently acquired by News Corp., the media conglomerate that owns Fox Broadcasting.

In addition to meeting with Tate, representatives of C3SR have met on Monday with an official in the office of Jonathan Adelstein and on Tuesday with an official in the office of Michael Copps. Adelstein and Copps are the two Democrats on the Commission. Kilgore did not attend those meetings. Instead of Shepard and Kilgore, the Williams Mullen attorneys present were Shepard and Benjamin Arden.

In its first press release, issued January 12 in anticipation of the merger of XM and Sirius, C3SR described itself as a "student-run organization created on behalf of the 13 million digital satellite radio subscribers." Chris Reale, described as one of the group's founding members, said in the release, "If the only two companies operating in the satellite radio industry are permitted to combine, consumers not only will lose their choice, but they will be totally at the mercy of a monopoly provider."

Professionally, Reale works as associate director of government affairs for Williams Mullen. The firm's Web site also lists him as a part-time law student at George Washington University.

On C3SR's Web site, the organization lists its address as 1718 M. Street NW, Suite 335. That is the address of UPS postal center. Williams Mullen also has a large postal box at 1718 M Street. It is "Suite 365."

Does something smell fishy here to you, or did a fishing boat just unload at the dock?  Ha.

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