The FCC recently issued a Notice of Inquiry, asking if it should consider mandating that XM Sirius receivers also be able to receive HD Radio or to play material from other audio sources. This proceeding was promised as part of the FCC’s approval of the XM-Sirius merger, as a potential way of ensuring that competition in the audio entertainment marketplace remained robust after the merger. While the Commission required that XM Sirius allow manufacturers to build receivers that could incorporate HD Radio or other audio entertainment technologies (e.g. MP3 player, Internet connectivity, etc), it did not require that any receiver contain such technology. This proceeding asks if any sort of requirement along these lines should be adopted. It also seeks information generally about the audio entertainment marketplace.
Specific questions posed by the FCC in this proceeding include:
- Would a mandate promote lower prices and more choices for consumers of audio entertainment?
- Should it be expected that audio devices with multiple audio entertainment capabilities will be developed without an FCC mandate?
- Would an XM Sirius radio with HD Radio capability promote dissemination of state-level EAS messages?
- How well has HD Radio been developing on its own?
- Would multi-function devices facilitate the development of HD Radio?
- Are such devices necessary for the development of HD Radio?
- What other public interest benefits, if any, would result from such a combinations?
- What technological issues would there be in multifunction devices (e.g. manufacturing cost, battery life, size and weight, interference, etc.)?
- If a requirement was adopted, how long would any required phase-in period need to be?
- Should any requirement cover all radios, or just certain types (e.g. in-car, portables, home receivers, etc)?
- Does the FCC have the authority to adopt any such mandate?
That last issue, the FCC statutory authority to adopt rules in this area, is a general question considered in several other recent FCC proceedings (for instance, see out post here). Just because the FCC might think that something is a good idea does not mean that it can adopt rules in an area. Rules requiring that equipment manufacturers take certain actions have run into problems in the Court of Appeals in the recent past as the FCC has only limited jurisdiction over such manufacturers, so any mandate here will need careful justification or perhaps even a specific statutory mandate.
A Notice of Inquiry is but the first stage of the adoption of any FCC rule. After receiving comments in response to the Notice, the FCC will assess those comments, and decide whether or not to propose specific rules, which would be contained in a Notice of Proposed Rulemaking – requiring further public comment and further FCC consideration. Comments in this proceeding are due 60 days after its publication in the Federal Register, with Reply Comments due 30 days later.