XM-SIRIUS SATELLITE RADIO MERGER MAY BE HEADED FOR APPROVAL AS THE TWO COMPANIES MAKE COMMITMENTS TO FCC CHAIR ON PRICING AND COMPETITION ISSUES

On Monday, June 18, washingtonpost.com reported that Federal Communications Commission Chairman Kevin Martin has said that he will support the XM-SIRIUS merger, after the two companies agreed to certain commitments as to pricing and competition (FCC Chair To Support XM-Sirius Merger.) Martin's support could be the last hurdle to approval for the much criticized merger, washingtonpost.com reports.

This is a long way from 1997, when the FCC approved the licenses of XM and SIRIUS on the condition that the two companies never merge. Martin said that the reversal, allowing the merger, is "in the public interest." Stating that "this is an unusual situation", Martin is now expected to issue an order to the FCC voting committee recommending the merger be approved.

Since being licensed in 1997, both companies have spent hundreds of millions of dollars developing radio content, but neither company has come close to recouping their financial commitments.

Both companies have invested heavily in signing mega-media names such as Howard Stern, Martha Stewart, and Oprah Winfrey as radio show hosts. These commitments, both companies contend, are the critical building blocks of satellite radio viability, and of financial success.

The merger, XM and SIRIUS contend, will turn the table on heavy losses which may stem, at least in part, from head to head competition between the two companies in the developing stages of satellite radio. The merger may signal an end to the growing pains that have been evident over eleven years of competition between the two companies.

A key problem for the companies has been the need to sign costly mega-personalities before the audience is developed or educated to the forum. Accordingly, revenues from these high-potential radio shows lag far behind the expense of signing these personalities in the early stages of marketing and development. A merger could eliminate this problem.

Here are a few pertinent articles on the XM-SIRIUS merger (XM / Sirius merger approved! - Engadget), (FORTUNE: Techland At long last, an XM-Sirius union?), and (FCC staff and chairman back XM-Sirius merger.)

HEAVY SANCTIONS LEVIED FOR DISCOVERY ABUSE IN THE QUALCOMM V. BROADCOM PATENT INFRINGEMENT CASE; LITIGATORS AND LAW FIRMS TAKE NOTE

In Sanctions Order of January 8, 2007, Magistrate Barbara Major ordered Qualcomm to pay $8.5 million for "monumental" discovery abuses in its patent infringement suit against Broadcom. While that order has been vacated and a new trial ordered, the order is only vacated as to six of Qualcomm's outside attorneys who were also sanctioned but not financially penalized Order dated March 5, 2007. Qualcomm's appeal of the earlier order is still pending, and Qualcomm has challenged the trial court's jurisdiction in the case.

Late in trial, a Qualcomm witness revealed that hundreds of thousands of Qualcomm emails, key to Broadcom's waiver defense, had been withheld from the defense, in what the court characterized as blatant, purposeful, and egregious discovery abuse.

While the six outside attorneys maintain their position of non-involvement, litigators and law firms have heard another wake-up call in the area of e-discovery and Rule 37 sanctions.

Central to the discovery problem in Qualcomm, and other major discovery abuse cases, is the precarious relationship between the big corporate client, its in-house counsel, and the outside attorneys working on the case. Particularly problematic, is electronic discovery. and control and communication issues in gathering requested electronic information.

Here are a few pertinent articles on Qualcomm sanctions and the ongoing litigation. Heavy Sanctions Loom Against Attorneys for e-Discovery; Legal Technology - Qualcomm Case Sends Tremors Nationwide; and IPToday.com - Intellectual Property Today - Qualcomm v. Broadcom.

NINTH CIRCUIT COURT OF APPEALS RULES SMS TEXT-MESSAGING HAS PROTECTION UNDER THE FOURTH AMENDMENT

The Ninth Circuit has ruled on an important text-messaging privacy case. On Wednesday, June 18th, the Ninth Circuit held that text-messaging, known as SMS (short message service), has protection under the Fourth Amendment.

More specifically, the court ruled that, under the facts (Quon v. Arch Wireless), an employee is entitled to the privacy protections of the Fourth Amendment for text-messages that an employee sends, but an employer claims right to.

As the LA Times has reported, important to the ruling is the distinction between out-sourced and company-maintained email accounts. Regardless of the distinction, the Ninth Circuit decision makes clear that, just because a company finances or "maintains" the email accounts of its employees, that does not mean it has unlimited access to the messages sent within. Now, Fourth Amendment protections attach.

The ruling, the LA Times reports, will require the police to obtain a search warrant before they can access the email or text-messaging accounts of employees. In addition, the ruling gives all government workers Fourth Amendment protection against searches of emails and text-messages by the government employer.

Here is the LA Times article referenced, and another article on the ruling (Your boss shouldn't read your text or e-mail messages) (Let go of my texts--all 75000 of them! The 9th Circuit speaks).

NINTH CIRCUIT COURT OF APPEALS RULES AGAINST ROOMMATES.COM IN IMPORTANT INTERNET DISCRIMINATION CASE - APRIL 2008

In Fair Housing Council of San Fernando Valley v. Roommates.com, 08 C.D.O.S. 3857, the Ninth Circuit, in an 8-3 ruling, found that Roommates.com, an internet roommate matching site, did not warrant immunity under the Communication Decency Act. The ruling is an important dictate on how internet websites must handle outreach to customers in a group setting.

The Ninth Circuit, Chief Judge Alex Kozinski opinion, attempts to distinguish between discrimination liability for "passive" websites, and those that actively manage content and related interaction.

In particular, the majority opinion explains, because roommates.com not only requested gender and sexual preference information upon registration, but its matching service users used this information in the roommate selection process, roommates.com was in violation of federal housing discrimination laws.

Effectively, it is the nuanced difference between content and content control, that carried the Ninth Circuit 8-3 decision.

Here is one article on the Ninth Circuit decision (Law.com - 9th Circuit: No Immunity for Roommates.com), and Judge Alex Kozinski's majority opinion can be accessed within.

2008 POLLSTAR CONCERT INDUSTRY AWARDS; WINNERS AND NOMINEES FROM THE FEBRUARY PRESENTATION AT THE NOKIA THEATER IN LOS ANGELES

19th Annual Pollstar Concert Industry Awards Categories & Nominees Click on to see the who's who list of concert industry leaders as it stands in 2008.

REGGAE ON THE RIVER DISPUTE REPORTEDLY SETTLED AS ARBITRATION JUDGE RECOMMENDS SETTLEMENT

The Mateel Community Center and Dimmick Ranch/Peoples Productions have reached an apparent settlement to the 19 month dispute over the rights and interests pertaining to the 23 year-running REGGAE ON THE RIVER music festival, a mega-successful three-day festival in Humboldt County, California, featuring the best of the best in reggae and international music. [See ipeb Saturday July 19th article for settlement details]

At the heart of the dispute is a lease agreement between the MCC and Dimmick Ranch which includes a "producer" clause that was allegedly breached, trademark issues, and permit issues pertaining to the right to produce the event on the Dimmick Ranch property and an adjoining parcel of land. Also in dispute are infrastructure and property improvements that both the MCC and Dimmick Ranch make claim to. [More when settlement details are released].

WARFIELD THEATER SAN FRANCISCO; LIVENATION/BGP MOVE OUT, AEG/GOLDENVOICE MOVE IN

The Warfield Theater in San Francisco now has a new tenant. The iconic 2500 capacity live music venue's legacy was established over the last thirty-plus years at the guidance of Bill Graham Presents, the legendary San Francisco concert promotion company.

However, times have changed. SFX, Clear Channel, and now LiveNation have owned Bill Graham Presents over the recent years. Now BGP/LiveNation is no longer the promoter with the premier 2500 seat theater in San Francisco.

That privilege is now held by another international player, AEGLive, which will use its well-known Goldenvoice branding to establish its mark in the San Francisco concert market. Goldenvoice is a story in itself, and will certainly be discussed in later postings.

In short, this is the first substantial commitment by a Los Angeles-based concert producer, in attempting to break the San Francisco market with secured and ongoing property interests.

AEGLive/Goldenvoice has also secured the promoting rights to another important music venue in the San Francisco market. The 1200 seat Grand Ballroom was recently used by Gregg Perloff, a former BGP President, and his company Another Planet Entertainment.

Now AEGLive/Goldenvoice is in at the Grand Ballroom and Another Planet Entertainment, like LiveNation, is looking for a new property to meet its needs.

It appears AEGLive is serious about its place in the San Francisco market. [More Later].