CRIME DOES NOT PAY FOR QWEST'S NACCHIO

Former Qwest CEO Joe Nacchio was convicted yesterday on 19 insider trading counts of the 42 with which he had initially been prosecuted. Each charge carries with it a maximum of 10 years in prison and $1 million fine.

From BusinessWeek:

In the latest in a series of convictions against corporate executives, one-time CEO Joe Nacchio was found guilty of illegally selling $52 million in stock amid an accounting scandal that nearly sank Qwest Communications.

Nacchio left the federal courthouse with his wife and son Michael after Thursday's verdict, declining to comment yet determined to appeal the 19 insider trading convictions, each of which carries a sentence of up to 10 years in prison and a $1 million fine.

Nacchio is one of a handful of former Qwest executives who have been convicted of criminal charges stemming from a multibillion-dollar scandal that forced the Denver-based telecommunications company to restate $2.2 billion of revenue.

He also is the latest to be convicted as part of the government's push to punish white-collar executives stemming from accounting fraud at companies from Enron to WorldCom.

"'Convicted felon Joe Nacchio' has a very nice ring to it," boasted Troy Eid, the U.S. attorney for Colorado.

The Justice Department has gone after a number of corporate executives in cases involving accounting and fraud scandals in the late 1990s and 2000 that sparked outrage among investors.

Former Cendant Corp. Chairman Walter Forbes is serving more than 12 years in prison and has been ordered to pay $3.28 billion in restitution. He was convicted of conspiracy to commit securities fraud and other charges in a massive fraud scheme that cost the travel and real estate company and its investors more than $3 billion.

Former WorldCom chief Bernard Ebbers is serving a 25-year prison sentence for his role in the fraud that drove that Clinton, Miss.-based company into bankruptcy in 2002.

Former Enron chief executive Jeffrey Skilling is serving 24 years and four months in prison for fraud and other crimes in the collapse of the former energy giant. Enron founder Ken Lay also was convicted, but a judge vacated that decision when Lay died of a heart attack last year.

HealthSouth Corp. founder Richard Scrushy was acquitted of all charges in a $2.7 billion fraud during his tenure at HealthSouth.

XM AND SIRIUS SATELLITE RADIO TO MERGE?

On Tuesday the rumors that had swirled for more than a year regarding a possible merger between the two satellite radio companies in the United States, XM and Sirius Satellite Radio, were confirmed when both companies announced they are interested in a "merger of equals". There will be numerous hurdles to overcome before the companies can merge.

1. The Federal Communications Commission will have to approve the merger. They will take into consideration what is in the best interest of the public and if they do green light the merger, they might require concessions such as being able to regulate satellite radio like the currently do with terrestrial radio and requiring XM and Sirius to give back some of the radio spectrum issued to them by the FCC.
2. The Federal Trade Commission's Bureau of Competition seeks to prevent business practices that restrain trade. They get their charge and power from the FTC Act and Clayton Act, both of 1914. If the Bureau of Competition determines that consumers could lose in a scenario in which there was only one provider of satellite radio, the merger would likely not be approved.
3. The Antitrust Division of the Department of Justice will look closely at the proposed merger, consulting with the FTC to streamline the process and avoid duplication. If the DOJ believes that the merger would be a violation of the Sherman Antitrust Act of 1890 and/or the Clayton Act of 1914, the merger would likely not be approved.

Going from two competing satellite radio companies to one merged company seems to violate antitrust laws - one provider of a good or service that lacks a viable substitute - but XM and Sirius will argue that they do have competitors and substitutes in terrestrial radio, internet radio, and iPods and other portable music devices including mobile phones.

Most proposed mergers take a few months to clear all of the hurdles, but this one will likely take much longer, possibly going into 2008 before a final decision is rendered.

WSJ.com
USA Today

SIRIUS & XM SATELLITE RADIO CONSIDERING MERGER?

According to The Wall Street Journal, rivals Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc. seem to be considering a merger, but any combination of the only satellite radio providers would face serious legal and regulatory antitrust hurdles from the Justice Department Antitrust Division, the Federal Trade Commission and the Federal Communications Commission. According to Reuters, FCC Chairman Kevin Martin today said, "There's a prohibition on one entity owning both of those licenses," making a merger seem unlikely, but he did leave the door open by saying that the FCC would review any transaction submitted to it.

While Sirius and XM are the only satellite radio providers in the United States, they might be able to get over most antitrust and competition hurdles by arguing that satellite radio competes with traditional terrestrial radio, MP3s, Internet radio, and even cellphones.

While both Sirius and XM have added millions of users, totalling more than 12 million, neither has approached profitability. In the past 12 months, Sirius stock price has fallen more than 35% while XM has dropped more than 40%.