The Federal Communications Commission has said no to the Minority Media and Telecommunications Council in a disagreement over who, exactly, should have been considered qualified for those “set-aside” channels on Sirius XM.

The MMTC wanted the commission to reconsider how channels would be set aside for so-called “qualified entities.” It sought a broader definition to permit more to qualify.

Leasing 4% of their capacities to “qualified entities” was an FCC condition of approval of the merger of XM and Sirius. In 2010 the commission set out parameters to choose qualified entities, saying they needed to be independent from Sirius XM and that their selection should be “race-neutral.” The FCC gave Sirius XM the responsibility to choose the qualified entities but prohibited it from having editorial control. (In 2011, Sirius XM chose Howard University, licensee of WHUR(FM) and WHUT(TV); BYU Radio, licensee of KBYU(FM) and KBYU(TV); Eventus/National Latino Broadcasting; WorldBand Media; and KTV Radio.)

MMTC challenged the leasing conditions, calling them vague. It thought some organizations that had supplied programming to the satellite companies in the past should still be considered qualified. It also wanted the definition of qualified entity to include “Historically Black Colleges and Universities,” “Hispanic Serving Institutions,” “Asian American Serving Institutions” and “Native American Serving Institutions,” multilingual programmers and tribal entities. According to the FCC, “MMTC asserts that these classifications are not based on race but, rather, are based respectively on mission, language and tribal relationships.”

The council also worried that the definition of qualified entity would create a precedent, so it asked the FCC for a ruling that it would not.

The commission now has rejected MMTC’s petition, citing its earlier findings but also expanding on them.

Qualified entities, it reiterated, may not have had any existing relationships with Sirius XM for the supply of programming over the past two years; it found no reason to change its definition (though it clarified that “personal” social interaction with the company would not be disqualifying). “Similarly, we decline to revise our definition of qualified entity to include, as Radio One suggests, programmers that have had only ‘nominal’ relationships with Sirius XM, such as relationships arising from a programming barter or swap.”

The FCC also wrote: “MMTC has not persuaded us that it is necessary to direct Sirius XM to afford special consideration to companies that will promote diversity by virtue of their educational mission, language or Native American status.” MMTC thinks such voices are not significantly represented on Sirius XM and should be; but, the FCC wrote, “the selection criteria clearly state that Sirius XM is expected to consider, among other things, whether a qualified entity would offer a diverse viewpoint or diverse entertainment content and would improve service to historically underserved audiences.”

The commission also reiterated that the implementation details “are specifically tailored to the unique circumstances of the Sirius XM merger.”

Asked for his reaction to the FCC ruling, MMTC President David Honig told Radio World: “The FCC’s eligible entity criteria were incorrectly drawn and we’re glad the commission has confirmed that the criteria are non-precedential. Fortunately, though, the result in this instance was quite good. Sirius XM’s selectees are diverse, high-quality programmers.”

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