I haven't seen the application to the Second Circuit, so this is speculation. Although previously reported in the media that FCC wanted a "stay", it appears it asked for a "writ of prohibition," which is where the appellate court tells the trial court to stop interfering with appeals court's jurisdiction--in other words, our opinion was meant to give the FCC full power to revoke and bankruptcy court, you can't stop it. The refusal to give relief to the FCC, in effect, says the bankruptcy court can rule that there was no revocation in the past (Jan, 1999 the FCC contends) and tell the FCC it can't revoke now because the bankruptcy stay was in effect. If the Second Circuit panel had interpreted its opinion the way FCC wanted, one would assume it might have granted relief, because it knows what it intended better than anyone else. (It is possible that Second Circuit thought relief premature until bankruptcy court rules, but I don't think that is the situation.)
FCC's options are limited. It hasn't got much choice but to try to appeal to the whole Second Circuit court, en banc, and reply to Nextwave's motion for rehearing en banc by urging that the whole court take the case and give it more relief than it got before.
FCC will be embroiled in appeal of the original 2nd Circuit decision. It will have to go through trial court decision by the bankruptcy court. It will have to bring another appeal to the Second Circuit, this time requesting a stay of the bankruptcy court's decision. It will be too late to re-auction.
The bankruptcy court hasn't made a decision; it asked the FCC to show proof it revoked in jan 99. FCC apparently said there are no documents revoking, that revocation was automatic when Nextwave didn't make an interest payment despite the bankruptcy stay being in existence at the time. Automatic revocation WON'T FLY. Banruptcy court will rule there was no revocation; and that FCC must accept payment.
NW gets spectrum;
then FCC will appeal to no avail |
