High Court Adds New Possibilities To NextWave Picture
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Story Filed: Wednesday, March 13, 2002 6:04 PM EST
Mar 13, 2002 (Wireless Data News/PBI Media via COMTEX) -- It could be at least another year before the Federal Communications Commission's dispute with NextWave Telecom finally ends.
The Supreme Court will consider the FCC's appeal of a lower court's ruling in favor of NextWave, but the High Court won't hear arguments in the case before October. That means a ruling won't likely be forthcoming until the first quarter of next year. However, should the court reverse the U.S. District Court for the District of Columbia's June 2001 ruling, then the case would return to the lower court, where NextWave would argue other issues involved in its dispute with the FCC.
A decision upholding the district court's order would end the case with NextWave owning PCS spectrum licenses covering 95 markets across the country. Hawthorne, N.Y.-based NextWave is operating under Chapter 11 bankruptcy protection and is building a CDMA2000 1X network in its footprint, with plans to provide data service in 93 markets and voice and data service in Detroit and in Madison, Wis.
"We have enough cash on hand to complete our initial build, which was gong to take us through this year anyway," says Michael Wack, NextWave's senior vice president,
There's reason to believe the Supreme Court won't agree with the lower court. "The common wisdom is that the court only takes a case like that if they're going to change the result," says Scott Blake Harris, a managing partner at Washington, D.C.-based law firm Harris, Wiltshire & Grannis. "I see no reason that this will be any different."
But the court's decision to take the case isn't a sure sign it's primed to change a law. "In our case, it could be that clarity is required," Wack says. In this case, the clarity would be that "the bankruptcy code prevails. That statute is very clear," he said.
The case also could simply be too much for the High Court to resist. "This is a high-profile case that impacts both the Telecom Act of 1996 as well the bankruptcy code," says Jeff Sanders, a media and bankruptcy attorney at the Arent Fox Kintner Plotkin & Kahn firm of New York City and Washington, D.C. "This is a court that has not shied away from taking high-profile cases."
The court's decision likely will focus on whether elements of the bankruptcy code conflict and, therefore, impede the authority of the FCC and other regulatory agencies.
But the point could be moot before the court hears the case. "I think the Court's decision to take the case will trigger a new round of settlement discussions," says Stephen Coran, a partner with the Manatt, Phelps & Phillips law firm in Washington, D.C.
(Michael Wack, 202/347-2771; Steve Coran 202 463-4310; Scott Blake Harris 202/730-1330; Jeff Sanders, 212/492-3312.)
Wireless Data News, Vol. 10, No. 6
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