To: lkj who wrote (4741 ) 1/2/2000 3:09:00 PM From: Ruffian Respond to of 13582
Spectrum Belongs To No One By Caron Carlson WASHINGTON—Few snowflakes fell along the eastern seaboard during the Christmas holiday, but the halls of government were blanketed with a flurry of paper regarding NextWave Personal Communications Inc.'s spectrum licenses. Long-awaited positions emerged, including the 2nd Circuit Court of Appeals' decision, which included the conclusion that radio spectrum belongs to no one. The tempest of paper began with a filing at the Securities and Exchange Commission Dec. 21 by Nextel Communications Inc., spelling out plans for an $8.3 billion hostile takeover of Next-Wave. Nextel withdrew the plan two days later after the 2nd Circuit released a decision it rendered in November regarding the FCC's suit against NextWave. In the meantime, NextWave had filed a motion to stop Nextel's attempted hostile bid. The three-judge panel at the 2nd Circuit emphasized the absence of property rights inherent in spectrum licenses, echoing the position taken by the FCC. “[Spectrum] is not property that the federal government can buy or sell,” the court said. “It is no more government-owned than is the air in which Americans fly their airplanes or the territorial waters in which they sail their boats.” Because spectrum does not convey property rights, the FCC holds exclusive jurisdiction not only over granting licenses but determining license conditions, the court said, adding that the lower courts exceeded their jurisdiction when they mandated that NextWave could keep its licenses at a lower debt obligation. “The fact that market forces are the technique used to achieve that regulatory purpose does not turn the FCC into a mere creditor, any more than it turns an FCC license won at auction into a property estate in spectrum.” The decision overturns an order by the U.S. District Court for the Southern District of New York, which had affirmed five earlier decisions by the U.S. Bankruptcy Court for the Southern District of New York. The lower courts had determined that the FCC's assignment of NextWave's C-block licenses were fraudulently conveyed and reduced NextWave's debt to the FCC by $3.7 billion. NextWave, which announced $1.6 billion in new investments last month, is proceeding as though it intends to pay the full amount originally bid for the spectrum. Responding to the 2nd Circuit decision, the company said it is “fully positioned to work closely with the [FCC] to implement a market-based solution that results in the immediate assumption of the full amount of the original debt obligation, immediate payment of all accrued interest and principal to date while presenting a plan to the FCC and the bankruptcy court that is fully compliant with the FCC rules.” If the FCC re-auctions the spectrum, before being able to assign it to Nextel or any other nationwide carrier, it will have to change or waive the “designated entity” restrictions established to ensure use by small businesses. Nextel filed a petition with the FCC Dec. 21 on the small business status of licenses. The FCC's confidential discussions with Nextel suggest that it is willing to change the designated entity restrictions.