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To: quidditch who wrote (5253)	1/15/2000 1:51:00 PM
From: JGoren	Respond to of 13582

FCC's action does appear to be "arbitrary and capricious." It also will delay use of the spectrum rather than speed it along. The materials I have previously read, and maybe posted, seem to indicate that at least the bankruptcy court took the position that the NextWave was not in default in payment. The Second Circuit opinion was, however, very broad in its language; one of the problems with the opinion is that the Second Circuit panel seemed to disagree with the law giving small companies a favored right to bid for C-block licenses. If FCC in its pleadings has acknowledged that NextWave was not in default and the stay applied against it, I don't see how it can now declare a default without first giving NextWave notice and an opportunity to cure. The Second Circuit talked about the three options given by the FCC to NextWave a couple of years ago; that could suffice and there is language in the opinion indicating that it might have. But, if the FCC did not declare a default then I have a really hard time believing that, once the Second Circuit issued its opinion, it could reject full payment and declare a default. Sounds like a due process problem to me. The agency has to create rules and then live by them. It can't make up the rules along the way and apply them without first giving an opportunity to NextWave to pay.