To: JGoren who wrote (3158 ) 9/16/2000 1:36:00 PM From: Eric L Respond to of 196739 JG, >> DEMYSTIFYING THE C-BLOCK RE-AUCTION September 18, 2000 Wireless Week By Caron Carlson WASHINGTON - Since the C-Block PCS licenses were initially auctioned off beginning in 1995, a number of the licenses purportedly have automatically canceled. But in a mysterious fashion, not all of the canceled licenses show up on the re-auction inventory. Although no explicit rules govern which automatically canceled licenses will be up for sale Dec. 12, there are a number of determining factors, according to the Wireless Telecommunications Bureau. No clear-cut rules - certainly none in writing - can be consulted to understand why the commission intends to re-auction some of the canceled licenses and not others at Auction 35, scheduled to open Dec. 12. The fact that a company’s licenses were canceled might seem to merit it the same regulatory treatment as other companies whose licenses canceled. But that’s not the case. The determination of which licenses were included in the auction inventory - according to high-level Wireless Telecommunications Bureau officials - as designed to balance several complicated factors specific to each set of licenses. First, a licensee that has not yet received a decision from the commission regarding a request to reconsider automatic cancellation is less likely to see its spectrum on the list than a licensee that already has been given an answer, a bureau official says. This, in part, describes why the licenses won by Airadigm Communications Inc. are not up for auction and the licenses won by 21st Century Telesis Inc. are. Both companies have petitions for reconsideration pending at the commission, but the bureau already issued at least one initial decision regarding 21st Century, the official says. Second, licenses tied up in ongoing litigation were less likely to appear on the list than licenses free of litigation. According to bureau officials, this partly explains why the spectrum won by Airadigm, Metro PCS (formerly called General Wireless Inc.) and Kansas Personal Communications Services Inc., for example, is absent from the auction inventory, while the spectrum won by 21st Century will be up for bid. In other words, companies that declared bankruptcy and sought to retain their licenses at a reduced value do not face the prospect of losing their spectrum in December. From the perspective of 21st Century - which already has paid the FCC more than $21 million for its licenses - the fact that the commission solicited public comment on Airadigm’s reconsideration petition undermines the validity of the claim that licenses cancel automatically. The company, which charges that the FCC did not provide it proper notice of its payment obligations and therefore should undo the alleged license cancellation, filed a petition for reconsideration Sept. 6. Ongoing litigation as a license-saving factor is not a hard and fast rule, however. The most conspicuous exception is NextWave Communications Inc., which is continuing a court battle to retain its spectrum licenses that are nonetheless included in Auction 35. NextWave has two litigation avenues remaining: the U.S. District Court for the District of Columbia and the U.S. Supreme Court. The Supreme Court is expected to decide by next month whether to hear NextWave’s petition. One bureau official says the commission has greater certainty regarding its case against NextWave because it has already won a favorable ruling from the U.S. Court of Appeals for the Second Circuit. So the commission is comfortable auctioning NextWave’s licenses even though it has not heard from the Fifth Circuit where Metro PCS won a lower court challenge. Which goes to say that if NextWave manages to save its spectrum from the auction block, the reason won’t be at all mystifying. << - Eric -