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Technology Stocks : Qualcomm Moderated Thread - please read rules before posting -- Ignore unavailable to you. Want to Upgrade?

To: kech who wrote (7196)	2/11/2001 11:16:07 AM
From: JGoren	Respond to of 196772

I started reading the reply brief; would like to see the appellant's brief and the appellee's brief. i have always thought that the FCC action was violation of due process because there was no prior notice; they just precipitously acted to take away the licenses

To: kech who wrote (7196)	2/12/2001 2:55:14 AM
From: JGoren	Read Replies (1) \| Respond to of 196772

I have now read NextWave's initial and reply briefs as well as the amicus curiae brief. The FCC's brief is not on the NextWave site, so I haven't had the benefit of reading it. Nor have I read the cases cited, so I don't know how well the cases support NextWave's position. When one reads quality briefs, it sounds like one side has a winner until you read the other. However, just reading the briefs and making an assessment of what sounds reasonable, I think there is an extremely good chance that NextWave will win. The issue in this appeal is not whether the bankruptcy law trumps FCC. According to NextWave, the first appeal decided whether the bankruptcy court had jurisdiction to change the price of the spectrum under an avoidance claim. The mandamus action brought previously again decided a jurisdictional issue: That the FCC's revocation was an action that could not be approved or rejected by the bankruptcy court, because the administrative decision to revoke is by statute appealable to the Court of Appeals. What the Court of Appeals has never decided is whether Section 525 of the bankruptcy code prohibited the revocation of the license and whether there was adequate notice or whether the FCC is estopped by its inconsistent statements. One point the brief makes rather pointedly is the FCC was rocking along in the bankruptcy court, accepting that the automatic stay, stopped it from revoking the licenses or trying to collect money, while the value of the licenses were in the tank but only when the value of the licenses recovered (and it became evident the FCC could get more by reauctioning) and 10 days before the plan was about to be confirmed by which the FCC would be paid in full, did the FCC decide it wanted to revoke. I think the revocation will be reversed in large part because the FCC did so without adopting any rule or reg clearly governing the situation. (This is the same reason why there could never have been a recount in Florida; there were no rules or regs adopted pursuant to the Florida administrative procedures act saying how to do a punchcard recount.) I also think Section 525 of the Bankruptcy Code operated to prohibit the FCC from revoking the licenses. The trickiest issue is whether the FCC's action was one in the nature of "police power." The Second Circuit previously emphasized the regulatory nature of FCC action; however, NextWave argues that when the Code speaks of police power, it does not encompass all regulatory actions but only those where immediate agency action is necessary to preserve or protect health, safety, welfare, etc. and that the FCC's interpretation would negate, completely emasculate Section 525's prohibition on regulatory agency revoking a license because of nonpayment of a dischargeable debt. The amicus brief, filed on behalf of numerous persons, including Senators Schumer and Torricelli, make the excellent point that the exemption that the FCC argues exists for it has been rejected by Congress and that Congress has consistently refused to create exemptions from bankruptcy for federal agencies. I think that Qcom's loss with G* will be retrieved by the NextWave's reinvigoration. The question in my mind is what is NextWave going to do businesswise. I am not sure that its original business plan would be the correct one to use years later after so much development in the market. Originally it was to resell time to carriers and engage in an wireless internet for homes, offices, as I recall in the plan. The brief indicates that FCC has said that if it loses, NextWave will get its spectrum. Therefore, I assume that the terms of the auctions include a proviso in that regard; perhaps someone out there knows. If someone can point me to the FCC brief, I would appreciate it and frankly feel more comfortable if I have read it. I