To: DaveMG who wrote (126636 ) 1/27/2003 3:30:56 PM From: Don Edgerton Respond to of 152472 By Jeffry Bartash, CBS.MarketWatch.com Last Update: 10:54 AM ET Jan. 27, 2003 WASHINGTON (CBS.MW) - The Supreme Court on Monday ruled that NextWave Telecom can keep wireless licenses worth billions of dollars despite its failure to meet payment obligations. Free! Sign up here to receive our Before the Bell e-Newsletter! INFORMATION FOR : Create an alert for Add to my portfolio More cool charts on Discuss NEWS FOR More news for Quote & News Charts Financials Analysts Options SEC Filings TRACK THESE TOPICS My Portfolio Alerts Company: Nextwave Telecom Inc Add Create Company: Verizon Communications Add Create Get Breaking News sent directly to your inbox Create A Portfolio | Create An Alert The victory sent shares of NextWave (NXLC: news, chart, profile) surging 51 cents to $2.81, a 22 percent gain, in late-afternoon action. Volume was heavy at 8.8 million shares. NextWave will now be free to develop wireless licenses or, more likely, to sell them to the highest bidder and pocket the cash itself. The Federal Communications Commission seized 200 licenses from NextWave and sold them off for more than $16 billion in January 2001 -- almost four times what the company originally paid for them. All of that money would have ended up in the federal budget. Yet the company successfully sued in federal appeals court for return of the licenses, throwing a wrench in the government's plans. The FCC then took the six-year-old dispute to the Supreme Court, but legal experts widely believed that NextWave held the winning hand. The nation's highest court confirmed it in an 8-1 vote. The right price While the court sorted through the legal tangle, the FCC returned the up-front payment submitted by the winning bidders in the January 2001 auction. Verizon (VZ: news, chart, profile) was the top bidder, agreeing to pay $8.8 billion for 45 licenses. NextWave, however, is unlikely to obtain anything close to the same price for its licenses if it decides to sell them. Potential suitors plan to play hard to get or to drive a hard bargain. Indeed, the big wireless carriers say the value of the licenses has sharply eroded since the 2001 auction in the wake of a U.S. economic downturn and resulting collapse of the telecom industry. The industry's slump -- the worst ever -- has inflicted severe damage on the balance sheets of even the largest phone companies. None want to repeat the mistakes of European counterparts, who overpaid for wireless licenses and now struggle under a mountain of debt. Still, wireless carriers would like to add more capacity to expand data services, fill in network gaps and ease congestion in busy markets such as New York and Los Angeles. Verizon, however, already has looked elsewhere to address short-term spectrum needs. Last month, it paid $750 million to buy 50 licenses from NorthCoast Communications. They cover markets such as New York, Boston, Minneapolis and Columbus, Ohio. Verizon Wireless spokesman Jim Gerace declined to comment. "We don't have anything to say," he said. At the FCC, Chairman Michael Powell said the agency is reviewing the ruling. "The Supreme Court's decision brings much needed certainty to an unsettled area of the law," he said in a statement. "The commission will faithfully implement the Court's mandate and looks forward to facilitating the provision of service in these bands to the American people as soon as practicable," he said. NextWave could not immediately be reached for comment. Roots of controversy When NextWave won the licenses in 1996, it agreed to pay $4.7 billion. The company was unable to pay the full amount and filed for bankruptcy in 1998. The FCC then seized the licenses. In argument before the Supreme Court last year, the FCC argued that it had the right to seize licenses when companies failed to make required payments. The court, however, noted that the agency also had the authority to extend deadlines. NextWave and its creditors asserted that the licenses were protected under bankruptcy court rules. Investors put money into the company based on the value of those licenses and should not be unjustly deprived of those assets. "The agency can't pull the rug out from the entire process," argued Laurence Tribe, the noted Harvard law professor, who represented NextWave. The High Court accepted that argument in its ruling. Aware it was on flimsy legal ground, the FCC sought a compromise with NextWave that would have resulted in the return of the licenses. The government would have received $10 billion, with NextWave collecting $5 billion. Yet U.S. lawmakers, who wanted the auction money to plug holes in the federal budget, scuttled the compromise. That gave the FCC no choice but to take the case all the way to the Supreme Court. Now the government won't even get a nickel -- at least any time soon.