FCC v. NextWave

So the U.S. Supreme Court ruled that NextWave Telecom Inc. will keep its wireless licenses. Never mind that they couldn’t pay the bill.

Now, this isn’t some credit card worth a couple thousand dollars, or even a car loan worth 10 or 20 grand. What we’re talking about here are 90 public licenses NextWave won at auction in 1996 for $4.7 billion. The company — which bought the spectrum with an IOU — made a single $500 million payment before declaring bankruptcy. Talk about eBay’s worst nightmare.

After NextWave’s 1998 Chapter 11 filing, the Federal Communications Commission seized the licenses and resold them to a couple of NextWave’s competitors in January 2001 for more than $16 billion.

The company then sued in federal appeals court for return of the licenses — and won. Several appeals and more than half a decade later, the U.S. Supreme Court finally weighed in, supporting NextWave’s case in an 8-1 vote. Justice Antonin Scalia, writing for the majority, declared that the Bankruptcy Code “prohibits the FCC from revoking licenses held by a bankruptcy debtor upon the debtor’s failure to make timely payments to the FCC for purchase of the licenses.”

FCC Chairman Michael Powell’s response to the decision, while certainly magnanimous, lacks a certain something. Insight, perhaps?

“The Supreme Court’s decision brings much needed certainty to an unsettled area of the law. We are in the process of examining all of the ramifications of the Court’s decision. 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.”

Pardon the cynicism, but it sounds like he has no idea what just happened. Either that, or he just doesn’t care. In retrospect, it shouldn’t be surprising since Powell seems to be sleepwalking through his term anyway — but that’s another column.

Frankly, looking across the aisle at Powell’s opponent, the reaction from the victor sounds hauntingly familiar.

“This has been a difficult and arduous process for NextWave and its creditors and shareholders, as well as for the government,” NextWave Chairman and CEO Allen Salmasi said. “Everyone will benefit from achieving finality, putting the litigation behind us, and getting the licenses into use as quickly as possible to provide service to the public and help fuel economic recovery.”

Did these two attend the same therapy group? Were there hugs all around after the clerk read the decision?

Everyone seems to think that it’s all been put behind them when, in fact, the worst is probably waiting around the corner like a dot-com earnings report.

So what does NextWave do now? Well, two options immediately present themselves: either keep the licenses and drum up the capital to build out its own network or turn around and sell them to the highest bidder.

But it might not be as simple as that.

For starters, where in the wide world of Wall Street are they going to dig up the investors to pony up the capital for yet another national wireless network? Keep in mind there are already half a dozen carriers in each of the major markets. And they’re bleeding more cash than the president’s latest budget proposal.

And as far as selling the spectrum to the highest bidder? Well, that same depressed economic atmosphere makes that scenario just as sketchy. The mood in Dick Cheney’s top-secret bunker would probably be more upbeat than a conference call with all of the wireless CEOs. Most industry experts estimate that the value of the licenses has dropped considerably since the 2001 auction. And, market value aside, who’s got that kind of cash anyway?

There are two other points worth making here:

One, the rules for the disbursement of spectrum is antiquated at best. The technology has far outpaced the government’s ability to regulate it. Chairman Powell should stop worrying about his TiVo and start doing his homework — because he just had his lunch handed to him in this ruling, whether he realize it or not.

Second, and this really gets lost in the media shuffle, the operative word in this case about licenses is “public.” This auction, and subsequent legal wrangling, centered around something that is supposed to be the public’s in the first place. Who stood before the U.S. Republican — sorry “Supreme” — Court and argued the case for the U.S. taxpayer?

And regardless of how this turns out – and for taxpayers, there’s not a happy ending in sight — Justice Stephen Breyer, the lone dissenter summed up (and deflated) the court’s majority opinion nicely:

“It seems to say that a government cannot ever enforce a lien on property that it has sold on the installment plan as long as (1) the property is a license, (2) the buyer has gone bankrupt, and (3) the government wants the license back solely because the buyer did not pay for it.

“Why should the government (state or federal), and the government alone, find it impossible to repossess a product, namely, a license, when the buyer fails to make installment payments?”