WASHINGTON-A federal appeals court last month refused to stay the scheduled re-auction of bankrupt NextWave Telecom Inc.’s personal communications services licenses or hear an appeal on their cancellation.
“A petition filed after a bureau decision but before resolution by the full Federal Communications Commission is subject to dismissal as incurably premature,” said the U.S. Court of Appeals for the District of Columbia Circuit.
NextWave last week appealed the decision, claiming the court’s one-page order is based on an incorrect premise.
Although FCC action-whether automatic as the commission contends or discretionary as NextWave contends-does not become final for judicial review until a public notice is issued, the public notice merely provides the trigger for judicial review, NextWave said. “Thus, the action NextWave challenges before this court-the license cancellations-is final FCC action, according to the FCC itself. Indeed, if the purported license cancellations were merely `staff decisions’ that were under review by the full commission, then Chairman [William] Kennard’s repeated testimony from Congress since Jan. 12 that the licenses had canceled would constitute improper and prejudicial public comment on a pending matter,” said NextWave.
In February, NextWave both appealed to the D.C. Circuit and petitioned the FCC to reconsider the Jan. 12 public notice announcing the re-auction of NextWave’s 90 C- and F-block licenses on July 26. The FCC later delayed the re-auction to Nov. 29.
The FCC says NextWave’s reconsideration petition is pending.
NextWave has also appealed to the Supreme Court a December order from the U.S. Court of Appeals for the 2nd Circuit that prompted the FCC to say NextWave’s licenses had canceled more than a year earlier.
The 2nd Circuit ruled on Dec. 22 and affirmed on May 25 that bankruptcy law did not apply because the FCC was using its regulatory powers in authorizing that NextWave’s licenses be paid in installment payments during a 10-year period. NextWave never made an installment payment on its $4.3 billion debt, nor did it choose a variety of restructuring options the FCC offered. Instead, on June 8, 1998, it filed for bankruptcy protection.
In the meantime, preparations for the re-auction continue with companies having until Wednesday to lobby the FCC. The FCC said when it proposed allowing large companies to bid on most of the spectrum being offered, that it would cut off contact after July 12.
