Subject: Re: [NEXTEL-1] Re: Nextel Conference call- Bubbling, Mumbling Barry West

From: "Neil Horden" <[email-masked]>
Date: Fri, 17 Oct 2003 15:42:36 -0000

It seems to me that he would have to be a very poor negotiator to 
state his acceptance or rejection of a compromise prior to the 
conclusions of negotiations.

I am not stating my opinion on the consensus plan, just questioning 
the logic of criticizing Barry West for his statements.

--- In [email-masked], Marcelrf@B... wrote:
> Barry's response stated at  @ 35:37 Min that's why I included the 
time in my
> original email so people would not need to listen to the entire 
webcast.
> 
> If you Fast Forward and listen from 36:37 to 37:18 Min you will 
hear Barry asked
> "Is there a sign the Commission would consider the 1.9 Ghz issue 
separately from
> the retuning issue".
> Here is where it gets fuzzzzzzy...
> 
> I think Barry said "Ah....It's  not possible because you know in 
the way.......in
> order for Nextel to to Ah, make the contribution in terms of 
spectrum and
> financing" ...... babble, mumble, mumble
> 
> The above may be incorrect-
> This is important because it either affirms or denies that Nextel 
will accept any
> compromise. As you know this question was a hot topic in the media 
recently.

------------------------ Yahoo! Groups Sponsor ---------------------~-->
Rent DVDs Online - Over 14,500 titles.
No Late Fees & Free Shipping.
Try Netflix for FREE!
http://us.click.yahoo.com/Tq9otC/XP.FAA/3jkFAA/61FxlB/TM
---------------------------------------------------------------------~->

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/

---

From: [email-masked]
Date: Fri, 17 Oct 2003 12:36:01 -0400

> conclusions of negotiations.

True, but Barry is notorious for letting the cat of out the bag. That's why the
media loves it when Timmy hands him the mike.

> the logic of criticizing Barry West for his statements.

I'm not criticizing BB for his statements. I can't criticize what I can't
understand!

------------------------ Yahoo! Groups Sponsor ---------------------~-->
Buy Ink Cartridges or Refill Kits for your HP, Epson, Canon or Lexmark
Printer at MyInks.com. Free s/h on orders $50 or more to the US & Canada.
http://www.c1tracking.com/l.asp?cid=5511
http://us.click.yahoo.com/mOAaAA/3exGAA/qnsNAA/61FxlB/TM
---------------------------------------------------------------------~->

---

From: Paul J Zawada <[email-masked]>
Date: Mon, 20 Oct 2003 13:44:12 -0500

Maybe I'm confused or just plain naive, but I wasn't aware that the FCC 
conducted private negotiations with anyone on any issue.    I thought 
the way the process worked was that the FCC initiates a rule-making 
proceeding, interested parties make comments on the record, and the 
Commission makes a decision, period.   Yes, there's a lot of lobbying 
and other "out of band"/ex parte communication that goes on, but I was 
under the impression that the results of such discussions are still 
made public and all parties still get equal access to the Commission 
under the rules that govern such communication.  So what cat is there 
to be let out of what bag?

Furthermore, how is it that Nextel can offer a "take it or leave it" 
ultimatum to the FCC?  I don't recall ever seeing an FCC R&O that 
stated something along the lines of "Should [some private party] accept 
this order, such and such will occur" or "at the conclusion of 
negotiations with [some private party] it was agreed that the 
Commission would do X, [some private party] would do Y, and everyone 
else would do Z."   Granted, parties who have skin in the game are 
probably given more weight in a particular proceeding, but if a 
Commission' s action is to be truly in the public interest, how can one 
party be given so much sway?   In other words, interference affecting 
public safety is either serious enough to fix a certain way or it's 
not.   Why is it up to Nextel to accept or reject a compromise?  They 
are certainly allowed to recommend a way that the Commission may 
address a problem (a la the White Paper or the Consensus Plan) but who 
gave them final say?  Some of the statements below and in the trade 
rags seem to indicate that if Nextel doesn't like what the Commission 
doles out, they can just take their marbles and go home.  I thought we 
were beyond the point of no return; if the Commission decides to reband 
800 MHz without giving 1.9 GHz to Nextel, isn't that just Nextel's 
tough luck?  That was the risk they took in bringing the White Paper to 
the Commission in the first place, was it not?

--zawada

------------------------ Yahoo! Groups Sponsor ---------------------~-->
Rent DVDs from home.
Over 14,500 titles. Free Shipping
& No Late Fees. Try Netflix for FREE!
http://us.click.yahoo.com/mk9osC/hP.FAA/3jkFAA/61FxlB/TM
---------------------------------------------------------------------~->

---

From: [email-masked]
Date: Mon, 20 Oct 2003 17:47:07 -0400

Paul-

See my comments below

Paul J Zawada wrote:

> conducted private negotiations with anyone on any issue.

Sure they do if your name is Nextel, did you forget the Nextwave deal With
Christopher "Under The Table" Wright?

"In confidential negotiations with Nextel, FCC General Counsel Christopher Wright
and other staff members confirmed that they would recommend waiving eligibility
restrictions on C-Block personal communications services licenses for Nextel. The
assurances were given in the absence of any public notice or comment process."

-Wireless Week

http://groups.yahoo.com/group/NEXTEL-1/message/9972
------------------------------------------------------------------------------------------------------------------------

September 20, 1999

The Honorable William E. Kennard
Chairman
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554

Re: In re NextWave Personal Communications Inc., et al., Chapter 11
Case No. 98 B 21529 (Jointly Administered) (ASH)
Dear Chairman Kennard:

I am writing with respect to your recent letter to Thomas E. Wheeler, of the
Cellular Telecommunications Industry Association, defending the activities of the
FCC staff with regard to the PCS licenses that are the subject of the
above-referenced bankruptcy proceeding.

It is my understanding that Christopher J. Wright, FCC General Counsel, and
Raymond Fisher, Associate Attorney General, sent a letter on August 10, 1999 to
Counsel for Nextel Communications, Inc. In that letter, Mr.  Wright expressly
committed his support, as well as the support of "relevant" FCC staff, to Nextel's
Term Sheet and Joint Plan of Reorganization concerning NextWave's PCS licenses.
Specifically, the letter stated:

This letter confirms that the undersigned, Christopher J. Wright, General Counsel
of the [FCC] . . . and the relevant staff of the FCC will recommend to the FCC
that it accept and agree to support the resolution of the NextWave Cases as
proposed in the Term Sheet. . . . You and Nextel are authorized to disclose the
existence and substance of this letter and the Term Sheet in connection with any
efforts to raise necessary funding, to propose or implement a plan of
reorganization consistent with that described in the Term Sheet . . .

As you are aware, NextWave's plan of reorganization was filed on July 27, 1999 and
is currently under consideration by creditors and by the Bankruptcy Court for
purposes of confirmation. Nextel is not a party in interest in the bankruptcy
proceeding and, therefore, has no standing to file a plan of reorganization.

Under the Communications Act of 1934, as amended, the Commission has several
options at its disposal with respect to licensees. It can renew a license (with or
without conditions); it can deny an application to renew; or it can revoke a
license. In each case, the Act imposes specific procedures on the FCC that are
designed to protect the public at large, and the licensee in particular. With
respect to NextWave, the Commission has previously determined that the company is
qualified to hold licenses, and on that basis issued NextWave 95 licenses.

The FCC's actions with respect to the Nextel/NextWave transaction represent a
radical departure from Commission policy and precedent. This departure has been
made without the benefit of public participation or a public articulation of a
change in policies. In Reuters Limited v. FCC, 781 F.2d 946 (1986), the Court
warned that:

It is elementary that an agency must adhere to its own rules and regulations. Ad
hoc departures from those rules, even to achieve laudable aims, cannot be
sanctioned, for therein lies the seeds of destruction of the orderliness and
predictability which are the hallmarks of lawful administrative action.

The Court warned further that an agency is not permitted "to deviate from its
rules in order to achieve what it deems to be justice in the individual case."

Even if it were appropriate for the Commission to act as a partisan, the manner in
which it is conducting itself vis-à-vis Nextel's takeover bid for NextWave is
inappropriate for several reasons. First, the Commission has not conducted any
proceeding that concludes that NextWave, the incumbent licensee, is unfit or
unqualified to hold its licenses. As noted above, the Commission is bound by
specific statutory requirements that must be met before it is permitted to revoke
a license.

Second, the Commission is engaged in an effort to transfer licenses without having
been presented with a written application, or having to provide an opportunity for
public participation. Section 310(d) of the Act is clear:

No construction permit or station license, or any rights thereunder, shall be
transferred, assigned, or disposed of in any manner, voluntarily or involuntarily,
directly or indirectly, or by transfer of control of any corporation holding such
permit or license, to any person except upon application to the Commission and
upon findings by the Commission that the public interest, convenience, and
necessity will be served thereby. (emphasis added)

The Commission is expressly prohibited from considering "whether the public
interest, convenience, and necessity might be served by the transfer, assignment,
or disposal of the . . . license to a person other than the proposed transferee or
assignee." Mr. Wright’s actions appear to conflict with these statutory
provisions.

I also must note that it would be inappropriate for the Commission to support a
takeover bid of a C-Block licensee by a company that does not comply with the
Commission's eligibility criteria for C-Block licensees.  Section 24.709 of the
Commission's rules contain the specific criteria for C-Block eligibility. Nextel
does not appear to qualify to hold C-block licenses as its assets and revenues
exceed substantially the amounts that these eligibility criteria permit. Mr.
Wright’s letter appears to indicate his support for creating an exemption for
compliance with its eligibility criteria specifically for Nextel. Such an
exemption is not available for other C-block licensees, despite the precarious
financial condition of many of the remaining C-block licensees. To the extent that
the Commission determines, through a public proceeding, that an exemption should
be created, such an exemption should be made available to all C-block licensees,
including NextWave.

Over the last twenty years, the Commission has scrupulously attempted to remain
neutral in the face of takeover battles for its licensees. In so doing, the
Commission has held that the procedures outlined in the Act should be used neither
as a sword nor as a shield. It is unprecedented, therefore, that the Commission
would not only take sides in a hostile takeover effort, but act as an organizer of
such an effort, aiding and abetting one company in an effort to acquire another
company.

For the above reasons, I am extremely troubled by Mr. Wright’s conduct and I ask
that you review this matter fully and provide me with your views.

Please instruct the Office of General Counsel to insert a copy of this letter, as
may be appropriate under Commission rules, in the official record of any relevant
proceeding.
Sincerely,

JOHN D. DINGELL
RANKING MEMBER

--------------------------------------------------------------------------------------------------------------------------------

>   I thought
> Commission makes a decision, period.

Normally,  but as the record has demonstrated Nextel has been allowed to
circumvent many rules and regulations.

"Desperate for spectrum to compete in the cellular/PCS league, Nextel has
frequently pursued licenses outside established regulations, obtaining waivers and
asking the court to revise rules. In another pending spectrum acquisition attempt,
Nextel bid in a privately conducted auction for certain specialized mobile radio
spectrum despite a consent decree signed with the Department of Justice in 1995
prohibiting it from holding much of that spectrum."

-Wireless Week

http://groups.yahoo.com/group/NEXTEL-1/message/9972

Now who Circumvents the Department Of Justice???  Nextel- that's who.

> Yes, there's a lot of lobbying
> under the rules that govern such communication.

True-
Ex parte communications I have read are normally limited in details to Who, What &
When
and some minor comments on the topic of discussion.

> So what cat is there

If Barry's statement:

BW:  We're basically exchanging one method of growing our business with new
technologies, meaning the Upper 200 channels that we have which is contiguous, for
the 1.9.

is correct this means that Nextel no longer plans to offer additional spectrum for
the 1.9Ghz band.
This would be "News" since there has not been any public statement speaking
directly to this issue.

Larry K. was questioned about the 1.9Ghz spectrum at ITA but he did no answer the
question directly.

> not.   Why is it up to Nextel to accept or reject a compromise?

Good Questions:
I don't know the answer yet.....

Nextel is trying to play "Catch Up" with the rest of the industry and offer 3G
type service. The only way they can do that  is obtain NATION-WIDE blocks of
contiguous
spectrum.

5 mhz (2.5 Mhz Up & Down) is still a sweet deal for Nextel.
If you listened to the CC Nextel confirmed the next move to WiDEN (Wide band
iDEN).
WiDEN can use non-contiguous spectrum and contiguous spectrum to achieve higher
data speeds this is their driver for
addition spectrum.

> They