Subject: [NEXTEL-1] NUCENTRIX SPECTRUM RESOURCES, INC. (DEBTOR-IN-POSSESSION) SEEKS FCC CONSENT TO THE ASSIGNMENT OF LICENSES TO NEXTEL SPECTRUM ACQUISITION CORP.

From: Marcelrf <[email-masked]>
Date: Fri, 20 Feb 2004 15:19:38 -0500

PUBLIC NOTICE
FEDERAL COMMUNICATIONS COMMISSION
445 TWELFTH STREET, S.W.
WASHINGTON, D.C. 20554 DA 04-431

News media information  202/418-0500     Fax-On-Demand  202/418-2830
Internet:  http://www.fcc.gov    ftp.fcc.gov

Released:  February 19, 2004

NUCENTRIX SPECTRUM RESOURCES, INC. (DEBTOR-IN-POSSESSION) SEEKS FCC
CONSENT TO THE ASSIGNMENT OF LICENSES TO NEXTEL SPECTRUM ACQUISITION
CORP.

WT Docket No. 04-40

PLEADING CYCLE ESTABLISHED

Petitions to Deny Due:  March 22, 2004
Oppositions Due:  April 1, 2004
Replies Due:   April 8, 2004

Nucentrix Spectrum Resources, Inc. (Debtor-in-Possession) (“Nucentrix
DIP”), a wholly-owned subsidiary of Nucentrix Broadband Networks, Inc.
(Debtor-in-Possession), and Nextel Spectrum Acquisition Corp. (“Nextel”
and together with Nucentrix DIP, “Applicants”), a wholly-owned
subsidiary of Nextel Communications, Inc., have filed a series of
applications (“Applications”) pursuant to Section 310(d) of the
Communications Act of 1934, as amended.   In these applications, the
parties seek Commission consent to assign Multipoint Distribution
Service and Multichannel Multipoint Distributions Service (collectively,
“MDS”), Wireless Communications Service (“WCS”), Microwave
Industrial/Business Pool (“Microwave”), and Cable Television Relay
Service (“CARS”) licenses from Nucentrix DIP to Nextel.

I. THE TRANSACTION

On September 5, 2003, Nucentrix filed a voluntary petition for
bankruptcy protection under Chapter 11 of the United States Bankruptcy
Code in the Northern District of Texas, Dallas Division (“Bankruptcy
Court”).   As a result of this bankruptcy filing, Nucentrix filed the
requisite applications for the involuntary assignment of all of its
licenses to Nucentrix DIP.   These applications were consented to on
December 19, 2003, January 6, 2004, and January 14, 2004.
The subject Applications seek Commission approval of two separate
transactions between Nucentrix DIP and Nextel.   Pursuant to Bankruptcy
Court approval, Nucentrix DIP conducted an auction, on November 5 and 6,
2003, to sell certain assets, including the rights in and to Nucentrix
DIP’s licenses, to the party submitting the highest and best offer.   As
a result of the auction, Nucentrix DIP and Nextel, the party submitting
the highest and best offer, entered into an Asset Purchase Agreement,
dated November 10, 2003, for the sale of the rights in and to Nucentrix
DIP’s licenses, along with certain spectrum and tower leases and other
related assets, to Nextel for $51 million, subject to certain
adjustments.   Additionally, Nextel agreed to provide financing to fund
Nucentrix’s operations as debtor-in-possession under the Bankruptcy Code
through the closing of this transaction.   The Bankruptcy Court approved
this Asset Purchase Agreement on November 12, 2003.   Additionally,
prior to the auction, Nucentrix DIP and Nextel entered into an Agreement
to Assign Certain Basic Trading Area Licenses, dated October 17, 2003,
involving ten BTA licenses and four partial BTA licenses.   The
Bankruptcy Court approved this limited Asset Purchase Agreement on
October 28, 2003.

The Applicants assert that grant of the instant Applications would serve
the public interest by allowing Nextel to increase its spectrum capacity
and offer new digital wireless services to customers, including those
customers in rural areas.   According to the Applicants, Nextel’s
expertise in developing and providing innovative wireless services in
previously underutilized spectrum will be applied to the spectrum it
would acquire under the terms of the proposed transaction, furthering
the Commission’s goals of promoting the rapid and efficient development
of quality spectrum-based services.    The Applicants add that approval
of these applications would permit Nextel to apply the substantial
experience it has gained in band clearing – transitioning incumbent
licensees to other spectrum to clear frequency bands for new commercial
mobile radio services (“CMRS”) – to facilitate the proposed realignment
of the MDS and ITFS bands.

Moreover, the Applicants state that this transaction will enhance
consumers’ competitive alternatives by helping Nextel to provide the
full menu of wireless services demanded in today’s marketplace.   The
Applicants further allege that the proposed assignments will not have an
adverse effect on competition because Nucentrix DIP and Nextel compete
in different product markets.   Finally, the Applicants state that
Nextel is legally, financially, technically and otherwise qualified to
hold the subject licenses, and that the proposed assignment would not
implicate either the cable-MDS cross-ownership provisions  or foreign
ownership restrictions.

Nucentrix DIP states that it plans to terminate its broadband data
service to its customers in the second quarter of 2004.   Nucentrix
claims that it will provide its customers with a minimum of ninety days
notice of this planned termination of service.   Nucentrix states that
its customers may terminate service at any time without incurring
penalties, and it will work to provide customers with alternative means
of obtaining broadband access.   Nextel states, however, that, pending
the resolution of the Commission’s MDS and ITFS rulemaking proceeding,
it will continue to provide the video programming services currently
provided by Nucentrix DIP (and by those ITFS licensees that rely on
common links).

II. SECTION 310(d) APPLICATIONS

The following applications seek consent for the assignment of MDS, WCS,
CARS, and Microwave licenses that were granted pursuant to Parts 21, 27,
78, and 101 of the Commission’s rules, respectively.  The applications
have been assigned the file numbers indicated below:

A. Part 21 – MDS

File Number  Licensee        Lead Call Sign
20040116AAA  Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    KNSC379

B. Parts 27 and 101 – WCS and Microwave

File Number  Licensee        Lead Call Sign
0001582029   Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WPNH216

C. Part 78 – CARS

File Number  Licensee        Lead Call Sign
20040210AC-08 Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY516
20040210AD-08 Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY539
20040210AE-08 Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY552
20040210AF-08 Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY638
20040210AG-08  Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY650
20040210AH-08 Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY651
20040210AI-08  Nucentrix Spectrum Resources, Inc.
(Debtor-in-Possession)    WLY716

III. DESIGNATED ENTITY ISSUES

This transaction will include the assignment of MDS licenses subject to
the Commission’s installment payment program to Nextel.  As Nextel is
not eligible to assume Nucentrix DIP’s installment payment plans, the
Parties acknowledge that full payment of the remaining unpaid principal
and any unpaid interest accrued through the date of consummation and any
other payments otherwise required by Section 1.2111 of the Commission’s
rules will be required to be paid immediately prior to closing.

IV. GENERAL INFORMATION

The assignment applications referenced herein have been found, upon
initial review, to be acceptable for filing.  The Commission reserves
the right to return any application if, upon further examination, it is
determined to be defective and not in conformance with the Commission’s
rules or policies.  Final action on these applications will not be taken
earlier than thirty-one days following the date of this Public Notice.

Interested parties must file petitions to deny no later than March 22,
2004.  Persons and entities that file petitions to deny become parties
to the proceeding.  They may participate fully in the proceeding,
including seeking access to any confidential information that may be
filed under a protective order, seeking reconsideration of decisions,
and filing appeals of a final decision to the courts.  Oppositions to
such pleadings must be filed no later than April 1, 2004.  Replies to
such pleadings must be filed no later than April 8, 2004.  All filings
concerning matters referenced in this Public Notice should refer to DA
04-431 and WT Docket No. 04-40, as well as the specific file numbers of
the individual applications or other matters to which the filings
pertain.

Under the Commission’s current procedures for the submission of filings
and other documents,  submissions in this matter may be filed
electronically (i.e., by the Commission’s Electronic Comment Filing
System (“ECFS”)) or by hand delivery to the Commission’s Massachusetts
Avenue location.
? If filed by ECFS,  comments shall be sent as an electronic file via
the Internet to  http://www.fcc.gov/e-file/ecfs.html.  Generally, only
one copy of an electronic submission must be filed.  If multiple docket
numbers appear in the caption of this proceeding, however, commenters
must transmit one electronic copy of the comments to each docket number
referenced in the caption.  In completing the transmittal screen,
commenters should include their full name, Postal Service mailing
address, and the applicable docket number.  Parties may also submit an
electronic comment by Internet e-mail.  To get filing instructions for
e-mail comments, commenters should send an e-mail to [email-masked], and
should include the following words in the body of the message, “get form
<your e-mail address>.”  A sample form and directions will be sent in
reply.

? If filed by paper, the original and four copies of each filing must be
filed by hand or messenger delivery, by commercial overnight courier, or
by first-class or overnight U.S. Postal Service mail (although we
continue to experience delays in receiving U.S. Postal Service mail).
The Commission's contractor, Natek, Inc., will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002.  The
filing hours at this location are 8:00 a.m. to 7:00 p.m.  All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.  Commercial
overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD
20743.  U.S. Postal Service first-class mail, Express Mail, and Priority
Mail should be addressed to 445 12th Street, S.W., Washington, D.C.
20554.  All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.

One copy of each pleading must be delivered electronically, by e-mail or
facsimile, or if delivered as paper copy, by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (according to the procedures set forth above for
paper filings) to:  (1) the Commission’s duplicating contractor, Qualex
International, at [email-masked] or (202) 863-2898 (facsimile); (2)
Erin McGrath, Spectrum and Competition Policy Division, Wireless
Telecommunications Bureau, at [email-masked], or (202) 418-7447
(facsimile); (3) Kathy Harris, Mobility Division, at
[email-masked], or (202) 418-7447 (facsimile); (4) Linda C. Ray,
Broadband Division, Wireless Telecommunications Bureau, at
[email-masked], or (202) 418-7447 (facsimile); (5) Wayne McKee,
Engineering Division, Media Bureau, at [email-masked], or (202)
418-1189 (facsimile); (6) Rita Cookmeyer, Auctions and Spectrum Access
Division, Wireless Telecommunications Bureau, at [email-masked],
or (202) 418-0890 (facsimile); and (7) Neil A. Dellar, Transaction Team,
Office of General Counsel, at [email-masked], or (202) 418-2822
(facsimile).

Copies of the applications and any subsequently-filed documents in this
matter may be obtained from Qualex International, in person at 445 12th
Street, S.W., Room CY-B402, Washington, D.C. 20554, via telephone at
(202) 863-2893, via facsimile at (202) 863-2898, or via e-mail at
[email-masked].  The applications and any associated documents are
also available for public inspection and copying during normal reference
room hours at the following Commission office:  FCC Reference
Information Center, 445 12th Street, S.W., Room CY-A257, Washington,
D.C. 20554.  The applications are also available electronically through
the Commission’s Electronic Comment Filing System (ECFS), which may be
accessed on the Commission’s Internet website at
http://www.fcc.gov/cgb/ecfs.

For further information, contact Linda Ray, Broadband Division, Wireless
Telecommunications Bureau, at (202) 418-0257 (Part 21 and 101 licenses);
Erin McGrath, Spectrum and Competition Policy Division, Wireless
Telecommunications Bureau, at (202) 418-7240 (Part 27 licenses); or
Wayne McKee, Engineering Division, Media Bureau, at (202) 418-2355 (Part
78 licenses).
 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-431A1.doc

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