Subject: [NEXTEL-1] Repost- The FCC & Nextel Have Been $pectrum Buddie$ For Year$

From: [email-masked]
Date: Sat, 10 Apr 2004 06:48:25 -0400

The FCC & Nextel Have Been $pectrum Buddie$ For Year$.

Same "One Trick Pony" Just a different year.............

"How Business Gets DONE"

                                            - Under The Table

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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

cc: The Honorable Adlai S. Hardin, Jr.
 The Honorable Tom Bliley
 The Honorable Henry J. Hyde
 The Honorable John Conyers
 The Honorable W.J. "Billy" Tauzin
 The Honorable Edward J. Markey
 Commissioner Susan Ness
 Commissioner Harold Furchtgott-Roth
 Commissioner Michael Powell
 Commissioner Gloria Tristani
http://www.house.gov/commerce_democrats/press/106ltr57.htm
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