WASHINGTON-In another move in the litigative trench warfare that is the NextWave Telecom Inc. bankruptcy case, the federal government on Thursday filed a notice of appeal to preserve its rights to appeal the bankruptcy court’s opinion stopping the Federal Communications Commission from canceling and re-auctioning NextWave’s 90 personal communications services licenses.
The move is a pre-emptive tactic in the event the U.S. Court of Appeals for the Second Circuit agrees with Bankruptcy Judge Adlai S. Hardin Jr.’s interpretation of its Dec. 22 opinion.
Hardin said on Jan. 31 that the Second Circuit’s December opinion saying bankruptcy law could not be used in the licensing and regulating of spectrum governed by communications law did not mean the FCC could take back and re-auction the licenses. Indeed, he said the move amounted to “self-help repossession by ambush.”
The Second Circuit announced earlier this month it would give each of the parties, including Hardin, the opportunity to explain the status of NextWave’s licenses. If necessary, oral argument on this issue will be heard in March.
The FCC and NextWave disagree whether the PCS licenses are assets frozen by the bankruptcy automatic stay.
The government’s protective move followed by two days a similar move by NextWave (see story on pg. 24) where the company filed a notice of appeal with the U.S. Court of Appeals for the D.C. Circuit-which handles cases involving regulatory matters-and a petition of reconsideration with the FCC.
