D.C. Circuit tells FCC to give the licenses back to NextWave

WASHINGTON—A federal appeals court late Thursday rejected the Federal Communications Commission’s plea that it not be required to return licenses to bankrupt PCS carrier NextWave Telecom Inc.
“The licenses are coming back to NextWave absent some further action by the FCC going up to the Supreme Court or something. I would think that is news. The government usually gets stays that it requests,” said Michael Wack, NextWave senior vice president and deputy general counsel.
The FCC had asked the U.S. Court of Appeals for the District of Columbia Circuit to “stay its mandate.” In other words, to not require the agency to turn the licenses it canceled in January 2000 back to NextWave because it planned to appeal to the U.S. Supreme Court the D.C. Circuit’s ruling saying the licenses were NextWave’s.
The D.C. Circuit refused, noting NextWave’s pledge to not use the licenses until the Supreme Court litigation is completed.
The mandate is now expected to be effective on Aug. 30. The FCC is not likely to return the licenses to NextWave on that date, however, since there is a pending petition urging the FCC to investigate NextWave’s ownership structure.
The FCC is set to file its official appeal of the D.C. Circuit’s June 22 ruling reversing the FCC’s actions in canceling, reallocating and re-auctioning the licenses at the Supreme Court next month. The Supreme Court likely will decide whether to hear oral argument in the case by the end of the year. If it chooses to take the case, oral argument would be next year with a decision by summer.
The D.C. Circuit questioned whether the Supreme Court would take the case. “The FCC has not demonstrated that the petition would present a substantial question,” said the court.
The Supreme Court has refused to review related cases on three prior occasions.
“The court’s ruling that the FCC’s legal arguments do not present an issue worthy of Supreme Court review underscores the fact that additional litigation serves no purpose other than to hamper NextWave’s efforts to provide consumers with advanced wireless services and the benefits of competition,” said Wack.
The FCC declined to comment.