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The court as a spectrum regulator: will there be a European analogue to U.S. cases NextWave and GWI?

Published online by Cambridge University Press:  06 March 2019

Abstract

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The January, 27, 2003 U.S. Supreme Court decision, FCC v. NextWave was, on the surface, nothing more than the high court's statutory interpretation of a single provision of the Bankruptcy Code. Deep down, however, NextWave tells an important spectrum management and regulatory story which is relevant in both the U.S. and European contexts. It is the story of a company which paid too much for wireless licenses at auction, and a story about a battle – political as well as legal – between government and industry for retention of the license. This same struggle is presently taking place in Europe in the wake of the 3G auctions. This Article reviews the recent NextWave decision and makes propositions about similarities in the European context.

Type
European & International Law
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 Robert Christensen, Getting to Peace by Reconciling Notions of Justice: The Importance of Considering Discrepancies Between Civil and Common Legal Systems in the Formation of the International Criminal Court, 6 UCLA J. Int'l L. & Foreign Aff. 391 (2001-2002)Google Scholar

2 Carl Baudenbacher, Some Remarks on the Method of Civil Law, 35 Texas Int'l L.J. 333 (Summer 1999) at 356 (citing Calabrese)Google Scholar

3 See Settanni, Andrea, Competitive Bidding for the Airwaves: Meeting the Budget and Maintaining Policy Goals in a Wireless World, 2 CommLaw Conspectus 117 (1994).Google Scholar

4 Benjamin, , Lichtman & Shelanski, Telecommunications Law and Policy, Carolina Academic Press (2001) at 81 ff.Google Scholar

5 Id. at 90, also noting the 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 FCC 2d 979, and the U.S. Supreme Court case Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990) overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).Google Scholar

6 Id., at 42.Google Scholar

7 Eichel: So viel Geld nicht erwartet, Frankfurter Allgemeine Zeitung, August 18, 2000, Vol. 191, at 15.Google Scholar

8 Remarks by FCC Chariman William E. Kennard at the Museum of Television and Radio, FCC Speech, October 10, 2000. Available: www.fcc.gov.Google Scholar

9 Schnorbus, Axel, Das Schicksal der Mobilcom ist wieder ungewiss, Frankfurter Allgemeine Zeitung, January 10, 2003, Volume 8, p. 22.Google Scholar

10 Latour, Almar and Delaney, Kevin J., Companies: MobilCom May Fail in Germany, Wall Street Journal Europe, September 16, 2002 at A9.Google Scholar

11 Rhine or Shine, The Economist, March 7, 2002.Google Scholar

12 Latour, Almar and Kantrow, buster, Sonera Pushes Back 3G Launch Until the First Quarter of 2003, Wall Street Journal Europe, September 2, 2002 at A7.Google Scholar

13 §64 Para 1, GmbHG (Sanctions for not reporting certain bankruptcy events on time); §283 StGB (Certain conditions in the Criminal Code which create personal criminal liability for CEOs).Google Scholar

14 Insolvenzantrag muss kein Todesurteil sein, Frankfurter Allgemeine Zeitung, January 15, 2003, Vol. 12, P.19.Google Scholar

16 See generally, Out to catch the big fish, The Economist, September 12, 2002.Google Scholar

17 Coase, R. H., The Federal Communications Commission, J.L. & Econ. 1, 12-13 (1959).Google Scholar

18 Spectrum Rights and Responsibilities Protection Public Workshop, Minutes of Meeting, August 9, 2002. Accessible: http://wireless.fcc.gov/ Google Scholar

19 Kurth, Matthias, Columbia University April 12th 2002 Speech. Accessible: http://www.citi.columbia.edu/conferences/kurth/kurth_current_abstract.pdf Google Scholar

20 Decision No.676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision).Google Scholar

21 Id., Article 4.Google Scholar

22 FCC Press Release, FCC Chairman Michael K. Powell Announces Formation Of Spectrum Policy Task Force, June 6, 2002.Google Scholar

23 In Re NextWave, 200 F.3d 43 (C.A.D.C. 2001), At the time of writing this article (January 28, 2003), the official citation for the U.S. Supreme Court case was not yet available. Federal Communications Commission v. NextWave Personal Communications Inc., et al., Nos 01-653 and 01-657 (Jan 27, 2003), 2003 WL 166615. (Hereinafter “NextWave S. Ct. Decision.”)Google Scholar

24 NextWave S. Ct. Decision at — (Last sentence, Part B).Google Scholar

25 NextWave S. Ct. Decision at —Google Scholar

26 FCC v. General Wireless, Inc., 230 F.3d 788 (5th Cir. 2000).Google Scholar

28 See Generally, Hazlett, Thomas W., The Wireless Craze, The Unlimited Bandwidth Myth, The Spectrum Auction Faux Pas, and the Punchline to Ronald Coase's ‘Big Joke', Working Paper 01-02, AEI-Brookings Joint Center for Regulatory Studies (January, 2001).Google Scholar

29 Benjamin, S., Lichtman, D., & Shelanski, H. (2001). Telecommunications Law and Policy, Durham, NC: Carolina Academic Press, at 58. (Herinafter “Telecommunications Law and Policy”)Google Scholar

30 47 U.S.C. § 303Google Scholar

31 Communications Act of 1934, Section 303.Google Scholar

32 5 U.S.C. § 553Google Scholar

33 Telecommunications Law and Policy at 64.Google Scholar

34 11 U.S.C. § 101 ff.Google Scholar

35 See Generally, Maloy, Richard, Comparative Bankruptcy, 24, Suffolk Transnational Law Review, 1 (2000)Google Scholar

36 11 U.S.C. Section 362 (a)(3) will provide “stay” to “any act to obtain possession of property of [an] estate … or to exercise control over property of the estate,” but Subsection 362(b)(4) provides an exception to 362 (a)(3) for “governmental unit[s]” acting to “enforce” their “regulatory power.” In Re NextWave, 200 F.3d 43 (C.A.D.C. 2001).Google Scholar

37 28 U.S.C. § 158(a)(1)Google Scholar

38 28 U.S.C. § 158(c)(1)Google Scholar

39 General Docket 90-314 (September 22, 1989)Google Scholar

40 8 FCC Rcd 7162 (1993)Google Scholar

41 The full rulemaking history can be found on the dedicated PCS section of the FCC website, http://wireless.fcc.gov/services/narrowbandpcs/ Google Scholar

42 See WT Docket No. 99-87, available at www.fcc.gov.Google Scholar

43 Naik, Gautam and Gruley, Bryan, NextWave Is Under Fire For Tactics at Auction, Wall Street Journal, May 6, 1996.Google Scholar

45 Ritter, Scott, Business Brief: FCC Says Many Wireless Bidders, Short of Cash, to Return Licenses, Wall Street Journal, June 18, 1998, at B12.Google Scholar

46 Patterson, Nicholas J., The Nature and Scope of the FCC's Regulatory Power in the Wake of the NextWave and GWI PCS Cases, 69 U. Chi. L. Rev. 1373 (Summer 2002) (Hereinafter “Patterson, Nature and Scope …”.Google Scholar

47 Lipin, Steven, Two Opposite Court Rulings Raise Questions About FCC's Next Move on NextWave Licenses, Wall Street Journal, November 2, 2000, at C17.Google Scholar

48 Rules of the Supreme Court of the United States, Rule 10(a). Accessible: http://www.supremecourtus.gov/ctrules/rules.pdf Google Scholar

49 Note that GWI is now known as Metro PCSGoogle Scholar

50 In re GWI, 230 F.3d 788.Google Scholar

51 See generally, Montoya, David A., The FCC v. Powers of the Bankruptcy Courts – A Closer Look at NextWave and the Other C-Block Cases, American Bankruptcy Institute Journal, April, 2001, at 14.Google Scholar

52 See, Dreazen, Yochai J., High Court Deals Blow to FCC Side in Spectrum Cases, Wall Street Journal, July 2, 2001, at B9.Google Scholar

53 See In re NextWave, 235 B.R. 263 (Bankr. S.D.N.Y. 1998); In re NextWave, 235 B.R. 277 (Bankr. S.D.N.Y 1999); In re NextWave, 235 B.R. 305 (Bankr. S.D.N.Y. 1999); In re NextWave, 235 B.R. 314 (Bankr. S.D.N.Y. 1999).Google Scholar

54 It is noteworthy to keep in mind the time context here. This was towards the end of 1999 and early 2000, when 3G licenses were being sold in Europe for several billion dollars. Based on the European numbers, the NextWave license fees seemed extremely cheap, and NextWave had no problem finding investors for their operation.Google Scholar

55 Lipin, Steven, FCC Move in Bankruptcy Case Sparks Ire, Wall Street Journal, April 10, 2000, at C1.Google Scholar

56 CNET News.com, NextWave asks court to stop wireless auctions, September 22, 2000.Google Scholar

57 Press Statement of Chairman William E. Kennard on Supreme Court Decision to Deny NextWave's Request for Review, FCC News (October 20, 2000). Accessible: www.fcc.gov.Google Scholar

58 Carroll, Jill, U.S. Airwaves Auction Pulls in $16.86 Billion, Wall Street Journal, January 29, 2001.Google Scholar

59 Informed Budgeteer, 107th Congress, 1st Session: No. 2 (January 29, 2001). Accessible: www.senate.gov.Google Scholar

60 NextWave Personal Communications Inc. v. FCC, 254 F.3d 130 (D.C. Cir. 2001).Google Scholar

61 Dreazen, Yochai J., FCC Ends Obligations from NextWave Auction, Wall Street Journal, November 15, 2002, at B2.Google Scholar

62 Dreazen, Yochai J. & Drucker, Jesse, FCC to Ease Spectrum - Auction Snarl, Wall Street Journal, September 12, 2003, at A3.Google Scholar

63 Chen, Kathy, FCC to Return 85% of Deposits in Wireless Sale, Wall Street Journal, March 28, 2002, at A3.Google Scholar

64 Dreazen, Yochai J., FCC Ends Obligations from NextWave Auction, Wall Street Journal, November 15, 2002, at B2.Google Scholar

65 NextWave S. Ct. Decision at — (1st paragraph).Google Scholar

66 Id., at — (Paragraph “A”)Google Scholar

67 Id., at — (Paragraph “A”)Google Scholar

68 Id., at — (Paragraph “B”)Google Scholar

69 Id., at — (Paragraph “C”)Google Scholar

70 Id., at — (Paragraph “C”)Google Scholar

71 Mauro, Tom, Supreme Court Appears Receptive to NextWave's License Claim, American Lawyer Media, 9 Oct. 2002.Google Scholar

72 NextWave S. Ct. Decision at — (Dissent, 2nd Paragraph)Google Scholar

73 Id., (Dissent, Section II)Google Scholar

74 Id., (Dissent, Section III)Google Scholar

75 Latour, Almar, Plan to Bail Out MobilCom Angers Rivals, Piques EU, Wall Street Journal Europe, September 19, 2002 at A1.Google Scholar

76 Would-Be 3G Operator Goes Bankrupt, Industry Standard, August 13, 2001 Google Scholar

77 Hill, Kimberly, Sonera Snuffs Norwegian 3G Hopes, www.WirelessNewsFactor.com, August 13, 2001.Google Scholar

78 Latour, Almar, 'Dunno Group’ Does Know a Thing About Phones, Wall Street Journal Europe, November 22, 2002 at R1.Google Scholar

79 Latour, Almar, Plan to Bail Out MobilCom Angers Rivals, Piques EU, Wall Street Journal Europe, September 19, 2002 at A1.Google Scholar

80 DN IP/03/92, EUR 50 million rescue aid for MobilCom cleard in-depth probe into additional aid of EUR 112 million, January 21, 2003.Google Scholar

81 MobilCom Press Release, Q3/2002: MobilCom writes off UMTS assets completely / Operative losses narrowed down, Accessible: www.mobilcom.de.Google Scholar

83 Too many debts; too few calls, The Economist, July 18, 2002.Google Scholar