USA FEDERAL COMMUNICATIONS COMMISSION DA 97-12 Fax-On-Demand 202/418-2830 Internet: http://www.fcc.gov ftp.fcc.gov Released: January 3, 1997 WIRELESS TELECOMMUNICATIONS BUREAU ANNOUNCES CONDITIONAL GRANT OF BROADBAND PERSONAL On January 3, 1997, the Chief, Wireless Telecommunications Bureau, under delegated authority, 47 C.F.R. § 0.331, adopted a Memorandum Opinion and Order (Order) conditionally granting the applications of NextWave Personal Communications, Inc. (NextWave) for Basic Trading Area (BTA) licenses listed in Attachment A hereto in the Broadband Personal Communications Services Entrepreneurs' C Block in the 1895-1910 MHz and 1975-1990 MHz bands. The Order also denies a Petition to Deny filed against NextWave's applications by Antigone Communications and PCS Devco, Inc. (Antigone/Devco). Pursuant to 47 C.F.R. § 1.4(b)(2), the running of the limitations period for any petition for reconsideration or application for review will be triggered by the release of the Order. Conditional Grant Next Wave was the winning bidder for various licenses in the C Block Auction, which closed on May 6, 1996, see "Entrepreneurs' C Block Auction Closes," Public Notice, DA 96-716 (May 8, 1996), and the C Block Reauction, which closed on July 16, 1996, see "Entrepreneurs' C Block Reauction Closes," Public Notice, DA 96-1153 (July 17, 1996). A Petition to Deny was jointly filed against Next Wave's applications by Antigone Communications and PCS Devco, Inc. (Antigone/Devco). The Petition to Deny raised C Block eligibility and foreign ownership issues. Based upon the applications, Petition to Deny, and subsequent pleadings filed by the parties in this proceeding, the Bureau staff met with the parties (including counsel for Antigone/Devco) and raised concerns regarding NextWave's compliance with the foreign ownership limitations set forth in Section 310(b)(4) of the Communications Act, as amended, 47 U.S.C. § 310(b)(4). Subsequently, on December 30, 1996, NextWave submitted a proposal to assure compliance with Section 310(b) within nine months by either securing additional domestic equity financing, reforming certain financial instruments held by foreign entities, obtaining new debt financing or any combination of the above (December 30 proposal). After reviewing NextWave's proposal, and Antigone/Devco's response thereto, the Bureau determined that NextWave's proposal, if successfully completed, will assure compliance with Section 310(b), that the proposal and the conditions imposed on NextWave's grants eliminate any potential substantial and material questions of fact concerning NextWave's qualifications, and that Order also disposed of all other allegations raised by petitioners, finding that there were no substantial and material questions of fact at issue. Accordingly, the Bureau denied the petition to deny filed by Antigone/Devco and conditionally granted NextWave's applications. The Bureau's action was taken without prejudice to any other enforcement actions which may be taken with regard to Nextwave's compliance with the Commission's rules. Grant of NextWave's licenses is subject to the following conditions. Failure to meet any one of these conditions will result in automatic cancellation of NextWave's licenses: (1) Next Wave will come into compliance with Section 310(b) in accordance with the terms of its December 30 proposal within six months of the date of this Notice. At the conclusion of this period, NextWave will submit a report to the Bureau documenting how its ownership and debt structure complies with Section 310(b). This report will include a detailed listing of all foreign-held equity and debt interests in NextWave. (2) Beginning one month from the date of this Notice, NextWave will report to the Bureau on a monthly basis regarding the steps it is taking to implement compliance with Section 310(b). (3) NextWave will promptly provide the Bureau with copies of any correspondence to or from the United States Securities and Exchange Commission in connection with the proposed public offering described in the December 30 proposal. Down Payment Terms Next Wave has qualified to pay for its licenses by means of a 10% down payment (5% of which was paid at the close of the Auction and Reauction) and installment payments. See 47 CFR § 24.711. Grant of each license is expressly conditioned on payment within five business days of this Notice of the remaining portion of the 10% down payment due on the license (see Down Payment Instructions below). If NextWave fails to submit the required payment by the specified deadline, it will be considered in default and subject to automatic license cancellation and additional default payments. Specifically, if Next Wave defaults, it will be assessed a default payment equal to the difference between its winning bid and the winning bid the next time the license is offered by the Commission. An additional default payment equal to 3% of the lesser of the subsequent winning bid or Next Wave's winning bid will also be assessed. See 47 C.F.R. § 1.2103. Payment of the remainder of the amount due on each license will be made in quarterly installments in accordance with Parts 1 and 24 of the Commission's rules. For each license granted, NextWave will receive from the United States Department of Treasury an original note documenting Next Wave's installment payment obligations and a security agreement commemorating the Commission's security interest in the license. The note and security agreement will include instructions on completing, signing, and returning the documents to the Treasury Department. Grant of each license is expressly conditioned on timely execution and return by Next Wave of the note and security agreement in accordance with these instructions. Failure to comply with this condition for any license will result in automatic cancellation of the license. Next Wave will receive its individual BTA licenses following payment for each license of the final down payment and execution and return of the note and security agreement. Down Payment Instructions Next Wave must submit to Mellon Bank additional funds to bring its total deposits with the government to TEN PERCENT (10%) of its net winning bids by January 10, 1997. All payments must be made in U.S. dollars, must be in the form of a wire transfer or cashier's check, and must be made payable to the "Federal Communications Commission" or "FCC." Cashier's checks must be drawn on a United States financial institution whose deposits are insured by the Federal Deposit Insurance Corporation (FDIC). Payments by cashier's check must be received by 11:59 p.m. Eastern Time, January 10, 1997. Cashier's checks must be addressed to: Mellon Bank Attention: Auction Nos. 5 & 10 P.O. Box 358850 Pittsburgh, PA 15251-5850 If delivering an auction payment in person or by courier, the cashier's check and FCC Remittance Advice Form (FCC Form 159) must be delivered to: Mellon Bank Attention: Wholesale Lockbox Shift Supervisor 27th Floor (153-2713) 3 Mellon Bank Center 525 William Penn Way Pittsburgh, PA 15259-0001 (Note: Please indicate on the inside envelope "Lockbox No. 358850.") Payments made by wire transfer must be received by 6:00 p.m. Eastern Time, January 10, 1997. Sufficient time should be allowed for the wire transfer to be initiated and for the transmission to be completed prior to the deadline. No personal checks or other forms of payment will be accepted. Payments must be accompanied by a completed FCC Remittance Advice Form (FCC Form 159). ON THE FCC FORM 159, NEXTWAVE MUST USE THE SAME FCC ACCOUNT NUMBER ASSOCIATED WITH ITS FCC FORM 175. If Next Wave makes payments by wire transfer, it must fax a completed FCC Form 159 to Mellon Bank at (412) 236-5702 at least one hour prior to placing the order for the wire transfer (but on the same business day). To submit funds by wire transfer, NextWave will need the following information for the FCC Form 159: ABA Routing Number: 043000261 Receiving Bank:Mellon Pittsburgh BNF:FCC/AC-9116106 "AUCTIONPAY" FCC ACCOUNT NO. (SAME AS FCC FORM 159, BLOCK 1) FCC CODE (SAME AS FCC FORM 159, BLOCK 17) PAYOR NAME (SAME AS FCC FORM 159, BLOCK 3) NextWave must specify each license as a separate item on FCC Form 159 (use continuation sheet (FCC 159-C) if necessary). NextWave must place a “5 & 10” as the auction event number in Block 17 of the FCC Form 159. NEXTWAVE MUST INCLUDE THE "License No." DESIGNATION(S) FOR EACH LICENSE (WHICH IS INCLUDED HEREIN) IN BLOCK 18 OF FCC FORM 159. For the "License No." designation in Block 18 of FCC Form 159, NextWave should list the "License No." as it appears in the Supplemental Bidder Information Package, e.g., PBBO14C. Additional instructions and addresses for making auction payments are contained in the FCC Forms and Instructions section of the Bidder Information Package for this auction. Questions concerning the calculation and submission of final payments should be directed to Regina Dorsey or Linwood Jenkins of the Billings and Collections Branch, at (202) 418-1995. For further information, contact: News Media: Wireless Telecommunications Bureau, Kara Palamaras at (202) 418-0654 Payment Questions: Office of Managing Director, Regina Dorsey or Linwood Jenkins at (202) 418-1995 Legal and Licensing Questions: Wireless Telecommunications Bureau, David Furth or Sandra Danner at (202) 418-0620 Licensing Questions: Wireless Telecommunications Bureau, Irene Longin at (202) 418-0620 |