NextWave submitted brief to U.S. Supreme Court Fri. opposing FCC ...

high court review, in part because lower court decision “implements the plain language of the Bankruptcy Code.” NextWave countered FCC argument that D.C. Circuit ruling conflicted with earlier NextWave decision by 2nd U.S. Appeals Court, N.Y. “The D.C. Circuit squarely rejected as ‘implausible’ petitioners’ contention that the Second Circuit adjudicated the merits of NextWave’s claims,” NextWave said. It also disagreed with claim D.C. Circuit ruling impaired FCC authority to allocate spectrum and employ auction mechanism. “Recent events dramatically undercut the sincerity of petitioners’ expressions of concern about the decision below,” NextWave said. It points to proposed settlement involving U.S. govt., Jan. 2001 re-auction winners and NextWave that collapsed at end of year when Congress failed to pass legislation that would implement its terms. “Although the settlement agreement subsequently terminated, the fact that the FCC was more than willing to settle this litigation in a manner that left it subject to the D.C. Circuit’s decision belies petitioners’ dire predictions about the allegedly dramatic impact of the decision below,” NextWave said. It said Commission’s willingness to sign on to settlement was “justified” because D.C. Circuit holding “has little if any future significance either for the FCC or for other agencies and the government will have no difficulty implementing auction schemes.” Most “obvious” reason why Supreme Court shouldn’t grant cert, NextWave said, is that question at issue is unlikely to recur. It said FCC turned away from installment payment plan for licenses that gave rise to thorny bankruptcy issues in NextWave case. “As a result, the question presented will not arise with any frequency in the future,” NextWave argued.