Verizon Wireless asked U.S. Court of Federal Claims to grant summ...

and Court of Federal Claims involving FCC decision to retain small amount of deposits from Jan. 2001 NextWave re-auction and to hold carriers to their bid obligations until pending U.S. Supreme Court case plays out. One key difference in Court of Federal Claims suit is that Verizon Wireless is seeking damages against govt. for not releasing it from what it argues are now void contract obligations connected to NextWave re- auction bids. If Claims Court were to grant latest Verizon request, filed late Mon., that could pave way for case to be decided before Supreme Court ruled on FCC appeal. At high court, govt. is challenging D.C. Circuit ruling last year against agency’s decision to cancel NextWave’s licenses for missed payment. Verizon Wireless has been pushing for either congressional or court relief of its more than $8 billion in NextWave re-auction obligations. Some analysts have suggested that govt. ultimately would release re-auction winners from collective $16 billion in bidding commitments, in part because even Supreme Court ruling siding with govt. could result in several more years of litigation of outstanding issues before D.C. Circuit (CD Sept 5 p11). Summary judgment by Federal Claims Court, if granted, could lead to decision on auction overhang before Supreme Court rules after Oct. 8 oral argument, industry observer said. In motion for summary judgment, Verizon told court that “there are no genuine issues of material fact” and that carrier should be “entitled to judgment as a matter of law.” Following last year’s D.C. Circuit ruling, FCC returned PCS licenses to NextWave. Earlier this year, Commission agreed to return all but 3% of total winning bids and kept liability intact for outstanding auction obligations of winners, which would come due if FCC were to prevail in court cases that upheld Jan. 2001 re-auction. Verizon described auction process as constituting “contract that requires prompt delivery of the licenses at the close of the auction.” It told court that FCC’s failure to deliver licenses in timely way was “a material breach of the auction contract, entitling Verizon Wireless to recission of the contract and refund of its entire down payment.” FCC’s failure to deliver PCS licenses that it auctioned in Jan. 2001 in timely manner gives Verizon Wireless right to rescind its auction “contract” with Commission and receive full down payment for licenses, carrier said. Verizon cited auction public notice in arguing that FCC had committed to return down payments to bidders if licenses became unavailable. Separately, Verizon Wireless filed opposition to FCC motion to stay proceedings in Court of Federal Claims until D.C. Circuit and Supreme Court issued their rulings in case. Govt. had argued that suit that had yet to play out at D.C. Circuit and Supreme Court could moot issues that were before Federal Claims Court. Govt. also argued that lawsuits pending in other courts could produce conflicting decisions. In objecting to stay motion, Verizon Wireless said cases before Claims Court and Supreme Court were different. High court will not rule on whether licenses should be awarded to Verizon Wireless but will examine only whether Sec. 525 of U.S. Bankruptcy Code barred FCC from cancelling NextWave licenses as part of its regulatory obligations under Communications Act, Verizon said.