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Facing what could be its final courtroom battle, NextWave Telecom Inc. tapped Theodore Olson to represent the cellular telephone hopeful next month before the U.S. Court of Appeals for the District of Columbia. Olson, an attorney with the Washington D.C. office of Gibson, Dunn & Crutcher, may be best known for having argued the legal case for George W. Bush last fall before the U.S. Supreme Court as the Republican Party successfully stopped a recount of presidential ballots in Florida. More recently, Olson has been mentioned as the leading candidate for solicitor general, the government’s primary advocate before the Supreme Court. “He’s obviously one of the country’s premier appellate lawyers, and NextWave is very pleased to have him on our litigation team,” said NextWave attorney Michael Wack. The March 15 hearing before the D.C. Circuit marks the latest stop in Next Wave’s nearly five-year regulatory and legal campaign to regain possession of 96 wireless licenses it initially won in a 1996 government auction prior to going into bankruptcy. The company’s chances of ever taking back those licenses was weakened last month when the Federal Communications Commission completed a reauction of spectrum NextWave once claimed as its own. NextWave attempted to have the reauction postponed, but the Supreme Court rejected its request. The NextWave licenses represented nearly three-fourths of the spectrum the FCC resold for $16.86 billion. Were the court to decide in favor of NextWave, the company would almost certainly face a legal battle with Verizon Communications, AT&T Wireless and Cingular Communications, the auction’s highest bidders. “[Given] the fact that the FCC had the legal authority to go ahead with the auction, it appears highly doubtful that NextWave will get its licenses back,” said Todd Harrington, an analyst with Current Analysis, a consulting firm based in Sterling, Va. In a press statement, Olson charged the FCC violated federal statutes and contradicted judicial precedent when it revoked NextWave’s claim to 96 wireless licenses it won in the 1996 auction. NextWave bid $4.7 billion for the licenses in the auction, but when it fell into bankruptcy in 1997, the FCC argued that the spectrum should return to the government. Last May, the 2nd U.S. Circuit Court of Appeals supported the FCC’s position when it overturned a New York bankruptcy court’s decision that would have allowed NextWave to pay a fraction of its bid to retain the licenses. The 2nd Circuit found that the FCC was a licensor, not a creditor, and that NextWave’s right to the licenses was not protected by bankruptcy court. When presenting his argument next month, Olson is likely to focus attention on the case of Dallas-based Metro PCS, another aspiring wireless operator. In an October decision that contradicted the 2nd Circuit, the 5th Circuit upheld a 1999 decision by a Texas bankruptcy court that allowed Metro PCS to pay just 20 percent of the $1.06 billion it bid for 14 wireless licenses in 1996. The court in that case found that the FCC was a creditor to Metro, not a licensor. Joining Olson will be other attorneys from Gibson, Dunn & Crutcher as well as lawyers from the Washington D.C. law firm Jenner & Block, and the Hartford, Conn. office of Bingham Dana LLP. Copyright (c)2001 TDD, LLC. All rights reserved.

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