After the NTIA filed a fairly devastating letter with the FCC on July 1 (which went completely unnoticed in the press), it seems that Phil Falcone decided to use the July 4th holiday to assert his own independence from LightSquared, and attempt to blow up both the company and its relationship with the US government.
The NTIA letter attaches a September 2013 letter from the Department of Transportation, which states that “the Department questions whether the Commission has the necessary and sufficient information before it to approve the handset proposal at issue in the Public Notice. Again, to the Department’s knowledge, there has not been any robust interagency effort to examine or test LightSquared’s proposal, to probe the underlying assumptions, or to consider feasible alternatives.” The NTIA states that “the agencies are not in complete agreement that the Uplink Assessment has adequately addressed these issues to support a recommendation to NTIA and the FCC” and “NTIA agrees with DOT that the FCC should seek to ensure that LightSquared’s handset proposal is adequately supported by data and a full understanding of the potential impacts on GPS receivers.”
This letter comes in conjunction with the June 20 FCC workshop, which appeared designed to demonstrate that the FCC was seriously investigating whether interference concerns could be resolved, but was structured in a manner that was very supportive of GPS. It also immediately follows LightSquared’s proposal of a new plan for emergence from bankruptcy, which is supposed to be filed with the court on Monday July 14. The NTIA letter means that there is no clear roadmap even to approval of the 20MHz of uplink spectrum that LightSquared assumes is certain to be available, significantly undermining the foundations of the new plan.
More importantly, Falcone’s actions over the last week basically destroy any prospects of further progress with the FCC. While his RICO lawsuit against Ergen and DISH can be largely ignored, the decision to sue the US government and FCC on Friday, is expected to freeze further contacts with the FCC while the lawsuit is in progress.
The likely way forward is now for LightSquared to sue Harbinger in order to prevent the lawsuit going forward, since such lawsuits would normally be regarded as assets of the bankruptcy estate, belonging to LightSquared rather than its shareholders. Harbinger alleges that all negotiations with the FCC prior to the March 2010 takeover were directly with Harbinger’s lawyer (Henry Goldberg), not “LightSquared” (at that time SkyTerra) but it is far from clear that would overcome the presumption that the claims belong to LightSquared.
In any case, the names of the underlying companies changed after the Harbinger acquisition: what is now LightSquared Inc. was at that time Harbinger Global Wireless (HGW), which was the company (represented by Goldberg) that was formally given permission to buy SkyTerra. So even if there was an agreement with HGW (which is doubtful), its claims should now belong to LightSquared Inc. and the bankruptcy estate.
There are several other curious statements in the lawsuit, most notably that the publication of the National Broadband Plan in 2010 was delayed to coincide with the Harbinger acquisition of SkyTerra. Secondly, the amount of Harbinger’s losses was set at $1.9B, but that is far in excess of the amount of investment that Harbinger made in LightSquared after March 2010. Finally, the concept that there was an agreement with Harbinger under which the ATC modifications were granted in exchange for the commitments made as part of the takeover is not part of the formal record: the ATC mods order (which Harbinger claims the FCC has not upheld) is completely separate from the approval of the takeover (which included the Harbinger commitments).
Overall, this marks a significant change in the bankruptcy case: Falcone is on the outside rather than the inside, and now it seems quite likely that the entire new plan will collapse in acrimony. Moreover, the company is on the verge of running out of cash, creating a further crisis in the very near future.
UPDATE (7/15): Yesterday LightSquared’s Special Committee finally recognized the reality of the situation by reaching an agreement with Charlie Ergen to convert his existing debt into a dominant share of the new first lien debt, and obtain an additional $300M first lien loan, replacing JP Morgan in the new capital structure. It was stated that there will be $1.6B of new first lien, with $1.3B from Ergen, and I would assume the remaining $300M will come from Fortress rolling over its first lien debt. Its unclear if Cerberus will also invest in the new second lien tranche, and it certainly seems highly implausible that Harbinger will accept its proposed treatment under the new plan, since this would bar Harbinger from asserting claims against the FCC or Ergen, and therefore the probability of any recovery for Falcone is significantly diminished. It therefore seems highly likely that, as I predicted, the next stage of the bankruptcy case will be litigation between LightSquared and Harbinger, while Ergen just has to sit back and enjoy Phil Falcone’s discomfort.
I’ve often wondered if Global Eagle’s founders experienced the same dilemma as Benjamin Franklin when deciding which bird to choose as their emblem, and I’ve noted my opinion on several occasions that they appear to have chosen poorly.
Now it seems that Global Eagle is up for sale and is trying to entice other inflight connectivity providers such as Panasonic, Gogo and Thales to buy the company. Its therefore not surprising that Global Eagle has recently cut a somewhat lonely figure when maintaining that the inflight connectivity sector is not in a bubble, while Panasonic is hinting strongly that “The supplier with insufficient subscribing aircraft would likely need to exit.”
Global Eagle will obviously be pointing to the $400M that Thales paid for LiveTV as evidence that it should command a premium price, but Global Eagle itself was the main cause of that high price. Global Eagle came in with a last minute knockout bid and on Tuesday March 11, when John Guidon presented at Satellite 2014, Global Eagle clearly thought it would win, because Guidon hinted at the possibility that Global Eagle would soon have a new Ka-band modem. However, Thales countered with an even higher bid and was announced as the winner on Thursday March 13, at what appears to have been almost double that price that Thales had on the table a week earlier.
The bid for LiveTV was indicative of Global Eagle’s desperate struggle to achieve critical mass in its Row44 connectivity business, and after that failure, Global Eagle now seems to have decided to try and escape by selling the company while the going is good. Global Eagle also faces added time pressure from the potential expiry (at the end of the year) of DISH’s sponsorship deal for the Southwest “TV Flies Free” service, which is critical to Row44′s current business model.
My presentation at the GCAS conference in early June (where Global Eagle were conspicuous by their absence), highlighted some of the difficulties that standalone connectivity providers will face in the next year or two, and now Par Capital, which has been Global Eagle’s main backer, has taken a clear step towards selling the company, by converting its non-voting stock to common equity last month.
The challenge is that none of the potential buyers have an incentive to pay a high price for a vulnerable connectivity business (heavily dependent on Southwest Airlines who are widely rumored to be unhappy with service performance) and a slow growing content packaging business (which is reaching the limits of the gains that can be made through consolidation of smaller companies in the sector).
Thales has just paid a large premium for LiveTV and now needs to integrate that acquisition, while Gogo has had challenges in its past relationship with Southwest (which enabled Row44 to win that deal in the first place) and might not be sure of retaining the Southwest contract. Thus, although a Gogo-Global Eagle merger would make sense, Panasonic is potentially the IFC player that is most likely to consider taking over Global Eagle, although again it probably wouldn’t be willing to pay a large sum in cash (as seen in Panasonic’s apparent attempts to publicly talk down Global Eagle’s prospects).
Perhaps the only plausible deal that might make sense for both sides is if Panasonic decided to proceed with a spin-off of its Avionics division, and injected it into Global Eagle to gain a public listing for what should be a very valuable business. However, if that isn’t deemed feasible, then several people in the industry have told me that they expect Global Eagle will ultimately have to be sold at “fire-sale” prices.
Judge Chapman concluded her ruling in the LightSquared Adversary Proceeding (which was published two weeks ago) by quoting Charlie Ergen’s famous statement that “[y]ou can live in a bubble if you want to…and probably never get any disease. But you go play in the mud and the dirt and you probably aren’t going to get disease either because you get immune to it. So you pick your poison and I think we choose to go play in the mud.”
She went on to remark that “Here, playing in the mud involved end-running the LightSquared Credit Agreement and then purposefully holding in limbo hundreds of millions of dollars of debt trades and undermining the ability of the Debtors, the constituents, and even the Court to conduct the case” and therefore ruled that “the SPSO Claim shall be equitably subordinated” in an amount based on “the amount of harm that has occurred to these estates as a result of SPSO’s conduct.”
Now the court-appointed mediator, Judge Drain, has filed a memorandum with the court stating that “SPSO/Charles Ergen have not participated in the mediation in good faith and have wasted the parties and the mediator’s time and resources. I understand the seriousness of this assertion; it is unique in my experience as a mediator in a field where the parties are known to assert their positions aggressively and sharp elbows in negotiations, although not welcome, are tolerated.”
It is pretty clear what Ergen is getting up to in the mud: by delaying a resolution of the case he buys himself time to seek a deal for DISH with Sprint and/or T-Mobile, while retaining a bid (either personally or by EchoStar) as a backup option, and in the meanwhile he accumulates interest on the non-subordinated portion of his debt.
While clearly irritating to the judges involved, Ergen’s actions are therefore perhaps not entirely surprising, so what is more interesting about Judge Drain’s memo is what it tells us about the terms of LightSquared’s new Chapter 11 plan. Of course the memo does not specify the terms of the agreement that all parties with the exception of SPSO/Ergen have reached, but it is pretty clear what those are, by reading between the lines.
Firstly, Judge Drain indicates that the new Chapter 11 plan “should be confirmable without the support of the one party, SPSO, which has not agreed.” That means that SPSO is no longer being treated less favorably than the other secured debtholders with respect to the non-subordinated part of its debt, and its agreement to the new plan is not required. That can only mean that SPSO’s non-subordinated debt is being paid in full, in cash, with accrued interest.
That also fits with Judge Drain’s statement that he had invited SPSO to make “a certain proposal by 5:00 p.m. on June 24, 2014 [which] was not made” since the requested proposal was clearly for SPSO to indicate the amount of subordination which would be acceptable. As I noted back in May, Judge Chapman’s ruling should allow at least $320M (face value) of SPSO’s holdings, and possibly as much as $540M to be subject to subordination, though the amount of harm might arguably be somewhat less. The non-subordinated debt would then accrue a total of at least 30% interest from the time of the bankruptcy filing over and above its face value.
If the subordination was only of the later purchases, then SPSO might be entitled to receive at least $660M including interest, and I would guess that the offer on the table from LightSquared’s new backers would then need to pay Ergen a sum relatively close to the $700M he originally paid for the debt.
UPDATE (7/2): The new plan, revealed in a July 1 court hearing, proposes to pay Ergen $470M in cash plus an unsecured note worth “at least $492M.” This implies that about $360M of Ergen’s holdings (at face value) are not being subordinated, which would roughly correspond to a cutoff on purchases up to the end of 2012, while the later purchases are being converted into the unsecured note. This cash payment is sufficiently low that its hardly surprising Ergen intends to fight the new plan.
The corollary to the subordination of part of Ergen’s debt holdings is that there can’t be any money left for the equity holders, since even after being subordinated, Ergen’s holdings would still be senior to LightSquared’s equity. As I’ve noted previously, CapRe wanted to reduce Harbinger’s equity position “to nothing” and they have also agreed to the new plan. That conclusion also fits with Melody and SK Telecom not being represented at the mediation, despite both of them holding interests in LightSquared’s equity. In contrast, Harbinger’s presence in the mediation would still be necessary given its holdings of debt in LightSquared Inc. and the desire to gain releases for Falcone and itself from any potential litigation, such as that proposed by SPSO in April.
UPDATE (7/2): Harbinger will still hold around 12% of the reorganized LightSquared equity, but this appears to relate solely to the rollover of Harbinger’s debt holdings at LightSquared Inc, and compares to a proposed 36% stake under the previous plan.
Melody’s lack of involvement also tends to suggest that it will potentially no longer be providing financing for the new plan, although that is still to be confirmed. Conversely, Fortress had up to five people there for each mediation session, plus two of their lawyers from Stroock & Stroock & Lavan LLP, suggesting that Fortress will be making the primary decision on how much to offer Ergen and will therefore likely lead the financing of the new reorganization plan.
The presence of two people from Cerberus at each session is also very interesting, and suggests that they may be the new source of financing, presumably replacing Melody (who in any case were closely tied to Harbinger, with Omar Jaffrey having led multiple LightSquared financings while at UBS). This appears to be confirmed by a Wall St Journal article.
It will now be interesting to see how both Fortress and Cerberus feel about the outcome of the FCC workshop on “GPS Protection and Receiver Performance” last week, where Tom Wheeler went to the trouble of noting emphatically that the meeting was “not about FCC-mandated receiver standards” and LightSquared received support from the White House (whose representative, Tom Power, was involved in discussions with LightSquared back in summer 2011) but apparently few other participants.
Remember that Cerberus’s involvement was proposed by Fortress but was unacceptable to Harbinger back in January, when “Mr. Falcone exercised those veto rights in the weeks after the January 23 meeting when he objected to Fortress’ suggestion that Tom Donahue of Cerberus join LightSquared’s board.” (see ¶32 of SPSO’s proposed Findings of Fact). This appears to be further confirmation that Harbinger’s role in the new proposed capital structure for LightSquared is being cut back, as I indicated earlier this month and that’s why Phil Falcone has been threatening to sue the FCC.
Notably Falcone’s resignation from LightSquared’s board was communicated only in a June 18 letter to the FCC, which there would be no reason to send other than to ramp-up the pressure for the FCC to negotiate prior to Harbinger filing suit. In that context, one might view Wheeler’s (apparently last minute) decision to open the FCC workshop and make remarks supportive of GPS as a rejoinder to Harbinger’s threats.
UPDATE (7/2): Harbinger is still involved in the new plan (with a reduced 12% equity stake) which suggests that Harbinger may also continue to control the GPS litigation if the plan is approved, and this may be sufficient to mitigate the possibility of litigation against the FCC in the near term. However, given that the GPS industry seemed happy with the outcome of the recent FCC workshop, describing it as “a great event”, it seems they do not expect the FCC to be particularly accommodating to LightSquared in the immediate future.
Although the location of this new search area has not yet been released, the independent team that has been analyzing the publicly available data felt it was appropriate to provide a statement, given below, with our best estimate of the highest probability (but not the only possible) location for a potential search. In this way, we hope to provide information which can clearly be seen to be completely independent of any locations that might be published by the search team in the near future.
The statement is as follows:
Shortly after the disappearance of MH370 on March 8th, an informal group of people with diverse technical backgrounds came together on-line to discuss the event and analyze the specific technical information that had been released, with the individuals sharing reference material and their experience with aircraft and satellite systems. While there remain a number of uncertainties and some disagreements as to the interpretation of aspects of the data, our best estimates of a location of the aircraft at 00:11UT (the last ping ring) cluster in the Indian Ocean near 36.02S, 88.57E. This location is consistent with an average ground speed of approximately 470 kts and the wind conditions at the time. The exact location is dependent on specific assumptions as to the flight path before 18:38UT. The range of locations, based on reasonable variations in the earlier flight path result in the cluster of results shown. We recommend that the search for MH370 be focused in this area.
We welcome any additional information that can be released to us by the accident investigation team that would allow us to refine our models and our predictions. We offer to work directly with the investigation team, to share our work, to collaborate on further work, or to contribute in any way that can aid the investigation. Additional information relating to our analysis will be posted on http://duncansteel.com and http://blog.tmfassociates.com. A report of the assumptions and approaches used to calculate the estimated location is being prepared and will be published to these web sites in the near future.
The following individuals have agreed to be publicly identified with this statement, to represent the larger collective that has contributed to this work, and to make themselves available to assist with the investigation in any constructive way. Other members prefer to remain anonymous, but their contributions are gratefully acknowledged. We prefer that contact be made through the organizations who have published this statement.
Brian Anderson, BE: Havelock North, New Zealand;
Sid Bennett, MEE: Chicago, Illinois, USA;
Curon Davies, MA: Swansea, UK;
Michael Exner, MEE: Colorado, USA;
Tim Farrar, PhD: Menlo Park, California, USA;
Richard Godfrey, BSc: Frankfurt, Germany;
Bill Holland, BSEE: Cary, North Carolina, USA;
Geoff Hyman, MSc: London, UK;
Victor Iannello, ScD: Roanoke, Virginia, USA;
Duncan Steel, PhD: Wellington, New Zealand.
Back in February, I wrote an article for GigaOm, questioning the unrealistic projections of future data traffic produced by the ITU Speculator model. Since then the conclusions of one of the studies I mentioned, conducted by Real Wireless for Ofcom in June 2013, have been amended to reduce the modeled traffic per sq km by a factor of 1000 (from 10 PB per sq km per month to 10 TB per sq km per month in suburban areas), by the simple expedient of changing the label on the chart axis in Figure 44. The new version of the report fails to give any explanation of why this thousandfold “error” occurred, or indeed how the new results are consistent with the ITU model (which of course does project traffic demand of petabytes per sq km per month by 2020).
Ofcom claimed by way of explanation, in a statement to PolicyTracker, that “since the report has served its purpose we do not plan to carry out any further work to update it,” but one therefore has to wonder exactly what that purpose was, if not to exaggerate future demand for mobile spectrum and/or shore up a model which even Ofcom now apparently considers to be in error by a factor of 1000.
Just to give another illustration of quite how badly wrong the Speculator model is, I thought it might be helpful to compare the predicted levels of traffic demand with that experienced during the Superbowl in 2014, which is documented in a Computerworld article from earlier this year. That article highlights that AT&T carried around 119 GB of traffic in the busiest hour of the game, while Verizon carried roughly 3 times as much as AT&T. Broadly, we can therefore estimate that the total amount of data traffic across all mobile networks in the busiest hour of what is widely viewed as the most extreme situation for mobile demand in the entire US (if not the whole world) is around 500GB in the square kilometer in and around the stadium (depicted in red below).
For comparison, the Speculator model projects that by 2020, the typical level of everyday demand that needs to be accommodated by mobile networks (excluding WiFi) in a dense urban public area will be 51 TB per hour per sq km, one hundred times more than the traffic level experienced in the busiest hour at the Superbowl in 2014.
When AT&T reports that data usage in the busiest hour of the game has increased by only a factor of four in the last 3 years, is it really credible to expect traffic at the Superbowl to increase by 100 times in the next 6 years? And even if traffic at the Superbowl itself grows by leaps and bounds, why should global spectrum allocations be set based on traffic in the busiest hour at the busiest location in the whole of the US? Clearly, a more rational conclusion is that the Speculator model is simply wrong, and cannot possibly be representative of typical scenarios for mobile data usage in 2020.
Since the Inmarsat ping data was released almost two weeks ago, I like many others have spent a good deal of time trying to discern what the data tells us. Particular thanks are due to Duncan Steel, Victor Iannello, Mike Exner, Don Thompson, Bill Holland and Brian Anderson, who’ve spent days and weeks performing numerous complex calculations and analysis of satellite and other data, much of which I’ve relied on in my analysis.
Although the data analysis remains a work in progress, and further information is needed to validate the BFO model in particular, I’ve now written up my initial conclusions, which indicate that the search area may need to be widened significantly beyond the areas identified in the most recent search effort. As the WSJ is reporting, this appears to be the approach now being taken by the investigative team.
Does the LightSquared bankruptcy case need a mediator or a psychiatrist? That’s what I’m wondering after learning that with the sole exception of Phil Falcone, all the creditors now agree on a revised plan for the company to emerge from bankruptcy. That plan apparently involves Harbinger being left with no stake in the reorganized company, as I predicted when Judge Chapman made her ruling last month. As a result, although the suggestion last week from the lawyer for LightSquared’s independent committee was that “A mediator could help us get over the finish line” it seems more likely that the current job for Judge Drain involves talking Phil out of “riding the bomb” and suing the FCC.
In any case, the lawyers involved appear convinced that ultimately Harbinger won’t be allowed to sue the FCC, because any potential claims against the FCC for suspending LightSquared’s ATC license would be property of the LightSquared bankruptcy estate, not of Harbinger. Thus, just like the bankruptcy court blocked Harbinger from proceeding with its litigation against the GPS industry (with LightSquared itself taking over this litigation), it seems that as part of the reorganization, the company would ask the court to prevent Harbinger from suing the government.
Judge Chapman certainly appears a little irritated about Phil’s actions, telling lawyers at an emergency hearing yesterday that she doesn’t like learning about developments in her cases “in the New York Post or the Wall Street Journal.” So it will be interesting to see how long she gives the mediation, especially given the rapid depletion of LightSquared’s existing funds, and whether she agrees that in fact Phil just needs to see a therapist instead.
Over the last two weeks rumors have swept the satellite industry about Google’s plans to build a huge new broadband satellite constellation (dubbed “son of Teledesic” in a February article). I’ve done a fair amount of digging and since it looks like we will see this story in the mainstream press pretty soon, I thought it would be useful to summarize the analysis I produced for research clients last weekend.
As The Information reported on Tuesday, last month Google hired Brian Holz (former CTO of O3b) and Dave Bettinger (former CTO of iDirect) to work on the design of a massive new broadband satellite system, as part of Google’s Access division.
What has so far gone unreported are the technical details of the planned system, which is expected to involved 360 LEO Ku-band satellites using a filing by WorldVu in Jersey. The constellation will have 18 planes of 20 satellites, with half at an altitude of 950km and the remainder at 800km. I would expect the constellation to be launched in two phases, with the higher altitude satellites providing complete global coverage, and the lower satellites being added later, in between the initial 9 planes, to provide additional capacity. It also seems likely that the system could include inter-satellite crosslinks (within each of the two halves of the constellation) given the near polar orbit that is planned. WorldVu is apparently owned/controlled by Greg Wyler, the founder of O3b, who is rumored to have a handshake agreement with Larry Page to move ahead with the project.
The satellite system is budgeted to cost $3B, which is a very aggressive price target (recall Teledesic was supposed to cost $10B back in 1999), based on a plan to use very small (100kg) satellites. If this ultimately proves infeasible then the cost would certainly rise: for example the O3b and Iridium NEXT systems (700kg and 800kg respectively) cost at least $40M per satellite to build and launch.
UPDATE (6/1): The WSJ now has more details of the plan, confirming my supposition that it would start with 180 satellites and add the rest later. I was quoted in that article as stating that “180 small satellites could be launched for as little as about $600 million” but that should not be interpreted as a total cost for building and launching the satellites. If the target of 100kg could be achieved, the all-in cost for the first 180 satellites would certainly approach $2B, and if the satellites end up being more like 200-300kg, which a satellite designer suggested to me might be easier to achieve, then that all-in cost could reach $3B. The full 360 satellite system would likely cost $3B for the 100kg satellites and $4B-$5B for the 200-300kg satellites.
Notably the satellites would use the Ku-band, not the Ka-band which has been popular for broadband in recent years. This takes advantage of the FCC and international rulings secured by Skybridge in the late 1990s, which made over 3GHz of spectrum available for NGSO Ku-band systems, so long as they avoid interfering with satellites along the geostationary arc. In practice this means turning off the satellite when it is within about 10 degrees of the equator and handing over to an another satellite that is outside this exclusion zone. WorldVu apparently has priority ITU filing status with respect to this huge amount of spectrum on a global basis.
The total system capacity is unclear, but it could certainly be 1-2 Tbps or more for the full constellation, although not all of this will be usable (for example in polar and oceanic regions). Importantly, any LEO system would be critically dependent on the successful development of Kymeta’s new flat panel meta-materials antennas (which are being developed initially for Ka-band, but could also be extended to operate in Ku-band), because otherwise the need for tracking dish antennas makes it impossible to build terminals cost-effectively. After all, this terminal problem ultimately proved terminal for Teledesic in the late 1990s, and O3b is already telling potential enterprise customers that they should look to Kymeta to provide a viable low end terminal in a couple of years time.
Construction and launch of the first half of the constellation could probably be achieved within 5 years, if the satellites were small enough for dozens of them to be launched at once, and sufficient launch slots could be secured. However, it seems Google has not yet engaged actively with satellite manufacturers to seek their input on design feasibility (let alone bids) and so it might be premature to expect any formal announcement (and for the clock to start running on construction) at this stage.
Nevertheless this prospect is causing considerable excitement amongst satellite manufacturers, who had been bracing for a potential decline in business after record orders in recent years, and corresponding trepidation amongst satellite operators, who were already wary of a potential price war (and accelerated depreciation in the value of some older satellite assets) brought on by new high throughput Ku and Ka-band GEO satellites. Those investing in new broadband satellite systems of their own (like Intelsat, Inmarsat, ViaSat and Hughes) will certainly have to take this wildcard into account, but like the movie, only time will tell if Google’s space odyssey is going to be regarded as more than just dazzling special effects.
Yesterday, Harbinger’s new lawyers at Cooper & Kirk, filed an ex parte with the FCC, documenting a meeting last Friday with FCC staff, plus two representatives of the DoJ (who would presumably defend the FCC in the event of a lawsuit), including Alicia Simmons who signed the devastating Jan 17 filing in LightSquared’s bankruptcy case. The FCC personnel included Associate General Counsel Jennifer Tatel and the letter also identified Hillary Burchuk as an FCC staffer, although she is in fact apparently a DoJ trial attorney. Interestingly, Cooper & Kirk has never filed an ex parte with the FCC in the past, and Harbinger has previously been represented at the FCC for many years by its regulatory law firm, Goldberg, Godles, Wiener and Wright.
It seems pretty clear that the purpose of the meeting was to threaten to sue the FCC, not least because Cooper & Kirk’s own website boasts that according to Legal Times, it is “The top choice for plaintiffs who want to sue the federal government.” This may be Falcone’s last effort to avoid being excluded from the resolution of LightSquared’s bankruptcy case, where (as I concluded) Judge Chapman’s decision to reject the LightSquared bankruptcy plan has made it far more difficult for Harbinger to maintain a stake in the reorganized company.
If Harbinger is excluded from the reorganization, then it would not benefit financially from the increase in spectrum value resulting from a future FCC approval (or indeed any proceeds from the litigation against the GPS industry). As a result, if that happens Harbinger is threatening to sue on its own account, because litigation would likely block any possibility of progress at the FCC, and Harbinger would not have any incentive to drop that litigation as part of a settlement which resulted in an FCC approval. Thus Falcone is basically offering the threat of mutually assured destruction to persuade the other LightSquared debtholders to give him a share of the reorganized company, exactly as his earlier emails suggested: “if I don’t like the result, maybe I’ll just sue the FCC and tie this up for 10 years.”
On Tuesday the LightSquared stakeholders were ordered to mediation, as expected, although reportedly some progress had been made on a “global restructuring” deal. That phrasing would suggest the aim is to keep the 1670-75MHz spectrum together with the L-band MSS spectrum, rather than auctioning the two pieces of spectrum separately, perhaps with the holders of the 1670-75MHz secured debt being paid off via a new injection of capital. If that deal comes to fruition it would suggest that the target would still be to gain access to the NOAA 1675-1680MHz spectrum, in which case it might also make sense to keep Ergen in the capital structure (in order to avoid the threat that DISH or EchoStar might bid against LightSquared in an auction). But its harder to see what bone might be thrown to Falcone to prevent Harbinger from filing suit against the FCC.