[*]J.D. candidate, Catholic University of America, Columbus School of Law, May 2001; B.A., University of Delaware, 1993. The author would like to thank those who contributed advice in the drafting of this note, his parents for their inspiration and his wife, Katie, for her love and support.

[1] Press Release, Federal Communications Commission, Commissioner Harold Furchtgott-Roth Reacts to NextWave Decision, at http://www.fcc.gov/Speeches/Furchtgott_Roth/Statements/2000/sthfr003.html (Jan. 12, 2000).

[2] Radio Act of 1912, ch. 287, 37 Stat. 302 (repealed 1927).

[3] J. Roger Wollenberg, Title III: The FCC as Arbiter of "The Public Interest, Convenience and Necessity," in A Legislative History of the Communications Act of 1934 61, 62 (Max D. Paglin ed., 1989).

[4] Id. at 65; see generally Hoover v. Intercity Radio Co., 286 F. 1003 (D.C. Cir. 1923) (holding that the secretary lacked discretion to refuse radio licenses); United States v. Zenith Radio Corp., 12 F.2d 614 (N.D. Ill. 1926) (invalidating the secretary's attempt to issue regulations limiting radio licenses).

[5] Radio Act of 1927, ch. 169, 44 Stat. 1162 (repealed by the Communications Act of 1934, ch. 652, 48 Stat. 1064).

[6] See Wollenberg, supra note 3, at 65.

[7] Radio Act of 1927, ch. 169, § 4, 44 Stat. 1163.

[8] See Wollenberg, supra note 3, at 67; see generally Great Lakes Broad. Co. v. Fed. Radio Comm'n, 37 F.2d 993 (D.C. Cir. 1930) (holding that the public interest was vital due to the scarcity of the airwaves).

[9] Communications Act of 1934, ch. 652, 48 Stat. 1064.

[10] FCC v. Pottsville Broad. Co., 309 U.S. 134, 137-38 (1940).

[11] See id. at 138 n. 2.

[12] See Nat'l Broad. Co. v. United States, 319 U.S. 190, 216 (1943).

[13] See Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 330 (1945). But cf. United States v. Storer Broad. Co., 351 U.S. 192, 205 (1956) (explaining that if an applicant does not meet the FCC's threshold requirements it is not entitled to a hearing).

[14] See FCC Report to Congress on Spectrum Auctions, Report, 13 F.C.C.R. 9601, 9608 (1997) [hereinafter Report to Congress].

[15] Id.

[16] Nicholas W. Allard, The New Spectrum Auction Law, 18 Seton Hall Legis. J. 13, 58 n. 40 (1993) (quoting dissenting statement of Commissioner Glen O. Robinson, Cowles Fla. Broad., Inc., 60 F.C.C.2d 372 (1976)).

[17] See Report to Congress, supra note 14, at 9608-09.

[18] See Amendment of the Commissions Rules To Allow the Selection from Among Mutually Exclusive Competing Cellular Applications Using Random Selection or Lotteries Instead of Comparative Hearings, Report and Order, 98 F.C.C.2d 175, ¶ 5 (1983) [hereinafter Report and Order].

[19] See id. ¶ 4 (one cellular provider estimates a lottery will save between $160,000 and $414,000 per applicant per market).

[20] Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 1242, 95 Stat. 357, 736-37, amended by Communications Amendment Act of 1982, Pub. L. No. 97-259 § 115, 96 Stat. 1087, 1094-95.

[21] An Inquiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems, 86 F.C.C.2d 469, ¶ 26 (1981).

[22] Id. ¶ 29; see also Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551, 1556 (D.C. Cir. 1987).

[23] Maxcell Telecom, 815 F.2d at 1554; see also Report and Order, supra note 18, ¶ 9.

[24] See Report to Congress, supra note 14, at 9609.

[25] See id.

[26] Because the fee required to participate in a lottery was minimal, the deluge of "speculators" applying for licenses presented a serious strain on FCC resources. This undermined one of the primary purposes of the lottery system-to reduce the FCC's administrative burdens. The numerous applications also strained the industry's resources, with an estimated $300 million spent on producing cellular applications for the lotteries. See id. at 9610 (citing Evan R. Kwerel & Alex Felker, Using Auctions to Select FCC Licenses (FCC Office of Plans and Policy, Working Paper No. 16, 1995)).

[27] See Report to Congress, supra note 14, at 9609-10.

[28] Id. at 9610.

[29] Id. at 9610-11.

[30] Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, § 6002, 107 Stat. 312, 388-92.

[31] The terms "competitive bidding system" and "auction" are used interchangeably in this article.

[32] 47 U.S.C. § 309(i)(5) (1994).

[33] See supra Part II.C.

[34] H.R. Rep. No. 103-111, at 253 (1993), reprinted in 1993 U.S.C.C.A.N. 378, 580 [hereinafter House Report].

[35] H.R. Conf. Rep. No. 103-213, at 481 (1993), reprinted in 1993 U.S.C.C.A.N. 1088, 1170 [hereinafter Conference Report].

[36] 47 U.S.C. § 309(j)(3).

[37] See id.

[38] Id.

[39] See id.

[40] 47 U.S.C. § 1 (repealed 1947). For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, sex, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges; for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies . . . . Id.

[41] 47 U.S.C. § 309(j)(3), amended by Pub. L. No. 105-33, § 3002, 111 Stat. 251, 258 (1997) (adding a fifth objective to be considered in Section 309(j)(3): "(E) ensure that, in scheduling of any competitive bidding under this section, an adequate period is allowed-(i) before issuance of bidding rules, to permit notice and comment on proposed auction procedures; and (ii) after issuance of bidding rules, to ensure that interested parties have a sufficient time to develop business plans, assess market conditions, and evaluate the availability of equipment for the relevant services.").

[42] See House Report, supra note 34, at 254, reprinted in 1993 U.S.C.C.A.N. at 581.

[43] See id.

[44] Id.

[45] Id.

[46] See id. at 254-55, reprinted in 1993 U.S.C.C.A.N. at 581-82.

[47] See id. at 255, reprinted in 1993 U.S.C.C.A.N. at 582.

[48] See Conference Report, supra note 35, at 482, reprinted in 1993 U.S.C.C.A.N. at 1171.

[49] The use of tax certificates was eliminated by Pub. L. No. 104-7 (1995) (in favor of a deduction for the health insurance costs of self-employed individuals instead).

[50] 47 U.S.C. § 309(j)(4), amended by Pub. L. No. 105-33, § 3002, 111 Stat. 251, 259 (1997).

[51] See Conference Report, supra note 35, at 482-84, reprinted in 1993 U.S.C.C.A.N. at 1171-73.

[52] See id. at 483, reprinted in 1993 U.S.C.C.A.N. at 1172.

[53] See House Report, supra note 34, at 256, reprinted in 1993 U.S.C.C.A.N. at 583.

[54] Id.

[55] See Conference Report, supra note 35, at 482-84, reprinted in 1993 U.S.C.C.A.N. at 1171-73.

[56] Id. at 483, reprinted in 1993 U.S.C.C.A.N. at 1172.

[57] See Report to Congress, supra note 14, at 9611.

[58] See Amendment of the Commission's Rules to Establish New Personal Communications Services, Second Report and Order, 8 F.C.C.R. 7700 (1993).

[59] See id. ¶ 2.

[60] Implementation of Section 309(j) of the Communications Act-Competitive Bidding, Fifth Report and Order, 9 F.C.C.R. 5532, ¶ 1 (1994) [hereinafter Fifth Report and Order].

[61] Report to Congress, supra note 14, at 9611.

[62] Id. at 9612.

[63] See id. at 9613 tbl. 1.

[64] See Implementation of Section 309(j) of the Communications Act-Competitive Bidding, Second Report and Order, 9 F.C.C.R. 2348 (1994) [hereinafter Second Report and Order].

[65] See id. at 2356-58 (also selecting Interactive Video Data Services and Common Carrier and Commercial Radio Services as competitive bidding in the occurrence of mutually exclusive applications).

[66] See Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Radio Services, Fourth Report, 14 F.C.C.R. 10145, 10145 nn. 6-7, 10201 (1999) [hereinafter Annual Report].

[67] See id. at 10174.

[68] See id. at 10174 nn. 6-7.

[69] Michele C. Farquhar & Lawrence J. Movshin, Developments in Wireless Telecommunications Policy and Regulation: A Review of the Past Year and Insights Into the Year Ahead, 16 Ann. Inst. on Telecomm. Pol'y & Reg. 145, 149 (1998).

[70] See id.

[71] See id. at 150.

[72] See Annual Report, supra note 66, at 10154.

[73] See id. at 10173-74.

[74] See id. at 10175.

[75] See id.; see also Farquhar & Movshin, supra note 69, at 151.

[76] See generally Second Report and Order, supra note 64; Fifth Report and Order, supra note 60.

[77] See generally Second Report and Order, supra note 64, 160-209.

[78] See generally Fifth Report and Order, supra note 60, 58-87.

[79] See generally Second Report and Order, supra note 64; Fifth Report and Order, supra note 60.

[80] See generally Second Report and Order, supra note 64, 230.

[81] See id.

[82] Amendment of the Commission's Rules to Establish New Personal Communications Services, Memorandum Opinion and Order, 9 F.C.C.R. 4957, 12 (1994) [hereinafter PCS Memorandum Opinion and Order].

[83] Id. 57 (citing comments made by members of the investment community at an April, 1994 FCC public forum on PCS rules).

[84] Id. 17.

[85] See Amendment of the Commission's Rules to Establish New Personal Communications Services, Second Report and Order, 8 F.C.C.R. 7700, 56, 64, 76-77 (1993).

[86] PCS Memorandum Opinion and Order, supra note 82, 27.

[87] See Second Report and Order, supra note 64, 245-47.

[88] See Fifth Report and Order, supra note 60, 121.

[89] Id.

[90] See generally Second Report and Order, supra note 64.

[91] See Implementation of Section 309(j) of the Communications Act-Competitive Bidding, Second Memorandum Opinion and Order, 9 F.C.C.R. 7245 (1994) [hereinafter Second Memorandum Opinion and Order].

[92] See generally Fifth Report and Order, supra note 60.

[93] Id. 59-60.

[94] See Second Report and Order, supra note 64, 164; Fifth Report and Order, supra note 60, 164.

[95] See Second Report and Order, supra note 64, 165 (noting that if only one application is received within the time period, mutual exclusivity would be lacking and competitive bidding would be inappropriate.); Fifth Report and Order, supra note 60, 62 (requiring compliance with FCC "PCS-cellular and PCS-PCS cross-ownership limitations").

[96] See Second Report and Order, supra note 64, 165-66.

[97] See id. 166.

[98] See id. Subsequently, the FCC decided to allow applicants to amend their short-form applications to "provide bidders with flexibility to seek additional capital after applications have been filed, while ensuring that the real party in interest does not change." Second Memorandum Opinion and Order, supra note 91, 52. In response to concerns that "the formation of reasonable and efficient alliances would be discouraged by the mandate to expose the details of the alliance to competitors," the FCC allowed parties to "request confidential treatment of competitively sensitive information." Id. 55-57.

[99] See Second Report and Order, supra note 64, 167.

[100] See id. 168; Fifth Report and Order, supra note 60, 63-64.

[101] See Second Report and Order, supra note 64, 171-88; Fifth Report and Order, supra note 60, 65-71 (generally within two weeks of a scheduled auction).

[102] See Second Report and Order, supra note 64, 171.

[103] See id. 171-72.

[104] See id. 172-73 n. 135.

[105] See id. 176; Second Memorandum Opinion and Order, supra note 91, 125; Fifth Report and Order, supra note 60, 65.

[106] See Fifth Report and Order, supra note 60, 154-55.

[107] See id. 155.

[108] See id. 130-34.

[109] See Fifth Report and Order, supra note 60, 130.

[110] See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (raising federal preference programs to the Supreme Court's strict scrutiny standard).

[111] See Commission Modifies "C Block" Auction Rules for Broadband PCS, Report No. WT 95-12, available at 1995 WL 422112 (July 18, 1995).

[112] See In re Implementation of Section 309(j) of the Communications Act-Competitive Bidding, Sixth Report and Order, 11 F.C.C.R.. 136, 47 (1995) [hereinafter Sixth Report and Order].

[113] See Second Report and Order, supra note 64, 189-94 (explaining the FCC's determination that a substantial down payment would ensure the bidders' financial capability to deploy service quickly and protect against possible default, while not hindering their growth); Fifth Report and Order, supra note 60, 72-74.

[114] See Fifth Report and Order, supra note 60, 73.

[115] See Second Report and Order, supra note 64, 238; Fifth Report and Order, supra note 60, 135-38.

[116] See Second Report and Order, supra note 64, 231-240; Second Memorandum Opinion and Order, supra note 91, 127-28; Fifth Report and Order, supra note 60, 135-41; Sixth Report and Order, supra note 112, 39-40 (establishing all small businesses, not just those owned by minorities or women, as eligible for the most favorable installment plan in the wake of the decision in Adarand).

[117] See Sixth Report and Order, supra note 112, 39-40.

[118] See Second Report and Order, supra note 64, 197.

[119] Id.

[120] See Fifth Report and Order, supra note 60, 75.

[121] See id. 76.

[122] See Annual Report, supra note 66, apps. A-2, A-4.

[123] See id.

[124] Id.; see also NextWave Pers. Communications, Inc. v. FCC (In re NextWave Pers. Communications, Inc.), 235 B.R. 277, 284 (Bankr. S.D.N.Y. 1999) [hereinafter NextWave IV].

[125] See Annual Report, supra note 66, apps A-2, A-4.

[126] See id.

[127] See id. See also NextWave IV, 235 B.R. at 284.

[128] See Annual Report, supra note 66, apps. A-2, A-4.

[129] See id. See also NextWave IV, 235 B.R. at 284.

[130] See Annual Report, supra note 66, apps. A-2, A-4. See also NextWave IV, 235 B.R. at 283.

[131] See Annual Report, supra note 66, apps. A-2, A-4. See also NextWave IV, 235 B.R. at 282.

[132] See Annual Report, supra note 66, apps. A-2, A-4.

[133] See id.

[134] See infra text accompanying notes 145-156.

[135] See C, D, E, and F Block Broadband PCS License Auction Closes, Public Notice, 14 F.C.C.R. 6688, 6688 (1999).

[136] See Fifth Report and Order, supra note 60, 174.

[137] See Annual Report, supra note 66, 96; Omnipoint Corp. v. FCC, 78 F.3d 620, 626 (D.C. Cir. 1996).

[138] See Annual Report, supra note 66, app. B-17 (detailing cumulative capital expenditures from 1995 to 1998 (e.g., Aerial, $1.024 billion; AT&T, $2.948 billion; Omnipoint (a designated entity) $1.174 billion; Sprint PCS, $6.633 billion).

[139] See Second Report and Order, supra note 64, 230. The FCC has since suspended the use of installment payments for designated entities, while retaining bidding credits. See Amendment of Part 1 of the Commission's Rules-Competitive Bidding Procedures, Third Report and Order and Second Further Notice of Proposed Rule Making, 13 F.C.C.R. 374, 38-48 (1997).

[140] Amendment of the Commission's Rules Regarding Installment Payment Financing For Personal Communications Services (PCS) Licensees, Second Report and Order and Further Notice of Proposed Rule Making, 12 F.C.C.R. 16,436, 10 (1997) [hereinafter Financing Second Report and Order].

[141] Id. 11.

[142] Id. 6.

[143] Id. 16.

[144] Id. 21.

[145] Id. 38.

[146] Id.

[147] Id. 40.

[148] Id. 42.

[149] Id. 53.

[150] Id. 54.

[151] Id. 64 (explaining that C Block licensees could prepay selective licenses subject to restrictions and all other licenses were to be surrendered to the FCC in exchange for forgiveness of the corresponding debt and any penalties).

[152] Mountain Solutions, Ltd. v. FCC, 197 F.3d 512, 514 (D.C. Cir. 1999).

[153] Id. at 514-16.

[154] Id. at 516-17; see also Mountain Solutions, Ltd., 13 F.C.C.R.. 21,983, 14 (1998) (denying Mountain Solutions an emergency waiver of § 24.711(a)(2) of the Commission's Rules since there was no firm evidence that it had sufficient funding to make the second payment at the time it was due); Public Notice, 61 Fed. Reg. 16914, 16914 (Apr. 18, 1996) (stating that the Commission's Rules on default payments will be strictly enforced).

[155] See Mountain Solutions, 197 F.3d at 516-22.

[156] Id. at 516 (denying Mountain Solutions a waiver of § 24.711(a)(2) of the Commission's Rules since the payment schedule was crucial to insuring the sincerity of the bidder and preventing disruption to the auction process) (citing Mountain Solutions, Ltd., 12 F.C.C.R. 5904, 7 (1997)).

[157] Id. at 517-18.

[158] Id. at 519.

[159] See In re Pocket Communications, Inc., Waiver of C Block Option Election Requirements, FCC 98-103, available at 1998 WL 278742 (1998).

[160] See id. 9.

[161] See NextWave Personal Communications, Inc., Company Information Overview, available at http://www.nextwavetel.com/company/index.html (last visited September 4, 2000).

[162] NextWave Pers. Communications, Inc. v. FCC (In re NextWave Pers. Communications), 235 B.R. 272, 273 (Bankr. S.D.N.Y. 1998) [hereinafter NextWave II].

[163] Id.

[164] NextWave Pers. Communications, Inc. v. FCC (In re NextWave Pers. Communications, Inc.), 235 B.R. 263, 266 (Bankr. S.D.N.Y. 1999) [hereinafter NextWave I].

[165] See Annual Report, supra note 66, at 10212 (valuations in terms of Pops: $1.33 and $1.94 for Auctions #5 and 10; $0.33 for Auction #11).

[166] NextWave I, 235 B.R. at 267.

[167] Id.

[168] Id. at 267, 271.

[169] 28 U.S.C. § 1334 (1998).

[170] 28 U.S.C. § 157 (1999).

[171] NextWave I, 235 B.R. at 269 (holding that a federal agency, in its capacity as a creditor, is subject to the Bankruptcy Code including the automatic stay) (citing NLRB v. 15th Ave. Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir. 1992)).

[172] See NextWave I, 235 B.R. at 269-70 (finding that the claim of fraudulent conveyance sought equitable remedies for avoidance for the benefit of other creditors and the debtor under the Bankruptcy Code, implicating no regulatory conduct by the FCC).

[173] Id. at 271.

[174] The bankruptcy court dismissed NextWave's claim that the FCC should be equitably subordinated to the claims of other creditors. Specifically, NextWave alleged the FCC's failure to inform NextWave that it would commence Auction #11 before granting NextWave's licenses, the devaluation of NextWave's licenses after Auction #11, and the FCC's delay in granting NextWave's licenses constituted inequitable, unconscionable and unfair conduct. The bankruptcy court held that it lacked jurisdiction over this claim because the FCC's actions were within its regulatory capacity, made pursuant to its statutory authority. See id. at 271-72.

[175] NextWave II, 235 B.R. at 276.

[176] NextWave IV, 235 B.R. at 304.

[177] NextWave, 235 B.R. 314 (Bankr. S.D.N.Y. 1999) [hereinafter NextWave V].

[178] NextWave IV, 235 B.R. at 305.

[179] NextWave Pers. Communications, Inc. v. FCC (In re NextWave Pers. Communications), 241 B.R. 311, 321 (S.D.N.Y. 1999) [hereinafter NextWave VI].

[180] Id. at 315-16 (stating that the Communications Act precludes the FCC from collecting revenue and that section 309(j) "has no effect on the requirements, obligations, or privileges of license holders").

[181] Id. at 316.

[182] Id. (relying on United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979), that when the United States acts as a lender, it is substantially in the same position as a private lender).

[183] See FCC v. NextWave Pers. Communications, Inc. (In re NextWave Pers. Communications, Inc.), 200 F.3d 43, 46 (2d Cir. 1999) [hereinafter NextWave VII].

[184] Id.

[185] Id. at 47.

[186] Id. at 49.

[187] Id. at 50.

[188] Id. at 51-52.

[189] NextWave VII, 200 F.3d at 52 (noting that Congress chose the auction policy not for maximization of revenue, but rather because it was the most "likely to promote the development of new technologies and encourage efficient use of the spectrum, while simultaneously recouping some of the value of the spectrum for the public").

[190] Id., quoting Second Report and Order, supra note 64, 71.

[191] Id., quoting Second Report and Order, supra note 64, 171.

[192] Id. at 53.

[193] See id.

[194] Id. (emphasis added).

[195] NextWave VII, 200 F.3d at 53.

[196] Id. at 53-54, quoting United States v. Southwestern Cable Co., 392 U.S. 157, 168 (1968) ("Congress formulated a unified and comprehensive regulatory system"); Metro Broad., Inc. v. FCC, 497 U.S. 547, 553 (1990) ("Congress assigned to the [FCC] . . . exclusive authority to grant licenses"); FCC v. Pottsville Broad. Co., 309 U.S. 134, 136-37 (1940) (that the Supreme Court is required to "enforce the spheres of authority which Congress has given to the [FCC] and the courts, respectively, through its scheme for the regulation of" radio transmissions); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14 (1942) (that the division of authority between these "spheres" requires that "no court can grant an authorization which the [FCC] has refused"); FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946) (holding the FCC, not the courts "must be satisfied that the public interest will be served by . . . the licensee"); P & R Temmer v. FCC, 743 F.2d 918, 927 (D.C. Cir. 1984) (that the FCC has exclusive jurisdiction over granting licenses and placing conditions on their use).

[197] See NextWave VII, 200 F.3d at 54.

[198] Id. (emphasis added).

[199] Id.

[200] Id. at 54-55.

[201] Id. at 55.

[202] Id. (citing Scripps-Howard Radio, Inc., 316 U.S. at 14).

[203] Id. at 55 n. 11 (stating that the bankruptcy court may not "adjudicate claims against the FCC not as a creditor, but as an "allocator of licenses").

[204] Id. at 55-56 (referring to Pottsville Broad. Co., 309 U.S. at 138).

[205] For fraudulent conveyance purposes (since NextWave remained a debtor in bankruptcy) the circuit court also determined, according to FCC regulations and auction law, that NextWave's payment obligation arose no later than the announcement of their winning bid. See id. at 56-60.

[206] See In re GWI PCS, 230 F.3d 788, 793-94 (5th Cir. 2000). The parties in the case included General Wireless, Inc., GWI PCS, Inc., and 14 subsidiaries, each holding one of the C Block licenses. Because all the entities were consolidated in the case (and to avoid confusion), they will be collectively referred to as "GWI PCS."

[207] Id. at 795.

[208] Id. at 796-97.

[209] Id. at 798.

[210] Id. (citing GWI's claim that the reorganization plan has having been "substantially consummated" and listed numerous financial transactions).

[211] Id. at 799.

[212] In re GWI PCS, 230 F.3d 788, 800-803 (5th Cir. 2000).

[213] Id. at 804 (emphasis added).

[214] Id. at 804-05.

[215] Id. at 806-07.

[216] See In re Kan. Pers. Communications Serv., 252 B.R. 179, 182-83 (Bankr. D. Kan. 2000). KPCS had continued to make payments under the installment plan, but missed a payment due date in early 1999. Id.

[217] Id.

[218] Id. at 185-86.

[219] Id. at 185-87. The bankruptcy court held that "[l]icenses do not automatically cancel unless the FCC decides to utilize that remedy." Id.

[220] See United States v. Kan. Pers. Communications Serv., 256 B.R. 807, 810-11 (D. Kan. 2000).

[221] Id. (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).

[222] Id.

[223] See Departments Of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Bill, Fiscal Year 2000, H.R. REP. 106-283, 128 (Aug. 2, 1999).

[224] See Appropriators Determined to File Spending Plan Tonight, Congress Daily, Nov. 16, 1996, available at 1999 WL 28417311 (citing Congressman Armey's support of the bankruptcy court's decision); Peter S. Goodman, Who Gets Airwaves When Good Sale Goes Bad? Budget Negotiators Try to Resolve Issue, Washington Post, Nov. 17, 1999, at E1, available at 1999 WL 23315289.

[225] See 145 Cong. Rec. S12899, S12902 (1999) (statement of Senator Judd Gregg), available at 1999 WL 957926.

[226] See Heather Forsgren Weaver, NextWave Loses In Court, Gets Skewered By Senator, RCR Radio Communications Report, Feb. 14, 2000, available at 2000 WL 9540082.

[227] See Testimony of FCC Chairman William Kennard, Senate Budget Committee Hearing: February 10, 2000, available at http://www.senate.gov/~budget/republican/about/hearing2000/kennard.htm.

[228] See Nicole Harris, Nextel Reaches Pact With Government To Buy NextWave Wireless Licenses, Wall St. J., Aug. 20, 1999, at B3 (explaining Nextel's acquisition would collect significantly more than the amount proposed in NextWave's bankruptcy plan); Kathy Chen and Nicole Harris, Nextel is Eager to Buy NextWave Radio Spectrum, Wall St. J., Nov. 1, 1999, at B7 (noting the FCC's interest in freeing the spectrum and recovering a fair amount of the licenses' worth); Nicole Harris, Nextel Communications to Launch $8.3 Billion Hostile Bid for NextWave, Wall St. J., Dec. 22, 1999, at B6.

[229] See Nicole Harris, Nextel Withdraws Its $8.3 Billion Hostile Offer for NextWave, Wall St. J., Dec. 27, 1999, at B2 (noting that Nextel withdrew its bid when it realized it may be able to acquire the licenses directly from the FCC).

[230] See Petition For Expedited Rulemaking or, In the Alternative, Waiver of the Commission's Rules, 15 F.C.C.R 2106, 2112 (2000) [hereinafter Nextel Petition]; Letter from SBC Communications, Inc. to Magalie Salas, Secretary, FCC (Jan. 21, 2000) [hereinafter SBC Petition], available at 2000 WL 96926.

[231] See In re NextWave Pers. Communications, Inc., 244 B.R. 253, 262 (Bankr. S.D.N.Y. 2000) [hereinafter NextWave VIII].

[232] See id. at 262-63.

[233] See id. at 268.

[234] See Appeals Court Again Backs FCC In Battle for Bankrupt's Licenses, Communications Daily, Feb. 11, 2000, at 1.

[235] See Telephony, Communications Daily, Feb. 24, 2000, at 6-7.

[236] See Telephony, Communications Daily, Mar. 1, 2000, at 10-11.

[237] See In re FCC, 217 F.3d 125, 141 (2d Cir. 2000).

[238] Press Release, Federal Communications Commission, C and F Block Broadband PCS Spectrum Auction Raises Nearly $17 Billion For U.S. Treasury (Jan. 26, 2001), available at http://www.fcc.gov/Bureaus/Wireless/News_Releases/2001/nrwl0104.html.

[239] See Amendment of the Commission's Rules Regarding Installment Payment Financing for Personal Communications Services (PCS) Licenses, Sixth Report and Order and Order on Reconsideration, 15 F.C.C.R. 16266, 14-15 (2000) (stating that 10 MHz licenses are likely to provide smaller or new applicants an opportunity to acquire a license that may not be available if the licenses were 20 or 30 MHz, while allowing larger applicants to aggregate these licenses).

[240] See id. 18-19 (dividing each BTA into two tiers, with BTA's containing populations of greater than 2.5 million in tier one and BTA's with less than 2.5 million in tier two).

[241] See id. 19.

[242] See id. 20 (removing the set-aside for all 15 MHz C Block licenses, F Block licenses, and any unsold 30 MHz C Block licenses from Auction #22).

[243] See id. 44.