Last week I expressed the view that LightSquared’s new investors could very well prolong the fight between LightSquared and the GPS industry. However, signs are starting to emerge that the FCC might be more willing to act than I had anticipated, and rule against LightSquared, which would potentially create a Material Adverse Change (MAC) in LightSquared’s first lien debt covenants, allowing the new investors to force the company into bankruptcy, and wrest control from Harbinger. While I still believe that the end game will involve liquidation of the business (not to mention litigation against all and sundry), the current debt investors would certainly benefit if they didn’t have to wait until all of LightSquared’s money had been spent in advance of a bankruptcy filing.
What evidence is there of a shift? Firstly the FCC responded very quickly to LightSquared’s assertions that the recent testing was “bogus” with a statement that:
We are awaiting completion of recommendations from NTIA. As we have said from the outset, the FCC will not lift the prohibition on LightSquared to begin commercial operations unless harmful interference issues are resolved.
Of course that is not what the FCC has said from the outset. Last year they said the agency won’t let LightSquared activate its network “until harmful interference issues are resolved”. Though subtle, that is quite a change in position, and an acknowledgement that the interference issues might not be resolvable.
More importantly, today has seen the resignation of a second high ranking FCC official and now both Ed Lazarus and Paul de Sa, who apparently negotiated the deals with SkyTerra (in early 2010) and LightSquared (in late 2010/early 2011) are leaving the FCC at a time when Sen. Grassley is shortly expected to receive details of LightSquared’s communications with the FCC. Indeed these two officials also met with Mr. Falcone when he visited the FCC on January 4.
To misquote Oscar Wilde, to lose one official may be regarded as a misfortune, to lose both looks like carelessness. If (and I do mean if) there is something problematic to emerge from the communications between LightSquared and the FCC, then it would certainly help to defuse the ensuing political firestorm if the FCC had already acted on the recommendations of the NTIA (which I think will very likely follow those of the PNT Excom). Communications Daily is now reporting that the NTIA has received the full report from the PNT Excom and will now review it and “eventually” advise the FCC how to move on the issue. However, if high precision testing is not going to be undertaken in advance of formulating these recommendations, the FCC could be in a position to rule relatively soon.