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.