11.18.14
Posted in DISH, Financials, Operators, Regulatory, Spectrum at 9:53 am by timfarrar
After the AWS-3 auction reached its reserve price of $10.066B for the 50MHz of AWS-3 spectrum (1755-1780MHz uplink/2155-2180MHz downlink) in Round 12, the most notably feature of the auction so far has been in the high level of bidding activity for the largest cities, such as New York and Los Angeles. As shown in the table below, in the first 12 rounds, there were up to 8 bids per round for the three main (BEA) licenses in these cities, implying that multiple players other than the major operators (AT&T, Verizon and T-Mobile) were bidding.
By now it would have been expected that the three operators would sort themselves out and bid on a self-selected subset of licenses (e.g. AT&T for 20MHz in H+I, Verizon for 20MHz in J and T-Mobile moving to the smaller CMA G-block license as it did successfully in the AWS-1 auction in 2006). However, it appears that this has all been disrupted by DISH’s desire to drive up the price. DISH has presumably concluded, logically, that the major operators will have to buy the New York and LA licenses (plus a few other places such as Chicago, Washington, Boston, San Francisco and Dallas) whatever the cost, so has been bidding simultaneously across all of the main licenses in these cities.
Uniquely amongst the participants, DISH is also part of three separate bidding consortia: American AWS-3 Wireless I LLC, Northstar Wireless, LLC and SNR Wireless LicenseCo, LLC. Given Ergen’s interest in pushing up the price that the operators have to pay, it would not be in the least surprising if all three have been bidding simultaneously against one another for all of these licenses. The resulting higher level of bidding activity would potentially sway the decisions of AT&T, Verizon and T-Mobile, making them think they face more competition from each other than is actually the case, and thereby persuading them to bid more than they originally expected. After all, if AT&T thinks Verizon wants all 50MHz and Verizon thinks the same about AT&T, they are both likely to bid more aggressively, since both will think they had underestimated how valuable the spectrum is.
What happens next? DISH could potentially have instructed each bidding consortium to cease bidding at the same level, minimizing the risk that it would be stuck with licenses it didn’t actually want. That wouldn’t require any coordination, merely setting a near identical budget/price limit for each of the three consortia. Then I’d expect a sharp drop in bidding activity, probably later today or tomorrow, when DISH reaches its desired price point (to provide a high comparable for its other spectrum holdings) and probably switches to buy the 1695-1710MHz unpaired uplink block, where to date the price has lagged significantly due to a lack of competitive bidding. Recall that this unpaired uplink block is one of the best comparables for LightSquared’s valuation (where Harbinger is arguing that the 20MHz of uplink should be worth up to $5B), and so its clearly in DISH’s interests for the end price to be little more than the $580M reserve price (for 15MHz of spectrum).
Of course, DISH is in a win-win position: if Verizon, AT&T and T-Mobile bid up the price of AWS-3 then Ergen can claim his AWS-4 spectrum is worth even more, but if they call his bluff and leave DISH owning the key licenses in major cities (that will be needed as part of any AWS-3 rollout), then Ergen can demand interoperability for his current AWS-4 spectrum as a condition of selling the spectrum to those operators.
If this is actually what is happening, then I’d expect criticism of how the FCC has enabled DISH to game the system (by participating in multiple consortia), just like there was criticism of their decision to auction off the H-block earlier this year in what some likened to a “retail sale” to DISH. However, the result will be the opposite to the H-block, which only just reached the reserve price, because in this case the auction revenue will be significantly higher than expected. Nevertheless, I’d expect mobile operators to be even less enamored of DISH than they were already, because Ergen will have just cost them billions of dollars they didn’t want to spend, just like he cost Masa Son billions of dollars by forcing him to raise the price that Softbank paid for Sprint and Clearwire last year.
UPDATE (11/20): It seems that I may have been right, because the FCC announced on Tuesday afternoon that the reserve price of $10.066B was met for the paired spectrum blocks at the end of Round 13:
At the conclusion of Round 13, the provisionally winning bid amounts, net of any applicable bidding credit discounts, for the paired 1755-1780/2155-2180 MHz licenses (the licenses in Blocks G, H, I, and J) exceeded $10,0660,326,600, thus meeting the aggregate reserve price for these licenses in Auction 97.
However, at the end of Round 12, the total of Provisionally Winning Bids (PWBs) in these bands was already $10.375B. The PWB is calculated before bidding credits (of 25% for a small business) are applied. Thus holders of bidding credits must have held sufficient licenses for the total of net bids to still be below the reserve price (i.e. had bids with the 25% discount valued at more than $311M). That means these small bidders held licenses valued at more than $1250M at the end of Round 12.
Two of the three DISH entities (SNR and Northstar) both sought 25% bidding credits (despite apparently having credit agreements with DISH to fund their bids) so it appears likely that they were bidding aggressively throughout this period. Then we apparently saw DISH move its own bids over to the unpaired spectrum in Round 17, leading to a reduction in the number of bids for the large metro licenses. Given their use of bidding credits, it would not be at all surprising if SNR and Northstar emerge still holding billions of dollars of spectrum, funded by DISH, and it would be logical to take this approach (if DISH buys the unpaired spectrum at close to the reserve price, then it would have gained no benefit from using bidding credits, since the reserve price has to be met by the net bids). Of course the availability of bidding credits will probably also be a cause for further criticism of DISH’s apparent moves to game the system by pushing up the prices paid in the auction.
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11.13.14
Posted in Financials, Globalstar, Handheld, Operators, Regulatory, Services, Spectrum at 10:57 am by timfarrar
I’ve just released my new 69 page Globalstar profile, analyzing both Globalstar’s MSS business and their spectrum valuation and potential partnerships. Over the last month its been interesting to observe the rather hyperbolic comments from both supporters and opponents of the company, and unfortunately those on both sides appear poorly informed about the potential value of the TLPS spectrum and the growth of the MSS opportunity.
In the MSS business, its crystal clear that growth has fallen far short of expectations in the business plan presented to COFACE in summer 2013, and it is expected that Globalstar will need to make equity cures to address an EBITDA shortfall in 2015, and perhaps even at the end of this year. However, those amounts will be modest, nothing like the $200M raised by Iridium earlier this year, and so there is no need for concern that MSS challenges will disrupt Globalstar’s attempts to monetize its spectrum in the next year or two.
Nevertheless, it seems unlikely that the new Hughes-based devices will dramatically change this picture: MSS terminals offering WiFi links to smartphones but no standalone functionality have generally been fairly unsuccessful in comparison to self-contained communications devices (compare SPOT Connect vs SPOT or the original inReach vs inReach SE/Explorer), and low price terminals/consumer distribution channels have not altered the dynamics of the handheld market very much (for example, the SPOT Global Phone has not changed Globalstar’s business prospects materially). Its also little use selling a new device for $100 if the customer still has to choose from the existing handheld airtime plans (which have a four times higher ARPU than SPOT). So overall, we don’t expect Globalstar’s MSS business to generate enough value to match the $1B invested, or even the current COFACE debt.
While the MSS picture may not be encouraging, I’m more positive about Globalstar’s TLPS opportunity. It’s clear that Globalstar’s spectrum does have potential value to partners, since Globalstar came close to a deal with Google in early 2013, and we suspect a deal with a different partner was almost reached earlier this year. I also expect the FCC to approve TLPS without material concerns, although it seems likely to come in Q1 not Q4, and may involve giving up some L-band spectrum to Iridium, as happened in the past when Globalstar was seeking ATC authority.
The key question is therefore whether a partner can now be secured who will pay a substantial sum for access to the spectrum, from a limited universe of possibilities in the service provider category. Equipment and infrastructure providers are more likely to want to make money from selling equipment to Globalstar (and its service provider partner), than to pay Globalstar for access to the spectrum. The second question is then what the appropriate valuation would be if a deal can be struck: based on comparable valuations for high band spectrum and the alternative sources of spectrum out there (including AWS-3) it is hard to believe that anyone could seriously envisage a $6B or $10B valuation for TLPS. However, the debate should be about what Globalstar’s spectrum is worth, not whether it is worthless.
All of these issues are discussed in more detail in the report: we give specific forecasts for the MSS business by product through 2018 and explain what we believe to be the most appropriate valuation benchmarks for TLPS and who is now the most likely partner. Contact us if you’re interested in more information.
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10.06.14
Posted in Financials, Globalstar, LightSquared, Operators, Regulatory, Spectrum at 3:04 pm by timfarrar
Today hasn’t been a great day for the MSS industry, with Kerrisdale Capital mounting an attack on Globalstar, and LightSquared’s bankruptcy process descending further into chaos, with Judge Chapman ordering the stakeholders back to mediation after the standalone reorganization proposal for LightSquared LP was withdrawn and the Special Committee threw up its hands in despair.
Fundamentally this debate comes down to whether investors (and more importantly potential spectrum buyers such as cellular operators) believe there is a shortage of spectrum, which will justify a higher valuation for spectrum assets. An answer to that broader question should become a lot clearer after the AWS-3 auction next month, as Charlie Ergen has been at pains to point out. After all, DISH has declared its intent to bid, apparently in order to push up the final price that others pay.
Some clearly believe, like Macquarie who published a report last week claiming that the AWS-3 spectrum will sell for $1.30 to $1.50 per MHzPOP, and DISH’s spectrum could be worth more than their current estimate of $1.75 per MHzPOP. However, the FCC is less sanguine and has set a relatively high reserve price (sufficient to meet the $7B required to fund First Net) in the expectation that bidding may not be very aggressive. Chairman Wheeler is also clearly nervous about the incentive auction, warning cellular operators at CTIA last month that:
Many broadcasters have been led to believe that the demand for mobile spectrum really isn’t as your industry has claimed.
As a result, they believe that wireless carriers won’t fully participate in the auction. Whether or not wireless carriers show up with sufficient demand to incent broadcasters to participate is something only you control.
But, if that is the case, if mobile operators don’t put their money where their mouths have been, the future of spectrum policy will begin to look a lot different.
Remember that Greenhill has just estimated that bids in the incentive auction could total $45B (of which $33B would be paid to broadcasters), even at what some would consider the relatively modest price for low frequency spectrum of $1.50 per MHzPOP. The price for AWS-3 should be rather lower than that, and to me it would not be at all surprising to see the final auction receipts total less than $15B ($0.80-$0.90/MHzPOP).
Even that total, of up to $60B, may prove a significant burden for cellular operators now that AT&T and Verizon are loaded with debt after their purchases of DirecTV and the Vodafone stake respectively and have much less incentive to bid the price up aggressively (especially in the incentive auction, since spectrum will potentially be reserved for smaller players).
Perhaps there will be an external savior in the form of a new entrant? That’s what one Globalstar bull, Odeon Capital, apparently believes, suggesting today that “Today, carriers and cable companies provide access, you need them to use wifi. Ultimately, TLPS provides an end run around the traditional gatekeepers, and we think that’s a very compelling incentive.”
However, its important to note that Google looked at buying both Globalstar and Inmarsat in late 2012/early 2013 (at a time when Globalstar’s share price was a lot lower) for Project Loon, but that proposal was rejected by Larry Page (note that the companies are not named, but Astro Teller specifically stated that there were six months of negotiations with “large companies” to buy “a relatively thin piece of harmonized spectrum” and its been confirmed to me by multiple independent sources that the targets were Globalstar and Inmarsat).
Amazon is another mooted investor in wireless spectrum, and a prospective Globalstar partner, but now that its Fire phone has failed to set the world alight, it seems increasingly unlikely to spend billions of dollars on spectrum.
So if its hard to see a new entrant saving the day, what will happen to spectrum values? It certainly doesn’t mean that Globalstar or LightSquared’s spectrum is worth nothing, but does suggest that (as I’ve long predicted) the spectrum bubble may soon start to deflate. The bands that will likely feel the pressure first are those without an existing ecosystem (or that are not owned by large operators like Verizon and AT&T with the power to create one).
On the other hand, unless you can find someone to pay for and use your spectrum, how do you monetize it? Do you build out your own network, like Clearwire and LightSquared tried to do? Or do you just sit and wait for conditions to improve? It certainly seems plausible that a number of spectrum owners, including DISH, may now have to choose between these two, relatively unpalatable, options.
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09.17.14
Posted in General, Regulatory, Spectrum at 8:03 am by timfarrar
The report I wrote jointly with LS Telcom on “Mobile spectrum requirements estimates: getting the inputs right” has now been published and is available here. This report critiques the ITU Speculator model, concluding that (as I noted earlier), the Speculator model traffic assumptions vastly exceed any reasonable traffic density that can be expected in 2020, even at events such as the Superbowl or World Cup Final.
The analysis in this report was also the basis of the poster on “Lies, Damn Lies and Mobile Statistics: Forecasting Future Demand for Wireless Spectrum” that I presented at TPRC42 in Arlington VA last weekend, and I was very gratified to receive an award for the best poster at the conference. If you are interested in discussing this work further, then please do get in touch.
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08.07.14
Posted in LightSquared, Operators, Regulatory, Spectrum at 12:23 pm by timfarrar
So the latest LightSquared bankruptcy plan has finally been filed, in advance of a status conference planned for Monday. Though the plan provides alternative options depending on whether Ergen’s SPSO decides to support it, the plan grants SPSO an allowed claim of $900M (for an original investment of $700M) if it votes in favor. That’s less than the $1B allowed claim indicated back in July, suggesting that quite a bit has changed structurally in the last month in order to come up with a simple plan that should be approved by the judge. However, it shouldn’t be assumed that SPSO will object to this change, as the $100M decrease in SPSO’s allowed claim may be part of a deal under which Fortress drops the prospect of recovery on its LP Preferred Shares.
Under the new plan, the non-SPSO secured debtholders plus SPSO and MAST (which holds $300M+ of LightSquared Inc. loans) will now only receive a pro rata share of LightSquared’s new $1B Term Loan plus the equity in the company. In other words the $1B Term Loan will cover less than half of the allowed $2.3B-$2.4B in secured debt and interest, suggesting a preference for the company to be rather less indebted than previously planned. The debtholders (including potentially SPSO) will also back a new $500M working capital facility and SPSO will remain a non-voting participant in the capital structure.
This structure seems designed to ensure that the plan is easy for the judge to approve and Falcone is cut out, unless he can find the money to participate in an auction, where the minimum bid must be sufficient to pay the allowed claims in full in cash minus the new $1B Term Loan (though that and the working capital facility would also need to be refinanced). In other words, if Phil Falcone wants to retain control of LightSquared (or if anyone else wants to bid), then he would need to find $1.4B+ in cash plus a $1.5B debt facility just to participate in the auction. If there isn’t an auction, then Harbinger receives nothing whatsoever, even for its Inc. subordinated debt (Class 7), let alone its equity.
Moreover, the plan sets out as one condition that the plan proponents shall “promptly commence and prosecute a Harbinger Litigation Action” to “stay, bar, enjoin, preclude, or otherwise limit Harbinger and/or any of its Affiliates from asserting against the GPS Industry and/or the United States of America any claim or cause of action that is or directly affects any property of one or more of the Debtors’ Estates”. Prior to the Effective Date of the Plan, the company must have received a ruling from the bankruptcy court which grants this request.
As a result, there’s little reason for Phil to agree to any of this, and the prospect of Harbinger raising nearly $3B to participate in the auction seems pretty remote. However, if Harbinger doesn’t agree to the plan then it won’t receive any of the releases granted to other parties (including Ergen, if SPSO votes in favor of the plan). So any LightSquared investors who’ve lost money would potentially then follow the strategy set out by SPSO earlier this year and sue Falcone personally. In fact, even if Harbinger continues to sue the US government for its own losses (if it is even possible to separate those from claims that would belong to LightSquared itself) then LightSquared investors could seek to claim any proceeds from that effort.
Now we have to see whether Ergen (or perhaps EchoStar or even DISH) wants to bid for all of LightSquared (which seems unlikely assuming he agrees with the current plan), or whether Falcone is able to find backers to participate. It seems less likely that the other Ad Hoc debtholders would bid in the auction, because those existing debtholders that do want to exit (presumably including MAST) can and probably will sell their claims to the holders like Fortress who want to remain in the capital structure. Given the implausibility of anyone backing Harbinger with $3B of new money to refinance LightSquared while Falcone is suing the FCC, undoubtedly there will be plenty of fireworks over the next few weeks as Phil seeks to avoid what looks like his inevitable doom.
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07.13.14
Posted in DISH, Financials, Inmarsat, LightSquared, Operators, Regulatory, Spectrum at 2:20 am by timfarrar
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.
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06.27.14
Posted in DISH, Financials, LightSquared, Operators, Regulatory, Spectrum at 9:40 pm by timfarrar
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.
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06.17.14
Posted in General, Regulatory, Spectrum at 4:02 am by timfarrar
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.
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06.04.14
Posted in Financials, LightSquared, Operators, Regulatory, Spectrum at 6:18 am by timfarrar
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.
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05.29.14
Posted in Financials, LightSquared, Operators, Regulatory, Spectrum at 10:34 am by timfarrar
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.
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