1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

HUSTON-TILLOTSON UNIVERSITY, §

§

Plaintiff/Counterclaim Defendant, §

§

v. § 1:20-CV-192-RP

§

SPRINT CORPORATION, NEXTEL §

SPECTRUM ACQUISITION §

CORPORATION, and NORTHERN §

ARIZONA UNIVERSITY FOUNDATION, §

INC., §

§

Defendants/Counterclaimants. §

AMENDED ORDER

Before the Court is Defendant/Counterclaimant NSAC, LLC (“NSAC”)1and Northern 

Arizona University Foundation’s (“NAUF”) application for a temporary restraining order and 

preliminary injunction, (Dkt. 30), and associated briefing, (Notice, Dkt. 35 (NAUF joins in NSAC’s 

application); Resp., Dkt. 38; Reply, Dkt. 50). The Court held a telephonic hearing on the application 

on March 31, 2020. (See Order, Dkt. 31). After considering NSAC, NAUF, and 

Plaintiff/Counterdefendant Huston-Tillotson University’s (“HTU”) arguments (as expressed in their 

briefing and at the hearing), the record, and the relevant law, the Court grants NSAC’s motion and 

imposes a preliminary injunction. This ruling prohibits HTU from selling or leasing the spectrum 

1 NSAC represents elsewhere that it “was formerly known as Nextel Spectrum Acquisition Corporation, the 

name that appears in the case caption.” (Mot. Seal Counterclaim Compl., Dkt. 23, at 1 n.1). Defendant Sprint 

Corporation did not join in the application, asserting that it is “not a proper defendant in this case,” (App. 

TRO & PI, Dkt. 30, at 5 n.1), and has filed a motion to dismiss the claims against it for failure to state a claim 

and lack of personal jurisdiction, (Dkt. 45 at 21–24).
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band at issue, or any associated rights, to anyone other than NSAC, Defendant Sprint Corporation 

(“Sprint”), or NAUF until the merits of this case have been resolved.2

I. BACKGROUND

Prior to 2005, the Federal Communications Commission (“FCC”) granted HTU an “ITFS” 

license to broadcast over a certain band of the spectrum meant for educational TV. (Compl., Dkt. 9, 

at 3). The FCC subsequently opened that band—2.5 GHz, or “mid-band”—to high-speed internet, 

with HTU retaining the “EBS” license (as it was then called). (Id.). Now, in 2020, that band is 

especially valuable to telecommunications companies, who use it to support their “commercial 3G, 

4G, and 5G technology.” (Id.). In particular, the expansion into 5G service is important and 

lucrative. See Transforming the 2.5 GHz Band, 34 FCC Rcd. 5446, 5447 (2019).3

On January 7, 2005, HTU entered into a royalty agreement with Sprint in which it leased to 

Sprint the ability to use a portion of the 2.5 GHz spectrum it owned. (Compl., Dkt. 9, at 3–4). While 

the agreement was in effect, HTU could not assign or transfer any interests in the lease without 

giving Sprint a chance to accept the same terms it offered to the third party, and could not negotiate 

or contract with a third party to sell the EBS license. (Id. at 4). Under the agreement, Sprint made 

annual royalty payments to HTU. (Id.). The agreement allowed Sprint to fully acquire HTU’s license 

for a set price at any time. (Id. at 4–5). 

The agreement expired on January 7, 2020, per FCC regulations. (Id. at 4). HTU argues that 

Sprint’s ability to acquire the license does not survive the agreement. (Id. at 5–6).

2 The Court originally issued this Order under seal on April 3, 2020. (Dkt. 54). This Amended Order removes 

a precise dollar amount which had been previously filed under seal and a provision requiring the parties to 

show cause for why the original order should not be unsealed. (See, e.g., Compl., Dkt. 9; see also Mot. Seal, Dkt. 

41). It is identical in all other respects.

3 “In order to move this spectrum into the hands of those who will provide service, including 5G, to 

Americans across the country . . . we are replacing an outdated regulatory regime, developed in the days when 

educational TV was the only use envisioned for this spectrum, with one that not only gives incumbent users 

more flexibility in how they use the spectrum, but also provides opportunities for additional entities to obtain 

access to unused 2.5 GHz spectrum.”
3

Near the end of the agreement’s term, on October 11, 2019, a third party, SoniqWave 

Networks, LLC (“SoniqWave”), approached HTU offering higher annual royalties and a far higher 

purchase option amount. (Id. at 6). HTU says the offer “further demonstrated that Sprint’s 15-yearold Royalty Agreement contained royalty and acquisition payment amounts that were well-below 

market value and completely unreasonable for Huston-Tillotson to accept in the current EBS 

market,” and that the extra money “would provide severely needed funding for Huston-Tillotson’s 

educational mission and infrastructure.” (Id. at 6). HTU represents that it refrained from “earnest 

contract negotiations” until the agreement expired on January 7, 2020. (Id. at 6–7).

Two weeks after SoniqWave’s offer, on October 25, 2019, Sprint proposed a one-year 

renewal of the agreement to HTU that was mostly the same, albeit with “slightly increased” royalty 

payments. (Id. at 7). In HTU’s telling, Sprint refused to negotiate and “did not account for the 

unequal marketing positions and inherent inequality of negotiations between a huge 

telecommunications conglomerate and small historically black university.” (Id.). HTU says Sprint 

“threatened” that it would acquire the license if HTU did not accept the proposal. (Id. at 7–8). Still, 

HTU refused Sprint’s proposal. (Id. at 8).

One week before the agreement terminated, on December 30, 2019, Sprint notified HTU 

that it planned to assign its rights to NAUF. (Id.). HTU argues that Sprint did not fulfill a number of 

the agreement’s terms that were prerequisites for assignment—in particular, that it did not obtain 

HTU’s written consent. (Id.). HTU characterizes NAUF as “a strawman conduit that Sprint uses to 

strip small educational institutions of their EBS licenses”; “Sprint . . . simply transfer[s] money to 

NAUF so that NAUF can acquire EBS licenses from small educational institutions, and then lease 

those licenses right back to Sprint.” (Id. at 9).

Four days before the agreement terminated, on January 3, 2020, NAUF notified HTU that it 

was exercising its right to acquire the license. (Id. at 11). HTU asserts that this exercise was invalid 
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since NAUF cannot operate the broadcast, as the agreement requires, and that in any case, NAUF 

had no right to acquire the license after the agreement expired on January 7, 2020. (Id.).

On February 18, 2020, HTU sent Sprint a right of first refusal letter offering Sprint the 

ability to match SoniqWave’s offer. (Id. at 12). Sprint has 45 days from its receipt of that letter to 

accept or decline: until April 3, 2020. (Id.).

NSAC, a subsidiary of Sprint, argues that this is all a “a case of ‘seller’s remorse’ over the . . . 

contract price to which [HTU] agreed in 2005, when the spectrum was less valuable.” (App. TRO & 

PI, Dkt. 30, at 5). It says that it asked HTU not to sell its license before this case is resolved and that 

HTU refused. (Id. at 7). If NSAC exercised its purchase option, the agreement obligated HTU to 

cooperate with it and NAUF to effectuate the sale. (Id. at 9–11). Similarly, HTU was obligated to 

include NSAC in the negotiations with SoniqWave.4(Id.). In NSAC’s telling, HTU’s dealings with 

SoniqWave during the term of the agreement violated the agreement. (Id. at 11–12).

In its complaint, HTU seeks declaratory judgment that Sprint and NAUF cannot acquire the 

license and that they did not fulfill the agreement’s terms. (Compl., Dkt. 9, at 18). It also seeks 

compensatory relief for Sprint’s putative breach of the agreement as well as for fraud by 

nondisclosure related to NAUF’s inability to perform its obligations under the agreement. (Id. at 19).

NSAC and NAUF filed a counterclaim complaint, seeking declaratory judgment in their favor and 

an order compelling HTU to specifically perform what they argue are its obligations under the 

agreement. (Dkt. 29 at 14).

II. LEGAL STANDARD

To obtain a temporary restraining order or preliminary injunction, the moving party must 

demonstrate “substantial likelihood of success on the merits, substantial threat of irreparable harm 

4 SoniqWave’s executives are former Sprint employees who NSAC argues “possess confidential and 

proprietary information about Sprint’s and NSAC’s spectrum-licensing operations.” (App. TRO & PI, Dkt. 

30, at 11–12).
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absent an injunction, a balance of hardships in [its] favor, and no disservice to the public interest.” 

Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013). This is a 

“heavy burden.” Hardin v. Houston Chronicle Pub. Co., 572 F.2d 1106, 1107 (5th Cir. 1978).

Even so, the moving party “is not required to prove its case in full at a preliminary 

injunction hearing.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Instead, the moving party 

“must present a prima facie case, but need not prove that [it] is entitled to summary judgment.” 

Daniels Health Scis., 710 F.3d at 582. That is, “finding a ‘substantial likelihood that movant will 

ultimately prevail on the merits’ does not contemplate a finding of fixed quantitative value.” Fla. 

Med. Ass’n, Inc. v. U. S. Dep’t of Health, Ed. & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979). But, if 

the moving party “cannot show a substantial likelihood of success on the merits, the injunction 

should be denied and there is no need for the court to address the other requirements for a 

preliminary injunction.” Butts v. Aultman, No. 19-60063, 2020 WL 1301048, at *5 (5th Cir. Mar. 19, 

2020).

If the moving party surmounts that obstacle, it must then “show that it is ‘likely to suffer 

irreparable harm,’ that is, harm for which there is no adequate remedy at law.” Daniels Health Scis., 

710 F.3d at 582 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). It must 

persuade the Court that “the competing claims of injury” and “the effect on each party of the 

granting or withholding of the requested relief” weigh in its favor. Winter, 555 U.S. at 24 (quoting

Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 542 (1987)). And it must demonstrate that the 

“public consequences in employing the extraordinary remedy of injunction,” to which “courts of 

equity should pay particular regard,” militate in favor of injunctive relief. Id. (quoting Weinberger v. 

Romero-Barcelo, 456 U.S. 305, 312 (1982)).
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III. ANALYSIS

A. Likelihood of Success

NSAC and NAUF have sufficiently demonstrated a likelihood of success on the merits for 

purposes of the preliminary injunction analysis. See generally 11A Charles A. Wright, et al., Federal 

Practice and Procedure § 2948.3 (3d ed. Aug. 2019 update) (“The very purpose of an injunction under 

Rule 65(a) is to give temporary relief based on a preliminary estimate of the strength of plaintiff’s suit, 

prior to the resolution at trial of the factual disputes and difficulties presented by the case.”) 

(emphasis added). In the parties’ briefing and at the hearing, two key issues emerged: HTU’s putative 

obligation to disclose SoniqWave’s offer to NSAC and NSAC’s putative assignment of its purchase 

option to NAUF. The Court discusses each in turn.

1. Disclosing the SoniqWave Offer

NSAC argues that HTU was obligated to “promptly” disclose SoniqWave’s offer and failed 

to do so. (App. TRO & PI, Dkt. 30, at 16, 18–19). NSAC points to § III of the agreement, which 

states that “[HTU] will provide [NSAC] with copies of all such bids, proposals, offers, counter-bids, 

and counter-offers promptly after they are received by [HTU].” (Reply App. TRO & PI, Dkt. 50, at 

8–9; Agreement, Dkt. 39-1, at 5). HTU counters that this provision “only applies to instances in 

which Huston-Tillotson actively issues or solicits bids, proposals, or offers for the sale of the 

License[,] . . . not an unsolicited offer from a third party.” (Resp. App. TRO & PI, Dkt. 38, at 15–

16). But that interpretation does not conform with the beginning of § III, which specifies obligations 

that apply “[i]n the event that [HTU] decides to consider, issue or to solicit bids, proposals or offers 

for the sale, assignment, transfer or use of any part or the whole of the ITFS Channels or Licenses at 

any time before the fifth (5th) anniversary of the end of this Agreement.” (Agreement, Dkt. 39-1, at 

4). It is undisputed that HTU decided to consider SoniqWave’s offer—indeed, its decision to do so 

is much of the impetus for this case. Therefore, the obligations specified in § III applied. HTU 
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violated the agreement by failing to promptly disclose SoniqWave’s offer to NSAC. HTU’s 

arguments about whether it properly provided NSAC with a right of first refusal notice do not alter 

this analysis. (See Resp. App. TRO & PI, Dkt. 38, at 15–16).

2. Assigning the Purchase Option

HTU maintains that NSAC’s assignment of the license purchase option to NAUF was 

invalid and ineffective. (Resp. App. TRO & PI, Dkt. 38, at 17). Because NAUF itself could not 

perform the technical duties of a broadcast operator, HTU contends, NSAC could not assign any 

rights to NAUF under § XIII(a)(1) of the agreement, which dictated that NSAC could only assign 

rights to an “entity demonstrating capability to perform the obligation of Operator.” (Id. at 2 

(quoting Agreement, Dkt. 39-1, at 10)). Otherwise, to assign rights to an entity incapable of 

performing those duties, NSAC was required to obtain HTU’s consent first. (Id.). NSAC points out, 

though, that a specific provision in the agreement concerned NSAC’s right to acquire the license 

altogether—the purchase option—and allowed NSAC to “exercise such right itself or to assign such 

right to [NSAC’s] designee.” (Reply App. TRO & PI, Dkt. 50, at 6; Agreement, Dkt. 39-1, at 6).

Virginia law applies to the interpretation of the agreement, as designated by the agreement’s 

own choice-of-law provision in the agreement. (App. TRO & PI, Dkt. 30, at 15 n.6). “Virginia 

follows the well-settled principle in contract law of applying specific provisions of a contract over 

more general provisions dealing with the same subject matter.” Levine v. Employers Ins. Co. of Wausau, 

887 F.3d 623, 630 (4th Cir. 2018). Consequently, the agreement’s provision that deals specifically 

with assignment of the purchase option, § IV(f), controls over the more general provision that HTU 

cites, § XIII(a)(1). The Court does not reach the parties’ arguments concerning the ability of NAUF 

itself, as opposed to a technical operator with whom it could contract, to perform the tasks 
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necessary to use the spectrum band at issue, or the effect of the FCC’s current or future regulations 

on any such assignment.5

B. Irreparable Harm

NSAC and NAUF have also demonstrated a likelihood that they will suffer irreparable harm 

should HTU sell or otherwise dispose of the license prior to the ultimate adjudication of the merits 

of this case.6

At the hearing, NSAC emphasized that a service provider’s ability to access a contiguous 

block of the spectrum helps ensure network stability and performance and that the contiguity of that 

block (rather than the total number of channels within it) is its crucial characteristic. Though the 

Fifth Circuit has not explicitly held that a loss of a portion of the spectrum is per se irreparable 

harm, the Eighth Circuit has deemed it to have “unique characteristics that make its loss one which 

cannot be fully compensated by an award of money damages.” PCTV Gold, Inc. v. SpeedNet, LLC., 

508 F.3d 1137, 1143 (8th Cir. 2007).

7 To bolster this persuasive authority, NSAC points to the fact 

that § XIX of the agreement provides that “[t]he rights granted by this Agreement are of a special, 

unique, unusual and extraordinary character, the loss of which cannot be adequately redressed by 

damages” and that “[t]he breach by either party of any material provision hereof will cause the other 

party irreparable injury.” (App. TRO & PI, Dkt. 30, at 11). HTU notes, though, that “[c]ontractual 

5 Nor does the Court reach the parties’ arguments about whether HTU was obliged to immediately assist in 

effecting the assignment to NAUF by following certain FCC procedures. (See App. TRO & PI, Dkt. 30, at 16; 

Resp. App. TRO & PI, Dkt. 38, at 20–21).

6 Though HTU argued at the hearing that neither NAUF nor Sprint demonstrated that they (as opposed to 

NSAC) would suffer irreparable harm without an injunction, the Court does not reach that issue because the 

harm to NSAC that NSAC has demonstrated comprises a sufficient basis for injunctive relief.

7 In tandem with PCTV Gold, NSAC also cites GDC Technics, Ltd. v. Grace, in which this Court discussed the 

impending sale of a FAA-issued supplemental type certificate (“STC”) in the context of a preliminary 

injunction analysis. No. 5:15-CV-488-RP, 2017 WL 123781 (W.D. Tex. Jan. 11, 2017). Though the STC 

concerned “a modification that enables an aircraft to receive live television broadcasts while in flight,” it was 

not an exclusive license to broadcast on a particular band of the spectrum, contrasting with PCTV Gold and 

this case. Id. at *1. Accordingly, while the Court held that “money damages resulting from the loss of the STC 

may be difficult to calculate or unrecoverable,” its holding in that context should not be interpreted as 

creating or imposing a per se rule for spectrum bands, as PCTV Gold arguably does. Id. at *2.
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stipulations of ‘irreparable harm’ . . . however, are insufficient by themselves to support a finding of 

irreparable harm to support injunctive relief.” Traders Int’l, Ltd. v. Scheuermann, No. CIV.A. H-06-

1632, 2006 WL 2521336, at *8 (S.D. Tex. Aug. 30, 2006) (collecting cases); (Resp. App. TRO & PI, 

Dkt. 38, at 21). While the provision alone may not be sufficient, it is not irrelevant.

In addition, HTU argues that NSAC cannot “establish irreparable harm because [it] still has 

the opportunity to accept the terms and conditions presented in the [right of first refusal] Notice.” 

(Resp. App. TRO & PI, Dkt. 38, at 22). If NSAC were to exercise its right to match SoniqWave’s 

offer, HTU suggests, NSAC could evade any potential harms. (See id.). NSAC protests, contending 

that such an outcome would allow litigants to “defeat a preliminary injunction motion simply by 

demanding a monetary ransom to remove the threat.” (Reply App. TRO & PI, Dkt. 50, at 10 (citing 

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 20 n.8 (1st Cir. 1996) (“Baccarat suggests that 

Ross–Simons could—and still can—avoid any harm simply by signing the Proposed Agreement . . . .

The law—much less a court of equity—should not compel a litigant to sign away the farm in order 

to save the crops.”))). While the Court does not characterize this dispute in as dire terms, NSAC’s 

logic holds true. Just as HTU argues that an injunction could “grant[] [NSAC] all the relief it has 

requested in this lawsuit without an adjudication of the merits,” so too could withholding an 

injunction on this ground unduly grant HTU similarly premature relief. (Resp. App. TRO & PI, Dkt. 

38, at 23).

NSAC also argues that because HTU may not have the financial resources to pay a money 

judgment if it does not ultimately prevail, injunctive relief is appropriate. (App. TRO & PI, Dkt. 30, 

at 22–23; Reply App. TRO & PI, Dkt. 50, at 12); see Aspen Tech., Inc. v. M3 Tech., Inc., 569 F. App’x 

259, 273 n.56 (5th Cir. 2014) (citing Molex, Inc. v. Nolen, 759 F.2d 474, 477 (5th Cir. 1985)) (noting 

that “a plaintiff’s inability to obtain monetary compensation from an insolvent defendant” may 

constitute irreparable harm). HTU does not address this argument. It is within the Court’s discretion 
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to consider this aspect of the propriety of injunctive relief, and the Court does so, finding it weighs 

in favor of a finding of potential irreparable harm to NSAC. See Aspen Tech., 569 F. App’x at 273.

C. Balance of Hardships

The Court finds that the balance of hardships tilts in favor of NSAC. If it is ultimately 

determined that NSAC and NAUF validly exercised the purchase option for the license, and in the 

meantime, HTU has sold it, NSAC and NAUF will have suffered a harm proportional to the 

uniqueness of the spectrum band. Meanwhile, at the hearing, the Court asked HTU to pinpoint the 

harms it would suffer if an injunction were to be granted—i.e., if it were not permitted to accept 

SoniqWave’s offer as soon as possible. HTU suggested that it could lose SoniqWave’s offer and 

might be subject to penalties imposed by FCC rules which are not yet in effect. These speculative 

harms, whose severity is not altogether clear, do not tip the balance in HTU’s favor.

D. Public Interest

Finally, the Court concludes that here, “[i]t is in the public interest to uphold contracts and 

to enforce a remedy to which the parties have expressly agreed.” Marquis Software Sols., Inc. v. Robb, 

No. 3:20-CV-0372-B, 2020 WL 955901, at *11 (N.D. Tex. Feb. 27, 2020) (quoting Amerispec, Inc. v. 

Metro Inspection Servs., Inc., No. CIV.A.3:01-CV-0946-D, 2001 WL 770999, at *6 (N.D. Tex. July 3, 

2001)); see also PCTV Gold, 508 F.3d at 1145. Whether HTU or Defendants ultimately prevail, the 

outcome will have upheld the contract and enforced the agreed remedy.

The Court notes, however, that NSAC also asserts “the public . . . interest in a highperforming telecommunications network,” which it argues is harmed by its inability to operate on 

the spectrum band. (Reply App. TRO & PI, Dkt. 50, at 13). Universal access to a strong 

telecommunications network may well be in the public interest. But framing that interest in terms of 

the public’s access to Sprint’s high-performing network, as NSAC does, elides the point. Sprint and
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NSAC’s ability to provide services to their customers is not synonymous with the public’s interest in 

a strong network overall.

IV. CONCLUSION

For the reasons discussed above, IT IS ORDERED that NSAC and NAUF’s application 

for a temporary restraining order and preliminary injunction, (Dkt. 30), is GRANTED IN PART. 

Their application for a preliminary injunction is GRANTED. Their application for a temporary 

restraining order is MOOT.

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IT IS FURTHER ORDERED that HTU, its employees, representatives, agents, and all 

persons or entities acting in concert with them are enjoined from selling or leasing the spectrum 

band at issue, or any associated rights, to anyone other than NSAC, Sprint, or NAUF until all of the 

claims in this case have been finally adjudicated, including all appeals.

SIGNED on April 7, 2020.

_____________________________________

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

8 HTU, as the adverse party, has been provided sufficient notice and opportunity to be heard as required for a 

preliminary injunction to issue, as opposed to an ex parte temporary restraining order. See Fed. R. Civ. P. 

65(a); 11A Charles A. Wright, et al., Federal Practice and Procedure § 2947 (3d ed. Aug. 2019 update).