I
107TH CONGRESS
1ST SESSION
H. R. 3484
To resolve administrative disputes regarding certain spectrum licenses; and
for other purposes.
IN THE HOUSE OF REPRESENTATIVES
DECEMBER 13, 2001
Mr. TAUZIN (for himself, Mr. SENSENBRENNER, Mr. THOMAS, and Mr. CON-
YERS) introduced the following bill; which was referred to the Committee
on Energy and Commerce, and in addition to the Committees on the Ju-
diciary, Ways and Means, and the Budget, for a period to be subse-
quently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
A BILL
To resolve administrative disputes regarding certain
spectrum licenses; and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Prompt Utilization of
Wireless Spectrum Act of 2001’’.
SEC. 2. SETTLEMENT OF LITIGATION AND PROMPT UTILI-
ZATION OF WIRELESS SPECTRUM.
(a) RESOLUTION OF LITIGATION.—
(1) APPROVAL
OF
SETTLEMENT.—Congress
hereby authorizes and approves the decision by the
Federal Communications Commission and the De-
partment of Justice to settle the case entitled
NextWave 
Personal 
Communications 
Inc. 
and
NextWave Power Partners Inc. v. Federal Commu-
nications Commission and the United States of
America, D.C. Cir. Nos. 00–1402 and 00–1403, pe-
titions for certiorari filed, Nos. 01–653, et al. (Octo-
ber 19, 2001), and their claims in the case entitled
In re NextWave Personal Communications Inc.,
Bankr. S.D.N.Y. No. 98 B 21529 (ASH), in accord-
ance with the terms of the settlement agreement.
(2) AUTHORIZATION.—There are hereby au-
thorized to be appropriated $9,550,000,000, to re-
main available until expended, to carry out this sec-
tion.
(3) APPROPRIATION.—There is appropriated to
the Commission, out of any money in the Treasury
not 
otherwise 
appropriated, 
the 
sum 
of
$9,550,000,000, to remain available until expended,
to carry out this section.
(4) PAYMENT
OBLIGATION.—In accordance
with the terms of the settlement agreement, subject
to the conditions set forth therein (including the
condition that the final bankruptcy settlement ap-
proval date shall have occurred, on or before Decem-
ber 31, 2002), and in consideration for NextWave’s
complete relinquishment of any and all claims re-
lated to the designated licenses or the covered spec-
trum, the Commission shall pay to or on behalf of
NextWave the sum of $9,550,000,000 no later than
December 31, 2002. The Commission will make a
$6,498,000,000 payment directly to NextWave and
will make a $3,052,000,000 nonrefundable advance
tax payment on behalf of and for the benefit of
NextWave for the taxable period. This advance pay-
ment of $3,052,000,000 can be used by NextWave
only toward satisfaction of its Federal income tax li-
ability for the taxable period and not on a subse-
quent claim for refund; and it cannot be carried for-
ward or carried back to any other tax period and is
not available for use or tax benefit in any year other
than the taxable period. Notwithstanding any other
provision of law, the United States is authorized and
directed to retain all of NextWave’s advance pay-
ment, irrespective of the total Federal income tax li-
ability of NextWave.
(5) 
NEXTWAVE
RELINQUISHMENT
OF
CLAIMS.—In accordance with the terms of the settle-
ment agreement, on or before the 10th business day
after the final bankruptcy settlement approval date
occurs, NextWave shall completely relinquish any
and all claims related to the designated licenses and
the covered spectrum.
(6) NEXTWAVE
TAX
LIABILITY.—NextWave
shall pay to the Internal Revenue Service its full and
complete tax liability with respect to the transaction
that is the subject of the settlement agreement.
Nothing in this section is to be construed as deter-
mining NextWave’s Federal tax liability for the tax-
able period or any other tax year, and nothing in
this section restricts the Internal Revenue Service’s
rights to determine NextWave’s Federal income tax
liability for the taxable period or any other tax year.
Payment of its full and complete tax liability shall
not permit NextWave to avoid payment to the
United States of any other amounts it is obligated
to pay the United States pursuant to the terms of
the settlement agreement or otherwise.
(7) PAYGO PROVISION.—Notwithstanding Rule
3 of the Budget Scorekeeping Guidelines set forth in
the Joint Explanatory Statement of the Committee
of Conference accompanying Conference Report No.
105–217, any provision of this section that would
have been estimated as changing direct spending or
receipts under section 252 of the Balanced Budget
and Emergency Deficit Control Act of 1985 were it
included in an Act other than an appropriations Act
shall be treated as direct spending or receipts legis-
lation, as appropriate, under section 252 of the Bal-
anced Budget and Emergency Deficit Control Act of
1985.
(b) IMPLEMENTATION OF AUCTION 35.—
(1) DISPOSITION OF LICENSE APPLICATIONS.—
Notwithstanding any other provision of Federal,
State, or local law, the Commission shall grant auc-
tion 35 licenses to each participating auction 35
winning bidder that the Commission determines is
qualified to hold the licenses. Any such grant of li-
censes pursuant to this subsection shall be subse-
quent to the final bankruptcy settlement approval
date, and shall be governed by the terms of auction
35 and the rules of the Commission, except insofar
as those terms and rules of the Commission are
modified by this section or by the terms of the set-
tlement agreement.
(2) WITHDRAWAL OF BIDS.—Any auction 35
winning bidder whose total winning bids for auction
35 licenses did not exceed $10,000,000 may elect to
withdraw all of its bids for such auction 35 licenses
without penalty and shall be entitled to a refund of
its monies on deposit with the Commission associ-
ated with such auction 35 licenses, provided that
such a winning bidder that elects to withdraw its
bids must file with the Commission no later than
January 30, 2002, a notice of election to withdraw
accompanied by a waiver and release, acceptable to
the Commission, of all rights and claims relating to
such auction 35 licenses, auction 35, or the settle-
ment agreement. Nothing in this section shall be
construed to permit any auction 35 winning bidder
to withdraw some, but not all, of its bids for auction
35 licenses.
(3) LETTERS OF CREDIT AND PARTIAL RETURN
OF
CERTAIN
AMOUNTS
ON
DEPOSIT.—A partici-
pating auction 35 winning bidder that provides let-
ters of credit to the United States in accordance
with the terms of the settlement agreement shall be
entitled to a refund totaling 50 percent of its auc-
tion 35 deposits for winning bids for auction 35 li-
censes submitted by that auction 35 winning bidder.
The Commission shall pay such refund upon instruc-
tions from the payor of record, in accordance with
and within the time prescribed in the settlement
agreement. Nothing in this paragraph shall prevent
the United States from recouping the value of the
refunded deposits at a later time, to the extent au-
thorized by the settlement agreement.
(4) NONPARTICIPATING AUCTION 35 WINNING
BIDDERS.—Except as provided in paragraph (2),
any auction 35 winning bidder that is not a partici-
pating auction 35 winning bidder shall remain sub-
ject to the full terms of auction 35, including but
not limited to all payment and default obligations.
(5) PAYMENT BY PARTICIPATING AUCTION 35
WINNING BIDDERS.—In accordance with the terms
of the settlement agreement, subject to the condi-
tions set forth therein (including the condition that
the final bankruptcy settlement approval date shall
have occurred, on or before December 31, 2002),
and subject to paragraph (6), any participating auc-
tion 35 winning bidder that the Commission deter-
mines is qualified to hold any license or licenses bid
on in auction 35 shall pay the amount due on re-
ceipt for each auction 35 license with respect to
which the Commission has made such determination,
as specified and by the time provided in the settle-
ment agreement, and, in exchange, shall receive all
such licenses.
(6) EARLY PAYMENT.—Any participating auc-
tion 35 winning bidder may choose, in accordance
with the terms of the settlement agreement, to make
earlier payment for, and in exchange receive at the
time of payment, all auction 35 licenses that the
Commission is prepared to grant to it.
(7) QUALIFICATION
REQUIREMENTS.—In the
event the Commission determines that any auction
35 winning bidder is not qualified, under the rules
of the Commission or the Communications Act of
1934, to hold an auction 35 license for which it sub-
mitted the winning bid, that auction 35 winning bid-
der remains subject—
(A) to the rules of the Commission that
would apply in the absence of the settlement
agreement, including without limitation any and
all payment and default obligations and refund
rights; and
(B) to the settlement agreement.
(8) REFUNDS FOR PARTICIPATING AUCTION 35
WINNING BIDDERS.—In accordance with the terms
of the settlement agreement, a participating auction
35 winning bidder that has previously been granted
auction 35 licenses shall be entitled to receive from
the Commission, and the Commission shall pay from
the budget accounts that received the payments from
such bidder, a refund of amounts previously paid by
such bidder for such auction 35 licenses as follows—
(A) any and all amounts due on receipt
previously paid by such auction 35 winning bid-
der, if an order is entered by any court in a
proceeding under subsection (c) that denies or
has the legal effect of denying a participating
auction 35 winning bidder’s right to use the
spectrum covered by one or more auction 35 li-
censes that were previously granted to such
participating auction 35 winning bidder, subject
to the provisions set forth in the settlement
agreement with respect to repayment on res-
toration of rights; and
(B) any and all amounts due on receipt
and auction 35 deposits previously paid by, and
not previously refunded to, such auction 35
winning bidder for such licenses, under the fol-
lowing circumstances—
(i) if an order entered by any court in
a proceeding under subsection (c) is in ef-
fect on or after December 31, 2002, that
denies or has the legal effect of denying a
participating auction 35 winning bidder’s
right to use the spectrum covered by one
or more auction 35 licenses that were pre-
viously granted to such participating auc-
tion 35 winning bidder;
(ii) if a final court order precludes or
has the legal effect of precluding the Com-
mission from paying all or part of the
amounts set forth in subsection (a); or
(iii) if, on December 31, 2002, the
Commission has not released an order with
respect to one or more auction 35 licenses
for which a participating auction 35 win-
ning bidder submitted the winning bids de-
termining either that the Commission is
prepared to grant such auction 35 license
or that such participating auction 35 win-
ning bidder is not qualified to hold such
auction 35 license.
(9) RULE OF CONSTRUCTION.—Nothing in this
section shall be construed to expand or limit any
right to a refund set forth in the settlement agree-
ment.
(c) JUDICIAL REVIEW.—
(1) EXCLUSIVE REVIEW.—Subject to the limita-
tions and preclusions in subsection (d), any pro-
ceeding for review within the scope of this subsection
may be brought only in the United States Court of
Appeals for the District of Columbia Circuit, which
shall have exclusive jurisdiction over any such pro-
ceeding.
(A) Any—
(i) appeal of an order disposing of the
motion filed by NextWave for approval of
the settlement agreement; or
(ii) petition seeking judicial review of
the procedures provided by this section for
the resolution of issues presented by such
motion;
shall be commenced by the filing, within 10
days after entry of the order disposing of such
motion, of a notice of expedited appeal or notice
of expedited petition, as appropriate, which
shall include a reference to the review provi-
sions of this section. Nothing in this section
shall affect the standard of review or sub-
stantive law applicable in any such proceeding.
Except in a proceeding under this subpara-
graph, no court shall have jurisdiction to con-
sider any issue that could have been raised in
a proceeding filed under this subparagraph.
apply to all such cases, including those that are be-
fore the court following any remand to the Commis-
sion or to the lower court with jurisdiction over fur-
ther proceedings related to the motion filed by
NextWave for approval of the settlement agreement.
Any petition for rehearing or rehearing en banc of
an order by the Court of Appeals in a case under
paragraph (1) shall be filed within 10 days after the
entry of judgment. The Court of Appeals shall expe-
dite its consideration of any such petition to the
greatest extent possible, with a view to resolving the
petition within 20 days after it is filed, if prac-
ticable.
(3) CERTIORARI.—Any petition for a writ of
certiorari seeking review by the Supreme Court of
the United States of a judgment or order by the
Court of Appeals under this subsection shall be filed
within 10 days after the entry of the judgment or
order. Any opposition shall be filed within 10 days
after the filing of the petition. The Supreme Court
shall advance any such petition on its docket and ex-
pedite its consideration of the petition to the great-
est extent possible, with a view to acting on the peti-
tion within 30 days after it is filed, if practicable.
In the event the petition is granted, the Supreme
Court shall expedite consideration to the greatest ex-
tent possible, with a view to issuing an order within
70 days of the grant of the writ of certiorari, if
practicable.
(4) LIMITS
ON
INTERLOCUTORY
RELIEF
AF-
FECTING LICENSES.—In adjudicating matters aris-
ing under subparagraph (B) or (C) of paragraph
(1), no court shall have jurisdiction to enter an
order that would require an auction 35 winning bid-
der to surrender or relinquish an auction 35 license,
or that would deny or have the legal effect of deny-
ing a licensee’s right to use the spectrum covered by
such a license, due to the invalidity of the settlement
agreement, of an order of the Commission approving
the settlement agreement, or of this section, at any
time before there is a final judgment in a proceeding
under such subparagraph that is no longer subject
to further review.
(5) EXCLUSION
OF
BIDDER-SPECIFIC
LITIGA-
TION AND ENFORCEMENT PROCEEDINGS.—The fol-
lowing proceedings shall be excluded from the scope
of this subsection:
(A) Any proceeding seeking judicial review
of any decision or order of the Commission spe-
cific to an auction 35 winning bidder’s license
application, including, but not limited to, a pro-
ceeding pursuant to subparagraph (A) or (B) of
subsection (d)(1) concerning the bidder’s quali-
fications to hold a license.
(B) Any proceeding to enforce the terms of
the settlement agreement, including, but not
limited to, a proceeding pursuant to subpara-
graph (C) of subsection (d)(1).
(6) LIMITATION ON JURISDICTION.—Except in
a proceeding filed under paragraph (1), no court
shall have jurisdiction to consider any issue that
could have been raised in an action filed under such
paragraph.
(d) LIMITATION AND PRECLUSION OF ACTIONS.—
(1) LIMITATION ON ADMINISTRATIVE OR JUDI-
CIAL
REVIEW.—Neither the settlement agreement
nor an order of the Commission approving the settle-
ment agreement, granting a license, or taking any
other action pursuant to this section or to the settle-
ment agreement, shall be subject to administrative
or judicial review, except that—
(A) administrative and judicial review of a
decision of the Commission disposing of any pe-
tition to deny applications of an auction 35 win-
ning bidder, which petition was timely filed on
or before March 9, 2001, in accordance with
the requirements of section 1.2108(b) of title
47, Code of Federal Regulations, and ‘‘C and F
Block Broadband PCS Auction: Applications
Accepted For Filing,’’ Public Notice, DA 01–
520 (released February 27, 2001), is not pre-
cluded;
(B) administrative and judicial review of a
decision of the Commission determining that an
auction 35 winning bidder is not qualified to
hold a license, initiated by that auction 35 win-
ning bidder, is not precluded;
(C) any party to the settlement agreement
may initiate a proceeding to enforce the terms
of the settlement agreement;
(D) subject to subsection (c)(1)(A), this
section does not affect jurisdiction to rule on
the motion filed by NextWave for approval of
the settlement agreement; and
(E) this section, the settlement agreement,
and any Commission order approving the settle-
ment agreement, shall be subject to review sole-
ly for constitutionality and solely as provided in
subparagraphs (A), (B), and (C) of subsection
(c)(1).
(2) LIMITATION ON INJUNCTIONS REGARDING
LETTERS OF CREDIT.—No court shall have jurisdic-
tion to enjoin the United States or the Commission
from exercising its rights to draw on the letters of
credit that have been provided by a participating
auction 35 winning bidder in accordance with the
terms of the settlement agreement.
(3) PRESERVATION
OF
COMMISSION
AUTHOR-
ITY.—Nothing in this subsection affects the jurisdic-
tion or authority of the Commission, consistent with
the Communications Act of 1934, the rules of the
Commission, and the settlement agreement, to with-
draw authorization to use spectrum or enforce li-
cense conditions applicable to the affected spectrum.
Except as otherwise provided in this section or the
settlement agreement, auction 35 winning bidders
remain subject to the rules of the Commission and
the Communications Act of 1934.
(e) FRIVOLOUS ACTIONS.—Any person who files an
action in derogation of limitations or deadlines set forth
in subsections (c) and (d), or who is found to have acted
without substantial justification in filing such action, shall
be subject to sanctions under section 1927 of title 28,
United States Code, and Rule 11 of the Federal Rules
of Civil Procedure.
(f) DEFINITIONS.—As used in this section:
(1) AMOUNT
DUE
ON
RECEIPT.—The term
‘‘amount due on receipt’’ means the amount equal to
the balance due to the Commission, under the rules
of the Commission, as of the applicable payment
date under the settlement agreement for an auction
35 license. The amount due on receipt for an auc-
tion 35 license does not include the auction 35 de-
posit for such license.
(2) AUCTION
35.—The term ‘‘auction 35’’
means the Commission-conducted spectrum auction
number 35 that commenced on December 12, 2000,
for Personal Communications Services licenses to
operate covered spectrum and other spectrum.
(3) AUCTION 35 DEPOSIT.—The term ‘‘auction
35 deposit’’ means any monies on deposit with the
Commission paid by a participating auction 35 win-
ning bidder for an auction 35 license. The auction
35 deposit for an auction 35 license does not include
the amount due on receipt for such license.
(4) AUCTION 35 LICENSES.—The term ‘‘auction
35 licenses’’ means those licenses to use covered
spectrum for which auction 35 winning bidders sub-
mitted winning bids in auction 35.
(5) AUCTION 35 WINNING BIDDER.—The term
‘‘auction 35 winning bidder’’ means those entities
that submitted winning bids in auction 35 for cov-
ered spectrum.–
(6) 
BANKRUPTCY
SETTLEMENT
APPROVAL
ORDER.—The term ‘‘bankruptcy settlement approval
order’’ means an order authorizing and directing
NextWave to enter into the transactions con-
templated in the settlement agreement on the terms
specified therein, to relinquish any and all claims to
the covered spectrum and the designated licenses,
and to return the designated licenses to the Commis-
sion in exchange for the payments provided in the
settlement agreement.
(7) BUSINESS DAY.—The term ‘‘business day’’
means any day, other than Saturday or Sunday, on
which commercial banks in New York City and the
Commission’s offices are open for the general trans-
action of business.
(8) COMMISSION.—The term ‘‘Commission’’
means the Federal Communications Commission.
(9) COVERED SPECTRUM.—The term ‘‘covered
spectrum’’ means spectrum that NextWave had been
authorized to use under the designated licenses.
(10) DAYS.—The term ‘‘days’’ means calendar
days, including weekends and holidays.
(11) DESIGNATED LICENSES.—The term ‘‘des-
ignated licenses’’ means the C Block and F Block li-
censes for which NextWave was the winning bidder
at auctions concluded in 1996 and 1997 by the
Commission under section 309(j) of the Communica-
tions Act of 1934.
(12) FINAL.—The term ‘‘final’’ means with re-
spect to any order that such an order has not been
reversed, modified or stayed and—
(A) the time to appeal such order has ex-
pired and no appeal or petition for review, re-
hearing or certiorari is pending; or
(B) any appeal has been fully decided and
no further appeal or petition for review, rehear-
ing, or certiorari can be timely taken or grant-
ed.
(13) FINAL
BANKRUPTCY
SETTLEMENT
AP-
PROVAL DATE.—The term ‘‘final bankruptcy settle-
ment approval date’’ means the date on which all of
the following conditions have been satisfied:
(A) The bankruptcy settlement approval
order has become final.
(B) Any proceeding pursuant to paragraph
(1)(A) of subsection (c) has been resolved by an
order that has become final.
(C) Either Verizon Wireless has caused let-
ters of credit to be issued in accordance with
the terms of the settlement agreement, or, in
the absence of the required letters of credit, the
United States has not, within the time provided
by the settlement agreement, exercised its right
to terminate the settlement agreement.
(14) MOTION FILED BY NEXTWAVE FOR AP-
PROVAL
OF
THE
SETTLEMENT
AGREEMENT.—The
term ‘‘motion filed by NextWave for approval of the
settlement agreement’’ means the motion filed by
NextWave on November 30, 2001, including any
supplements, amendments, or modifications thereto,
in the case entitled In re NextWave Personal Com-
munications Inc., Bankr. S.D.N.Y. No. 98 B 21529
(ASH), for approval of the settlement agreement, or
any subsequent motion filed by NextWave for ap-
proval of the settlement agreement.
(15) 
NEXTWAVE.—The 
term 
‘‘NextWave’’
means NextWave Personal Communications Inc. and
its affiliates, NextWave Telecom Inc., NextWave
Partners Inc., NextWave Power Partners Inc., and
NextWave Wireless Inc.
(16) PARTICIPATING AUCTION 35 WINNING BID-
DER.—The term ‘‘participating auction 35 winning
bidder’’ means an auction 35 winning bidder that is
a party to the settlement agreement on January 10,
2002, provided that any auction 35 winning bidder
whose total winning bids for auction 35 licenses did
not exceed $10,000,000 may become a party by exe-
cuting the settlement agreement no later than Janu-
ary 30, 2002.
(17) RULES OF THE COMMISSION.—The term
‘‘rules of the Commission’’ means any and all rules,
regulations, policies, procedures, public notices, and
orders of the Commission that are in effect at the
time an action, event or matter in question occurs.
(18) SETTLEMENT
AGREEMENT.—The term
‘‘settlement agreement’’ means the settlement agree-
ment dated November 15, 2001, entered into by
NextWave, the Commission, the United States, and
participating auction 35 winning bidders.
(19) TAXABLE PERIOD.—The term ‘‘taxable pe-
riod’’ means the tax period in which NextWave relin-
quishes any and all claims related to the designated
licenses and the covered spectrum, as provided in
paragraph (5) of subsection (a).
(g) EFFECTIVE DATE.—This Act shall take effect on
the date of the enactment of this Act and shall supersede
any other Federal, State, or local law to the contrary.
(h) SEVERABILITY.—If a provision of this Act is held
invalid, all valid provisions that are severable from the in-
valid provision shall remain in effect.
Æ