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It's something that was not noted by the Reorganized Fibertower in their opposition to the petitions to deny ......... Shareholders and Unsecured Creditors rejected their 1 sided Bankruptcy Plan.
And I forgot...... AT&T
By Fibertower Shareholders submitting a deny petition To FCC, it has eliminated beyond a shadow of doubt, any claim by the FCC, that they were not aware of just how badly shareholders have been treated regarding the terms of the flawed reorganization plan
The FCC & the Reorganized Fibertower could be accused of Willful Blindness for not recognizing the honest claims for compensation for shareholders and unsecured debtors.
https://www.ted.com/talks/margaret_heffernan_the_dangers_of_willful_blindness
By approving the secured creditors reorganization plan, I think it's safe to say, that it was never the intention of the Bankruptcy Court to provide a billion dollars worth of protection
Perhaps we could just ride the coattail of Art Samberg
In certain cases, the FCC requires spectrum bid winners to build infrastructure to deploy the spectrum or risk having to pay much higher fees or even losing the spectrum. For its part, AT&T stated that “this acquisition complements AT&T’s January acquisition of FiberTower and augments the company’s holdings of mmWave spectrum.”
FiberTower owned licenses to 24 GHz and 39 GHz bands and the combined spectrum bolsters AT&T’s 5G spectrum assets.
Several weeks ago, we wrote about a recent decision that held that courts may deem parties who become involved in a chapter 11 case to have waived certain protections otherwise afforded to them under the Bankruptcy Code. A new decision from the Eleventh Circuit Court of Appeals may already cast doubt on that proposition. At a minimum, the Eleventh Circuit has suggested that certain provisions of the Bankruptcy Code may never be waived. In fact, the decision suggests that confirmation orders (and perhaps other orders) may be subject to new challenges on appeal even where the appellant could have raised – but did not raise – any such argument before the bankruptcy court.
In Lett, the Eleventh Circuit adopted the principle that uncontested matters may be “fair game” for appeal, at least as long as such appeal would not be moot. By holding that uncontested matters (or insufficiently contested matters) may be successfully challenged on appeal, notwithstanding a party’s failure to register a timely (or untimely!) objection and failure to request a stay pending appeal, the Eleventh Circuit has cast some doubt on the finality of confirmed plans and other settlements in bankruptcy court. Because the absence of a specific objection to a plan does not preclude later challenges to that plan on appeal, plan proponents and bankruptcy courts (at least in the Ninth and Eleventh Circuits) should take care to present as sufficiently detailed a record as possible, showing that the proposed plan (or settlement, or request for relief) satisfies each and every requirement under the Bankruptcy Code. While such a record may be burdensome on the court and on the parties, it may be the only way to ensure that the order entered by the court will resist any unforeseen challenges brought on appeal and to ensure the finality of such order with any certainty
Let's face it, the statement that the bankruptcy process was an opportunity for shareholders to express their concerns ........ is laughable based the history of the parties involved in this bankruptcy filing.
from forbes article 10/14/2016
The practical reality, however, is that unlike the large and sophisticated lenders that are often repeat players in large bankruptcies, shareholders rarely have the financial resources necessary to support giving them a recognizable voice and a fighting chance to influence the negotiations that will ultimately determine whether equity is wiped out entirely or receives a recovery through the bankruptcy.
Shareholders have every right to take their appeal to the FCC, the 692 licenses remain with the debtor estate base on the stay ruling ordered by bankruptcy court. As for the in perpetuity statement, that's misleading as well, since the Reorganized Fibertower have not gain access to the 692 licences, the status of those licenses remains the same since 2012.
If the reorganized Fibertower was so confident in their bankruptcy plan, they would not be looking to direct load the 692 licenses to AT&T
While I'm not a lawyer, I don't read anywhere the word transfer of 692 licenses to a reorganized company, debtor estate does appear.
A. Whatever Rights Debtors Have in the Licenses are Part of the Bankruptcy Estate
Whether or not the Licenses terminated on June 1, 2012,20 any rights that Debtors have in
the Licenses constitute property of Debtors’ bankruptcy estate.
If the Licenses have not been terminated, then it is clear they are part of the estate.
The Code defines the estate to include “all legal or equitable interests of the debtor in property as of
the commencement of the case,” save for exceptions not relevant here. Code § 541(a)(1).
Courts must interpret this definition expansively to effectuate Congress’s intent to encourage
reorganizations and protect creditors. E.g., U.S. v. Whiting Pools, Inc., 462 U.S. 198, 204-05
(1983) (citing H.R. Rep. No. 95-595, p. 367 (1977); S. Rep. No. 95-989, p. 82 (1978)).
Furthermore, case law demonstrates as a general matter that licenses issued by the Commission
constitute part of the estate when the license holder declares bankruptcy. See In re Nextwave
Pers. Commc’ns Inc., 244 B.R. 253, 267 (Bankr. S.D.N.Y. 2000); Shimer v. Fugazy (In re
Fugazy Express, Inc.), 114 B.R. 865, 869-71 (Bankr. S.D.N.Y. 1990). As such, this court has
jurisdiction over the Licenses pursuant to 28 U.S.C. § 1334(e).
21
The Plan was part of a transparent bankruptcy process during which holders of claims and equity interests were provided with numerous notices of the proceedings and had an opportunity to interpose
objections or otherwise seek relief from the Bankruptcy Court.
That bankruptcy process,however, ended more than three years ago and has no bearing on the proceedings that are currently before the Commission. However, the 692 licenses are still @ issue, and are not property of the reorganized Fibertower, as currently recognized by the FCC.
As for seeking relief, this statement by the unsecured creditors explains why that door did not offer a handle to open,
The Plan, however, does not contain any mechanism to adjust for the possibility that the Debtors will get back the Full Portfolio.
Should the 2016 Noteholders be the sole beneficiary of all the additional value with respect to the reinstated licenses and still retain an $89.5 million deficiency claim if the appeal is
successful? Absolutely not.
So why would / should the FCC just instantly grant a transfer of 692 disputed licenses to AT&T ???? Just because the reorganized Fibertower demands that this should take place.......... The FCC now has an opportunity to seek relief for shareholders that the reorganized Fibertower has suggested, by requiring a reopening of bankruptcy plan in order to determine if it should be modified to address AT&T's desire to acquire the 692 licenses.
It's important to note that the secured creditors wrote the Fibertower reorganization plan in spite of objections from the unsecured creditor committee. And since the reorganized Fibertower is seeking fairness in treatment from the FCC given the evidence they presented against Straight Path. One can also conclude that the FCC has standing to protect shareholders, based on evidence that was presented, in order to provide them with fair treatment regarding this matter. Therefore, per FCC rules, the last rightful owner of the 692 licenses in dispute, is the old Fibertower, the reorganized Fibertower can fight for their return, however, the licenses have not been transferred to them by the FCC. The action by the reorganized Fibertower is an attempt to skip this vital step, which done correctly would return the 692 licenses to the last owner recognized by the FCC. The reorganized Fibertower and their use of the bankruptcy plan to gain complete control of the 692 licenses has not been approved by the FCC
Since this is a very unique situation, the FCC certainly could become advocates for shareholders, who by the way, did reject the reorganizational plan put forth by the secured creditors, something that not get a mention in the joint filing.
A couple of points
Moreover, to the extent the Bankruptcy Petitioners could have any interest as former shareholders of old FiberTower, their allegations raise private, contractual disputes. And, “t is well established that the Commission is not the proper forum for resolving private contractual disputes.”62
Since the FCC is a party in the dispute there is nothing that says they can't involve themselves in this matter if they feel it's necessary
And regarding this point
The Bankruptcy Petitioners’ attempt to unilaterally amend the Plan so as to provide them with an upside interest in Reorganized FiberTower in perpetuity is contrary to the unambiguous terms of both the Plan and the Bankruptcy Code.
This is for a judge to decide, and since the court placed a stay on the return of the licenses to the FCC, the perpetuity argument they make is very weak.
I was not expecting them to back down from their reorganizational plan, it's only round one
Strange that something you spent 300 million developing would have
little to no value during the bankruptcy reorganization plan
Indeed, applying harsher regulatory treatment to FiberTower would be particularly arbitrary where the evidence shows:
FiberTower, unlike Straight Path, invested substantially in building out its licenses.
Specifically, FiberTower spent $300 million in developing the market for millimeter wave services, while Straight Path apparently spent approximately $500 per market for its substantial service showings
Bymigedyon October 10, 2015
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Verified Purchase
I have taught Artificial Intelligence (AI) for 3 decades at a major university. Until about 10 years ago, whenever someone worried about the effect of intelligent software/hardware destroying future jobs, I would always give my "buggy whip" argument, which goes like this:
"When the automobile was invented it DID destroy many jobs. Makers of buggy whips and horse troughs were put out of business. But many more NEW jobs were created to replace those older jobs. Witness all the gas stations, auto mechanic shops, car factories, etc."
About 8 years ago I lost faith in the buggy whip argument. I realized that, as the technology of AI advanced, a point would be reached in which intelligent software and general-purpose robots could perform all tasks (both mental and physical) that are currently achievable only by highly educated humans. Once one intelligent robot exists with a high level of general intelligence, it can be mass produced. There have been many advances in AI in recent years (in neural networks, planning and learning systems). Machine learning systems can now learn a number of complex cognitive tasks simply by observing the past performance of human experts.
I have always been an admirer of the combination of modern capitalism and (relatively) free markets as the major drivers of wealth. However, modern capitalism (with its corporations, stock and dividends) is less than a few centuries old. There is no reason to believe that it must last forever. Its "reign" over older economic systems may well end abruptly in the near future
Rise of the Robots: Technology and the Threat of a Jobless Future
By Martin Ford
Read this book and you will come to one basic conclusion
The disputed 692 licenses are worth billions to a company like AT&T
Give and Take - Adam Grant
Bravo: very well said Sandpaints
Listen I would like to know what wellitmaybeton meant by his most
recent post, so as Aaron Rodgers would say R E L A X
C: I may be wrong, however if I am reading your code correctly, it does seem to suggest either one of two things will happen to the cancelled shareholders ........ we get nothing ........ or a compromised deal to provide some funds from the license sale to AT&T
Does anyone think Google, Sprint, or T Mobile is going to let AT&T
just grab the 692 licenses without a strong objection ??????????
Regardless of who represents the 692 licenses, the Texas Bankruptcy Court did state on September 27, 2012 that the 692 licenses were part of the Debtor Estate and the Stay the Texas Court place into effect preventing the FCC from retaking the licenses was to protect the Debtors. And since the Reorganized Fibertower has not gained possession of the 692 licenses, they should not be the only part to benefit from the transfer of the licenses to AT&T.
Following up on Your Honor’s comments at the conclusion of the hearing held on
Wednesday, September 12th, we thought it was important to stress to the Court the Debtors’
perspective, as fiduciary to all stakeholders in these cases, regarding the “tailoring” of the
injunction the Court indicated it was inclined to enter.
Pending final determination by the Federal Communications Commissions (“FCC”) of the
Debtors’ applications with respect to their 24 GHz and 39 GHz licenses, and the conclusion of any
final review of such determination, the Debtors believe it is critical that the Court enjoin the actual
cancellation of the Debtors’ FCC licenses, pursuant to Section 105
(a) of the Bankruptcy Code. In
order to maintain the status quo ante, and to preserve the integrity and viability of the Debtors’
reorganization efforts under Chapter 11, such an injunction against actual cancellation is of
particular importance for at least two reasons. First, the actual cancellation of the licenses would
(x) constitute a breach and termination of the Plan Support Agreement between the Debtors and
the ad hoc group of holders of 2016 notes and, more importantly
(y) result in termination of the
existing agreed cash collateral order under which the Debtors have
access to cash with which to
operate their business
KOLKATA: Over a century after Jagadish Chandra Bose invented radio communication but saw Italian inventor Guglielmo Marconi walk away with the credit, he is set to get his due. The millimetre wavelength frequency that Bose used in his experiment in 1895 is the foundation of 5G that scientists and technologists across the world are now trying to reinvent.
"I take a lot of inspiration from Bengal and Kolkata because it is here that radio communication was born. The mm wave that J C Bose worked on is the backbone of developing 5G. Marconi and Russian scientists Alexander Stepanovich Popov, who were also conducting similar experiments, were working with much lower frequencies. In fact, the technology that Marconi used was developed by Bose," said Ramjee Prasad, professor of Future Technologies for Business Ecosystem Innovation, Aarhus University, Denmark, on the sidelines of the IEEE International 5G Summit in Kolkata on Friday.
I think most folks on this board understand that the 2016
Fibertower Creditors have only one concern .... T H E M S E L V E S
And that Fibertower unsecured creditors and shareholders have a
moral obligation to make sure everyone benefits from the AT&T deal
Rough Draft..... Rough Draft..... Rough Draft........
Just looking to provide some talking points
Key Points
The FCC is a key player regarding the current status of the 692 licenses
Because of the actions of the FCC to terminate the 692 licenses, the Texas Bankruptcy Court on December 12, 2012 ruled for the Fibertower Debtors and placed a temporary stay on this action noting FiberTower’s risk of irreparable injury as their reason
With The Texas Bankruptcy Court Stay still in effect, the courts action continues to protect all interested Fibertower claim holders until this matter is fully resolved
Therefore I appeal to the FCC to deny AT&T's application to have transferred to them the 692 licenses until such time that AT&T provides terms of the deal to the Texas Bankruptcy Court, which depending on the dollar amount of the transaction, may require the Texas Bankruptcy Court to modify the Fibertower Reorganization Plan in order to protect the rights of all Fibertower claim holders given this latest development regarding the 692 licenses
Great Point Wireless, and how can an asset have zero value when you read this opinion
Spectrum, as with any mobile wireless system, is critical to 5G. Frequencies, channel widths and licensing terms are very influential on technology development and therefore on end-user services. Spectrum will, in effect, shape 5G system design and the real-world deployment model.
To exploit advances in radio technology and unlock new capacity, 5G New Radio (NR), which is now under development in 3GPP, is widely expected to operate across very diverse spectrum, from low-band, to mid-band, to high-band (mmWave) frequencies. For mobile operators, exclusive licensed spectrum is preferred because it provides greater certainty of performance and reduced risk of interference. This will remain the case in 5G.
http://www.lightreading.com/mobile/5g/shared-spectrum-for-5g-new-radio/a/d-id/730994
3. Property of the Estate — The filing of a bankruptcy case creates an estate comprised of all legal or equitable interests of the debtor as of the commencement of the case. The automatic stay prohibits any act to obtain possession of property of the estate or to exercise control over property of the estate.
Law360, New York (June 25, 2014, 5:25 PM EDT) --
To advance the debtor’s rehabilitation and enhance a return to the unsecured creditors, the automatic stay provisions of Section 362 of the Bankruptcy Code function as a broad injunction of virtually all types of creditor and other actions against the debtor and the debtor’s assets upon the filing of a bankruptcy case. The automatic stay applies to all of the chapters of the Bankruptcy Code.
the bankruptcy court exercises
jurisdiction pursuant to its control over the property of
the estate.’’50
Although the Texas Bankruptcy Court emphasized
the limited nature of the injunctive relief it was granting,
its ruling appears to break ground in at least two
ways: (1) it fundamentally departs from the Commonwealth
Oil standard on success on the merits, and (2) its
theory of shared jurisdiction over the FCC licenses
raises the issue of whether the effect of its injunction is
to diminish the FCC’s regulatory power. For although
the Texas Bankruptcy Court was careful to say repeatedly
in its opinion that it had no expertise or power to
circumvent the FCC’s regulatory authority, its shared
jurisdiction theory bars the FCC from the ultimate exercise
of its regulatory power, cancelling the licenses.
The Texas Bankruptcy Court had no difficulty in finding
that FiberTower faced the risk of irreparable injury
if the FCC cancelled the licenses and reallocated them
to other licensees. It noted that a loss of the licenses
would result in an immediate default in FiberTower’s
right to use cash collateral, and that FiberTower’s ability
to reorganize would likely be doomed; thus, it said,
the risk was ‘‘not speculative, theoretical, or remote.’’51
Moreover, it said that if the FCC cancelled the licenses,
resulting in a failure of FiberTower’s reorganization,
even a subsequent victory on appeal would require
them to spend scarce resources, further jeopardizing
their reorganization prospects.52 On the balance of the
equities, the Texas Bankruptcy Court noted FiberTower’s
risk of irreparable injury, and contrasted it to the
minimal harm that might be caused to the FCC: ‘‘The
possible death of Debtors’ businesses is a consequence
weightier than any harm a temporary stay could cause’’
The FCC could face a liability issue to Fibertower Shareholders should they just allow the transfer of the 692 licenses to AT&T
Wireless I agree with your opinion...... the bankruptcy court ruling to stay the return of the 692 licenses to the FCC is a powerful tool of support for the shareholders, regardless of what was written in the confirmed bankruptcy plan.
Does Art Samberg & his 8 million Fibertower shares remain quiet ????
11 U.S.C. § 1127 : US Code - Section 1127: Modification of plan -
(a) The proponent of a plan may modify such plan at any time
before confirmation, but may not modify such plan so that such plan
as modified fails to meet the requirements of sections 1122 and
1123 of this title. After the proponent of a plan files a
modification of such plan with the court, the plan as modified
becomes the plan.
(b) The proponent of a plan or the reorganized debtor may modify
such plan at any time after confirmation of such plan and before
substantial consummation of such plan, but may not modify such plan
so that such plan as modified fails to meet the requirements of
sections 1122 and 1123 of this title. Such plan as modified under
this subsection becomes the plan only if circumstances warrant such
modification and the court, after notice and a hearing, confirms
such plan as modified, under section 1129 of this title.
(c) The proponent of a modification shall comply with section
1125 of this title with respect to the plan as modified.
(d) Any holder of a claim or interest that has accepted or
rejected a plan is deemed to have accepted or rejected, as the case
may be, such plan as modified, unless, within the time fixed by the
court, such holder changes such holder's previous acceptance or
rejection.
(e) If the debtor is an individual, the plan may be modified at
any time after confirmation of the plan but before the completion
of payments under the plan, whether or not the plan has been
substantially consummated, upon request of the debtor, the trustee,
the United States trustee, or the holder of an allowed unsecured
claim, to -
(1) increase or reduce the amount of payments on claims of a
particular class provided for by the plan;
(2) extend or reduce the time period for such payments; or
(3) alter the amount of the distribution to a creditor whose
claim is provided for by the plan to the extent necessary to take
account of any payment of such claim made other than under the
plan.
(f)(1) Sections 1121 through 1128 and the requirements of section
1129 apply to any modification under subsection (e).
(2) The plan, as modified, shall become the plan only after there
has been disclosure under section 1125 as the court may direct,
notice and a hearing, and such modification is approved
-
Ideally as a shareholder group we need a plan of action should the FCC agree to transfer all the licenses to AT&T. You would think the legal team for the unsecure creditors would be an Allied Force in our fight to gain rightful compensation for our stock ownership of Fibertower shares, once the hidden from view details of the deal are known.
Seeking Alpha Comments
darkstar82
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Thanks jayuusee. The $.002 - $.004 on the Verizon deal per mhz pop makes the $600-$700M Fibertower deal seem reasonable. I have zero doubt that AT&T will get the entire lot of 700+ licenses that were in play with Fibertower. The FCC wants AT&T and Verizon off and running quickly with this.
Seeking Alpha Comments
jayuusee
Comments (17) |+ Follow |Send Message
Unfortunately I have first hand relationships with the executive team of FiberTower and knowledge of the AT&T/FiberTower deal so I cannot confirm or speculate about the price publicly given NDA's in place -- however I have seen some good analysis posted on SeekingAlpha by some folks who are long on the STRP stock. The Verizon transaction is complicated, as it's currently being leased with an option to buy it. What does that mean exactly? Did the cash already exchange hands on the option itself? It would seem to me that if one has until Dec 2018 to exercise the option to acquire that the full monetary component to the transaction isn't fully finished, my guess is they paid a number to lease it nationwide and stop further leasing from outside parties, about 20 of my customers were hamstrung because of this, and that some strings on both sides are being pulled to work out the final details -- 1. Verizon wants to know the spectrum works and works well for their evolutionary plans, why finalize the transaction until you know you have reasonable performance and cost centers for both basestations, mobile handsets and fixed wireless products. 2. If Icahn was smart (this is assumed) he would have seen the 5G writing on the wall via their interest and reserved the right to agree to the final price when they officially exercised their acquisition option in its entirety. Verizon would have countered with a Max price cap. I believe he wanted out of the XO business bad enough to take a marginal deal on the fiber and the wireless assets. Therefore my conclusion is Verizon picked up 28GHz for a steal, the lowest price paid for any mobile spectrum in the history of the FCC if you will -- I estimate $.002-.004 per MHz/pop.