SES responds to Intelsat over 50/50 FCC claim
December 15, 2023
By Chris Forrester
SES is suing Intelsat with a claim for a greater share of the FCC’s compensation scheme for the two satellite operators giving up certain C-band frequencies. The long-running arguments over how the FCC’s overall compensation was allocated continue to resonate between SES and Intelsat.
Intelsat on November 13th had argued that the SES claim (“typically bombastic” said Intelsat’s lawyers) had repeated “the same tired rhetoric” in support of its claim.
The US District Court of Appeal had agreed with SES’s arguments and “very strong extrinsic evidence favoring SES’s position,” and directed that the case be returned to Intelsat’s bankruptcy court to amend its decision which had initially found in Intelsat’s favour.
The new amendment to the SES claim (for about $421 million) filed into court on December 13th says the case turns on a straightforward question: whether the [payments] that the parties jointly advocated for and received are among “any and all” proceeds secured “in respect of”—that is, associated in any way with—the parties’ Project.
“Overwhelming evidence, as catalogued by the District Court on appeal, confirms the answer is yes: the parties continued working together under the Consortium Agreement long after the FCC had rejected the market-based approach—including by jointly advocating for the $9.7 billion in ARPs that they ultimately secured,” states the SES claim.
“The District Court walked through this evidence at length in its opinion, and directed that it ‘be thoroughly and independently considered’ on remand,” adds the SES filing.
“Tellingly,” says the SES claim, “a recurring theme in Intelsat’s brief is that the District Court was wrong, and Intelsat even implies that the [bankruptcy] Court can disregard the District Court’s analysis because ‘the Fourth Circuit ultimately will review this Court’s fact-finding (including the initial ruling), not a district court opinion.” This approach to the remand is disrespectful of the District Court’s ruling, which requires a genuine analysis of the extrinsic evidence. When that is done, it is evident that the parties intended to split whatever compensation resulted from their work, including the [payments].”