C-Band Alliance Agreement Not Limited to Market-Based Approach, Says SES
That Intelsat concedes its C-Band Alliance (CBA) agreement with SES continued to apply after a November 2019 public-auction announcement confirms the agreement wasn’t limited to a “market-based approach,” asserted appellant SES Tuesday in a supplemental reply brief (docket 3:22-cv-00668) in…
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U.S. District Court for Eastern Virginia. The case is on appeal from U.S. Bankruptcy Court for Virginia in Richmond where Judge Keith Phillips ruled in October that SES failed to establish Intelsat is liable to SES “under any theory of recovery set forth by SES” in a $1.8 billion breach of contract lawsuit claiming Intelsat breached the CBA agreement before it was terminated (see 2210030050). Phillips said SES' argument it and Intelsat intended for revenue from a spectrum clearing to be shared regardless of whatever approach the FCC took "is found nowhere in the Agreement." SES argued the CBA agreement language was ambiguous, but New York state law, which governs the agreement, "appl[ies] a high bar respecting ambiguity," Phillips ruled, saying the agreement made it clear such issues as "project gross proceeds" apply only in the case of a private, market-based approach. Intelsat’s contention that SES’ contributions “ultimately produced no value ‘is absurd, even insulting,’” SES said, citing $9.7 billion the parties secured together. The FCC’s final order didn’t accept all CBA proposals, but “that does not negate the parties’ joint work or its value,” SES said. The court should reverse the judgment of the bankruptcy court disallowing SES’ claims against Intelsat and remand for calculation of damages, it said.