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Ergenomics

by Chris Nolter  |  Published April 8, 2011 at 11:40 AM

Few CEOs have been as active this year as Charlie Ergen.

Certainly, T-Mobile USA CEO Philipp Humm, who sold the company to AT&T Inc. for $39 billion after talks with a range of mobile carriers, has a claim. But Ergen has picked through courtrooms and auctions for his recent targets. Known for his poker abilities and his frugality, Ergen has pursued multiple targets through his satellite television provider Dish Network Corp. and his technology outfit EchoStar Corp.

Most recently, Dish topped Carl Icahn with a $320 million bid for bankrupt Blockbuster Inc., only weeks after winning over creditors of bankrupt satellite company DBSD North America with a $1.5 billion acquisition offer. Dish outbid an unnamed third party and Philip Falcone's Harbinger Capital Partners LLC and Solus Alternative Asset Management LP for DBSD.

Meanwhile, EchoStar is wrangling over another bankrupt satellite-terrestrial wireless company, TerreStar Corp. A deal that would give EchoStar control of TerreStar unraveled when minority creditors refused support. Ergen could still end up with TerreStar, though other possibilities now loom.

EchoStar also has a pending $2 billion purchase of satellite broadband company Hughes Communications Inc. If Ergen wants to continue to build EchoStar into a satellite services company, Telesat Holdings Inc. has been on the market.

Ergen is clearly intent on expanding his constellation of satellites and wireless spectrum holdings. He also has ambitions in content, as evidenced by his Blockbuster play. Beyond that, his goals are murky. Hughes is a multibillion-dollar operation and, pending completion of the acquisition, would make EchoStar a stronger company. However, DBSD and TerreStar are unproven, speculative businesses. Their primary value lies in their wireless spectrum licenses.

Further complicating the picture, the Federal Communications Commission plans to loosen restrictions on spectrum held by DBSD and TerreStar, which currently require a satellite component to the service. A rule change would make the spectrum more valuable to Ergen or whoever ultimately winds up with the licenses. The spectrum play has prompted consternation. Would Ergen really spend billions to build his own wireless network? Might he package licenses in a joint venture with an existing carrier or flip them? There are even questions about whether the Dish Network founder, who exhorts viewers, "Let's watch TV" in commercials, may have grown cold on satellite TV. In short, is this grand strategy or bargain hunting? "It's certainly not clear," says BTIG LLC's Walter Piecyk.

Ergen has spoken about the value of spectrum, but only in generalities. EchoStar paid over $700 million for wireless licenses in a 2008 government auction. "We think spectrum has value," he said during a February earnings call. "And then if you can do something with it strategically, it can have more value -- or less value if [you] invest the wrong way."

Dish's latest bid for DBSD may indicate that he's not just dabbling in spectrum. Dish boosted its bid from $1 billion to nearly $1.5 billion. "It's tempting to believe Ergen plans to do something with this stuff in the near term if he's willing to jack up his price by 50%," Piecyk says.

Bryan Kraft of Evercore Partners Inc. sees the DBSD bid as a financial investment, not an operating one. Ergen, he says, "thinks he is buying spectrum at an attractive price and that he is going to be able to sell that spectrum down the road for a much higher price," given the looming spectrum crunch.

TerreStar and DBSD both tried to create hybrid mobile networks combining satellites with terrestrial networks. Satellite coverage would allow them to provide service in areas thinly covered by wireless networks.

TerreStar of Reston, Va., recently launched the "Genus" phone in partnership with AT&T Inc. DBSD is a unit of Kirkland, Wash.-based ICO Global Communications (Holdings) Ltd. Though DBSD has a satellite, it has no revenue.

The licenses that TerreStar and DBSD own cover what the FCC calls mobile satellite spectrum and require a satellite component. As part of a larger push to make more spectrum available, the agency has proposed loosening the restrictions on MSS. The S-band licenses, which TerreStar and DBSD hold, would likely be the first to be freed. Depending on the rules, each swath of spectrum could be worth more than $3 billion.

Though Wall Street and the media have recently focused on Ergen's moves in the DBSD and TerreStar bankruptcies, EchoStar and Dish have longer ties to the companies. EchoStar signed a commercial agreement with TerreStar in 2007, and bought its bonds. It is the largest creditor in the bankruptcy.

In DBSD, too, Ergen already had a position before the recent activity. Dish acquired all of DBSD's first-lien debt and opposed a 2009 reorganization plan that the company offered. When Dish came forward with a $1 billion offer for DBSD in early February, it reinvigorated the case. DBSD's bankruptcy had been stalled since the 2nd U.S. Circuit Court of Appeals issued a stay on its reorganization plan last fall, pending an appeal by Sprint Nextel Corp.

Dish's offer prompted a bid from Solus and Harbinger. Solus managing director Stephen Blauner said in a declaration to the court that the hedge funds began to formulate their bid after a Feb. 7 status conference. Blauner began talks with the debtor, he said, "in the hallway outside the courtroom." Solus and Harbinger submitted a bid on Feb. 28 to Donna Alderman, ICO's head of corporate development and strategy, but gained little traction before making the offer public through court pleadings.

The hedge funds mulled combining DBSD and TerreStar into a company worth $2.6 billion. The plan would allow creditors who were believers in S-band spectrum to get equity in the new entity. The Solus-Harbinger bid also includes protections for minority investors, a contentious issue in the TerreStar case.

Creditors pushed for a delay of a hearing on the Dish offer to see if other bids would emerge. There was some concern about losing the bid on hand. On the request for more time, Steven Reisman of Curtis, Mallet-Prevost, Colt & Mosle LLP, who represents DBSD's unsecured creditors' committee, cautioned the court, "If you give a mouse a cookie, he'll ask you for a glass of milk." The committee ultimately supported the extension. Judge Robert Gerber of the U.S. Bankruptcy Court for the Southern District of New York adjourned a March 2 hearing.

DBSD and its bankers reached out to 21 parties. There was one solid proposal. In the 72 hours before a March 15 hearing, discussions with Dish and an unnamed rival bidder intensified.

Debtor's counsel Ryan Bennett of Kirkland & Ellis LLP told Gerber that the "last two bids were very close." Dish's offer would provide the estate with $1.49 billion, versus $1.475 billion from the other suitor. While the parties have not disclosed the rival, there is speculation it may be a group including wireless provider MetroPCS Communications Inc.

Dish's takeout offer reflects a remarkable swing in value for DBSD and its creditors. The initial plan, which Gerber approved in October 2009, valued DBSD at $492 million to $692 million. Unsecured creditors would have gotten equity in a private company worth pennies on the dollar. Dish is paying all recognized claims in full, and equity holders too. The buyer will hold a tender offer that allows creditors to cash out before the plan becomes effective.

Unsecured creditors' lawyer Reisman, who was initially skeptical of a delay, told Gerber on March 15, "We should really get out of Dodge as fast as we can" and approve the Dish bid.

Sprint, which has been an antagonist in the reorganizations of DBSD and TerreStar, is indirectly responsible for the increased value. If the Overland Park, Kan., telecom had not appealed DBSD's previous plan, the company would have exited and creditors would have gotten a lot less. "Sprint's efforts brought us to this point today," lawyer John Culver III of K&L Gates LLP told Gerber in March.

The debtor shows little gratitude for Sprint, however. Sprint holds claims against DBSD that arise from a government program to reband spectrum licenses, to prevent interference with emergency communications systems. Though DBSD will repay all recognized claims in full, the debtor disputes Sprint's $104 million claim. Sprint can either take a reduced amount of $40 million in Dish's tender offer or fight for a full recovery later in the bankruptcy.

As Dish readied its bid for DBSD in late January, EchoStar seemed poised to strike. The bankruptcy of TerreStar was unfolding before Judge Sean Lane, a floor above Gerber's courtroom in the U.S. Bankruptcy Court for the Southern District of New York.

TerreStar had filed a reorganization plan giving control to EchoStar, its largest creditor. The plan included a debt-for-equity swap and a rights offering, and valued TerreStar at $1.25 billion.

While EchoStar was on board, TerreStar could not gain support of other creditors. Noteholders including Solus, MatlinPatterson Global Advisers LLC, the distressed debt arms of Barclays Capital, HSBC Global Asset Management, Catalyst Investment Management Co. LLC and others complained that TerreStar was rushing to transfer control to EchoStar. The creditor group, holding $383 million of senior secured notes, lobbied for minority protections and other changes to the EchoStar plan.

As a March hearing neared, TerreStar withdrew its plan. "No one can say we are hijacking the process," TerreStar counsel Arik Preis of Akin Gump Strauss Hauer & Feld LP told the court.

TerreStar's path out of Chapter 11 protection could include a new deal with EchoStar. It could also feature a reorganization plan supported by another entity or a bankruptcy auction. In March, Lane gave the company 75 days to come up with a plan.

EchoStar's claims give it a strong position in TerreStar's bankruptcy. However, it's possible that a plan without the company's approval could pass the court. If a new plan paid EchoStar in full, leaving its claims unimpaired, the company would not have to vote.

One certainty is that, following Dish's offer for DBSD, TerreStar will become more expensive. Analysts have valued Dish's bid at 21 cents to 25 cents per MHz per person covered. TerreStar's plan valued its U.S. spectrum at $1 billion to $1.25 billion, or 16 cents to 20 cents per MHz per person covered, significantly below the Dish bid for DBSD.

TerreStar also has Canadian spectrum licenses, which the EchoStar plan valued at $22 million to $28 million. TerreStar's bankers say the satellite-phone venture with AT&T is worth $50 million to $90 million. The valuation on TerreStar's spectrum includes two satellites, one of which is in orbit. Duff & Phelps LLC appraised one of the satellites at $185 million to $200 million.

While the suspense mounted in the DBSD and TerreStar bankruptcies, Ergen made a more conventional purchase. In mid-February EchoStar said that it would buy satellite broadband provider Hughes Communications from Apollo Management LP for $2 billion. The acquisition makes sense, even if it does not reflect EchoStar's dealmaking sensibility. "It's uncharacteristic of Ergen," who typically buys distressed assets, says Macquarie Capital analyst Amy Yong. "This is not something he's done in the past." EchoStar is paying 7.2 times 2011 Ebitda for Hughes.

Hughes' nationwide satellite broadband service and other offerings complement EchoStar's set-top box and satellite leasing businesses, Yong says. The deal will give EchoStar contracts with global clients such as Wal-Mart Stores Inc., Exxon Mobil Corp. and Nokia Corp. It will also reduce EchoStar's reliance on Dish, from 85% of revenue to 50%, in Yong's estimate. EchoStar and Dish could bundle satellite broadband and TV services.

Ergen founded EchoStar in 1980. EchoStar and Dish existed within the same corporation until 2008, when they split. When he announced the breakup, Ergen suggested that the market was putting too low a price on the combined businesses, citing comparisons to companies such as set-top box maker Scientific-Atlanta Inc., prior to its sale to Cisco Systems Inc. "I think what is undervalued is our expertise," he told investors in a late 2007 call, before the split. "We have one of the finest if not the finest set of digital engineers in the world for digital set-top boxes today."

Because EchoStar's tech group was so focused on Dish's satellite TV service, Ergen said, "obviously a cable company or a phone company maybe wasn't willing to buy from them." In early 2011, when he looked at firms such as ViaSat Inc., which provides services to Dish and trades at a premium, he may have felt EchoStar was still undervalued.

Ergen and Dish are clearly concerned about the potential for "over-the-top" video provided through the Internet, rather than pay-television networks. The company does not have a broadband service of its own, though it would gain one with the purchase of Hughes.

In a recent investor call, Ergen seemed to compare pay TV to the old, copper-wire phone business. "I'd rather be on the leading edge of that than the back end of it," he said. With Blockbuster, Dish could move into territory now occupied by Netflix Inc.

Craig Moffett of Bernstein Research questioned in a recent note Ergen's view of satellite TV, citing a number of takeover attempts he has launched in the past seven years or so. EchoStar pursued Loral Space & Communications Ltd., though the target favored a 2003 sale to rival DirecTV Group Inc. EchoStar and John Malone's Liberty Media Corp. jointly bid for satellite-communications company Intelsat in 2007, but lost to BC Partners Ltd. That same year, broadcast-TV group ION Media Networks Inc. opted for a recap with Citadel Investment Group LLC and NBC Universal Inc. over an EchoStar bid.

EchoStar did prevail in an auction of wireless spectrum licenses in 2008. Ergen bought debt of troubled satellite-radio company Sirius XM Radio Inc. but lost out in the 2009 bidding for the satellite radio operator to Liberty Media.

Moffett wrote that Ergen "hasn't exactly felt the warm and fuzzies for satellite TV for some time now." The analyst suggested that a wireless network connected to fixed locations, rather than mobile phones, would be more economical. "But here's a scary thought. Whatever he's planning, it ain't gonna build itself," Moffett wrote.

Many analysts have voiced anxiety that Ergen could embark on a wireless construction project. It would be expensive and prohibitively difficult in a market dominated by Verizon Wireless and AT&T. Established carriers like Sprint have struggled, and have considered merging to gain clout.

If spectrum licenses are bartering chips for a telecom stake, Moffett notes, there are more direct methods. Why take on litigation risk, expose yourself to attacks from vulture investors and bankroll restructuring advisers to acquire spectrum through bankruptcy?

Even if there isn't a grand strategy guiding the recent deals, it doesn't take a gambler's intuition to see that the value of spectrum is going up.

See related story, "Falcone makes his spectrum play."


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Tags: Blockbuster Inc. | Charlie Ergen | Dish Network Corp. | EchoStar Corp. | Hughes Communications Inc. | TerreStar Corp.
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