Boeing Wins Appeal in ICO Global Case, Reversing ’08 Ruling

by

PARIS — A California appeals court ruling in favor of Boeing’s satellite division will deprive Pendrell Corp. — the former ICO Global Communications — of an $800 million cash payment and appears to close the books on a 15-year effort by cellular pioneer Craig O. McCaw to create a satellite broadband network.

The April 13 decision by California’s Second District Court of Appeal reverses a 2008 decision by the California Superior Court jury, which awarded ICO Global $603 million in damages against Boeing Satellite Systems International and Boeing Co.

Chicago-based Boeing and its El Segundo, Calif.-based satellite division posted a $904 million bond to stay enforcement of the payment pending appeal. With the award increasing by 10 percent per year, the jury award had reached $775 million as of Dec. 31.

The ruling removes what had been a key asset of Kirkland, Wash.-based ICO Global, which has since been renamed Pendrell. The prospect of a big payday from Boeing had supported ICO and Pendrell’s stock in the past several years even as the company was unwinding its satellite business.

In 2011, the company’s geostationary-orbiting satellite was sold to Dish Network of Englewood, Colo., for $325 million as part of Dish’s purchase of DBSD, a company whose principal value lay in its license to use S-band frequencies for both its satellite and for a ground-based cellular network.

What was left was ICO Global and renamed Pendrell. The company has had a medium Earth orbiting satellite in operation for a decade. The spacecraft, built by Boeing, was to have been part of a 12-satellite constellation ringing the Earth to provide broadband communications.

Boeing had completed construction of most or part of 10 satellites intended to complete the ICO constellation. Work on these spacecraft had stopped when ICO and Boeing parted company and sued each other for alleged contract violations.

The 10 partly completed satellites have remained in storage at a 2,160-square-meter warehouse in El Segundo leased by Pendrell. In a March filing with the U.S. Securities and Exchange Commission (SEC), Pendrell said it has found a buyer for the satellites. The unnamed company is expected to close the deal by May 4. Pendrell said it is receiving no significant payment in the transaction.

A South Africa-based company named Jay & Jayendra Ltd. (J&J) in April 2011 had agreed to purchase the unfinished satellites and the one spacecraft in orbit, but declined to finalize the agreement by a November deadline. Pendrell said in the SEC filing that it is taking legal action in London against J&J in an attempt to recover operations and maintenance charges that the buyer was supposed to assume.

Pendrell said it is paying Intelsat, the Luxembourg- and Washington-based satellite operator, about $1.5 million per year to control and operate the orbiting satellite, called ICO-F2.

With no new buyer for the satellite on the horizon, Pendrell said it will retire ICO-F2 by June.

Pendrell said in an April 17 statement that it is still evaluating its appeal options against Boeing. Pendrell continues to negotiate with operators of gateway Earth stations that had been built for the ICO constellation. In its SEC filing, the company said there remained $49.5 million in unsettled gateway-related claims.

Pendrell said it had already spent, as of Dec. 31, $21 million to prosecute and defend its lawsuit against Boeing alleging fraud and breach of contract relating to the contracts to build and launch the ICO constellation. The appeals court ruling ordered ICO to reimburse Boeing’s appeals court-related costs.

Pendrell is now busy remaking itself into an intellectual property and digital-rights management specialist with no apparent involvement in satellites.

The 52-page ruling sides with Boeing on just about every aspect of the lawsuit. But while agreeing with Boeing that ICO’s allegations of fraud and breach of contract were without merit, the ruling is not without criticism of the behavior of Boeing’s satellite and launch vehicle divisions.

Written communications unearthed during the legal proceeding showed that Boeing satellite officials did not always act with their customer’s best interests. Boeing repriced the satellite construction contract — which was revised on several occasions — in a way that was not always transparent to ICO. The company also appeared to work in league with Boeing’s launch vehicle division to assure that it was not ill-used by ICO, even though the satellite division had been under contract to find the best possible launch option for the ICO constellation.

ICO’s original contracts were with Hughes Space and Communications, a satellite builder that was subsequently purchased by Boeing. Hughes had contracts with Boeing for Delta 3 rocket launches, but was trying to rid itself of these contracts because of the Delta 3’s early performance. The short-lived rocket reached orbit just once, during its third and final mission.

But in neither case was Boeing’s actions the cause of any harm to ICO. “This may have been ethically objectionable and arguably a breach of contract,” the court said in its ruling, referring to the apparent collusion between Boeing’s satellite and launcher divisions. But it did not have any measurable impact on ICO’s fortunes.

“To recover for fraud, a party must prove that the conduct of the defrauding party caused damage,” the court concluded.

ICO had been purchased out of Chapter 11 bankruptcy by an investment company representing McCaw after his earlier satellite broadband network, called Teledesic, had collapsed before being launched.

Pendrell said in its SEC filing that it has more than $2 billion in ICO-related tax losses following the company’s satellite investments — enough to offset future Pendrell income taxes for as long as 20 years.