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Today's report from Web Editor Susan
Rush
• Thirdspace
investment insulates Concurrent
from VOD patent war
• MSOs dealing
with Motorola recall
• Sprint joins
Moody's downgrade club
• People on
the move...
• CommScope falls
victim to Adelphia's plight
• Forstmann looks to back out of XO
• Speakeasy talks its way into $6M
• Broadband briefs
Thirdspace investment insulates
Concurrent
from VOD patent war
Video-on-demand vendor Concurrent Computer Corp. is sufficiently insulated from the ongoing VOD patent war being waged between
nCUBE Corp. and
SeaChange
International, a Concurrent executive said.
That’s because Concurrent, back in March of this year, became a shareholder in London-based
Thirdspace Living
Ltd., a supplier of video server system software for DSL-based VOD services that is also partly owned by Alcatel and Larry Ellison’s Oracle Corp. Thirdspace launched operations a little less than two years ago.
As part of that deal, Concurrent and Alcatel together invested $16 million in Thirdspace’s second round of funding. More importantly, however, Concurrent also licensed Thirdspace’s existing patent portfolio as well as pending patents. That portfolio
also is shared by nCUBE, a VOD vendor that is majority-owned by Ellison.
“All of the intellectual property around that technology was received by Thirdspace and also received by nCUBE,” said Steve Norton, Concurrent’s chief financial officer. As part of Concurrent’s investment in Thirdspace, Concurrent “received a license to all of their patents, patent portfolio and pending patent applications for the life of the patents,” he added.
Norton said Concurrent’s investment in wasn’t done only to protect the company from potential litigation, but to help the company make inroads in the international VOD-over-DSL sector.
“Our investment in Thirdspace wasn’t done primarily for that technology; it was done because of their software and their relationship with Alcatel, which has a wide market share in the DSL arena,” he said.
Still, Concurrent’s Thirdspace investment should keep the company well protected from a jury finding that nCUBE won against SeaChange late last month concerning an important VOD patent.
In that case, a Delaware District Court jury unanimously upheld nCUBE’s patent (U.S. Patent 5,805,804) for VOD delivery and ruled that SeaChange had “willfully infringed the patent.” The jury also ruled that SeaChange must pay nCUBE more than two million dollars, plus a seven percent royalty on all sales of infringing products after Feb. 1, 2002. Judge Joseph J. Farnan Jr. has yet has yet to make a final decision on the ‘804 case, but SeaChange is expected to appeal the jury ruling.
That same judge is also presiding over a lawsuit that SeaChange filed against nCUBE over U.S. Patent No. 5,862,312, which describes a method to redundantly store date, including video data objects, at the computer system level and at the processor system level. A different Delaware District Court jury ruled that SeaChange’s patent was valid on Sept. 25, 2000. No final judgment has been entered in the ‘312 case.
Norton said Concurrent is also protected from the ‘312 patent because his company uses a different VOD architecture than nCUBE and SeaChange.
-Jeff Baumgartner
Related stories:
Jolted
by patent news, SeaChange delays earnings, 5/30/02
Jury
rules in nCUBE's favor in VOD patent spat, 5/29/02

MSOs dealing with
Motorola recall
Comcast
Cable Communications and AT&T
Broadband have said they are dealing with the recall of some
of Motorola
Inc.'s DCT-2000 digital set-top boxes in stride.
On Friday, Motorola announced it was recalling a
small percentage of its DCT-2000 boxes manufactured between March 1
and May 31 this year due to a mechanical defect in the power plug.
“The actual impact is a pretty small percentage of (the 1 million
boxes shipped between March and May), but we have to go through the
population and be very careful to identify potentially affected
units by serial number and by delivery date,” says Carl McGrath,
vice president and general manager, digital consumer gateways.
Comcast has said that the recall will affect less
than one half of one percent of its 2.5 million digital cable
customers. The company expects to recall between 4,000 and 6,000
DCT-2000s, and is in the process of identifying and notifying the
affected customers.
While AT&T Broadband is not releasing any
numbers, the company has said a "small number" of these
boxes have been installed in customers' homes. The majority
of the affected boxes are still in the warehouse, according to
AT&T Broadband.
Although no timeline has been established for how
long the recall will take, both AT&T Broadband and Comcast
said they will communicate with their customers until the recall
process has been concluded. The companies intend to inspect and
replace the installed DCT-2000 manufactured in between March and
May.
The problem appears to center on a mechanical
defect in the power supply circuit within the detachable power
plug, Motorola said. While it would pose no danger to units if
they are left alone, it would potentially pose a problem if
customers decide to unplug or power down the digital box.
The recall will likely affect Cox Communications
Inc., Charter Communications Inc. and Time Warner Cable as well.
Related story:
Motorola
to recall some DCT-2000 boxes, 6/7/02

Sprint joins Moody's downgrade
club
Sprint
has become the latest telecom company to be hit with a rating
downgrade from Moody's
Investors Service. The recent cut puts Sprint's credit rating
one notch above "junk" status.
On Friday, Moody's cut Sprint's
senior unsecured long-term rating from Baa2 to Baa3 -- a notch
above junk. The downgrade, which affected roughly $22 billion of
debt, was sparked by Moody's view that Sprint will not generate
material free cash flow as a percentage of total debt until 2004.
The firm also cited Sprint PCS's need for "heavy"
capital spending while it grows, the struggle its long-distance
business faces to turn itself around and liquidity remaining a
possible concern until Sprint secures a new bank facility.
The rating outlook is negative,
Moody's said. Standard & Poor's also sees the rating outlook
as negative for Sprint, while Fitch Ratings believes the outlook
is stable.
Although Sprint is disappointed
by the action taken by Moody's, the company does not believe the
downgrade will have an impact on its financial flexibility or its
operations.
Moody's has been busy lately in
the telecom sector, downgrading Qwest Communications International
Inc. and WorldCom Inc. to junk status, and cutting AT&T
Corp.'s rating two notches to Baa2 -- two notches above junk
status. Verizon Communications Inc. is being reviewed for a
possible downgrade.
Related stories:
Sprint expands Business DSL offering,
6/7/02
Moody's
follows S&P, junks Qwest rating, 5/31/02
Moody's
downgrades AT&T rating, 5/30/02
Sprint
pumps up Business DSL, 1/15/02

People on the move: Robinson
steps down from Motorola Broadband; Hardin takes AOL Broadband job
Dave Robinson has announced plans to step down as
the head honcho of Motorola
Broadband Communications Sector, Dan Moloney will take up the
post.
After nearly two decades with Motorola and General
Instrument, Robinson is leaving his positions president of the
broadband communications group and as executive vice president of
Motorola Inc. to pursue a career as a CEO, said Motorola Inc.
president Edward Breen.
Dan Moloney, senior vice president and general
manager of the IP Systems Group, will replace Robinson at the end
of the second quarter.
General Instrument merged with Motorola in January
2000.
In other people news, Shawn
Hardin has been named senior vice president of product and
programming for AOL
Broadband. At his new post, he will be responsible for product
and application development for the AOL High-Speed Broadband
service.

CommScope falls victim to
Adelphia's plight
CommScope
Inc. has looked into the crystal ball and without new revenue from
Adelphia
Communications Corp. coming in, the broadband coaxial cable
maker is being forced to lower its second-quarter outlook.
The company now expects to post second-quarter
sales in the range of $150 million to $160 million. In the first
quarter, CommScope reported sales of $160 million. Second-quarter
gross margin will be between 19 percent and 21 percent. The
company had previously predicted a modest improvement over the
first quarter margin of 22 percent.
In the first quarter, Adelphia accounted for 11
percent of CommScope's total sales and 16 percent of total
accounts receivable. As of May 31, receivables from Adelphia were
roughly $22.5 million, CommScope said. The company is considering
the need for a charge related to an allowance for these
receivables.
As of 11:52 a.m. EDT, CommScope shares were
shedding 5 cents to trade at $13.05.
In May, ARRIS and C-COR.net Inc. lowered their
quarterly outlooks, and said they do not expect to generate any
revenue from Adelphia in the near-term.
Related stories:
Moody's:
Adelphia bankruptcy "potentially imminent",
6/6/02
Another
Adelphia vendor expects to take it on the chin, 5/23/02
C-COR.net
to take a hit from Adelphia's situation, 5/22/02
CommScope
waiting on venture, 2/7/02

Forstmann looks to back out of XO
Copyright 2002 The Deal L.L.C.
The Daily Deal...06/10/2002
From LexisNexis
By Jonathan Berke
An investment group fronted by Theodore Forstmann is trying to get out of its $800 million offer to recapitalize
XO Communications Inc. But the troubled broadband provider is not going to let Forstmann walk away that easily.
In a letter sent to XO's attorneys Thursday, June 6, lawyers for the Forstmann Little &
Co.-led group "requested" that XO agree to terminate the stock purchase agreement to "clarify for all of the company's stakeholders the restructuring options available to the company."
But in a reply Friday, Reston, Va.-based XO said it wasn't going to agree to the buyout group's request and intends to move forward on two fronts - namely, responding to the group's concerns regarding a restructuring and formulating a standalone recapitalization plan.
"We do not believe that the investors have any right to terminate their obligations unilaterally, and see no reason to believe that the closing conditions cannot be satisfied," XO said in a statement. "We flatly reject the investors' notion that it is 'virtually impossible' for conditions to the investors' obligations to be fulfilled."
Forstmann Little and Telefonos de Mexico SA de CV have offered to inject $400 million each into XO in exchange for an
80 percent stake. In addition, the agreement required XO to file for bankruptcy to put the whole thing in motion.
The Forstmann group's letter essentially stated that it wanted out for fear that XO would never satisfy all the conditions in the purchase agreement. The group based its reservations on XO's financial condition and the continued opposition by the company's unsecured noteholders to the deal.
The noteholders previously backed a bid from Carl Icahn, XO's largest noteholder, who offered to inject $550
million into the company in exchange for a 55 percent stake. Other noteholders would get the remaining equity stake. But Icahn pulled the bid off the table in May.
That Forstmann is threatening to do the same isn't surprising to some observers.
"The valuation of the company has suffered due to the fact that all comparable competitive local exchange carriers have declined substantially since the time they decided to do the deal," sources familiar with the buyout offer said.
For example, private equity-backed Xspedius Management Corp. LLC got bankruptcy approval last week to acquire the assets of e.spire Communications Inc., another Washington-area broadband provider, for just $68 million in cash, a fraction of what the Forstmann offer involves.
The source also said XO's bank syndicate, which is led by a branch of Toronto-Dominion Bank Inc., recently approached Forstmann about doing an offer at a "lower valuation," but that never came to fruition.
Despite XO's stance, the buyout group still said in Thursday's letter that it had "rights" to terminate the agreement.
If that happened, XO still wouldn't owe the buyout group a termination fee because no higher offer is on the table by another bidder. If one existed and was accepted, XO would have to pay the group
1 percent of the company's enterprise value.
XO has had a decent few months financially recently. Revenue jumped to $333.4 million in the first three months of this year, compared with $277.3 million during the same period a year ago. Also, a federal judge last week threw out a class-action shareholder lawsuit filed against XO in connection with the Forstmann proposal.
XO is also still working on a standalone plan. This would involve conducting an equity rights offering for its unsecured creditors and current shareholders.
Senior bankers would then "backstop" the offering by acquiring additional equity or secured debt in the reorganized company if the earlier offer does not yield the capital needed to implement the reorganization.
In its statement, XO noted that it "has made substantial progress with the steering committee of its senior secured lenders to formulate a standalone plan" in the event the company's deal with the Forstmann group fails to be completed.
And then, of course, there is always Icahn. The former corporate raider seems to never disappear from these distressed situations.
"Icahn is still interested. We shall see," said sources close to the company.
Icahn wouldn't return calls seeking comment. A Forstmann Little press officer said the New York private equity firm had no comment.
Related stories:
XO
offers new reorganization plan, 5/16/02
XO
progresses with lenders, Icahn, 4/17/02
Craig
McCaw's prized possession may soon file for bankruptcy,
2/25/02

Speakeasy talks its way into $6M
Copyright 2002 Securities Data Publishing
Private Equity Week...06/10/2002
From LexisNexis
By Danielle Fugazy
Growing quietly under the radar screen, Speakeasy started out as an Internet cafe in 1994. Since then the Seattle-based company has transformed itself into a broadband service provider and is expected to announce today that it has secured $6 million in fresh capital.
"We grew organically and in January 1999 we started focusing on broadband," says Mike Apgar, founder and CEO of Speakeasy, adding that he feels broadband services are getting ready to make a comeback. "After the shakeout, demand stalled, but I think it's coming back."
Just in case the demand isn't as great as Apgar expects it to be, Speakeasy has added some features to its service that might make its proposition seem a little sweeter. In addition to computer hook-up services, Speakeasy is offering entertainment packages that focus on Internet games and music.
An avid game play can use up a new game in a couple of days, Speakeasy's service allows players to pay a subscription fee and get a certain amount of new games each month.
Led by Colorado-based Cornerstone Ventures, the third round of funding included original investors Matthew G. Norton and Granite Ventures. The company's first round, which took place in May 2000, raised $11 million, then one year later Speakeasy closed on a little more than $8 million.
It was about that time that Cornerstone, which put $3.5 million into this round, first met with Speakeasy. At the time, Speakeasy was bringing in about $10 million in revenue and had big growth plans. "We felt their ambition to grow was not in line with the marketplace so we passed on the deal," says Neville Vere Nicolle, a partner with Cornerstone. Just recently Cornerstone went back for a second look and was pleasantly surprised, the company had tripled its revenue in the past year. That's when Cornerstone decided to give Speakeasy another shot.
However, Vere Nicolle's assessment of the telecom industry isn't as positive's as Apgar's is. "The telecom meltdown concerns me, but in any situation there are survivors, who haven't had major money to play with and became successful," says Vere Nicolle. "This market is not going away and we don't fund companies that have huge financial requirements. This round clearly takes Speakeasy to break-even."
Apgar says there is no question that Speakeasy will be profitable by the end of the year. Additionally, this is expected to be the company's last dip in the private equity pool.
The capital from this deal will be used to accelerate expansion of the company's network into regional areas and add further depth to its coverage in targeted urban markets. Right now Speakeasy is deployed nationwide in 80 residential areas and in 20 small business communities.
Related story:
Speakeasy
launches music-on-demand service, 1/16/02

Broadband briefs:
EarthLink, AOL launch high-speed service in
Alabama
EarthLink
Inc. and America
Online have launched their respective high-speed cable modem
services over Time Warner Cable systems in the Birmingham, Ala.
service area. The EarthLink service is priced at $41.95 a month,
while the AOL service is priced at $44.95 a month.
Separately, EarthLink has announced plans to acquire
PeoplePC for about $10 million. As part of the deal, EarthLink will
assume $35 million in PeoplePC's liabilities.
iTV Alliance takes shape
ACTV
Inc. has co-founded the iTV Alliance. ACTV will work with WorldGate,
OpenTV, Liberate Technologies and Wink Communications to promote
interactive television deployment through consumer and cross-country
outreach programs.
Qwest inks Flagstar Bank contract
Qwest
Communications International Inc. has signed a multi-year deal
with Flagstar Bank FSB to provide frame relay services that will
transmit high-speed data among 50 of Flagstar's offices. Qwest has
said the Flagstar contract is a multi-million dollar deal.
Bridge Broadband signs on as HNS Europe
distributor
Hughes
Network Systems Europe has signed Bridge Broadband Ltd. as a
wholesale distributor of its DIRECWAY broadband Internet access
services in the United Kingdom.

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