Commitments and Contingencies | Note 11—Commitments and Contingencies Legal Proceedings Regulatory Enforcement On January 11, 2017, the Company entered into the Consent Decree with the FCC settling the FCC’s investigation regarding Straight Path Spectrum’s spectrum licenses on the terms specified therein. Material terms of the Consent Decree include the following: 1. The FCC agreed to terminate its investigation. 2. Straight Path Spectrum agreed to surrender 93 of its 828 39 GHz economic area spectrum licenses to the FCC, as well as 103 rectangular service area licenses that the Company does not believe were material assets of the Company. 3. Straight Path Spectrum keeps all of its 28 GHz spectrum licenses. 4. Straight Path Spectrum is barred from entering into any new leases of its spectrum. 5. The Company agreed to pay the Initial Civil Penalty of $15 million in four installments as follows - $4 million on or before February 11, 2017; $4 million on or before April 11, 2017; $3.5 million on or before July 11, 2017; and $3.5 million on or before October 11, 2017. If the Company sells its remaining spectrum licenses (see below) prior to the due date of any installation payment, any remaining installation payments will become due on the date of such closing. 6. The Company agreed to submit to the FCC an application for approval of a sale of its remaining 39 GHz and 28 GHz spectrum licenses on or before January 11, 2018 and pay the FCC 20% of the proceeds from such the sale(s). 7. If the Company does not submit to the FCC an application for approval of a sale of its remaining spectrum licenses on or before January 11, 2018, the Company will pay an additional penalty of $85 million or surrender its remaining spectrum licenses. The Company recorded the Initial Civil Penalty of $15 million and the associated expense is classified as “civil penalty – FCC consent decree” on the consolidated statement of operations. The first three installments of the Initial Civil Penalty totaling $11.5 million were paid. The remaining liability is classified as “FCC consent decree payable” on the consolidated balance sheet. As of July 31, 2017, FCC consent decree payable was $3.5 million. As discussed in Note 2, the Company entered into the Verizon Merger Agreement. If the Merger is consummated, the fee owed per Item 6 above will be paid by Verizon as part of the Merger. On June 1, 2017, the Company and Verizon submitted applications to the FCC seeking consent to transfer control of the Company’s spectrum licenses to Verizon. The transfer of control applications was referenced on an FCC Public Notice on July 21, 2017, and the FCC established a pleading cycle, allowing interested parties to comment on why the transaction should be approved or denied. Petitions to deny the application were due on August 11, 2017, oppositions to those petitions due on August 18, 2017 and replies to those oppositions were due on August 25, 2017. Three parties – the Competitive Carriers Association, Public Knowledge and New America’s Open Technology Institute, and U.S. Telepacific – filed petitions to deny the transaction, change its recommendation of the Merger and terminate the Verizon Merger Agreement in connection therewith. The petitioning parties argued that approval of the transaction would result in excessive spectrum aggregation in local markets, undermine competition in 5G mobile broadband by precluding others from acquiring 5G spectrum, improperly benefit Straight Path in violation of the FCC Consent Decree, and terminate existing spectrum leases. In response, the Company and Verizon argued that approval of this transaction will advance 5G leadership. The Company and Verizon explained that the transaction will not create any competitive issues, and, once Verizon acquires the spectrum, it will remain below the FCC’s spectrum threshold for competitive review across the vast majority of markets. The Company and Verizon argued that opponents of the transaction cannot use the transaction to challenge the Consent Decree, review of this transaction must be limited to the transaction, and that the terms of the Consent Decree are final and are the result of the FCC’s deliberate and sound policy choices. The Company and Verizon clarified that Verizon will honor the Company’s contractual obligations under existing spectrum leases with third parties. In their replies, the parties opposing the transaction maintained their prior arguments, and also argued that the FCC should auction the Company’s spectrum licenses instead of approving the transaction and that the transaction is not in the public interest. On September 7, 2017, and September 21, 2017, Hammer Fiber Optics filed ex parte letters noting a number of meetings with staff from the FCC’s Wireless Telecommunications Bureau and Office of Engineering and Technology, and meetings with Chairman Ajit Pai’s, Commissioner Mignon Clyburn’s, and Commissioner Brendan Carr’s legal advisors. In the letters, Hammer discussed the relevance of the transaction with respect to the service it is providing, and also stated that it did not object to Verizon’s acquisition of our LMDS spectrum. The Company believes that the submission to the FCC by the Company and Verizon of an application to transfer control of the Company’s spectrum licenses to Verizon satisfies the requirement under the Consent Decree as described in Item 6 above. However, if the Merger is not completed for any reason, there is no guarantee that the FCC would not seek to require the Company to pay the $85 million penalty or seek the forfeiture of the Company’s remaining spectrum licenses. If the penalty is imposed by the FCC, there is no guarantee that the Company will be able to obtain sufficient financing to pay the additional $85 million or repay the remaining amount due of the $17.5 million loan from the Lenders. A failure by the Company to comply with these requirements could lead to a default by the Company under the Consent Decree, loss of the Company’s remaining spectrum licenses, either of which will have a material adverse effect on the Company’s financial condition and results of operations. Shareholder Litigation On July 5, 2017, JDS1 LLC, a putative Straight Path stockholder, filed a class action and derivative complaint in the Delaware Court of Chancery captioned JDS1, LLC v. IDT Corp. The Arbitrage Fund v. Jonas In re Straight Path Communications Inc. Consolidated Stockholder Litigation On November 13, 2015, a putative shareholder class action was filed in the federal district court for the District of New Jersey against Straight Path Communications Inc., and Jonas and Rand (the “individual defendants”). The case is captioned Zacharia v. Straight Path Communications, Inc. et al. On March 7, 2017, the Company and lead plaintiff in Zacharia On January 29, 2016, a shareholder derivative action captioned Hofer v. Jonas et al Zacharia Sipnet Appeal and Related IPRs On April 11, 2013, Sipnet EU S.R.O. (“Sipnet”), a Czech company, filed a petition for an inter partes On August 22, 2014, Samsung Electronics Co., Ltd. (“Samsung”) filed three petitions with the PTAB for IPR of certain claims of the ‘704 Patent and U.S. Patent Nos. 6,009,469 (the “‘469 Patent”) and 6,131,121 (the “‘121 Patent”). On March 6, 2015, the PTAB instituted the requested IPR. On June 15, 2015, Cisco Systems, Inc. (“Cisco”) and Avaya, Inc. (“Avaya”) joined this instituted IPR. On March 4, 2016, the PTAB issued a final written decision holding that Samsung failed to show that any claims of the ‘704 and ‘121 Patents were unpatentable. The PTAB also held that Samsung failed to show that the majority of the claims of the ‘469 Patent were unpatentable. On May 5, 2016, Samsung filed a notice of appeal to the CAFC. On May 6, 2016, Cisco and Avaya also filed notices of appeal. As discussed above, the CAFC affirmed the PTAB’s decision on June 23, 2017. On October 31, 2014, LG Electronics Inc. et al. (“LG”), Toshiba Corporation et al. (“Toshiba”), Vizio, Inc. (“Vizio”), and Hulu LLC (“Hulu”) filed three petitions with the PTAB for IPR of certain claims of the ‘704, ‘469, and ‘121 Patents. On May 15, 2015, the PTAB instituted the requested IPRs. On November 10, 2015, the PTAB granted petitions filed by Cisco and Avaya to join these IPRs. On November 24, 2015, the PTAB granted related petitions filed by Verizon Services Corp. and Verizon Business Network Services Inc. (the “Verizon affiliates”) to join for the ‘704 and ‘469 Patents. On May 9, 2016, the PTAB issued a final written decision holding that the petitioners failed to show that any claims of the ‘704 Patent were unpatentable. The PTAB also held that the petitioners failed to show that the majority of the claims of the ‘469 and ‘121 Patents were unpatentable. On May 20, 2016, the petitioners filed a notice of appeal to the CAFC, and this appeal was consolidated with the appeal of the Samsung IPR discussed above. As discussed above, the CAFC affirmed the PTAB’s decision on June 23, 2017. On September 28, 2015, Cisco, Avaya, and the Verizon affiliates filed a petition for an IPR with the PTAB for all claims of U.S. Patent No. 6,701,365 (the “‘365 Patent”). On April 6, 2016, the PTAB denied the petition, finding that the petitioners had not demonstrated a reasonable likelihood that any challenged claim was unpatentable. This decision was not appealed to the CAFC. Ex Parte Re-examination On September 13, 2017, Apple, Inc. (“Apple”) filed a request for ex parte Patent Enforcement Following the CAFC’s decision in Sipnet and the PTAB’s decisions in the related IPRs, Straight Path IP Group has taken steps to re-commence its patent enforcement actions in federal district court that had been stayed or dismissed without prejudice during the pendency of the Sipnet Appeal and related IPRs. On August 1, 2013, Straight Path IP Group filed complaints in the United States District Court for the Eastern District of Virginia against LG, Toshiba, and Vizio alleging infringement of the ‘704, ‘469, and ‘121 Patents and seeking damages related to such infringement. The actions were consolidated (the “consolidated action”) and assigned to Judge Anthony J. Trenga. In October 2014, Hulu intervened in the consolidated action as to Hulu’s streaming functionality in the accused products. In that same month, Amazon.com, Inc. (“Amazon”) moved to intervene, sever, and stay claims related to Amazon’s streaming functionality in the accused products. On October 13, 2014, Amazon filed an action in the United States District Court for the Northern District of California seeking declaratory relief of non-infringement of the ‘704, ‘469, and ‘121 Patents based in part on the allegations related to the consolidated action in Virginia (the “Amazon action”). On December 5, 2014, Straight Path IP Group filed a motion to dismiss Amazon’s complaint, or in the alternative, to transfer venue to the Eastern District of Virginia. On May 28, 2015, the California court transferred the Amazon action to Virginia, and the Virginia court later formally severed the Amazon action from the consolidated action. The action was stayed during the pendency of the two successive CAFC appeals. On September 13, 2017, the Court held a scheduling conference, and the pretrial conference is set for January 18, 2018. On August 23, 2013, Straight Path IP Group filed a complaint in the United States District Court for the Eastern District of Texas against Samsung alleging infringement of the ‘704, ‘469, and ‘121 Patents and seeking damages related to such infringement. The action was stayed during the pendency of the two successive CAFC appeals. On September 11, 2017, the Court reopened the case and placed it back on the active docket. On September 24, 2014, Straight Path IP Group filed complaints against each of Apple, Avaya, and Cisco in the United States District Court for the Northern District of California. Straight Path IP Group claims that (a) Apple’s telecommunications products, including FaceTime software, infringe four of Straight Path IP Group’s patents (the ‘704, ‘469, ‘121, ‘208 Patents); (b) Avaya’s IP telephony, video conference, and telepresence products such as its Aura Platform infringe four of the Straight Path IP Group’s patents (the ‘704, ‘469, ‘121, and ‘365 Patents); and (c) Cisco’s IP telephony, video conference, and telepresence products such as the Unified Communications Solutions infringe four of Straight Path IP Group’s patents (the ‘704, ‘469, ‘121, and ‘365 Patents). On December 24, 2014, Straight Path IP Group dismissed the complaints against Avaya and Cisco without prejudice. On January 5, 2015, Straight Path IP Group dismissed the complaint against Apple without prejudice. On June 21, 2016, Straight Path IP Group filed new complaints against Avaya and Cisco alleging that certain of their products infringe four of Straight Path IP Group’s patents. On August 5, 2016, Avaya filed its answer, affirmative defenses, and counterclaims for declaratory judgments of noninfringement and invalidity of Straight Path IP Group’s patents, and the parties have commenced discovery. Also on August 5, 2016, Cisco filed its answer and affirmative defenses, and the parties have commenced discovery. On June 24, 2016, Straight Path IP Group filed a new complaint against Apple alleging that its FaceTime product infringes five of Straight Path IP Group’s patents. On August 5, 2016, Apple filed a partial motion to dismiss as well as its answer, affirmative defenses, and counterclaims for declaratory judgments of noninfringement and invalidity of Straight Path IP Group’s patents. Following oral argument, on October 21, 2016, the court granted in part and denied in part Apple’s motion. The court dismissed one claim as to the ‘469 Patent but denied Apple’s motion with respect to the other four patents at issue in the litigation. Expert discovery is underway in the Apple and Cisco actions. On January 19, 2017, Avaya filed voluntary petitions under chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York. On May 2, 2017, Straight Path IP Group filed a proof of claim in the Avaya bankruptcy proceeding. On September 26, 2014, Straight Path IP Group filed a complaint against the Verizon affiliates and Verizon Communications in the United States District Court for the Southern District of New York. Straight Path IP Group claims the defendants’ telephony products such as its Advanced Communications Products, including Unified Communications and Collaboration and VOIP infringe on the ‘704, ‘469, and ‘365 Patents. On November 24, 2014, Straight Path IP Group dismissed the complaint without prejudice subject to a confidential standstill agreement with the defendants. On June 7, 2016, Straight Path IP Group filed a new complaint in the United States District Court for the Southern District of New York against the original Verizon parties as well as Verizon affiliate Cellco Partnership d/b/a Verizon Wireless, alleging that defendants’ IP telephony products such as FIOS Digital Voice, Unified Communications and Collaboration, Verizon Enterprise Solutions VoIP, Virtual Communications Express, Voice over LTE, and related hardware and software infringe the ‘704, ‘469 and ‘365 Patents. On August 5, 2016, Verizon filed its answer and affirmative defenses, and the parties have commenced discovery. On September 13, 2016, Verizon filed a motion to stay the litigation pending a decision from the CAFC in the appeal of the Samsung IPR. On October 18, 2016, the court granted Verizon’s motion and stayed the litigation. On July 5, 2017, the court lifted the stay and set a scheduling conference for September 15, 2017, but on September 11, 2017, the court stayed the case until December 8, 2017 at Straight Path IP Group’s request. Straight Path IP Group generally pays law firms that represent it in litigation against alleged infringers of its intellectual property rights a percentage of the amounts recovered ranging from 0% to 40% depending on several factors. Straight Path IP Group recently agreed to amend the retainer agreement with one of these law firms. Among other things, under the amended agreement, beginning on October 2, 2017, Straight Path IP Group will pay one of the law firms a monthly fee of $100,000 that is non-refundable but creditable against any contingency fee payment that may be due to the law firm in the future. Settlement of Claims with IDT and Sale of Straight Path IP Group On April 9, 2017, the Company and IDT entered into the IDT Term Sheet, providing for the settlement and mutual release of potential indemnification claims asserted by each of the Company and IDT in connection with liabilities that may exist or arise relating to the subject matter of the investigation by (including but not limited to fines, fees or penalties imposed by) the FCC (the “Mutual Release”). For further discussion, please see Note 3 - Settlement of Claims with IDT and Sale of Straight Path IP Group PTPMS On May 29, 2012, the Company acquired certain licenses from PTPMS under an asset purchase agreement (the “PTPMS agreement”). Under the terms of that agreement, PTPMS is entitled to a “profit share” of 20% of the net proceeds from any partition, sale, assignment, transfer of control, disaggregation, or lease of, or any other commercial operating arrangement involving any or all of the licenses acquired from PTPMS (the “Profit Share”). For further discussion, see Note 2 – Verizon Merger Agreement PTPMS Communications, LLC v. Straight Path Communications Inc Other Legal In addition to the foregoing, the Company may from time to time be subject to other legal proceedings that arise in the ordinary course of business. Lease Commitments The Company is party to a lease agreement for its corporate headquarters in Glen Allen, Virginia for a term of one year beginning on June 1, 2014 and ending on May 31, 2015 at a monthly rent of $575. The Company extended the lease from May 31, 2015 to May 31, 2017 and again to May 31, 2019. The annual rent under the newest lease is approximately $7,700 per year. In October 2014, the Company entered into a lease agreement for a satellite office in Englewood Cliffs, New Jersey for three years commencing on November 1, 2014 and ending on October 31, 2017 at an annual rent of $37,200. In March 2015, the term of the lease was extended to April 30, 2018. Effective December 1, 2015, the Company began leasing a laboratory in Plano, Texas. The lease term expires on December 31, 2018 and the average annual rental under the lease is approximately $18,000. Effective August 1, 2013, the Company began leasing space on a roof for some of its telecom equipment as part of its spectrum operations. The monthly rental is currently $600. In addition, the Company currently leases space on two additional roofs for some of its telecom equipment as part of its Spectrum operations. The total monthly rental for these two roofs is $500. All three leases continue on a month-to-month basis until terminated by either party with 30 days’ notice. Rental expense under the operating leases was $51,758, $51,543 and $40,685 in Fiscal 2017, Fiscal 2016, and Fiscal 2015, respectively. Future minimum rental commitments of non-cancelable operating leases are as follows as of July 31, 2017: Years ending July 31, 2018 $ 53,456 2019 14,039 $ 67,495 FCC License Renewal Our spectrum licenses in the LMDS and 39 GHz bands have historically been granted for ten-year terms. On April 20, 2016, and based on our submission of a renewal application and substantial service demonstration, the FCC granted our application to renew our LMDS BTA license for the LMDS A1 band (27.5 – 28.35 GHz) that covers parts of the New York City BTA for a ten-year period, until February 1, 2026. We have 15 other LMDS A1 licenses; nine of these licenses currently have a renewal date of August 10, 2018, and six of these licenses have a renewal date of September 21, 2018. However, following the adoption of the Upper Microwave Flexible Use (“UMFU”) Report and Order, we are only required to submit an application for renewal at those deadlines; we are not required to submit a substantial service demonstration for these licenses until the next build-out date specified in the UFMU Report and Order, which is June 1, 2024. It is likely that the FCC will issue new licenses for the LMDS A1 spectrum on the one hand and the A2 and A3 licenses on the other, with separate renewal and substantial service deadlines for each (as noted above, the substantial service demonstration dates for the A1 licenses will be June 1, 2024). Of the 15 BTAs in which we hold LMDS A2 band (29.1 – 29.25 GHz) and A3 band (31.075 – 31.225 GHz) spectrum, nine licenses currently have a renewal and likely substantial service deadline of August 10, 2018 and six of these licenses currently have a renewal and likely substantial service deadline of September 21, 2018. The UMFU Report and Order does not affect the LMDS B band spectrum. Of our 117 LMDS B band (31.0 – 31.075 GHz and 31.225 – 31.300 GHz) spectrum, five licenses currently have a renewal and substantial service deadline of August 10, 2018 and 112 licenses currently have a renewal and substantial service deadline of September 21, 2018. On August 3, 2017, the FCC adopted new rules governing the process by which licensees may seek renewal of their authorizations. However, for the licenses we hold, those rules do not go into effect until January 1, 2023, after all of licenses will be renewed. The UMFU Report and Order substantial service deadline of June 1, 2024 also applies to our 735 39 GHz licenses, which currently have a renewal deadline of October 18, 2020. For further discussion, please see “ Regulatory Enforcement Other Commitments and Contingencies Former SPSI CEO The Former SPSI CEO is entitled to receive payments from future revenues generated from the leasing, licensing or sale of rights in certain of Straight Path Spectrum’s wireless spectrum licenses. Those payments are to be made out of 50% of the covered revenue and are in a maximum aggregate amount of $3.25 million. The payments arise under the June 2013 settlement of certain claims and disputes with the Former SPSI CEO and parties related to the Former SPSI CEO. Approximately $77,000 was incurred to the Former SPSI CEO for this obligation for Fiscal 2017, approximately $48,000 for Fiscal 2016 and approximately $8,000 for Fiscal 2015. For a further discussion, see Note 2 – Verizon Merger Agreement |