They are available to licensing. Motorola offered to license them to Apple under FRAND terms and Apple refused (said the terms weren't good enough) and used them without a license.
This is not the first time Apple has been sued for this - it seems to be a common occurrence for them. People offer them licenses for the FRAND patents they're using under FRAND terms, Apple denies them, and then when they get sued they say "But these licenses are FRAND! This doesn't make sense!"
> Apple tried to license the patent under FRAND (fair, reasonable, and non-discriminatory) terms but Motorola was again able to convince the court that if Apple was judged to have infringed, the damages involved would total more than the FRAND rates that were suggested.
That is from the article directly ... clearly that you are saying is not the case.
This is not the first time Apple has been sued for this - it seems to be a common occurrence for them. People offer them licenses for the FRAND patents they're using under FRAND terms, Apple denies them, and then when they get sued they say "But these licenses are FRAND! This doesn't make sense!"