In the Supreme Court of the United States
NEXTWAVE PERSONAL COMMUNICATIONS INC.,
ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE
FEDERAL COMMUNICATIONS COMMISSION
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Assistant Attorney General
JACOB M. LEWIS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the bankruptcy court had the authority to enjoin the automatic cancellation of
63 wireless telecommunications licenses by the FCC due to the winning bidder's failure
to timely pay the winning bid amount.
In the Supreme Court of the United States
No. 00-447
NEXTWAVE PERSONAL COMMUNICATIONS INC.,
ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE
FEDERAL COMMUNICATIONS COMMISSION
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-29a) is reported at 217 F.3d 125. The
opinion of the bankruptcy court (Pet. App. 30a-100a) is reported at 244 B.R. 253. The
appeals court's earlier opinion (Pet. App. 101a-139a), the mandate of which the present
opinion enforces, is reported at 200 F.3d 43. A petition for a writ of certiorari from
that earlier decision was denied on October 10, 2000 (No. 99-1980).
JURISDICTION
The judgment of the court of appeals was entered on May 25, 2000. A petition for
rehearing was denied on August 23, 2000. The petition for a writ of certiorari was
filed on September 21, 2000. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
1. The Communications Act of 1934, as amended, establishes a system for licensing the
use of radio spectrum, 47 U.S.C. 301, and vests in the Federal Communications
Commission (FCC or Commission) the authority to grant radio licenses where the agency
finds that the "public convenience, interest, or necessity will be served thereby." 47
U.S.C. 307(a). Accord 47 U.S.C. 309(a).
In 1993 Congress authorized the Commission to grant initial licenses for spectrum
dedicated to certain commercial services through "a system of competitive bidding," or
auction. 47 U.S.C. 309(j)(1). In Congress's view, a system of public auctions would
eliminate unproductive speculation, because those who do not have an immediate plan to
put spectrum to valuable use will generally be unwilling to pay for it. "Because new
licenses would be paid for, a competitive bidding system will ensure that spectrum is
used more productively and efficiently than if handed out for free." H.R. Rep. No. 111,
103d Cong., 1st Sess. 249 (1993).
Section 309(j) directs the Commission to develop a competitive bidding methodology
that, among other things,
(1) aids in the "development and rapid deployment of new technologies, products, and
services," (2) avoids excessive concentration of licenses, (3) recovers "a portion of
the value of the public spectrum resource made available for commercial use," and (4)
promotes "efficient and intensive use of the electronic spectrum." 47 U.S.C.
309(j)(3)(A)-(D) (1994 & Supp. IV 1998). Pursuant to that authority, the Commission
established a system of simultaneous multiple round auctions for awarding broadband
personal communications services (PCS) licenses. See In re Implementation of Section
309(j) of the Communications Act-Competitive Bidding, 9 FCC Rcd 5532, ¶ 27 (1994).1 The
Commission concluded that such a system of competitive bidding would best serve the
interests identified by Congress. Ibid. The Commission explained:
Since a bidder's abilities to introduce valuable new services and to deploy them
quickly, intensively, and efficiently increase the value of a license to a bidder, an
auction design that awards licenses to those bidders with the highest willingness to
pay tends to promote the development and rapid deployment of new services in each area
and the efficient and intensive use of the spectrum.
See In re Implementation of Section 309(j) of the Communications Act-Competitive
Bidding, 9 FCC Rcd 2348, ¶ 71 (1994) (internal quotation marks and footnote omitted).
Accord 9 FCC Rcd 5532, ¶ 29 (multiple round auctions "increas[e] the likelihood that"
licenses will be "acquired by those who value them most highly").
To ensure the integrity of competitive bidding as a system of license allocation, the
FCC's auction rules specify that any license grant is "conditioned upon full and timely
payment of the winning bid amount." 47 C.F.R. 24.708(a) (1996). In the case of
companies that elect to pay for their licenses in installments, the rules provide that
any "license granted
* * * shall be conditioned upon the full and timely performance of the licensee's
payment obligations under the installment plan." 47 C.F.R. 1.2110(e)(4) (1996). Failure
to make timely payment triggers automatic cancellation of the license. 47 C.F.R.
1.2110(e)(4)(iii) (1996).
2. Pursuant to the competitive bidding provisions of 47 U.S.C. 309(j) (1994 & Supp. IV
1998), the FCC auctioned 493 "C Block" broadband PCS licenses in the summer of 1996.
Pet. App. 104a.2 Petitioner NextWave Personal Communications Inc. (NextWave) was
declared the high bidder for 63 of those licenses after it submitted winning bids
totaling $4.74 billion. Id. at 2a.3 After a delay created by the fact that NextWave's
percentage of foreign ownership exceeded regulatory limits, id. at 106a, the licenses
were issued. In re Applications of NextWave Personal Communications, Inc. for Various
C-Block Broadband PCS Licenses, 12 FCC Rcd 2030, ¶¶ 8-9 (1997). About the same time,
NextWave deposited funds sufficient to bring its downpayment up to ten percent of its
winning bids, Pet. App. 106a; see 47 C.F.R. 24.711(a)(2), and executed promissory notes
for the remaining 90 percent of its bid. Pet. App. 106a.
The licenses themselves-like the text of petitioner's note and Security Agreement-made
it clear that the licenses were conditioned on "full and timely payment of all monies
due" and that failure to comply with that requirement "will result in the automatic
cancellation of" the licenses. Gov't C.A. App. 58, 60 (NextWave Radio Station
Authorization).4 The Commission's rules made that clear as well. See 47 C.F.R.
1.2110(e)(4) (1996) ("A license granted to an eligible entity that elects installment
payments shall be conditioned upon the full and timely performance of the licensee's
payment obligations."); ibid. ("Following expiration of any grace period without
successful resumption of payment * * * or upon default * * * the license will
automatically cancel.").
3. At the request of NextWave and other C-Block licensees, on March 31, 1997, the FCC
instituted a proceeding to consider whether and to what extent to restructure the
obligations of the C-Block licensees; pending the proceeding, it stayed C-Block payment
requirements. In re Amendment of the Commission's Rules Regarding Installment Payment
Financing for Personal Communications Services (PCS) Licensees, 12 FCC Rcd 16,436, ¶¶
14-17 (1997). The FCC ultimately adopted several options designed to assist C-Block
licensees in restructuring their obligations, but decided against adopting proposals
that would "result in a dramatic forgiveness of the debt owed." Id. ¶ 19. The
Commission ultimately gave licensees until June 8, 1998, to elect whether to avail
themselves of the options for restructuring their obligations, and until October 29 (at
the latest) to resume payments consistent with their June 8 election. In re Amendment
of the Commission's Rules Regarding Installment Payment Financing for Personal
Communications Service (PCS) Licensees, 14 FCC Rcd 6571, ¶ 3 (1999).
Petitioner unsuccessfully sought to obtain a stay of the election deadline from the
FCC, see In re Petition of NextWave Telecom, Inc. for a Stay of the June 8, 1998,
Personal Communications Services C Block Election Date, 13 FCC Rcd 11,880 (1998), and
from the D.C. Circuit, see NextWave Telecom Inc. v. FCC, No. 98-1255, 1998 WL 389116
(June 11, 1998). Petitioner also filed for reorganization under Chapter 11 of the
Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New
York. At the same time, petitioner commenced an adversary proceeding against the FCC to
avoid its $4.7 billion obligation as a constructive fraudulent conveyance under 11
U.S.C. 544(b) (1994 & Supp. IV 1998). Pet. App. 3a-4a. Petitioner did not make an
election by the June 8, 1998 deadline; it did not resume making, by October 29, the
payments that were an express condition of its licenses; and it made no effort to
obtain any agreement or assurance from the Commission as to the effect of its
bankruptcy filing. See In re Public Notice DA 00-49 Auction of C and F Block Broadband
PCS Licenses NextWave Personal Communications, Inc., et al. Petition for
Reconsideration, FCC No. 00-335, 2000 WL 1262652, ¶¶ 5, 10 (Sept. 6, 2000). Meanwhile,
the vast majority of other C-Block licensees made their elections by the deadline and
either made payments or lost their licenses through operation of the automatic
cancellation rule.
The bankruptcy court held that much of petitioner's payment obligation for the licenses
was subject to avoidance as a constructive fraudulent conveyance. Pet. App. 4a. The
court therefore reduced the amount that petitioner was required to pay for the C-Block
licenses from the $4.74 billion that had originally been bid, to a little less than
$1.023 billion, while at the same time allowing petitioner to retain the licenses
during its reorganization in bankruptcy. See ibid. The district court affirmed. Id. at
4a-5a.
4. The court of appeals reversed and remanded the case for further proceedings. Pet.
App. 101a-139a. The court held that the bankruptcy court "had no authority * * * to
interfere with the FCC's system for allocating spectrum licenses, and that in any event
it wrongly concluded that the [l]icenses were fraudulently conveyed." Id. at 104a. The
appeals court ruled that because the FCC, and not the courts, has been vested by the
Communications Act with the power to grant and condition licenses for the use of the
radio spectrum, it is "beyond the jurisdiction of a court in a collateral proceeding to
mandate that a licensee be allowed to keep its license despite its failure to meet the
conditions to which the license is subject." Id. at 121a.
As the court explained, "[t]he FCC had not sold NextWave something that the FCC had
owned; it had used the willingness and ability of NextWave to pay more than its
competitors as the basis on which it decided to grant the [l]icenses to NextWave." Pet.
App. 121a. Thus, "NextWave's inability to follow through on its financial undertakings
had more than financial implications." Ibid. Instead, "t indicated that under the
predictive mechanism created by Congress to guide the FCC, NextWave was not the
applicant most likely to use the [l]icenses efficiently for the benefit of the public
in whose interest they were granted." Ibid. In other words, "y holding that for a
price of $1.023 billion NextWave would retain licenses for which it had bid $4.74
billion, the bankruptcy and district courts impaired the FCC's method for selecting
licensees by effectively awarding the [l]icenses to an entity that the FCC determined
was not entitled to them." Id. at 122a. The court of appeals also held that "the
transaction in which the [l]icenses were issued was * * * not constructively
fraudulent." Id. at 125a.5 NextWave filed a petition for a writ of certiorari from the
appeals court's decision, which was denied on October 10, 2000. See NextWave Personal
Communications, Inc. v. FCC, No. 99-1980 (order denying certiorari).
5. Meanwhile, on December 16, 1999, after the court of appeals had announced its
decision but before it had issued its opinion, petitioners filed modifications to their
proposed plan of reorganization providing that they would pay their overdue obligation
in full and undertake to pay future installment payments as they came due. Pet. App.
8a; see also id. at 42a. On January 11, 2000, petitioners "sweetened [their] offer" and
proposed paying the present value of the entire winning bid in a single lump sum. Id.
at 8a-9a; see also id. at 42a. The FCC rejected the offer. In objections to
petitioners' proposed modifications filed on January 12, the agency explained that the
licenses had "automatically cancel[led]," pursuant to its rules, for nonpayment of the
winning bid. Id. at 9a (citation omitted). The same day the agency issued a Public
Notice scheduling the licenses previously held by NextWave for re-auction. Ibid. The
auction is now scheduled for December 12, 2000. See FCC Public Notice, DA 00-2038
(Sept. 6, 2000).
Petitioners thereupon filed a motion in the bankruptcy court for a ruling declaring
"null and void" the FCC's actions in announcing that the licenses had automatically
lapsed. Pet. App. 32a. The bankruptcy court granted petitioners' motion. Ibid. The
court recognized that "there has been a delay in payment of principal and interest" on
petitioners' C-Block obligations. Id. at 44a. The court nonetheless held that the FCC's
actions in announcing that the licenses had lapsed violated, among other things, the
Bankruptcy Code's automatic stay, id. at 50a-54a; see 11 U.S.C. 362(a), and contravened
the Code's prohibition against discriminatory treatment of debtors by reason of their
bankruptcy, Pet. App. 57a-61a; see 11 U.S.C. 525(a).
The bankruptcy court recognized that the court of appeals, in its earlier opinion, had
held that the FCC's full payment requirement is regulatory in nature, because it
protects the integrity of the auctions as a method of license distribution, and ensures
that licenses in fact are granted to the applicant that values them most highly. Pet.
App. 82a. But the court declined to infer a regulatory purpose "with respect to the
FCC's 'timely payment' requirement." Ibid. On the contrary, the court considered
"timeliness" to have no "objective other than pure debtor-creditor economics." Ibid.
See also id. at 59a ("The 'timely payment' requirement is purely economic."). In any
event, the court questioned "whether there is any regulatory concern of such
consequence that it should override the protections and policy considerations that lie
at the very core of the Bankruptcy Code, or bar the jurisdiction of the Bankruptcy
Court from enforcing the Code." Id. at 85a. Confirmation of petitioner's plan of
reorganization was stayed "pending further order of the Court of Appeals." Id. at 87a.
On the FCC's petition, the court of appeals granted a writ of mandamus to enforce its
mandate and directed the bankruptcy court to vacate its order. Pet. App. 1a-29a. The
court of appeals concluded that the FCC's decision to hold petitioner to timely as well
as full payment was an exercise of the agency's regulatory authority which was beyond
the authority of the bankruptcy court to modify. The court of appeals explained that
"the regulatory purpose for requiring payment in full-the identification of the
candidates having the best prospects for prompt and efficient exploitation of the
spectrum-is quite obviously served in the same way by requiring payment on time." Id.
at 16a. Because "[t]ime of payment and amount of payment are alike functions of value,"
ibid. (citation omitted), "[t]here can be little doubt that if full payment is a
regulatory condition, so too is timeliness," ibid.
The court of appeals rejected the bankruptcy court's reliance on the Bankruptcy Code's
automatic stay provision, 11 U.S.C. 362(a). The court emphasized that the automatic
stay was by its terms inapplicable to actions to enforce a governmental unit's "police
or regulatory power." Pet. App. 22a (citing 11 U.S.C. 362(b)(4) (1994 & Supp. IV
1998)). It also rejected, as "flatly incompatible with [its prior] mandate," ibid., the
bankruptcy court's conclusion that the FCC was simply seeking to "enforce its pecuniary
interests," id. at 67a.
The court of appeals also stated that, "[a]lthough the bankruptcy court's opinion is
stated in terms of whether timely payment is a regulatory condition, the question posed
and answered is whether the regulatory condition of timely payment is arbitrary." Pet.
App. 19a. However, the appeals court stated, "a regulatory condition is a regulatory
condition even if it is arbitrary," and it is only "for a court with power to review
the FCC's decisions to say if they are arbitrary or valid." Ibid. In this case, the
court pointed out, federal statutes provide that "[e]xclusive jurisdiction to review
the FCC's regulatory action lies in the courts of appeals." Id. at 25a (citing 47
U.S.C. 402(a) and (b); 28 U.S.C. 2342). The court of appeals stated that petitioners
had filed in the D.C. Circuit and "remain[ed] free to pursue" those challenges to the
FCC's actions under non-bankruptcy law. Id. at 27a.6 The court concluded, however,
"that the bankruptcy court acted in derogation of this Court's mandate and beyond its
statutory jurisdiction when it nullified the FCC's Public Notice." Id. at 29a.
ARGUMENT
In NextWave Personal Communications, Inc. v. FCC, No. 99-1980 (Oct. 10, 2000), this
Court denied a petition for a writ of certiorari from the court of appeals' earlier
decision in this litigation, which held that the bankruptcy court lacked authority to
require that petitioner be permitted to retain its spectrum licenses without satisfying
the regulatory requirement that it fully meet its payment obligation. Enforcing its
mandate through mandamus, the court of appeals in the present ruling held that its
prior ruling also precludes the bankruptcy court from interfering with the FCC's
requirement that winning bids be timely paid as a condition to holding the auctioned
licenses. That decision is correct and does not conflict with the decision of any other
court of appeals or this Court. Moreover, the likelihood that the precise issue
presented by the petition-whether a bankruptcy court may override the FCC's regulatory
rule that a winning bidder's failure to make required installment payments on time
results in cancellation of its spectrum licenses-will recur is diminished now that the
FCC has eliminated its installment payment program and requires payment in full before
the license issues. See In re Amendment of Part 1 of the Commission's Rules-
Competitive Bidding Procedures, FCC No. 00-274, 2000 WL 1140602, ¶ 55 (released Aug.
14, 2000). Accordingly, further review is not warranted.
1. Under the Communications Act, the FCC is vested with authority to grant
telecommunications licenses if the "public convenience, interest, or necessity will be
served thereby." 47 U.S.C. 307(a); see also 47 U.S.C. 309(a). Under the statute, the
Commission "serve[s] as the 'single Government agency' with 'unified jurisdiction' and
'regulatory power over all forms of electrical communication,'" United States v.
Southwestern Cable Co., 392 U.S. 157, 168 (1968), and is "the expert body which
Congress has charged to carry out its legislative policy," FCC v. Pottsville Broad.
Co., 309 U.S. 134, 138 (1940). Thus, as this Court has recognized, "it is the
Commission, not the courts, which must be satisfied that the public interest will be
served" in the grant of a license, FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946), and "no
court can grant an applicant an authorization which the Commission has refused,"
Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14 (1942).
Section 309(j) of the Act authorizes the Commission to allocate licenses for use of the
electromagnetic spectrum through "a system of competitive bidding." 47 U.S.C.
309(j)(1). In promulgating the ground rules for such a system, the FCC proceeded on the
premise-shared by Congress-that auctions would ensure that spectrum is granted to the
most efficient and effective user. In re Implementation of Section 309(j) of the
Communications Act- Competitive Bidding, 9 FCC Rcd 2348, ¶ 71 (1994) (because "a
bidder's abilities to introduce valuable new services and to deploy them quickly,
intensively, and efficiently increases the value of a license to a bidder, an auction
design that awards licenses to those bidders with the highest willingness to pay tends
to promote the development and rapid deployment of new services * * * and the efficient
and intensive use of the spectrum"); id. ¶ 70 ("auction designs that award licenses to
the parties that value them most highly will best achieve" statutory goals); H.R. Rep.
No. 111, 103d Cong., 1st Sess. 249 (1993) (auctions "will ensure that spectrum is used
more productively and efficiently than if handed out for free.").
The FCC's C-Block auction payment rules are an integral part of that allocative
mechanism. Under those rules, all licenses are "conditioned upon full and timely
payment of the winning bid amount," 47 C.F.R. 24.708(a) (1996), or "full and timely
performance of the licensee's payment obligations under the installment plan," 47
C.F.R. 1.2110(e)(4) (1996). Absent such rules, bidders could submit bids that exceed
their expected return on the spectrum-thereby obtaining spectrum that other users value
more highly than they do- with impunity, undermining the Commission's allocative
mechanism. Thus, as the court of appeals recognized in its earlier ruling in this case,
the bankruptcy court's decision to permit petitioner to retain 63 broadband PCS
licenses despite its refusal to pay what it had bid for them "had more than financial
implications," Pet. App. 121a; it displaced the agency's licensing decisions. As the
court of appeals explained, "NextWave's inability to follow through on its financial
undertakings * * * indicated that under the predictive mechanism created by Congress to
guide the FCC, NextWave was not the applicant most likely to use the [l]icenses
efficiently for the benefit of the public in whose interest they were granted." Ibid.
"By holding that for a price of $1.023 billion NextWave would retain licenses for which
it had bid $4.74 billion," the bankruptcy and district courts "effectively award[ed]"
C-Block licenses "to an entity that the FCC determined was not entitled to them" and
thereby impermissibly "exercised the FCC's radio-licensing function." Id. at 122a-123a.
"It is beyond the jurisdiction of a court in a collateral proceeding," the appeals
court correctly concluded, "to mandate that a licensee be allowed to keep its license
despite its failure to meet the conditions to which the license is subject." Id. at
121a.
Those principles apply with equal force where the issue concerns the timing, rather
than the amount, of the required payment. As the court of appeals correctly understood,
"[t]ime of payment and amount of payment are alike functions of value." Pet. App. 16a
(citation omitted). It has long been recognized that "[t]ime is money," see Thinking
Machs. Corp. v. Mellon Fin. Servs. Corp. #1 (In re Thinking Machs. Corp.), 67 F.3d
1021, 1022 (1st Cir. 1995), and that a payment tardily made is less valuable than one
that is made on time. By the same token, a bidder that is not held to the time limits
for payment is free to submit a bid that does not accurately measure the value of the
spectrum to it, thereby similarly upsetting the agency's mechanism for allocating
spectrum to those who value it the most. As the FCC has explained, "[t]imeliness of * *
* payments is a necessary indication * * * that the winning bidder is financially able
to meet its obligations on the license and intends to use the license for the provision
of services to the public," and serves to discourage "insincere or financially
unqualified bidders from 'shopping' a winning bid in order to obtain financing for a
down payment." In re Southern Communications Sys., Inc., 12 FCC Rcd 1532, ¶ 6 (1997).
See generally Mountain Solutions, Ltd. v. FCC, 197 F.3d 512, 517-519 (D.C. Cir. 1999)
(upholding FCC's refusal to waive requirement of timely downpayment for C-Block license
as not arbitrary or capricious because default, among other things, serves as "an
'early warning' that a winning bidder unable to comply with the payment deadlines may
be financially unable to meet its obligation to provide service to the public"). The
court of appeals thus correctly concluded that "the regulatory purpose for requiring
payment in full-the identification of the candidates having the best prospects for
prompt and efficient exploitation of the spectrum-is quite obviously served in the same
way by requiring payment on time." Pet. App. 16a. See also ibid. ("[t]here can be
little doubt that if full payment is a regulatory condition, so too is timeliness").7
2. Petitioner does not seriously contest the fact that the FCC's timely payment
requirement is an important regulatory feature of its license allocation mechanism.8
Instead, as in its earlier petition for a writ of certiorari, petitioner contends (Pet.
11-12) that the court of appeals' decision contravenes 28 U.S.C. 1334(b), which vests
the district courts (and, by reference, the bankruptcy courts) with "original but not
exclusive jurisdiction of all civil proceedings arising under title 11, or arising in
or related to cases under title 11," "[n]otwithstanding any Act of Congress that
confers exclusive jurisdiction on a court or courts other than the district courts." 28
U.S.C. 1334(b) (emphasis added). But as the text of the statute indicates-and as this
Court has recognized- "Section 1334(b) concerns the allocation of jurisdiction between
bankruptcy courts and other 'courts,' and, of course, an administrative agency * * * is
not a 'court.'" Board of Governors v. MCorp Fin. Inc., 502 U.S. 32, 41-42 (1991).
Accord 1 L. King, Collier on Bankruptcy ¶ 3.01[4][a], at 3-17 (15th ed. 2000). Thus,
petitioners' attempt to discern a conflict between the decision below and appeals court
decisions which have found that 28 U.S.C. 1334(b) "confers bankruptcy-court
jurisdiction * * * despite the existence of statutes purporting to grant exclusive
jurisdiction to a different court" (Pet. 16), is misguided. The infirmity in the
bankruptcy court's decision was not simply that it intruded into the exclusive
jurisdiction of the courts of appeals over FCC licensing decisions, see 47 U.S.C. 402;
28 U.S.C. 2342, but that it intruded on the powers Congress reserved for the FCC.
Indeed, the district court in effect arrogated to itself the FCC's exclusive
administrative authority to issue spectrum licenses and set their terms and
conditions.9
For that reason, there is no conflict between the decision below and the Section
1334(b) decisions cited by petitioner. See Pet. 16-19. The Fifth Circuit's unpublished
denial of a stay pending appeal in the litigation over the C-Block licenses awarded to
GWI and its subsidiaries, see In re United States, No. 98-11123 (Oct. 7, 1998), cited
Pet. 18-19, did not resolve the merits of the government's appeal. Moreover, after
petitioner filed its petition, the Fifth Circuit addressed the merits of the
government's appeal, United States v. GWI PCS 1 Inc. (In re GWI PCS 1 Inc.), No.
99-11294, 2000 WL 1528690 (Oct. 20, 2000), and specifically avoided deciding the
question on which petitioner seeks review. Instead, as explained below (pp. 28-30,
infra), the Fifth Circuit resolved the FCC's appeal from an order confirming a
reorganization plan by reference to a doctrine called "equitable mootness," which has
no application in the present case. Indeed, the Fifth Circuit expressly agreed that the
district court "possibly erred in permitting avoidance and enjoining the FCC from
revoking the * * * debtor's licenses for failing to remit the full bid price, thereby
taking onto itself a quasi-regulatory function held by the FCC," 2000 WL 1528690, at
*9, and stated that, "if the issue were not equitably moot," it "might agree with the
Second Circuit and reverse the bankruptcy court's avoidance judgment," id. at *15 n.31.
See also pp. 28-29, infra.
The other appeals court decisions upon which petitioner relies all deal with court, not
agency, jurisdiction. See Pet. 16-19. Thus, Quality Tooling, Inc. v. United States, 47
F.3d 1569 (Fed. Cir. 1995), cited Pet. 16-17, involved whether the bankruptcy court,
rather than the Court of Federal Claims, could hear a government contracts dispute; and
Brock v. Morysville Body Works, Inc., 829 F.2d 383 (3d Cir. 1987), cited Pet. 17,
concerned whether the bankruptcy court, rather than the court of appeals, could enforce
an order by the Occupational Safety and Health Administration (OSHA) to abate health
and safety violations. In Brock, moreover, the court of appeals-not the bankruptcy
court-adjudicated OSHA's request for enforcement, and it did so under a provision of
the Occupational Safety and Health Act of 1970, 29 U.S.C. 660; it did not purport to
act under Section 1334(b). See 829 F.2d at 386. Finally, In re Town & Country Home
Nursing Services, Inc., 963 F.2d 1146, 1155 (9th Cir. 1991), and In re University
Medical Center, 973 F.2d 1065, 1073-1074 (3d Cir. 1992), cited Pet. 17-18, both
involved the issue of exhaustion of administrative remedies for claims asserted under
the Medicare Act. In neither of those two cases was there any contention that the
agency involved had acted in a regulatory capacity; to the contrar |
