Subject: [NEXTEL-1] Nextwave-Opinion of Stevens, J.

From: Marcel <[email-masked]>
Date: Mon, 27 Jan 2003 12:11:41 -0500

Opinion of Stevens, J.

                   SUPREME COURT OF THE UNITED STATES

                                     Nos. 01—653 and 01—657

                   ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
                       APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

                                         [January 27, 2003]

    Justice Stevens, concurring in part and concurring in the judgment.

    Because these are such close cases, it seems appropriate to identify the
considerations that have persuaded me to join the
majority. When I first read 11 U.S.C. § 525(a), I thought it was not intended to apply to
cases in which the licensor was also a
creditor, but rather, as Justice Breyer persuasively argues, was merely intended to
protect the debtor from discriminatory
license terminations. I remain persuaded that that is the principal purpose of the
provision. It is significant, however, that the first
words in the section describe three exceptions for statutes, one of which contains
language remarkably similar to the language in
the security agreements executed by respondents in these cases.1 Those exceptions
introduce an ambiguity.

    On the one hand, they indicate that Congress did not intend §525(a) to limit the
Executive’s right to condition the retaining of
a federal license on considerations similar to those on which a creditor relies. The
reasons for making an exception for licenses
to deal in perishable commodities would seem equally applicable to licenses to exploit the
public airwaves. Indeed, there is
probably a greater public interest in allowing prompt cancellation of spectrum licenses
than of commodities dealers’ licenses
because of the importance of facilitating development of the broadcast spectrum.

    On the other hand, the exceptions demonstrate that Congress realized the breadth of
the language in §525(a). Rather than
make a categorical exception that would have accommodated not only the three cases
expressly covered by the text, but also
cases like the ones before the Court today, the drafters retained the broad language that
the Court finds decisive. That language
endorses a general rule that gives priority to the debtor’s interest in preserving control
of an important asset of the estate
pending the completion of bankruptcy proceedings.

    I do not believe that the application of that general rule to these cases will be
unfair to the Federal Communications
Commission either as a regulator or as a creditor. If the bankrupt licensee is unable to
fulfill other conditions of its license, the
regulator may cancel the licenses for reasons that are not covered by §525(a).2 Moreover,
given the fact that the Commission
has a secured interest in the license, if the licensee can obtain the financing that will
enable it to perform its obligations in full, the
debt will ultimately be paid. In sum, even though I agree with Justice Breyer’s view that
the literal text of a statute is not always
a sufficient basis for determining the actual intent of Congress, in these cases I believe
it does produce the correct answer.

Notes

1.  The Perishable Agricultural Commodities Act, 1930, provides, in part: “Whenever an
applicant has paid the prescribed fee
the Secretary . . . shall issue to such applicant a license, which shall entitle the
licensee to do business as a commission merchant
. . . , but said license shall automatically terminate . . . unless the licensee . . .
pays the applicable renewal fee . . . : . . .
[T]he license of any licensee shall terminate upon said licensee . . . being discharged as
a bankrupt, unless the Secretary
finds upon examination of the circumstances of such bankruptcy . . . that such
circumstances do not warrant termination.” 7
U.S.C. § 499d(a) (emphases added).     The security agreements between NextWave and the
Government provided that “the
License shall be automatically canceled” upon NextWave’s defaulting on an installment
payment. App. to Pet. for Cert. 409a.

2.  The Senate Report explained that §525(a) “does not prohibit consideration of other
factors, such as future financial
responsibility or ability, and does not prohibit imposition of requirements such as net
capital rules, if applied
nondiscriminatorily.” S. Rep. No. 95—989, p. 81 (1978).

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