320
Breyer, J., dissenting
The matter is important. In these very cases, the Government sought to retake its licenses through enforcement of its security interest. See, e. g., In re NextWave Personal Communications, Inc., 241 B. R. 311, 321 (SDNY) (affirming denial of the Government's motion for relief from the automatic stay under 11 U. S. C. § 362(d)(1)), rev'd, 200 F. 3d 43, 45-46, 62, and n. 1 (CA2 1999) (reversing that affirmance). The Court of Appeals for the District of Columbia Circuit indicated that the FCC's revocation of the licenses, see ante, at 307-308, is properly characterized as foreclosure on collateral—i. e., as an attempt to enforce liens. See 254 F. 3d 130, 151 (CADC 2001); cf. In re Kingsport Ventures, L. P., 251 B. R. 841, 844 (ED Tenn. 2000) (private party's power to use "revocation" to enforce interest in a license). But because the Court of Appeals rested its decision on § 525(a) grounds, it did not determine whether bankruptcy's automatic stay blocked such foreclosure. 254 F. 3d, at 148-149, 156. See generally 11 U. S. C. §§ 362(a)(4)-(5) (staying enforcement of liens). Consequently, if the majority believes that § 525(a) permits the Government to enforce security interests in its license collateral, it should remand these cases, permitting the Court of Appeals to decide whether other bankruptcy provisions (such as § 362) block the Government's efforts to do so.
I emphasize the point because the majority is right in thinking that lien-enforcement difficulties create much of the anomaly I fear—in effect divorcing the majority's reading from the statute's basic purpose. Is it not reasonable to ask for reassurance on this point, to ask what future interpretive corollary might rescue government lien-enforcement efforts from the difficulties the majority's statutory interpretation seems to create? Unless there is an answer to this question, the majority's opinion holds out no more than a slim possibility of ad hoc adjustment based upon future need. And such an adjustment, if it comes at all, may amount to mere judicial
Page: Index Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: October 4, 2007