# Amicus Curiae Brief — FCC v. NextWave Personal Communications Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0517%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 537 U.S. 293 ## Text ‘og? Nos. 01-653. 01-657 JUN 24 2oz IN THE Supreme Court of the Gnited States P FEDERAL COMMUNICATIONS COMMISSION, Petitioner, rh ae V. G2 ' \( _NEXTWAVE PERSONAL COMMUNICATIONS, INC., et al., = Respondents. ARCTIC SLOPE REGIONAL CORPORATION, ef al., . Petitioners, v. NEXTWAVE PERSONAL COMMUNICATIONS, INC., ef al., Respondents. On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF FOR AMICI CURIAE SENATORS PATRICK LEAHY, ORRIN HATCH, ROBERT TORRICELLI AND CHARLES SCHUMER, REPRESENTATIVES JOHN CONYERS, LINDSEY GRAHAM AND JERROLD NADLER, AND THE ASSOCIATION OF COMMUNICATIONS ENTERPRISES IN SUPPORT OF RESPONDENTS WALTER DELLINGER (Counsel of Record) JONATHAN D. HACKER JEREMY MALTBY O’MELVENY & MYERS LLP 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-5300 Attorneys for Amici Curiae OPY BEST AVAILABLE C QUESTION PRESENTED Whether the Court of Appeals correctly held that the plain language of § 525(a) of the Bankruptcy Code, 11 U.S.C. § 525(a), precluded the Federal Communications Commission from revoking licenses held by a debtor in bankruptcy solely because such debtor did not make install- ment payments after filing for bankruptcy. il TABLE OF CONTENTS oe kt Fs Ee l SUMMARY OF ARGUMENT .........cccccccsccecesesscscsssseceecoeee. 3 PO 5 A. The Bankruptcy Code Reflects Congress’s Balanc- ing Of Numerous Policy Concerns, To Which This Court’s Natural Meaning Interpretive Approach of IN 7 B. Congress Has Considered And Rejected FCC Pro- posals To Exempt Spectrum Licenses From Bank- Sapte Cae § TES ..ncocsscssscssstinpisae 14 C. The Natural Meaning Of Bankruptcy Code § 525 Accurately Reflects Congress’s Intention To Af- ford FCC Licensees And Their Creditors The Stan- dard Protections Of The Code............cccccsccceseseeseseceeceee. 21 CONCLUSION —— —— iii TABLE OF AUTHORITIES CASES Page(s) Bank of America Nat'l Trust & Sav. Ass'n v. 203 N. LaSalle St. P’ship, 526 U.S. 434 (1999) .......ccccccceeeeeee 7,16 Butner v. United States, 440 U.S. 48 (1979)......cc.cccccceeeeeeeees ) Clearfield Trust Co. v. United States, 318 U.S. 363 ea 11 Cooke v. United States, 91 U.S. 389 (1875).......ccccccccceeeeeeees 11 Dallas-Fort Worth Reg’! Airport Bd. v. Braniff Air- ways, 26 B.R. 628 (Bankr. N.D. Tex. 1982).............:00++ 9 Davis v. Pringle, 268 U.S. 315 (1924).......ccccccccceeeeeeeeeeneees 11 Duffey v. Dollison, 734 F.2d 265 (6th Cir. 1984) ............00. 28 In the Matter of Bradley, 989 F.2d 802 (Sth Cir. 1993)....... 28 In re Colon, 102 B.R. 421 (Bankr. E.D. Pa. 1989).............. 29 Franconia Assocs. v. United States, No. 01-455 (June TIT isiiisisateneentenesesnanencensnnesesececsscsssestscanenaemmesseets 11 Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152 (1912) .....ccccccccsecseereereeeeeeenees 11 Hartford Underwriters Ins. Co. v. Union Planters FR DG) 8 Hillis Motors, Inc. v. Hawaii Auto Dealers’ Ass'n, 997 P.28 SBI CBG Cis. 1993).222. See also Letter from Hon. Orrin Hatch to Hon. Trent Lott, Oct. 19, 1998 (describing FCC proposal as “backdoor attempt to effectively make the protections afforded by the bankruptcy laws ineffective when the FCC is in the position of creditor in bankruptcy court”); Letter from Hon. Robert J. Torricelli to Hon. Trent Lott, Oct. 18, 2000 (“Torricelli Letter”) (“It is unreasonable . . . for the FCC to conclude that its licensees should be denied the rights afforded to all by the bankruptcy laws to cure de- faults, reorganize, and emerge as a viable enterprise . Such a conclusion is both j cable and antithetical to C ’ original i ' the protection of small business ’ access to spectrum.”); Letter from Hon. 16 2. As the foregoing statements reveal, congressional op- position to exempting FCC licenses from § 525 was founded on at least three related concerns. a. One concern was that stripping FCC licensees of the protections of § 525 would seriously threaten the viability of those licensees, many of which were nascent enterprises whose primary assets were their licenses. Congress under- standably believed that destroying the ability of licensees to operate by seizing their licenses would contradict the most fundamental policies underlying the Bankruptcy Code: the twin “recognized policies” of “preserving going concerns and maximizing property available to satisfy creditors.” 203 North LaSalle, 526 U.S. at 453; see Toibb, 501 U.S. at 163; Kokosca v. Belford, 417 U.S. 642, 645-46 (1974). The con- gressional drafters of § 525 itself expressly recognized that many kinds of government licenses can “seriously affect the debtor’s livelihood,” and thus require a measure of protec- tion in bankruptcy. S. Rep. No. 95-989, at 81; see id. (§ 525 enacted to provide “additional debtor protection”). Congress enacted § 525 specifically to build upon the result in Perez v. Campbell, 402 U.S. 637 (1971), which it understood as rec- ognizing that revocation even of a driver’s license “would frustrate the Congressional policy of [providing] a fresh start for a debtor.” S. Rep. No. 95-989, at 81. Revocation of FCC licenses would undermine that policy even more dramati- cally; the FCC does not contend otherwise. Cf. Whiting Pools, 462 U.S. at 203 (Congress recognized that a “reor- ganization effort would have small chance of success .. . if property essential to the running of the business were ex- cluded from the estate”). Congress’s rejection of the FCC’s request thus reflected the judgment that the bankruptcy laws should protect debtors — even those highly dependent on Kay Bailey Hutchinson and Hon. Max Cleland, July 16, 1999 (§ 618 Pee > aaa cane aa ariaasacaaarmeaiaeees 17 government licenses — not drive them to almost certain fail- ure. b. Another, related congressional concern was that giv- ing the FCC special favored status among creditors would be unfair to licensees’ private creditors. See, e.g., Oct. 15, 1998 Letter, supra (FCC proposal “elevates the claims of the Gov- ernment above all others, including other creditors”). As the discussion above shows, the bankruptcy laws exist to protect creditors as much as debtors, and giving the FCC special treatment would not only be inequitable, but in many cases would inflict serious financial injury on private creditors by depriving the debtor’s estate of assets critical to repayment of outstanding obligations. This is not to say that Congress saw no regulatory pur- poses underlying the license auction and timely payment re- quirements. The point is that Congress recognized that the FCC also had pecuniary interests — that the FCC was, in other words, acting as a typical creditor as much as it was acting as a typical regulator, when it sold access to the public spectrum to private entities for money, and extended those entities credit toward their purchases. Congress under- standably took account of that fact when it rejected the FCC’s requests for special treatment under § 525. c. A final concern voiced by members of Congress op- posing the FCC’s request for a special exemption from § 525 was that such an exemption would actually undermine the very Communications Act policies the FCC was citing in support of its request. Those policies were to encourage spectrum ownership diversification by facilitating small- business license ownership. See 47 U.S.C. § 309(j)(3)&(4). The concern of those opposed to the FCC’s request for spe- cial treatment was that depriving these small businesses of the usual protections of the Bankruptcy Code would create a serious obstacle to obtaining the capital and financing neces- sary for these companies to commence or maintain opera- 18 tions. As Representative Graham put the point bluntly, “Who in the world would lend money to a radio or TV sta- tion that bought some spectrum at the auction if you could just come in there at any moment and just take the thing over?” Limits On Regulatory Powers Under the Bankruptcy Code, Hmg. Before Subcomm. Commercial and Admin Law of House Comm. on Judiciary, 106th Cong., 2d Sess. 47 (April 11, 2000); see also id. at 55 (Rep. Graham) (“My con- cern is that if we go the route you want us to, that the private sector is going to be very adversely affected, and if you don’t honor these pecuniary relationships in some fair way to the rest of the creditors in the world who deal with these people, that the Government is going to destroy the ability for these people to succeed at small businesses ... or buy spectrum licenses. And I just think that would be devastatingly bad for the economy .. . .”); Nov. 4, 1999 Letter, supra (“Start- up telecommunications providers will not be able to attract the capital investment they so desperately need if their most valuable asset is subjected to a perfected, first priority secu- rity interest of the Federal Government.”); Torricelli Letter, supra (changing statute to allow FCC to seize licenses of providers in bankruptcy would be “antithetical to Congress’ original intent regarding the protection of small business’ access to spectrum.”). That concern was well-founded, as evidenced by what the FCC asks the Court to do here. The FCC itself recog- nized that one of the central causes of concentration in spec- trum ownership was comparatively inadequate capital avail- able to non-incumbent providers. FCC Br. 3-4. To compete successfully in the auctions, and in the development of the spectrum, new entrants had to obtain financing and invest- ments premised on the expected value of the license. An in- herent part of the license-value calculation would have been the likelihood of loss or revocation. The FCC would now apply to these struggling new entrants an automatic “one- strike-and-you’re-out” revocation policy — no matter how tO ee Leet =~ — 19 much work has been done to get the business going, and no matter how many installment payments have been made on the license bid price, the FCC would “automatically cancel” the license of any entity that missed even one payment. Even worse, the regulation makes no apparent provision for return of all or part of previous installment payments. If a new entrant missed the last payment by a month or a week or a day, the FCC would revoke its license and keep its money, leaving the entity essentially valueless in many cases. There can be little doubt that, had Congress changed the law to au- thorize the “one strike” license cancellation policy the FCC now seeks to enforce, potential investors would have been strongly discouraged from investing at all, or strongly en- couraged to put a huge price on capital debt or equity.° As congressional opponents of special treatment for the FCC understood, either consequence would disserve § 309(j)’s goals of facilitating spectrum ownership by smaller, new en- trants to the business. 3. Finally, it bears emphasis that the policy gloss the FCC asks this Court to impose on § 525 is markedly broader than the specific exemption the FCC sought from Congress. By its terms § 525 applies to any “license, permit, charter, franchise or other grant” from any “governmental unit.” Section 525’s protections thus extend to debtors with real estate licenses, e.g., In re Harris, 85 B.R. 858 (S.D. Fila. 1994), liquor licenses, e.g., In re Mason, 18 B.R. 817 (Bankr. W.D. Tenn. 1982), building permits, e.g., Jn re Island Club * &f Able, “Hot Goods” Liability: Secured Creditors and the Fair Labor Standards Act, 87 Colum. L. Rev 644, 652 (1987) (regulation may “increase[] the risk — and therefore the cost — of credit”); Note, Unse- cured Creditors of Failed Banks: It’s Not a Wonderful Life, 104 Harv. L. Rev. 1052, 1069-70 (1991) (noting that “even the possibility” of arbitrary exercise of FDIC discretion in bank regulation could “hamper the ability of ailing networks to obtain additional credit,” which “would increase the cost of that credit, and the FDIC could find even more institutions in its charge”). 20 Marina, Lid., 38 B.R. 847 (N.D. Ill. 1984), and food fran- chises, e.g., In re Exquisito Servs., Inc., 823 F.2d 151 (Sth Cir. 1987). What the FCC sought from Congress was an ex- emption from § 525 only for licenses issued by the FCC. What the FCC in effect seeks from this Court is an exemp- tion from § 525 for ail licenses and other grants issued by ail governmental agencies, so long as the agency can identify some regulatory purpose supporting the license and its revo- cation. We can be certain, however, that the regulatory pur- poses the FCC cites as urgent here would not be as urgent in all cases. And yet the FCC proposes no principled basis on which the Court could hold that FCC licenses are broadly exempt from § 525, but licenses, permits and franchises is- sued by other agencies are not. By contrast, that is exactly the kind of decision Congress is well-equipped to make, i.e., which kinds of licenses deserve special treatment under § 525, and under what circumstances. A decision by this Court accepting the FCC’s argument here would tear a wide hole through the Code, fundamentally altering the bank- ruptcy nghts of government license-holders everywhere, with no contextual appreciation of the need to alter those rights.’ Judicial adoption of the policy rejected by Congress thus would not only rework the balance struck by Congress be- ” There would also be unpredictable “ripple” effects throughout the Code if the Court adopted other arguments the FCC is making. The terms of art “debt” and “dischargeable,” for example, are fundamental concepts animating much of the Code’s operation. If the Court were to interpret those terms to exclude from § 525 the payment obligation here simply because it reflects a regulatory function, that interpretation pre- sumably would apply to all uses of those terms in the Code. It is impos- sible to predict the number and nature of transactions that would be af- fected by such an interpretation of dischargeable debt. At a minimum, it is clear that such an approach would wreak havoc on the baseline rule that the government should be treated like any other creditor, subject only to limited exceptions specified clearly in the Code. <— Soren ~o 21 tween the regulatory interest in licensing and the bankruptcy law interest in protecting debtors and creditors. It would also do so without any sense of the true force of the government’s interest in all the cases that would be affected by the ruling. The broad sweep of the ruling would thus compound the al- ready serious unfairness of imposing a retroactive change; it would upset expectations not only of FCC licensees and their creditors, but also those of many other government licensees and their creditors. Avoiding such compound and unpredict- able results is precisely why this Court properly leaves bank- ruptcy policy judgments to Congress. C. The Natural Meaning Of Code § 525 Accurately Re- flects Congress’s Intention To Afford FCC Licensees And Their Creditors The Standard Protections Of The Bankruptcy Code Section 525 is, quite plainly, an explicit limitation on the authority of all government agencies to exercise their regula- tory power to grant, deny, and revoke government licenses. The FCC nevertheless argues without a hint of irony that § 525 is inapplicable precisely because its license revocation reflects the exercise of regulatory power. That argument cannot be reconciled with the plain text of § 525, which — as Congress has already adjudged in rejecting the FCC’s efforts to obtain an exemption — is also fully consistent with rele- vant Bankruptcy Code and Communications Act policies. 1. The FCC relies on its “regulatory purposes” argument to escape the force of each element of § 525. Those efforts are unavailing. a. The FCC first argues that “[bjecause the payment ob- ligations in the licenses are regulatory conditions, they are not debts” under § 525. FCC Br. 30. A “debt” under the Code is a “liability on a claim,” 11 U.S.C. § 101(12), and a “claim” is a “right to payment,” id. § 101(5)(A). In Daven- port, supra, this Court held that a restitution obligation im- 22 posed in a criminal proceeding, though obviously supported by the regulatory purposes of compensating crime victims and deterring misconduct, was nevertheless a “debt” within the meaning of the Code: [T]he language employed to define “claim” . . . makes no reference to purpose. The plain meaning of a “right to payment” is nothing more or less than an en- forceable obligation, regardless of the objectives the State seeks to serve in imposing the obligation. 495 U.S. at 559 (emphasis added). And in Kovacs, supra, the Court similarly held that an environmental clean-up in- junctive order that had been reduced to a monetary payment obligation was also a “debt” under the Code. 469 U.S. at 278-81. The argument that the license payment obligation here is not a “debt” cannot be reconciled with Davenport and Kovacs. b. The FCC next argues that § 525 does not apply be- cause respondent’s debt is not “dischargeable” in the bank- ruptcy case. It is not dischargeable, the FCC contends, be- Cause it is a regulatory condition the bankruptcy court lacks authority to alter. FCC Br. 32-34. As the FCC puts it, “[tJhe bankruptcy court had no more authority to allow respondents to retain the licenses despite failure to make timely payments than the court could void other regulatory provisions of re- spondents’ licenses, such as the requirement that they actu- ally build out a communications network by the prescribed deadline.” FCC Br. 32-33. That argument is a non sequitur. An obligation to pay money is a “debt” within the meaning of § 525; a network build-out requirement is not. The fact that a bankruptcy court could not “discharge” a build-out schedule that is not a “debt” says nothing about whether the court can discharge a payment obligation that plainly is a “debt” under § 525. For example, even though a government education loan 23 might include obligations — such as draft registration — be- yond the authority of a bankruptcy court to excuse, that fact does not automatically render the loan repayment obligation beyond the court’s power to discharge in bankruptcy. See 11 U.S.C. § 523(a)(8) (government education loan not excepted from discharge if exception would cause debtor undue hard- ship). Merely describing a debt as a regulatory condition, in other words, does not put the debt on a par with all other regulatory conditions of the license in respect to discharge- ability. c. Finally, the FCC contends that because it had a regulatory reason underlying its decision to allow respondent to retain the licenses only so long as it made timely install- ment payments, the revocation of the licenses was not, in fact, “solely because of” respondent’s failure to pay. FCC Br. 36-38. That argument is also incorrect. The FCC actually makes two distinct claims on this point. First, it argues that the existence of an underlying regulatory purpose behind the revocation establishes that the FCC did not revoke the licenses solely because of the failure to make a timely payment, but for that reason and whatever reasons lay behind it. FCC Br. 37-38. This contention con- fuses the subjective-intent-based concept of motive or ani- mus with the objective question of causation, which is all that this aspect of § 525 is directed to. The FCC’s contention is akin to the argument long rejected in the Title VII cus- tomer preference cases. The employers in those cases claimed that while they had refused to hire certain employees on the basis of race, their motive in doing so was not animus or hostility to racial minorities, but to accommodate the pref- erences of customers, who would not want to deal with mi- nority employees. That argument failed: the question in those cases was not whether the employer had a non-race- based reason for refusing to hire minority employees, but simply whether race was the criterion the employer used to 24 deny employment. See, e.g., Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1530 (7th Cir. 1990) (Posner, J.) (“Suppose a merchant refuses to hire black workers not because he is rac- ist but because he believes that his customers do not like blacks and will take their business elsewhere if he hires any. The refusal is nevertheless discrimination, because it is treat- ing people differently on account of their race.”); cf. Palmore v. Sidoti, 466 U.S. 429 (1984) (use of prohibited classifica- tion, regardless of motive behind it, triggers heightened judi- cial scrutiny); Los Angeles Dep't of Water & Power v. Man- hart, 435 U.S. 702 (1978) (similar). Similarly, even if the FCC had distinct, good-government motives behind its revocation of the licenses, the undisputed fact is that respondent’s failure to make timely payment on a dischargeable debt was the sole criterion that triggered revo- cation of the licenses. That is, regardless of respondent’s financial position or ability to use the network, the FCC would not have revoked respondent’s licenses had it made timely payments. And conversely, even if respondent had an unparalleled financial position and first-rate spectrum utiliza- tion, the FCC’s rule still would have required revocation of its licenses had respondent failed to make a single timely payment. Accordingly, the licenses were revoked “solely because” respondent failed to make payments, regardless of the motivations the FCC had for acting solely on that basis.® * By similar analogy to employment discrimination cases, Arctic Slope argues that the existence of a regulatory purpose renders this a “mixed motives” situation, and that addition of the word “solely” before “because of” in § 525 excludes such situations from § 525’s ambit. Arc- tic Slope Br. 25. Arctic Slope is wrong. The so-called “mixed motives” situation arises where the defendant actually acted against the individual on the basis of two or more criteria — i.e., gender and personality — and the question is whether the proscribed criterion can be said to have truly caused the adverse action. E.g., Price Waterhouse v. Hopkins, 490 US. 228, 241 (1989) (plurality op.); id. at 284 (Kennedy, J., dissenting). No such problem of causation arises where the defendant indisputably acts 25 Second, the FCC argues that § 525 erects only a barrier to “discrimination” against licensees in bankruptcy, and that because other licensees not in bankruptcy would also lose their license for failure to make payments, there is no “dis- crimination” against bankrupt licensees and, hence, no viola- tion of § 525. FCC Br. 37. The problem for the FCC is that the plain language of § 525 is not limited to barring “dis- crimination” against license-holders simply “for entering bankruptcy.” FCC Br. 37. Jn addition to that general prohi- bition against anti-bankruptcy animus, the text of § 525 also bars the government from using the failure of a bankrupt li- censee to make a debt payment as the sole basis for revoking its license. See S. Rep. No. 95-989, at 81 (§ 525 extends to “discrimination or other action based solely on the basis of the bankruptcy, on the basis of insolvency before or during bankruptcy prior to a determination of discharge, or on the basis of nonpayment of a debt discharged in the bankruptcy case”) (emphasis added). If § 525 is to this extent a form of affirmative protection for licensees in bankruptcy that is un- available to other, non-bankrupt licensees, it is merely the kind of affirmative protection for debtors in bankruptcy the entire Code exists to provide. It assuredly does not render the plain terms of § 525 inoperative. on the basis of just one impermissible criterion, but asserts that the one criterion is a statistical proxy for other, permissible motives. In that in- stance there is only one “cause,” though there may be many motives. Thus, even if the word “solely” appeared in Title VII, the outcome in customer preference cases would be the same, for there is only one “cause” in those cases — though “mixed motives” cases might be evalu- ated differently, since they really involve mixed causes. Conversely, the word “solely” is not superfluous under the D.C. Circuit’s reading of § 525, as Arctic Slope contends, Br. 25: its use in § 525 bars agencies from revoking a license solely for failure to make a payment, but oper- ates to allow them to revoke a license even on that basis, so long as other conditions also justify revocation. See infra at 28-29 (discussing addi- tional factors on which FCC could have based revocation of license). 26 2. The FCC’s efforts to escape the force of § 525 on the basis of its asserted “regulatory purposes” fail not only the terms of § 525’s text and recent history, but also the holding of Perez v. Campbell, 402 U.S. 637 (1971), which the provi- sion was intended to elaborate. The only material difference between Perez and this case is that in Perez, the government revoked a license for failure to pay a private debt, whereas here the debt was to the FCC in exchange for the license it- self. But in fact that is no difference at all, as closer scrutiny of the FCC’s rationale for revoking the license reveals. The FCC in this case argues that revoking the license for failure to make timely payments was the only way it could ensure “best use of the spectrum in the public interest.” FCC Br. 40. Even accepting that dubious proposition as true for the moment, but see infra at 28-29, that rationale presumably would apply equally to a licensee’s failure to make timely payments fo its own private creditors: in either instance, the failure to pay would reflect financial weakness potentially undermining the licensee’s ability to put the spectrum to full use. Thus the FCC’s justification for revoking respondent’s licenses for nonpayment of a dischargeable debt to the FCC necessarily would also authorize it to revoke a license for failure to pay any debt that is dischargeable in bankruptcy. And that is exactly what § 525 prohibits, if its plain text, and this Court’s holding in Perez, mean anything at all. 3. Finally, the natural meaning of § 525’s text is not in- consistent with the Communications Act policies the FCC cites as justification for adopting a different interpretation — which is among the reasons why Congress did not see fit to recast the statutory balance in the way the FCC now urges. Section 309(j) of the Communications Act encourages the FCC to consider the use of methods like installment payment plans to facilitate the participation of small busi- nesses in the auction processes and, ultimately, to promote diversity of spectrum ownership. 47 U.S.C. § 309(j)(3)&(4). a — a en Ali, ie 27 That policy would be thwarted, the FCC says, if § 525 pro- hibits it from revoking licenses when installment payment obligations are not met. The FCC’s argument misapprehends both § 309(j)) and § 525. It is perfectly clear that nothing in § 309(j) required the FCC to use installment plans without guaranteed credit. The FCC’s own brief recognizes that Congress directed the FCC only to “‘consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments’ to promote small business participa- tion.” FCC Br. 48 (emphasis added) (quoting 47 U.S.C. § 309(j)(4)(A)). More to the point, nothing in § 309() re- quired the FCC to use the failure to make timely payments as the conclusive proxy for its regulatory goals of ensuring op- timal spectrum usage. Even taken on its own terms, the FCC’s assertion that § 309(j) encouraged use both of in- stallment payments and of the presumption that the highest bidder was the “best” spectrum user, FCC Br. 40, provides no support for the FCC’s decision to condition revocation of licenses merely on the timeliness of installment payments made by the highest bidder. That was a decision voluntarily made solely by the FCC, strongly influenced no doubt by its pecuniary interest in obtaining payments for the federal Treasury. Section 309 does not say — or imply — that the FCC not only ought to allow installment payments, but also ought to revoke licenses when such payments are not timely. Accordingly, enforcing the text of § 525 to prevent the FCC from revoking a license solely for violation of a payment timing condition poses no conflict at all with § 309()). The FCC also errs in its estimation of the scope of § 525. The FCC complains that, as interpreted by the D.C. Circuit, § 525 would “force an agency to give an exclusive license to a business that fails to meet a key regulatory requirement for maintaining the license,” setting up the conflict with § 309(j). FCC Br. 42. Not so. It was the FCC’s own deci- 28 sion to make timely installment payments the only “key regulatory requirement for maintaining the license.” Having chosen to so limit itself, the FCC subjected its control over possession of licenses to the restrictions of § 525. That choice was not compelled by § 525. Section 525 absolutely does not bar government agencies making licens- ing decisions from “consideration of other factors, such as future financial responsibility or ability.” S. Rep. No. 95- 989, at 81. Nor does it extend so far as to prohibit examination of the factors surrounding bankruptcy, the imposition of financial responsibility rules if they are not imposed solely on former bankrupts, or the examination of prospective financial condition or managerial ability .... [I]n those cases where the causes of a bankruptcy are inti- mately connected with the license . . . in question, an examination into the circumstances surrounding the bankruptcy will permit governmental units to pursue appropriate regulatory policies and take appropriate action without running afoul of bankruptcy policy. H.R. Rep. No. 95-595, at 165 (1978). Accordingly, an agency may revoke the license of a debtor in bankruptcy so long as the trigger for revocation is something other than the debtor’s mere presence in bankruptcy or mere failure to make a dischargeable debt payment. See, e.g., Duffey v. Dollison, 734 F.2d 265, 272-74 (6th Cir. 1984) (upholding application to debtor in bankruptcy of law requiring suspen- sion of driver’s license where driver has failed to pay judg- ment and failed to post proof of financial responsibility); Jn the Matter of Bradley, 989 F.2d 802, 804 (Sth Cir. 1993) (“Section 525 does not prohibit a state from denying or re- voking a license based upon a determination that the public safety would be jeopardized by granting or allowing contin- ued possession of the license, but it does prohibit a state from exacting a discharged debt as the price of receiving or 29 retaining a license.”); Jn re Colon, 102 B.R. 421, 428 (Bankr. E.D. Pa. 1989) (“If state law mandates the suspension or revocation of driving privileges due to the nature of the in- fraction or the driver’s history of traffic violations, irrespec- tive of whether the driver promptly pays a fine, the bank- ruptcy code will not interfere with the exercise of the police power.”). There are numerous ways the FCC in this case could have avoided the force of § 525 by connecting the regulatory requirements for maintaining licenses more tightly to its true regulatory interests in spectrum usage, and less tightly to its pecuniary interests in simply enforcing payment obligations. For example, the FCC could have conditioned possession of licenses on satisfaction of periodic network build-out obliga- tions. The FCC could have imposed financial requirements other than payment obligations, such as the financial respon- sibility gules specifically suggested in the committee reports accompanying the Code. The FCC could even have condi- tioned license-holding on occasional totality-of-the- circumstances inquiries into a licensee’s continued fitness to hold a license, which could have permissibly included an “examination into the circumstances surrounding bank- ruptcy.” H.R. Rep. No. 95-595, at 165. Enforcement of those or similar regulatory requirements for licensees would have allowed the FCC to fully serve the goals of § 309(j) without running into any § 525 limitations whatsoever. What the FCC could not do was to make mere failure to pay a dischargeable debt the sole, blanket proxy for all of its regulatory considerations. As Congress has already implicitly determined, the fact that the FCC voluntarily chose to serve its § 309(j) goals by a mechanism that would trigger § 525’s protections for licensees is no reason to dis- regard those protections. 30 Ignoring § 525’s plain textual restriction on the govern- ment’s power to revoke a license for failure to pay a dis- chargeable debt whenever the government asserts a regula- tory purpose for the revocation — a rule-swallowing excep- tion appearing nowhere in the Code’s text — would do vio-: lence not only to this Court’s practice of adhering solely to the text, but also to the sound principle of deference to con- gressional policymaking that underlies that practice. As we have seen, the process of continuous policy balancing by Congress has included the provision over the years of nu- merous exceptions and special privileges to government agencies analogous to the special treatment sought here by the FCC. As we have also seen, that process has specifically included unsuccessful efforts by the FCC to obtain for itself the very privilege — exemption from § 525 — it now asks this Court to confer broadly on all government agencies. If and when Congress deems it necessary for the FCC or other agencies to have such power, Congress will provide it. This Court should adhere to its well-established practice of leav- ing such policy decisions to Congress. CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be affirmed. Respectfully submitted, WALTER DELLINGER (Counsel of Record) JONATHAN D. HACKER JEREMY MALTBY O’MELVENY & MYERS LLP 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-5300 Attorneys for Amici Curiae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0517%3A19. Public record. Not legal advice.