Bankruptcy Court Jurisdiction and Agency Action: Resolving the NextWave of Conflict

Abstract:     
This Comment criticizes a pair of decisions by the United States Court of Appeals for the Second Circuit, FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc.) and In re FCC, which held that a bankruptcy court lacks jurisdiction to determine whether the Federal Communications Commission is stayed from revoking a debtor's licenses. The Comment argues that the Second Circuit interpreted the bankruptcy court's jurisdiction too narrowly because it failed to distinguish properly between an agency's action as a creditor and as a regulator. It concludes that bankruptcy courts and courts of appeals have concurrent jurisdiction to make automatic stay determinations regarding FCC licenses and that, for reasons of institutional competence, courts of appeals should defer to this exercise of jurisdiction by bankruptcy courts.

Number of Pages in PDF File: 27

Keywords: bankruptcy, jurisdiction, automatic stay, property of the estate, government creditor, FCC

Accepted Paper Series