254 F.3d 130 (D.C. Cir. 2001)
NextWave Personal Communications Inc. and  NextWave Power Partners Inc., Petitionersv.Federal Communications Commission and United States of America, RespondentsBellSouth Corporation, et al., Intervenors
No. 00-1402 and with 00-1403
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2001Decided June 22, 2001

On Petition for Review and Notice of Appeal of Orders of the Federal Communications Commission
Theodore B. Olson argued the cause for petitioners/appellants.  With him on the briefs were Thomas G. Hungar, Donald B. Verrilli, Jr., Ian Heath Gershengorn and Lara M.  Flint. Miguel A. Estrada entered an appearance.
William H. Crispin, Emanuel Grillo, David Friedman and  Kenneth N. Klee were on the brief for amici curiae Senator  Robert G. Torricelli, et al. in support of petitioners/appellants.
Daniel M. Armstrong, Associate General Counsel, Federal  Communications Commission, argued the cause for respondents/appellee.  With him on the brief were Christopher J.  Wright, General Counsel, Joel Marcus and Stanley R.  Scheiner, Counsel, Jacob M. Lewis and H. Thomas Byron  III, Attorneys, U.S. Department of Justice.  Stewart A.  Block, Counsel, Federal Communications Commission, entered an appearance.
Richard G. Taranto argued the cause for intervenors Cellular Telecommunications Industry Association, et al.  With  him on the brief were Michael F. Altschul, L. Andrew Tollin,  Robert G. Kirk, Craig E. Gilmore, Douglas I. Brandon,  Howard J. Symons, Sara F. Leibman, Louis Gurman, Christa M. Parker, John T. Scott III, Mark L. Evans, Lawrence J.  Movshin, Michael Deuel Sullivan and H. Richard Juhnke.  Matthew R. Sutherland entered an appearance.
Before:  Sentelle, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:


1
This case concerns the extent to  which the Bankruptcy Code limits a federal agency--here,  the Federal Communications Commission--acting to implement the provisions of its own statute.  Seeking to comply  with its statutory duty to ensure small business participation  in auctions of broadband PCS licenses, the Commission allowed winning bidders to pay for their licenses in installments.  As part of this scheme, the Commission took and  perfected security interests in the licenses, and provided for  license cancellation should a bidder fail to make timely payments.  When appellants, winning bidders on several licenses,  declared bankruptcy and ceased making payments, the Commission canceled their licenses.  Applying the fundamental  principle that federal agencies must obey all federal laws, not  just those they administer, we conclude that the Commission  violated the provision of the Bankruptcy Code that prohibits  governmental entities from revoking debtors' licenses solely  for failure to pay debts dischargeable in bankruptcy.  The  Commission, having chosen to create standard debt obligations as part of its licensing scheme, is bound by the usual  rules governing the treatment of such obligations in bankruptcy.


2
* In 1993, Congress amended the Communications Act of  1934 to authorize the Federal Communications Commission to  award spectrum licenses "through a system of competitive  bidding."  47 U.S.C.   309(j)(1).  In "identifying classes of  licenses and permits to be issued by competitive bidding," and  in "designing the methodologies" for such bidding, Congress  directed the Commission to promote several objectives, including "the development and rapid deployment of new technologies, products and services," the "recovery for the public  of a portion of the value of the public spectrum resource made  available for commercial use," and the "efficient and intensive  use of the electromagnetic spectrum."  Id.   309(j)(3).  Congress also directed the Commission to "promot[e] economic  opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American  people by ... disseminating licenses among a wide variety of  applicants, including small businesses [and] rural telephone  companies."  Id.   309(j)(3)(B).  To further this last goal,  Congress directed the Commission to "consider alternative  payment schedules and methods of calculation, including lump  sums or guaranteed installment payments ... or other schedules or methods."  Id.   309(j)(4)(A).


3
Acting pursuant to this statute, the Commission adopted  rules to auction licenses for "broadband PCS"--"personal  communications services in the 2 GHz band."  In re Implementation of Section 309(j) of the Communications Act, 9 FCC Rcd 5532 p 1 (1994).  The Commission expected broadband PCS to "provide new mobile communications capabilities" through "a new generation of communications devices"  including "small, lightweight, multi-function portable phones,  portable facsimile and other imaging devices, new types of  multi-channel cordless phones, and advanced paging devices  with two-way data capabilities."  Id. p 3.  The Commission  "determined that the use of competitive bidding to award  broadband PCS licenses, as compared with other licensing  methods, would speed the development and deployment of  new services to the public and would encourage efficient use  of the spectrum," as required by statute, since "auctions  would generally award licenses quickly to those parties who  value them most highly and who are therefore most likely to  introduce service rapidly to the public."  Id. p 5.  The Commission expected the PCS license auction to "constitute the  largest auction of public assets in American history," recovering "billions of dollars for the United States Treasury," and  thus fulfilling another statutory mandate.  Id. p 1.


4
As directed by Congress, the Commission adopted a variety  of measures to promote small business ownership of PCS  licenses, including setting aside two blocks of licenses, the "C"  and "F" Blocks, for bidding by entities with annual gross  revenues and total assets below specified amounts.  Id. p 12. Especially relevant to this case, the Commission allowed  "most successful bidders within the [C and F Blocks] to pay  for their licenses in installments."  Id. p 16.  Observing that  "the primary impediment to participation [in license auctions]  by designated [small business] entities is lack of access to  capital," id. p 10, the Commission concluded that "installment  payments are an effective means to address the inability of  small businesses to obtain financing and will enable these  entities to compete more effectively for the auctioned spectrum."  Id. p 135.  "By allowing payment in installments," the  Commission stated, "the government is in effect extending  credit to licensees, thus reducing the amount of private  financing needed prior to and after the auction."  Id. p 136. The Commission also announced that "[t]imely payment of all  installments will be a condition of the license[ ] grant and failure to make such timely payment will be grounds for  revocation of the license."  Id. p 138.


5
In 1995, a group of former telecommunications executives  founded NextWave Personal Communications Inc. and  NextWave Power Partners Inc. (collectively "NextWave"),  appellants in this case, for the purpose of bidding on PCS  licenses and operating a personal communications service.  NextWave's founders hoped the company would become a  "carrier's carrier," selling wireless services and airtime  wholesale.  Appellants' Opening Br. at 5.  At C Block auctions in May and July, 1996, NextWave bid $4.74 billion in  total, winning sixty-three licenses.  The company made a  $474 million down payment.  Several months later, the Commission granted NextWave its licenses, took a security interest in each, and filed UCC financing statements to perfect its  claims.  The security agreements gave the Commission "a  first lien on and continuing security interest in all of the  Debtor's rights and interest in [each] License."  Security  Agreement between NextWave and FCC p 1 (January 3, 1997). The licenses included the following language:  "This authorization is conditioned upon the full and timely payment of all  monies due pursuant to ... the terms of the Commission's  installment plan as set forth in the Note and Security Agreement executed by the licensee.  Failure to comply with this  condition will result in the automatic cancellation of this  authorization."  FCC, Radio Station Authorization for  Broadband PCS 2 (issued to NextWave January 3, 1997).


6
After the Commission awarded the C Block licenses, several successful bidders, including NextWave, experienced difficulty obtaining financing, having agreed to pay on average  almost three times what winning bidders in the prior A and B  Block auctions had paid, and several times what winning  bidders in subsequent D, E, and F block auctions paid.  In  response, the Commission suspended installment payment  obligations for C Block licensees, and then issued two Restructuring Orders, offering a variety of revised financing  options that allowed C Block licensees to surrender some or  all of their licenses for full or partial forgiveness of their  outstanding debt.  See In re Amendment of the Comm'n's Rules Regarding Installment Payment Fin. for Pers. Communications Servs. Licensees, Second Report and Order and  Further Notice of Proposed Rule Making, 12 FCC Rcd 16436  p p 6, 32-69 (1997);  In re Amendment of the Comm'n's Rules  Regarding Installment Payment Fin. for Pers. Communications Servs. Licensees, Order on Recons. of the Second Report  and Order, 13 FCC Rcd 8345 p p 11-15 (1998);  see also In re  Amendment of the Comm'n's Rules Regarding Installment  Payment Fin. for Pers. Communications Servs. Licensees,  Second Order on Recons. of the Second Report and Order, 14  FCC Rcd 6571 (1999).  None of the restructuring options  allowed licensees to keep any of their licenses for less than  the full bid price.  See In re Amendment of the Comm'n's  Rules, Order on Recons., 13 FCC Rcd 8345 p 8.  According to  the Commission, these options balanced the goals of introducing new spectrum services rapidly and promoting small business participation in PCS auctions against the need to maintain auction integrity and treat unsuccessful bidders fairly. See In re Amendment of the Comm'n's Rules, 12 FCC Rcd  16436 p p 1-5;  see also U.S. Airwaves, Inc. v. FCC, 232 F.3d  227 (D.C. Cir. 2000) (upholding restructuring scheme).  The  Commission gave licensees until June 8, 1998 to elect a  restructuring option, and until July 31, 1998 to resume installment payments.  Public Notice, Wireless Telecommunications Bureau Announces June 8, 1998 Election Date, 13 FCC  Rcd 7413 (1998).  It set October 29, 1998 as the last date it  would accept late installment payments.  Id.


7
On June 8, 1998, after failing to obtain stays of the election  deadline from the Commission and this court, NextWave filed  for Chapter 11 bankruptcy protection in New York.  See  NextWave Pers. Communications, Inc. v. FCC (In re  NextWave Pers. Communications, Inc.), 235 B.R. 263, 267  (Bankr. S.D.N.Y. 1998) ("NextWave I").  Because the Bankruptcy Code is central to this case, we pause to summarize  certain relevant provisions.  Section 362, the "automatic stay"  provision, provides that petitions filed under Chapter 11  "operate[ ] as a stay, applicable to all entities" of a variety of  acts to collect on or enforce debts.  11 U.S.C.   362(a). Subsection 362(a)(3) stays "any act to obtain possession of property of [an] estate ... or to exercise control over property of the estate," id.   362(a)(3), but subsection 362(b)(4)  provides an exception to 362(a)(3) for "governmental unit[s]"  acting to "enforce" their "regulatory power."  Id.   362(b)(4). Subsections 362(a)(4) and (5) stay "any act to create, perfect,  or enforce any lien against property of the estate" or of the  debtor.  Id.   362(a)(4), (5).  The regulatory power exception  does not apply to these subsections.  See id.   362(b)(4).  In  general, an automatic stay lasts only until a bankruptcy case  is closed or dismissed, or until the bankruptcy court grants or  denies a discharge.  See id.   362(c)(2).  Other provisions of  the Code, however, offer more permanent relief.  Section 525  prohibits "governmental unit[s]" from "revok[ing]" a bankrupt's or debtor's license "solely because such bankrupt or  debtor ... has not paid a debt that is dischargeable ...  under this title."  Id.   525(a).  Finally, under section 1123,  11 U.S.C.   1123, bankrupts (subject to court approval) have  the power to "cure" their defaults--that is, to "tak[e] care of  the triggering event and return[ ] to pre-default conditions." Di Pierro v. Taddeo (In re Taddeo), 685 F.2d 24, 26-27 (2d  Cir. 1982).


8
After declaring bankruptcy, and in line with the "normal  deferment of the payment of preorganization claims until  their disposition can be made part of a plan of reorganization," In re Penn Cent. Transp. Co., 467 F.2d 100, 102 n.1 (3d  Cir. 1972), NextWave made no further payments on its  licenses.  Nor did it seek permission to make installment  payments under the "necessity of payment" doctrine, which  some courts have invoked to authorize payment of prepetition claims "if such payment [is] essential to the continued  operation of the debtor."  In re Just For Feet, Inc., 242 B.R.  821, 825 (Bankr. D. Del. 1999).  NextWave sought no such  authorization, it explains, because "the Code's automatic stay  provision generally prevents even government creditors from  enforcing payment obligations or seizing assets of the estate,"  and thus it had "no reason to believe it would be required to  make the October 1998 installment payment while in bankruptcy."  Appellants' Opening Br. at 10 & n.8.


9
Instead, NextWave alleged in the bankruptcy court that its  $4.74 billion license fee obligation was avoidable under section 544 of the Bankruptcy Code as a "fraudulent conveyance"  since the company had not received reasonably equivalent  value in exchange for incurring the obligation:  by the time  the Commission actually conveyed the licenses to NextWave,  the company claimed, their value had declined to less than $1  billion.  NextWave I, 235 B.R. at 269;  see also NextWave  Pers. Communications, Inc. v. FCC (In re NextWave Pers.  Communications), 235 B.R. 277, 290 (Bankr. S.D.N.Y. 1999)  ("NextWave III").  Ruling on this claim, the bankruptcy  court began by addressing its jurisdiction.  It acknowledged  that under 47 U.S.C.   402, it lacked jurisdiction to "enjoin[ ],  review[ ], assess[ ] damages for or otherwise adjudicat[e] the  consequences of the conduct of [a] Federal agency acting  within the scope of its Congressional mandate."  NextWave I,  235 B.R. at 268.  It nevertheless asserted jurisdiction over  the case because, in its view, NextWave's claim against the  Commission did not involve "any regulatory conduct on the  part of the FCC," but rather concerned solely the debtorcreditor relationship between the FCC and NextWave.  Id. at  269;  see also NextWave Pers. Communications, Inc. v. FCC  (In re NextWave Pers. Communications), 235 B.R. 305, 314  (Bankr. S.D.N.Y. 1999) ("NextWave IV").  Nothing in the  Communications Act, the court said, suggests that a bankruptcy court lacks jurisdiction to implement the provisions of  the Code "which affect [the Commission] as a creditor." NextWave I, 235 B.R. at 269-70.  Turning to the merits, the  court found that NextWave's winning bid exceeded the fair  market value of its licenses at the time they were conveyed,  NextWave III, 235 B.R. at 304, and avoided $3.72 billion of  NextWave's $4.74 billion license fee obligation, ruling in effect  that the company could keep its licenses for the reduced price  of $1.02 billion.  See NextWave IV, 235 B.R. 305, aff'd  NextWave Pers. Communications, Inc. v. FCC (In re  NextWave Pers. Communications, Inc.), 241 B.R. 311, 321  (S.D.N.Y. 1999);  see also In re NextWave Pers. Communications, Inc., 235 B.R. 314, 316 (Bankr. S.D.N.Y. 1999)  ("NextWave V").


10
The Second Circuit reversed, making four key points. First, it emphasized that the Commission's action, contrary to  the bankruptcy court's finding, was regulatory:  the Commission explicitly "made 'full and timely payment of the winning  bid' a regulatory condition for obtaining and retaining a  spectrum license," and this condition had a purpose "related  directly to the FCC's implementation of the spectrum auctions."  FCC v. NextWave Pers. Communications, Inc. (In re  NextWave Personal Communications), 200 F.3d 43, 52 (2d  Cir. 1999) (quoting 47 C.F.R.   24.708).  The Second Circuit  explained the Commission's regulatory purpose as follows:


11
[The FCC] decided that it would be 'critically important to the success of our system of competitive bidding ... [to] provide strong incentives for potential bidders to make certain of their qualifications and financial capabilities before the auction so as to avoid delays in the deployment of new services to the public that would result from litigation, disqualification and re-auction.' ... [Since] 'designated entities' such as NextWave ... were allowed to pay in installments[,] [i]t was important for the functioning of the auction ... that the FCC's default rules and penalties be enforceable, because the FCC relied upon them as a substitute for conducting the 'detailed credit checks' and other forms of due diligence that otherwise would be necessary to ensure ... that the licenses would be awarded to the appropriate entities.


12
Id. at 52-53 (quoting In re Implementation of Section 309(j)  of the Communications Act--Competitive Bidding, Second  Report and Order, 9 FCC Rcd 2348 p p 197, 194, 198 (1994)).


13
Second, the court held that the bankruptcy court had  interfered with this regulatory purpose by avoiding a substantial portion of NextWave's bid price, thus allowing the company to keep the licenses for a reduced price.  Id. at 55.  This,  the Second Circuit held, the bankruptcy court had no jurisdiction to do:  "Because jurisdiction over claims brought against  the FCC in its regulatory capacity lies exclusively in the  federal courts of appeals, see ... 47 U.S.C.   402, the bankruptcy and district courts lacked jurisdiction to decide the  question of whether NextWave had satisfied the regulatory  conditions placed by the FCC upon its retention of the  Licenses."  In re NextWave, 200 F.3d at 54.


14
Third, the Second Circuit found that besides interfering  with the Commission's licensing function through a collateral  proceeding, the bankruptcy court had in effect attempted to  exercise that function itself--again exceeding its jurisdiction:


15
By holding that for a price of $1.023 billion NextWave would retain licenses for which it had bid $4.74 billion, the bankruptcy ... court[ ] impaired the FCC's method for selecting licensees by effectively awarding the Licenses to an entity that the FCC determined was not entitled to them.  In so doing [it] exercised the FCC's radiolicensing function....  [E]ven if the bankruptcy ... court[ ] [was] right in concluding that granting the Licenses at a small fraction of NextWave's original successful bid price best effectuated the [Federal Communication Act's] goals, [it was] utterly without the power to order that NextWave be allowed to retain them for that reason or on that basis.


16
Id. at 55 (internal citations omitted).


17
Finally, notwithstanding its conclusion that the bankruptcy  court lacked jurisdiction to change the conditions under which  NextWave could retain its licenses, the Second Circuit acknowledged that the bankruptcy court might well have jurisdiction over NextWave's underlying debts themselves:  "To  the extent that the financial transactions between [the FCC  and NextWave] do not touch upon the FCC's regulatory  authority, they are indeed like the obligations between ordinary debtors and creditors."  Id.  Pointing out that  NextWave "remain[ed] a debtor in bankruptcy," and that "[i]f  the Licenses [were] returned to the FCC, the bankruptcy  court [might] resolve resulting financial claims that the FCC  has against NextWave," id. at 56, the Second Circuit reviewed the merits of the bankruptcy court's avoidance decision and concluded that NextWave should not be allowed to  avoid $3.72 billion of its debt under the Bankruptcy Code. Id. at 46, 62.


18
Immediately following the Second Circuit reversal,  NextWave prepared a new plan of reorganization that provided for a single lump sum payment to satisfy its entire $4.3  billion outstanding obligation to the Commission, including interest and late fees.  The Commission objected to the plan,  alleging that NextWave's licenses had automatically canceled  when the company missed its first payment deadline in  October 1998.  See In re Pub. Notice DA 00-49, Auction of C  and F Block Broadband PCS Licenses, Order on Reconsideration, FCC 00-335 p 7 (Sept. 6, 2000).  Simultaneously, the  Commission issued a public notice announcing re-auction of  NextWave's licenses.  The notice stated that the licenses  were "available for auction under the automatic cancellation  provisions" of the Commission's regulations.  Public Notice,  Auction of C and F Block Broadband PCS Licenses, DA 0049, 15 FCC Rcd 693 (2000).


19
The dispute then returned to the bankruptcy court, which  declared the Commission's cancellation of NextWave's licenses "null and void" as a violation of various provisions of the  Bankruptcy Code, including the automatic stay provisions of  section 362(a).  In re NextWave Pers. Communications, Inc.,  244 B.R. 253, 257-58, 267-68 (Bankr. S.D.N.Y. 2000)  ("NextWave VI").  In reaching this conclusion, the bankruptcy court acknowledged that under the Second Circuit's ruling,  it lacked jurisdiction to interfere with the Commission's regulatory acts.  Id. at 260-61.  It also acknowledged that it was  bound by the Second Circuit's decision that "a regulatory  purpose was implicit in the 'full payment requirement' in the  FCC regulations."  Id. at 270.  As the bankruptcy court saw  it, however, the "regulatory objective" behind the full payment requirement had been "fulfilled in the debtors' modified  Plan . . . . to pay the entire $4.3 billion outstanding ... in a  lump sum upon confirmation."  Id.  The cancellation of  NextWave's licenses, in contrast, was a response to the  company's failure to make a timely payment, and this requirement, the court reasoned, was "purely economic," having  to do with "the time value of money."  Id.  "[T]he economic  consequence of delay," it stated, "will be fully cured by  payment in full of all applicable interest, penalties and late  fees...."  Id.  Further explaining its view that the timely  payment requirement lacked a regulatory purpose, the bankruptcy court discussed at length its reasons for believing that  canceling licenses for failure to make a timely payment "conflict[ed] with the spirit and the letter of the agency's  governing statute"--namely, section 309(j) of the Communications Act.  Id. at 281;  see also id. at 282-83, 271.  Concluding  that the Commission "has not and cannot articulate any  regulatory interest entailed in the 'timely payment' requirement," id. at 270, the court ruled that the Second Circuit's  prior decision did not preclude it from declaring the cancellation void.  Id. at 283.


20
Again, the Second Circuit reversed.  In re FCC, 217 F.3d  125 (2d Cir. 2000).  Granting a mandamus petition filed by  the Commission, the court held that "[t]here can be little  doubt that if full payment is a regulatory condition, so too is  timeliness."  Id. at 136.  In the court's view, "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 135. The conclusion that the Commission's decision "was  in fact regulatory," the court went on, was "reinforced" by the  fact that the bankruptcy court, in deciding that the license  cancellation lacked a regulatory purpose, had explained at  length that the cancellation and re-auction were contrary to  the purposes of section 309(j) of the Communications Act. Id. at 136.  But according to the Second Circuit, these  discussions, rather than explaining why the re-auction decision was not regulatory, explained why, under the Communications Act, it was arbitrary, and such a determination, the  Second Circuit pointed out, was "outside the jurisdiction of  the bankruptcy court."  Id.  "[A] regulatory condition is a  regulatory condition even if it is arbitrary.  It is for the FCC  to state its conditions of licensure, and for a court with power  to review the FCC's decisions to say if they are arbitrary or  valid."  Id. at 137.


21
As a consequence, the Second Circuit concluded that the  bankruptcy court had both violated the appellate court's  earlier mandate and exceeded the bankruptcy court's own  jurisdiction.  Id.  "The bankruptcy court," the Second Circuit  stated, "construes our mandate to mean no more than that  the bankruptcy court may not abrogate the full-payment  requirement on the basis of a fraudulent conveyance holding." Id. at 139.  But this understanding "under-reads our previous  opinion."  Id.  That opinion "clearly instruct[ed] the bankruptcy court to refrain from interfering with the licensing  decisions of the FCC," id., and as the Second Circuit saw it,  this is exactly what the bankruptcy court did in declaring the  license cancellation null and void.  In addition, because "[e]xclusive jurisdiction to review the FCC's regulatory action lies  in the courts of appeals" under 47 U.S.C.   402, In re FCC,  217 F.3d at 139, the Second Circuit found that the bankruptcy  court's license cancellation holding exceeded that court's jurisdiction.  Id. at 141.  The court also noted that "NextWave  remains free to pursue its challenge to the FCC's regulatory  acts" in another forum, pointing out that the company had  already filed "protective notices of appeal" in this court.  Id.  at 140-41.


22
After losing in the Second Circuit, NextWave filed a petition with the Commission, requesting reconsideration of the  license cancellation.  Denying the petition, the Commission  noted first that the public notice of reauction "was not an  order or action of the Commission ... canceling NextWave's  licenses."  Order on Reconsideration, FCC 00-335 p 10. Rather, "[p]ursuant to [Commission] rules, the licenses canceled automatically" after NextWave failed to make its first  installment payment.  Id.  The Commission thus concluded  that NextWave's petition was "late" and its challenge to the  reauction notice "procedurally defective."  Id.  "Nevertheless, because of the importance of the issues raised in  NextWave's petition," id., the Commission went on to address  the company's challenge to the automatic cancellation.  The  Commission rejected NextWave's arguments that the cancellation was arbitrary and capricious and barred by estoppel  and waiver, id. p p 11-33, and found that the company's  Bankruptcy Code arguments, having been "summarily rejected by the Second Circuit," were "precluded under the doctrine of res judicata."  Id. p 26.


23
NextWave now challenges the Commission's decision on  two basic grounds.  First, it claims that the license cancellation is "patently unlawful," Appellants' Opening Br. at 16,  under the provisions of the Bankruptcy Code described earlier:  the anti-discrimination provision (section 525), the automatic stay provision (section 362), and the provision of the  Code allowing debtors to "cure" their defaults (section 1123). Second, citing our decision in Trinity Broadcasting of Florida, Inc. v. FCC, 211 F.3d 618, 631 (D.C. Cir. 2000), where  we held that an agency may not "sanction a company for its  failure to comply with regulatory requirements" without first  providing "fair notice" of those requirements, NextWave argues that even if the license cancellation is not barred by  the Bankruptcy Code, it is invalid because the Commission  failed to provide adequate notice that the timely payment  regulations apply to Chapter 11 debtors.  The Commission,  supported by Intervenors (the Cellular Telecommunications  Industry Association and several telecommunications companies) defends its decision.

II

24
We begin with three threshold issues.  Does our jurisdiction in this case arise from 47 U.S.C.   402(a) or 402(b)? Was NextWave's challenge to its license cancellation timely? And are NextWave's Bankruptcy Code arguments barred by  res judicata?  We consider each question in turn.

Jurisdiction

25
NextWave has filed both a petition for review under section  402(a) and a notice of appeal under section 402(b) of the  Communications Act.  Section 402(a) provides that "[a]ny  proceeding to enjoin, set aside, annul, or suspend any order of  the Commission under this chapter (except those appealable  under subsection (b) of this section) shall be brought" in a  court of appeals.  See 47 U.S.C.   402(a) (cross-referencing  28 U.S.C.   2342(1)).  Section 402(b), in contrast, provides:


26
Appeals may be taken from decisions and orders of the Commission to the United States Court of Appeals for the District of Columbia ... [b]y the holder of any construction permit or station license which has been modified or revoked by the Commission.


27
Id.   402(b).  Acknowledging that we have previously found  these two provisions mutually exclusive, see Friedman v.  FCC, 263 F.2d 493, 494 (D.C. Cir. 1959), NextWave asks us to  "dismiss the filing that relies on the incorrect jurisdictional  provision."  Appellants' Opening Br. at 1.


28
In Mobile Communications Corp. of America v. FCC, we  decided that the term "station license" in section 402(b)  encompasses PCS licenses.  See 77 F.3d 1399, 1403 (D.C. Cir.  1996);  see also 47 U.S.C.   153(42) (defining "station license"  as "that instrument of authorization required ... for the use  or operation of apparatus for transmission of energy, or  communications, or signals by radio");  id.   153(33) (defining  "communication by radio" as "the transmission by radio of  writing, signs, signals, pictures, and sounds of all kinds"). Given this, we think section 402(b)'s plain language, permitting appeal by "the holder of any ... station license which  has been ... revoked by the Commission," covers this case. Cf. Cook, Inc. v. United States, 394 F.2d 84, 86 n.4 (7th Cir.  1968) (" 'The language of [subsection 402(b)], when considered  in relation to that of subsection (a) ... would make clear that  judicial review of all cases involving the exercise of the  Commission's radio-licensing power is limited to [the United  States Court of Appeals for the District of Columbia Circuit].' ") (quoting S. Rep. No. 82-44, at 11 (1951));  In re FCC,  217 F.3d at 140-41.  Even if the Commission did not formally  "revoke" NextWave's licenses, that is certainly the effect of  the license cancellation:  the licenses once assigned to  NextWave are now being re-auctioned to other bidders.  Cf.  In re FCC, 217 F.3d at 140 n.10.  We therefore dismiss the  section 402(a) petition and proceed with the section 402(b)  appeal.

Timeliness

29
Section 402(c) of the Communications Act requires appeals  under section 402(b) to be filed "within thirty days from the  date upon which public notice is given of the decision or order  complained of."  47 U.S.C.   402(c).  The "decision"  NextWave seeks to challenge is the Commission's cancellation  of its licenses, but the formal Commission action it actually  appeals is the public notice of re-auction, which itself cancels no licenses, but rather announces in passing that the company's licenses canceled automatically at an earlier date.  Order  on Reconsideration, FCC 00-355 p 10.


30
The Commission acknowledges that "in some instances, it  may be proper for a party to challenge the Commission's  public notices that establish or deny rights."  Id.  Joined by  Intervenors, however, it argues that NextWave's challenge to  the license cancellation policy is untimely.  Intervenors claim  that NextWave should have challenged the policy when its  licenses were issued, since the licenses themselves stated  explicitly that they were conditioned on timely payment, and  as we have held, "[a]cceptance of a license constitutes accession to all [license] conditions."  P&R Temmer v. FCC, 743  F.2d 918, 928 (D.C. Cir. 1984).  Alternatively, both Intervenors and the Commission suggest that NextWave should have  challenged the automatic cancellation rule during the Restructuring Order proceedings because during those proceedings, the Commission considered objections to its original  installment payment plan (including some objections based on  the Bankruptcy Code), revised the plan, and ultimately reaffirmed the timely payment requirement.  Intervenors' Br. at  3;  see also, e.g., Order on Recons. of the Second Report and  Order, 13 FCC Rcd 8345 p 24.  Having failed to challenge the  automatic cancellation rule at one of these earlier dates, they  argue, NextWave cannot do so now because orders denying  reconsideration do not re-open matters that should have been  challenged previously.  See ICC v. Bhd. of Locomotive  Eng'rs, 482 U.S. 270, 279-80, 285-86 (1987).


31
As NextWave points out, however, we have held that "a  party against whom a rule is applied may, at the time of  application, pursue substantive objections to the rule ... even  where the petitioner had notice and opportunity to bring a  direct challenge within statutory time limits" but failed to do  so.  Indep. Cmty. Bankers of Am. v. Bd. of Governors of the  Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir. 1999).  Thus  even if NextWave could have challenged the automatic cancellation policy at an earlier date--either when its licenses  issued or during the Restructuring Order proceedings--the  company remained free to do so "within thirty days from the date upon which public notice [was] given" that the policy had  been applied to it.  47 U.S.C.   402(c).


32
According to NextWave, the thirty-day period was triggered by the public notice of re-auction because, prior to the  re-auction notice, "the FCC had done nothing whatsoever to  announce the cancellation of NextWave's licenses."  Appellants' Reply Br. at 6.  Because it filed a precautionary appeal  with this court 30 days after the notice of re-auction,  NextWave claims, its appeal was timely.  Disagreeing, Intervenors argue that NextWave already had notice in October  1998 that its licenses would cancel automatically if and when  it failed to make an installment payment.  Thus, they argue,  no further Commission statement was required to trigger the  period for seeking judicial review.


33
Intervenors' argument assumes that notice of a future  event's automatic effect (here, the explicit warning that the  licenses would cancel for failure to make a timely payment) is  by itself sufficient notice to mean that the occurrence of the  future event (failing to make a timely payment) will trigger  the period for seeking judicial review under section 402(c). To resolve the timeliness issue in this case, however, we need  not decide whether that assumption is correct, for we think it  was unclear prior to the notice of re-auction that the automatic cancellation policy would apply to licensees who had filed  for bankruptcy.  To begin with, the Bankruptcy Code gave  NextWave reason to doubt that the automatic cancellation  would actually occur when the company missed its first  payment in October 1998:  the automatic stay triggered by a  Chapter 11 filing generally blocks most efforts by creditors to  exercise control over or repossess property of a debtor.  See  11 U.S.C.   362(a);  cf. NextWave VI, 244 B.R. at 266-68  (finding that the automatic stay applied to NextWave's license  fee obligations).  Neither the Commission nor Intervenors  point to any instance prior to the re-auction notice in which  the Commission actually announced that NextWave's licenses  had canceled despite the stay.  Moreover, the Commission's  own conduct suggests that it was at best unsure whether the  automatic stay blocked cancellation of the company's licenses. After the bankruptcy court's fraudulent conveyance holding, and several months after NextWave missed the October  payment deadline, the Commission moved the bankruptcy  court to lift the stay "so that the ... automatic cancellation  provisions may take effect."  Mot. to Lift Automatic Stay at  2, NextWave V, 235 B.R. 314 (No. 98 B 21529).  And in the  bankruptcy court, Commission counsel suggested that the  automatic stay blocked cancellation of NextWave's licenses,  stating for example that although "[t]he regulations provide  that upon failure to make the payments the license is automatically canceled[,] ... [t]hat hasn't [happened] in this case  due to the automatic stay."  See Hearing Tr. at 30, In re  NextWave Pers. Communications, Inc., No. 98 B 21529  (Bankr. S.D.N.Y. Nov. 12, 1998);  NextWave VI, 244 B.R. at  277 (noting that transcript erroneously attributes this quotation to the Court).


34
These circumstances suggest that the Commission believed  NextWave's licenses had not canceled prior to the notice of  re-auction.  At the very least, they created doubt about the  matter, and as we have held, "when an agency leaves room  for genuine and reasonable doubt as to the applicability of its  orders or regulations, the statutory period for filing a petition  for review is tolled until that doubt is eliminated."  Recreation Vehicle Indus. Ass'n v. EPA, 653 F.2d 562, 569 (D.C.  Cir. 1981).  Because the "genuine and reasonable doubt"  about the status of NextWave's licenses continued until the  Commission issued the notice of re-auction, we conclude that  NextWave's petition is timely.

Res Judicata

35
This brings us to the final and most difficult threshold  issue:  whether NextWave's Bankruptcy Code arguments are  barred by res judicata.  "The doctrine of res judicata prevents repetitious litigation involving the same causes of action  or the same issues."  I.A.M. Nat'l Pension Fund v. Indus.  Gear Mfg. Co., 723 F.2d 944, 946 (D.C. Cir. 1983).  According  to the Commission, because NextWave litigated and lost its  Bankruptcy Code arguments in the Second Circuit mandamus  proceedings, it may not relitigate them here.  Asserting a right to make these arguments here, NextWave argues that  the Second Circuit's decision was jurisdictional--a decision  about "where NextWave's bankruptcy challenges should be  decided, not how they should be resolved."  Appellants' Opening Br. at 26 (emphasis added).  As a result, the company  argues, res judicata does not bar it from presenting its  Bankruptcy Code arguments in this court.


36
The doctrine of res judicata "usually is parsed into claim  preclusion and issue preclusion."  I.A.M. Nat'l Pension  Fund, 723 F.2d at 946.  Because the Commission raises  arguments based on both theories, and because the two  theories differ in subtle but significant respects, we consider  each separately.  "Under the claim preclusion aspect of res  judicata, a final judgment on the merits in a prior suit  involving the same parties or their privies bars subsequent  suits based on the same cause of action."  Id. at 946-47. Claim preclusion prevents parties from relitigating issues  they raised or could have raised in a prior action on the same  claim.  See Allen v. McCurry, 449 U.S. 90, 94 (1980).  "[D]ismissals for lack of jurisdiction," however, "are not decisions  on the merits and therefore have no [claim preclusive] effect  on subsequent attempts to bring suit in a court of competent  jurisdiction."  Kasap v. Folger Nolan Fleming & Douglas,  Inc., 166 F.3d 1243, 1248 (D.C. Cir. 1999);  see also Fed R.  Civ. P. 41(b) ("a dismissal under this subdivision and any  dismissal not provided for in this rule, other than a dismissal  for lack of jurisdiction ... operates as an adjudication upon  the merits").


37
No one disputes that the Second Circuit thought the bankruptcy court lacked authority to declare the notice of reauction invalid.  In re FCC, 217 F.3d at 141.  The question  dividing the parties is why the Second Circuit thought this. According to NextWave, the Second Circuit reversed the  bankruptcy court because under section 402 of the Communications Act, "the FCC's licensing decisions are subject to the  exclusive jurisdiction of the federal courts of appeals."  Id. at  129.  In other words, the company claims, the Second Circuit  held that any arguments directly or collaterally challenging  the Commission's regulatory actions--including arguments based on the Bankruptcy Code--must be brought in a court  of appeals.  Cf. In re NextWave, 200 F.3d at 55.  The  Commission has a different view of the Second Circuit's  decision.  It argues that the Second Circuit decided not that  the bankruptcy court lacked jurisdiction to determine whether the license cancellation violated the Bankruptcy Code, but  rather that "the [Bankruptcy Code] provisions on which  NextWave relies do not reach regulatory actions such as  those at issue here."  Appellee's Br. at 15.  In other words,  the Commission claims that the Second Circuit reviewed the  bankruptcy court's Bankruptcy Code conclusions on the merits and found that because the Commission's actions were  regulatory, the automatic stay, right to cure, and antidiscrimination provisions of the Code did not reach those  actions.


38
We agree with NextWave's interpretation of the Second  Circuit's decision.  As we read that decision, the court principally held that the Commission's license cancellation was a  regulatory act reviewable only by a court of appeals under  section 402 of the Communications Act, and thus that the  bankruptcy court lacked jurisdiction to apply the Code to  these acts.  With one exception (which we shall explain later),  we do not understand the Second Circuit to have decided as a  substantive matter that nothing in the Bankruptcy Code  prevents the Commission from canceling NextWave's licenses.


39
To begin with, and most obviously, the Second Circuit  repeatedly stated that it was making a "jurisdictional" decision based on section 402.  Here are just three examples: "We recognized that pursuant to ... 47 U.S.C.   402, review  of the FCC's regulatory decisions and orders is entrusted  solely to the federal courts of appeals and is therefore outside  the jurisdiction of the bankruptcy and district courts," In re  FCC, 217 F.3d at 131 (describing initial opinion);  " '[b]ecause  jurisdiction over claims brought against the FCC in its regulatory capacity lies exclusively in the federal courts of appeals, see ... 47 U.S.C.   402, the bankruptcy and district  courts lacked jurisdiction to decide the question of whether  NextWave had satisfied the regulatory conditions placed by the FCC upon its retention of the Licenses,' " id. at 137  (quoting initial opinion);  "[e]xclusive jurisdiction to review  the FCC's regulatory action lies in the courts of appeals," id.  at 139 (citing cases discussing section 402).  Reinforcing the  jurisdictional nature of its opinion, the Second Circuit also  disavowed any intent to rule on the merits of NextWave's  challenges to the Commission's acts, stating explicitly that  NextWave was "free to pursue its challenge to the FCC's  regulatory acts" in an appropriate forum, id. at 140, and that  the court was making "no comment on the prospects" of such  an appeal.  Id. at 129;  see also id. at 138 n.8 ("we have no  occasion to opine on whether the Public Notice is valid or  whether the Licenses automatically canceled at some prior  date");  id. at 139 ("Even if the bankruptcy court is right on  the merits of its arguments against revocation--we have no  occasion to express an opinion--it is without power to act on  its determination.").


40
According to the Commission, these repeated references to  the bankruptcy court's lack of jurisdiction mean only that the  bankruptcy court lacked jurisdiction to decide whether the  Commission had applied the auction requirements of section  309(j) of the Communications Act arbitrarily and capriciously,  not that it lacked jurisdiction to review the Commission's  actions for compliance with the Bankruptcy Code.  Likewise,  the Commission suggests, the Second Circuit's references to  the prospects of NextWave's appeal refer only to an appeal  based on section 309(j).  In support of this interpretation, the  Commission points to language in the Second Circuit's opinion suggesting that the bankruptcy court lacked jurisdiction  to question the Commission's regulatory judgments under  section 309(j).  See, e.g., id. at 131-32 (" '[E]ven if the bankruptcy and district courts were right in concluding that  granting the Licenses at a small fraction of NextWave's  original successful bid price best effectuated the [Federal  Communication Act's] goals, they were utterly without the  power to order that NextWave be allowed to retain them for  that reason or on that basis.' ") (quoting initial opinion);  see  also id. at 136-37.


41
The Second Circuit, however, had good reason to address  section 309(j) directly:  the bankruptcy court devoted several  paragraphs to evaluating the Commission's conduct in light of  that section.  See NextWave VI, 244 B.R. at 271, 281-83. Moreover, it is perfectly consistent to hold that section 402  prohibits the bankruptcy court from reviewing Commission  action both under section 309(j) and under the Bankruptcy  Code.  True, as the Commission points out, other circuits  have recognized the jurisdiction of bankruptcy courts to  determine whether provisions of the Code such as the automatic stay apply to agency actions.  See, e.g., Commerce Oil  Co. v. Word (In re Commerce Oil Co.), 847 F.2d 291 (6th Cir.  1988);  Universal Life Church, Inc. v. United States (In re  Universal Life Church, Inc.), 128 F.3d 1294 (9th Cir. 1997). But that is irrelevant to the question we face here:  how did  the Second Circuit view the bankruptcy court's jurisdiction? Regardless of how other circuits--or even we--might interpret section 402, we think the Second Circuit construed the  provision to confer "exclusive jurisdiction" on courts of appeals to review even Bankruptcy Code challenges to the  Commission's regulatory acts.  Many of the court's references to section 402 are not clearly restricted to bankruptcy  court power under section 309(j).  See, e.g., In re FCC, 217  F.3d at 139 ("Exclusive jurisdiction to review the FCC's  regulatory action lies in the courts of appeals.").  And at least  once in its opinion, the Second Circuit expressly stated that  "[t]he bankruptcy court lacked jurisdiction to declare the  Public Notice [of reauction] null and void on [the] groundthat the Public Notice violated the automatic stay, [or] that  the right to cure obviates any default"--that is, on Bankruptcy Code grounds.  Id. at 139 (emphasis added).


42
The Second Circuit's reasoning in granting mandamus further illustrates the jurisdictional nature of its opinion.  The  court overturned the bankruptcy court's decision on two  "independently sufficient" grounds, each discussed in a separate section of the opinion.  See id. at 141.  One ground was  that the bankruptcy court lacked "statutory jurisdiction" to  nullify the Commission's license cancellation.  Id.  Entitled  "Jurisdiction," this section of the opinion consists entirely of a discussion of sections 402(a) and (b) of the Communications  Act--it never mentions the Bankruptcy Code.  Id. at 139-41. If, as the Commission maintains, the Second Circuit thought  the bankruptcy court lacked authority to invalidate the license cancellation principally because the Code does not  reach the Commission's regulatory acts (and if, as the Commission also maintains, the Second Circuit's discussion of  "jurisdiction" merely refers to the peripheral issue of the  bankruptcy court's jurisdiction to review Commission actions  under section 309(j) of the Communications Act) it is difficult  to explain why the court failed to discuss the Bankruptcy  Code in this section of its opinion, given that the reasons  discussed here provide an "independently sufficient" basis for  mandamus.


43
The Second Circuit's other reason for granting mandamus  was that the bankruptcy court violated the appellate court's  earlier mandate.  But as the Second Circuit made clear, its  initial opinion too was jurisdictional:


44
Our extraordinary mandamus power has two purposes: to achieve compliance with the terms and spirit of our mandates, and to constrain inferior courts to proper exercises of their jurisdiction.  In this case, the two uses of mandamus overlap and reinforce one another.  This Court's previous opinion reversed a decision of the bankruptcy court on the ground that that court lacked jurisdiction.  The bankruptcy court again seeks to control the FCC's allocation of licenses, notwithstanding this Court's express holding that 'the bankruptcy and district courts lack[ ] jurisdiction to decide the question of whether NextWave had satisfied the regulatory conditions placed by the FCC upon its retention of the Licenses.'  Thus a writ of mandamus protecting this Court's mandate also confines the inferior court to the lawful exercise of its jurisdiction.


45
Id. at 137 (quoting In re NextWave, 200 F.3d at 54).


46
To be sure, in the "mandate" section of its opinion, the  Second Circuit appeared to decide on the merits that at least  some parts of the automatic stay provision of the Bankruptcy Code, 11 U.S.C.   362, do not apply to the facts of this case. See In re FCC, 217 F.3d at 138 ("Undoubtedly, the [Commission] is a governmental unit that is seeking 'to enforce' its  'regulatory power' [under subsection 362(b)(4)].");  id at 138  n.8 ("[W]e hold that the FCC's regulatory decisions fall within  [subsection] 362(b)(4).").  But leaving aside for the moment  the effect of this discussion under the doctrine of issue  preclusion, this portion of the Second Circuit's opinion does  not change our view that the court's decision was primarily  jurisdictional, for the court expressly couched its discussion of  the automatic stay in jurisdictional terms:  the court prefaced  its discussion by noting that "[t]he bankruptcy court founds  its jurisdiction [to interfere with the FCC's enforcement of  its payment schedule] chiefly on the automatic stay provision  of [section 362]...."  Id. at 138 (emphasis added).  We need  not decide whether this jurisdictional interpretation of section  362 is correct--the Supreme Court has declined to express an  opinion on the issue, see Bd. of Governors of the Fed. Reserve  Sys. v. MCorp Fin., Inc., 502 U.S. 32, 41 n.11 (1991)--because  the Commission's res judicata argument requires only that we  determine what the Second Circuit meant, and here we think  it clear that the court treated section 362 as though it  provided a potential basis for bankruptcy court jurisdiction.


47
In addition to this direct evidence of the jurisdictional  nature of the Second Circuit opinion, the Commission's alternate view of the opinion--that the court decided as a substantive matter that nothing in the Bankruptcy Code prevents the  Commission from canceling NextWave's licenses--is implausible.  Not only does this interpretation fail to account fully for  the opinion's jurisdictional language, see supra at 21-22, but  the Second Circuit never actually states that the Bankruptcy  Code as such does not reach the Commission's regulatory  acts:  the entire opinion concerns the power and jurisdiction  of the bankruptcy court.  Perhaps most telling, the Second  Circuit does not discuss any provision of the Bankruptcy  Code besides section 362, despite the fact that the bankruptcy  court discussed section 525 and made a ruling based on  sections 1123 and 1124.  As NextWave argues, "[t]he exclusively jurisdictional character of the Second Circuit's ruling provides a complete explanation for its ... silence respecting  NextWave's principal bankruptcy arguments."  Appellants'  Reply Br. at 4.


48
Faced with the Second Circuit's silence about sections 525  and 1123, the Commission suggests that even though the  court failed to mention these provisions, it necessarily decided  that they do not bar the license cancellation because "mandamus relief is warranted only where the petitioner has demonstrated that its right to such relief is clear and indisputable,"  and "the Second Circuit would not have granted our request  for extraordinary relief if it had thought that the bankruptcy  court's decision was sustainable on the basis of [section] 525"  or 1123.  Appellee's Br. at 21 n.13 (internal quotation omitted);  id. at 24 n.15.  The assumption that the Second Circuit  "necessarily" resolved these arguments, however, is valid only  if the Commission's view of the case is correct--that is, if the  Second Circuit meant to decide as a substantive matter that  the Bankruptcy Code did not reach the Commission's actions. If instead the Second Circuit principally decided, as much of  the opinion's language suggests, see supra at 20-22, that the  bankruptcy court lacked jurisdiction to hear these arguments,  that conclusion would also have provided a basis for mandamus, without requiring the court to consider or decide anything about sections 525 and 1123 at all.


49
The Commission offers a second, equally unpersuasive explanation for the Second Circuit's silence regarding sections  525 and 1123.  The bankruptcy court's analysis of those  provisions, the Commission says, "hinges on its characterization of the FCC as an ordinary creditor," Appellee's Br. at 24,  and by rejecting decisively this characterization, the Second  Circuit in effect decided that these parts of the Code do not  apply.  Apart from the fact that it seems odd that the Second  Circuit would have decided that sections 525 and 1123 do not  apply without ever mentioning them, this argument fails  because, like the previous argument, it assumes the correctness of the Commission's reading of the Second Circuit's  opinion.  But the alternate reading of the opinion--that the  bankruptcy court lacked jurisdiction to hear challenges to the  Commission's regulatory actions based on the Bankruptcy Code or otherwise--also relies upon the notion that the  Commission is not an ordinary creditor but a regulator in this  situation.  The fact that the Second Circuit decided that the  Commission was not acting as an ordinary creditor when it  canceled the licenses thus does not indicate that the court  implicitly decided that sections 525 and 1123 are inapplicable  to this case.


50
Having thus concluded that the Second Circuit's opinion  was jurisdictional and that claim preclusion does not bar  NextWave from re-litigating its Bankruptcy Code arguments  in this court, we turn to the Commission's second major res  judicata argument:  that each of NextWave's Bankruptcy  Code arguments is barred by issue preclusion.  "Under the  issue preclusion aspect of res judicata, a final judgment on  the merits in a prior suit precludes subsequent relitigation of  issues actually litigated and determined in the prior suit,  regardless of whether the subsequent suit is based on the  same cause of action."  I.A.M. Nat'l Pension Fund, 723 F.2d  at 947.  Issue preclusion is most often invoked where "a  subsequent action is brought on a different claim," id. at 947  n.3, and as a result claim preclusion does not apply.  Issue  preclusion, however, may also apply to subsequent actions  brought on the same claim:  if a judgment "does not preclude  relitigation of all or part of the claim on which the action was  brought"--if, for example, as here, the judgment was jurisdictional--it may still preclude relitigation of any issues "actually litigated and determined" in the first action.  Id.  For  issue preclusion to apply, however, "the issue must have been  actually and necessarily determined by a court of competent  jurisdiction in the first trial."  Connors v. Tanoma Mining  Co., 953 F.2d 682, 684 (D.C. Cir. 1992) (internal quotation and  emphasis omitted).  If the "basis" of a prior decision is  "unclear, and it is thus uncertain whether the issue was  actually and necessarily decided in [the prior] litigation, then  relitigation of the issue is not precluded."  Id.


51
It may appear that the only issue potentially barred by  issue preclusion from a case dismissed for lack of jurisdiction  is the jurisdictional determination itself.  Cf. Kasap, 166 F.3d  at 1248.  In this case, it may thus seem that the Second Circuit cannot have ruled on the merits of any of NextWave's  Bankruptcy Code arguments, because the court only decided  that the bankruptcy court lacked jurisdiction to hear them. And indeed, under our jurisdictional interpretation of the  Second Circuit's decision, we do not think the court "actually  and necessarily" decided whether sections 525 and 1123 bar  the license cancellation.  We thus conclude that issue preclusion does not bar relitigation of these issues.


52
Far less clear, however, is whether issue preclusion bars  NextWave's section 362 argument.  As we have seen, the  Second Circuit explicitly discussed section 362's automatic  stay, finding that the bankruptcy court could not rely on the  provision as an independent basis for jurisdiction because the  license cancellation was a regulatory act exempt under subsection 362(b)(4).  See supra at 23-24.  It is true, as we have  said, that this was a jurisdictional discussion, but this does  not preclude it from having issue preclusive effect:  if a court  makes a substantive determination in order to arrive at a  jurisdictional holding, the substantive determination can have  issue preclusive effect so long as it was "actually litigated and  determined in the prior action."  See I.A.M. Nat'l Pension  Fund, 723 F.2d at 947 n.3.  The Restatement gives the  following example:


53
A brings an action against B for personal injuries arising out of an automobile accident.  Jurisdiction is asserted over B, a nonresident, on the basis that the automobile involved in the accident was being operated in the state by or on his behalf.  After trial of this issue, the action is dismissed for lack of jurisdiction.  In a subsequent action by A against B for the same injuries, brought in the state of B's residence, the prior determination that the automobile was not being operated by or on behalf of B is conclusive.


54
Restatement (Second) of Judgments   27, illustration 3  (1980).


55
Here, the Second Circuit appears to have decided that  section 362 does not confer jurisdiction on the bankruptcy  court because subsection 362(b)(4)'s "regulatory power" exception applies as a substantive matter.  We thus agree with  the Commission that issue preclusion bars NextWave from  relitigating the question of whether the license cancellation  falls within subsection 362(b)(4).  The Second Circuit spoke  clearly and unequivocally about this issue, stating that "[u]ndoubtedly, the FCC is a governmental unit that is seeking 'to  enforce' its 'regulatory power,' " In re FCC, 217 F.3d at 138,  and that "we hold that the FCC's regulatory decisions fall  within [subsection] 362(b)(4)."  Id. at n.8.  And under the  Second Circuit's jurisdictional reading of section 362, this  decision was necessary to the case:  if subsection 362(b)(4) did  not apply, section 362 could have provided a basis for the  bankruptcy court to assert jurisdiction over the license cancellation.  In considering NextWave's Bankruptcy Code arguments, see Section III infra, we will thus assume that the  license cancellation falls within the regulatory power exception to the automatic stay.


56
We are less sure, however, that the Second Circuit "actually and necessarily" decided as part of its jurisdictional decision that all provisions of section 362 do not apply to the  license cancellation.  In particular, as the Second Circuit  implicitly acknowledged, subsection 362(b)(4)'s "regulatory  power" exception does not apply to subsections 362(a)(4) and  (5), which stay actions to enforce liens.  See In re FCC, 217  F.3d at 138.  Although the bankruptcy court thought the  cancellation of NextWave's licenses "unarguably violate[d]"  these subsections, NextWave VI, 244 B.R. at 267, and explicitly quoted the language in the security agreements creating a  "first lien on and continuing security interest in" the licenses,  id. at 267 n.7, the Second Circuit, in a footnote, simply observed: "Subsections (4) and (5) are concerned with liens.  The bankruptcy court does not explain why they are implicated here." In re FCC, 217 F.3d at 138 n.7.  Thus, unlike in its subsection  362(b)(4) discussion, the Second Circuit never said it was  "hold[ing]" that subsections 362(a)(4) and (5) do not apply to  the cancellation of NextWave's licenses.  Cf. id. at 138 n.8. Instead, the court merely observed that the bankruptcy court  did not explain why they are implicated.  It is thus unclear  whether the Second Circuit decided that subsections 362(a)(4) and (5) do not block cancellation of NextWave's licenses, or  whether it simply concluded that it had no need to reach the  issue because the bankruptcy court failed adequately to address it.  Since under our decision in Connors, if it is "uncertain whether [an] issue was actually and necessarily decided  in [prior] litigation, then relitigation of the issue is not  precluded," 953 F.2d at 684, we conclude that NextWave is  not barred from arguing that subsections 362(a)(4) and (5)  prohibit cancellation of its licenses.


57
Having resolved these threshold issues, we turn to the  merits of NextWave's appeal.

III

58
NextWave argues that the Commission's cancellation of its  licenses violated sections 525, 1123, and 362 of the Bankruptcy Code.  Under the Administrative Procedure Act, we must  "hold unlawful and set aside agency action ... found to be  ... not in accordance with law [or] ... in excess of statutory  jurisdiction, authority, or limitations."  5 U.S.C.   706(2). This provision requires us to invalidate agency action not only  if it conflicts with an agency's own statute, but also if it  conflicts with another federal law.  See, e.g., Scheduled Airlines Traffic Offices, Inc. v. Dep't of Def., 87 F.3d 1356, 1361  (D.C. Cir. 1996) (applying 5 U.S.C.   706(2)(A) and declaring  Department of Defense policy invalid under Miscellaneous  Receipts statute);  see also Cousins v. Sec'y of the U.S. Dep't  of Transp., 880 F.2d 603, 608 (1st Cir. 1989) (stating that the  quoted passages from section 706 are "general in their meaning" and "do not restrict the courts to consideration of the  agency's own enabling statute").

We begin with section 525:

59
[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license ... or other similar grant to, ... discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is ... a bankrupt or a debtor under the Bankruptcy Act ... solely because such bankrupt or debtor  ... has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.


60
11 U.S.C.   525(a).  No one disputes that the Commission is  a "governmental unit" that has "revoke[d]" a license for  purposes of section 525, nor that NextWave is a "bankrupt or  a debtor under the Bankruptcy Act."  Pointing to the fact  that the Commission has filed proofs of claim in bankruptcy  court based on its security interests in PCS licenses, see, e.g.,  Proof of Claim, In re NextWave Pers. Communications, Inc.,  No. 98 B 21529 (Bankr. S.D.N.Y. Dec. 16, 1998) (filed on  behalf of creditor The United States of America), NextWave  argues that the installment payment obligations were dischargeable debts under the Bankruptcy Code.  See 11 U.S.C.    1141(d) (stating that dischargeable debts under Chapter 11  generally include "any debts that arose before the date of ...  confirmation" of the debtor's reorganization plan).  And because failure to make installment payments was the "sole  triggering mechanism" for automatic cancellation, NextWave  continues, its licenses canceled "solely because" it failed to  pay dischargeable debts.  Appellants' Reply Br. at 8.


61
The Commission never denies that if NextWave had made  its payments, the company could have retained its licenses. Nor does the Commission dispute that NextWave's license fee  obligations were at least in part genuine, enforceable debts-indeed, the Commission's own regulations provide for their  collection if left unpaid.  See 47 C.F.R.   1.2110(g)(4)(iv) ("A  licensee in the PCS C or F [B]locks shall be in default, its  license shall automatically cancel, and it will be subject to  debt collection procedures, if the payment due on the payment  resumption date ... is more than ninety (90) days delinquent.") (emphasis added).  Instead, the Commission offers a  series of unpersuasive arguments intended to demonstrate  why, notwithstanding section 525's apparent applicability, the  provision does not bar cancellation of NextWave's licenses.


62
First, the Commission urges us to read section 525 in light  of section 362.  The latter section, the Commission suggests,  "serves the important purpose of providing a debtor with some breathing room in the situations to which it applies. Accordingly, [section] 362 should be broader than 525, providing for breathing room even in some situations  where cancellation ultimately would be permitted."  Appellee's Br. at 21-22.  Thus, the Commission argues, because (on  its reading) the automatic stay does not apply to this case,  section 525 should not apply either.  Fleshing out this argument, Intervenors suggest that "[i]t would make little sense  for Congress to exempt governmental 'regulatory' actions  from the stay [under subsection 362(b)(4)] but then flatly  forbid them in [section] 525.  Basic structural coherence  requires the conclusion that [section] 525 does not prevent a  license cancellation already correctly found exempt from the  stay as regulatory."  Intervenors' Br. at 18.


63
This is an interesting argument, but it fails for several  reasons.  To begin with, it is inconsistent with section 525's  plain language.  Section 525 clearly and explicitly prohibits  governmental units, for whatever reason, from canceling licenses for failure to pay a dischargeable debt:  "a governmental unit may not ... revoke ... a license ... to ... a  bankrupt ... solely because such bankrupt ... has not paid a  debt that is dischargeable ... under this title."  11 U.S.C.    525(a).  Nothing in section 525 or 362 states that section  525 is subject to subsection 362(b)(4)'s regulatory power  exception, or that the exception should be read to limit  section 525's clear reach.  Thus, while interpretation of the  Bankruptcy Code is a "holistic endeavor," and "[a] provision  that may seem ambiguous in isolation" can often be "clarified  by the remainder of the statutory scheme," United Sav. Ass'n  of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S.  365, 371 (1988), here we see no such ambiguity.  Various  bankruptcy and district courts, accordingly, have held that  section 525 can apply even if the automatic stay does not. See, e.g., William Tell II, Inc. v. Illinois Liquor Control  Comm'n (In re William Tell II, Inc.), 38 B.R. 327, 330 (N.D.  Ill. 1983) ("even if a state proceeding is not automatically  stayed, a bankruptcy court has authority to enjoin certain  conduct under 11 U.S.C.   525");  In re The Bible Speaks, 69  B.R. 368, 373 n.5 (Bankr. D. Mass. 1987) ("[Section] 525(a) is directed at governmental units and may apply even where the  automatic stay has no effect.").


64
Moreover, contrary to Intervenors' argument, this interpretation of section 525 does not render the Code "structural[in]coheren[t]."  Though this reading does mean that an  action exempted under subsection 362(b)(4) might nonetheless  be barred by section 525, it does not render subsection  362(b)(4) meaningless, because that subsection covers a different and wider variety of actions than section 525.  For  example, subsection 362(b)(4) exempts from the automatic  stay (among other things) "any act" by a governmental unit  to "obtain possession of property of the estate ... or to  exercise control over property of the estate," so long as the  act is taken to enforce the unit's "regulatory power."  11  U.S.C.   362(a)(3), (b)(4) (emphasis added).  Section 525, in  contrast, prohibits governmental units only from taking certain specific actions with respect to an extremely limited  subset of a debtor's property--licenses and similar grants-or with respect to employment opportunities.


65
Even if the Commission were correct that section 525  should be read to permit all actions exempted from the  automatic stay by subsection 362(b)(4), that argument would  be inapplicable to this case because subsection 362(b)(4) does  not apply to the stay of acts to "create, perfect, or enforce"  liens against property of the estate or of the debtor imposed  by subsections 362(a)(4) and (5).  Here, NextWave executed  security agreements giving the Commission a "first lien" on  the company's interest in the licenses, and under subsections  362(a)(4) and (5), "a creditor holding a lien on property of the  estate may not enforce the lien by seizure, foreclosure, or  otherwise."  3 Collier on Bankruptcy p 362.03[6] (15th ed.  rev. 2000).  Stayed actions include "self-help remedies against  collateral" such as "repossession."  Id. p 362.03[6][b].  Before  the bankruptcy court, Commission counsel acknowledged that  canceling the licenses and seeking to collect on the debt was  "tantamount ... to foreclosing on collateral."  Hearing Tr. at  14, In re NextWave Pers. Communications, Inc., No. 98 B  21529 (Bankr. S.D.N.Y. May 26, 1999).  Thus, contrary to the  Commission's argument, and notwithstanding the applicability of the regulatory power exception, section 362's automatic  stay does apply here.  This is thus not a case in which section  525, if applicable, would bar an action exempt from the  automatic stay.


66
The Commission next argues that section 525 is inapplicable because NextWave's license fee obligation was not a  "dischargeable" debt.  In support of this proposition, the  Commission offers two arguments.  First, it claims that the  New York bankruptcy court could not have discharged  NextWave's debt because the Second Circuit, whose decisions  are binding on that court, held in its initial opinion that so  long as NextWave retained its licenses, its payment obligation  was subject to neither modification nor discharge in bankruptcy.  As a result, the Commission concludes, the payment  obligation was not a debt "dischargeable" in bankruptcy while  the license was held.


67
We disagree.  To begin with, it is unclear that the Second  Circuit in fact thought the bankruptcy court lacked power to  alter or discharge the payment obligation while NextWave  held the licenses.  Though parts of its initial opinion do  suggest this, see In re NextWave, 200 F.3d at 56, other parts  suggest that the court simply thought the bankruptcy court  had no authority to require the Commission to allow  NextWave to keep its licenses after modification of its payment obligation.  See, e.g., id. at 54 ("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.").  If  the latter reading is correct, then insofar as NextWave's  payment obligation was a debt (as opposed to a license  condition), it was dischargeable by the bankruptcy court. Even if the Commission's reading of the Second Circuit's  opinion is correct, the Commission's argument assumes that  the phrase "debt that is dischargeable ... under this title" in  section 525(a) refers to the bankruptcy court's power to  modify or discharge a payment obligation.  The provision's  plain language, however, refers to a payment obligation that  can be modified or discharged under the Bankruptcy Code; and as we read the Second Circuit's opinion, the court merely decided that insofar as timely payment was a condition for  license retention, the bankruptcy court had no authority to  modify it.  It never decided that a court of competent jurisdiction (such as this one) could not modify or discharge it  under section 525.


68
The Commission also argues that because "[a] licensee's  full and timely payment of its winning bid installments is an  essential condition of its license grant[,] [p]ayment ... is a  regulatory requirement, not a dischargeable debt."  Appellee's Br. at 22.  At oral argument, Commission counsel conceded that the payment obligation also has the character of a  dischargeable debt.  As we indicated earlier, the Commission  could seek to collect its license fee, and in so doing it would be  subject (as the Second Circuit held) to the constraints imposed on creditors by the Bankruptcy Code.  See In re  NextWave, 200 F.3d at 56.  But here, the Commission contends, it seeks only to revoke NextWave's licenses, not to  collect on the debt, and insofar as timely payment is a  condition of license retention, it is a regulatory requirement,  not a dischargeable debt, and section 525 is inapplicable.


69
As Commission counsel also acknowledged, this claim  amounts to a request for a regulatory purpose exception to  section 525:  the Commission in effect argues that because  (for legitimate regulatory motives) it made timely payment a  regulatory requirement, it should be permitted to cancel  licenses for failure to meet that requirement despite section  525's plain language ("a governmental unit may not ...  revoke ... a license ... to ... a bankrupt ... solely because  such bankrupt ... has not paid a debt that is dischargeable  ... under this title").  But basic principles of statutory  interpretation preclude such a result.  To begin with, section  525 contains several exceptions, but none for agencies fulfilling regulatory purposes.  See 11 U.S.C.   525(a) ("Except as  provided in the Perishable Agricultural Commodities Act ...  the Packers and Stockyards Act ... and section 1 of ... 'An  Act making appropriations for the Department of Agriculture  for the fiscal year ending June 30, 1944, and for other  purposes' ... a governmental unit may not deny, revoke,  suspend ... a license....").  This in itself suggests that  Congress did not intend to provide a regulatory purpose  exception to section 525.  See Tenn. Valley Auth. v. Hill, 437  U.S. 153, 188 (1978) (relying on fact that Endangered Species Act "creates a number of limited 'hardship exemptions' " but  none for federal agencies to conclude "under the maxim  expressio unius est exclusio alterius ... that these were the  only 'hardship cases' Congress intended to exempt").  Moreover, other parts of the Bankruptcy Code contain explicit  regulatory purpose exceptions.  Section 362, as we have seen,  exempts from certain provisions of the automatic stay any  "governmental unit" exercising its "police or regulatory power."  11 U.S.C.   362(b)(4).  Section 362 also contains a series  of narrower exceptions for certain named agencies that have  entered lending relationships, allowing them to engage in  particular acts of foreclosure and other actions.  See, e.g., 11  U.S.C.   362(b)(8) (exception permitting HUD Secretary to  foreclose on certain mortgages insured under the National  Housing Act).  To us, these express exceptions demonstrate  that section 525 contains neither an implied regulatory power  exception for governmental units in general nor an implied  agency-specific exception allowing the Commission to enforce  an automatic cancellation policy pursuant to an installment  payment scheme under section 309(j) of the Communications  Act.  See Russello v. United States, 464 U.S. 16, 23 (1983)  ("Where Congress includes particular language in one section  of a statute but omits it in another section of the same Act, it  is generally presumed that Congress acts intentionally and  purposely in the disparate inclusion or exclusion.") (internal  quotation omitted).


70
Next, Intervenors argue that even if the license fee obligation itself is a dischargeable debt, the Commission did not  cancel NextWave's licenses "solely because" of failure to pay  that debt.  "The 'solely because' language," they argue, "limits the bar on license revocation to circumstances where a  government [agency] is simply advancing creditor interests in  receiving the money due."  Intervenors' Br. at 16-17.  Since  here, license cancellation was intended not to induce payment  but instead to "protect[ ] the integrity of [the] auction[ ] and  select[ ] the applicant most likely to use the Licenses efficiently for the benefit of the public," section 525 is not  implicated, because "it is not the 'debt' character of the  defaulted obligation that is the 'sole' basis for the cancellation."  Id. (internal quotation omitted).


71
We are unconvinced.  Intervenors argue that "solely because" should be read to mean "solely because of creditor  interests in receiving the money due."  But the statute says  nothing about an agency's motives in canceling a license for  failure to pay a dischargeable debt--it simply says governmental units may not cancel licenses "solely because" a  debtor "has not paid" such a debt.  See 11 U.S.C.   525(a)  (emphasis added).  It may be true, as the Second Circuit  decided, that the Commission had a regulatory motive for  examining NextWave's timely payment record and canceling  its licenses on that basis, but as we pointed out earlier,  neither the Commission nor Intervenors dispute that  NextWave could have retained its licenses if it had made  timely installment payments.  NextWave's failure to make its  payments was thus the "sole" trigger of the license cancellation, in the sense that the Commission looked to no other  factor in determining whether NextWave should retain its  licenses;  and we think this is exactly the kind of conduct  barred by section 525's plain text.  Adopting Intervenors'  intent-based reading of section 525 would allow governmental  units to escape section 525's limitations simply by invoking a  regulatory motive for their concern with timely payment, and  as we have already explained, section 525 contains no implicit  regulatory purpose exception.


72
To support their view that the phrase "solely because"  permits license cancellation based on failure to pay a dischargeable debt so long as the cancellation is motivated by a  non-pecuniary regulatory purpose, Intervenors point to legislative history stating that section 525 "does not prohibit  consideration of ... factors[ ] such as future financial responsibility or ability ... if applied nondiscriminatorily," H.R.  Rep. No. 95-595, at 367 (1977), and that "in those cases where  the causes of the bankruptcy are intimately connected with  the license grant ... 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."  Id. at  165.  But these passages do not lead us to conclude that  section 525 is inapplicable here.  To begin with, we may not "resort to legislative history to cloud a statutory text that is  clear."  Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994). Moreover, while the quoted passages do suggest that agencies  may make regulatory decisions (including perhaps canceling  the licenses of bankrupt debtors) based on factors such as  future financial responsibility or ability, they do not state that  an agency may use timely payment of a dischargeable debt as  the sole indicator of such responsibility, as the Commission  has done here.  Cf. H.R. Rep. No. 95-595, at 165 ("The  purpose of [section 525] is to prevent an automatic reaction  against an individual for availing himself of the protection of  the bankruptcy laws.").


73
Duffey v. Dollison, 734 F.2d 265 (6th Cir. 1984), which  Intervenors invoke, reinforces rather than undermines this  interpretation of section 525.  In Duffey, the court upheld as  applied to a bankrupt debtor a state law suspending the  driver's license of anyone who failed to make timely payment  of a state tort judgment until that person provided proof of  future financial responsibility.  The statute at issue there  specifically required extrinsic "evidence of financial responsibility," such as a certificate of insurance or a bond, in order to  reinstate a license, and was specifically re-written not to  require payment of discharged debts as a precondition for  reinstatement:  "the registrar shall vacate the order of suspension upon proof that such judgment is stayed, or satisfied  in full ... and upon such person's filing ... evidence of  financial responsibility...."  Id. at 269 (quoting Ohio Rev.  Code   4509.45 (Baldwin 1975)).  The Commission's automatic cancellation policy, in contrast, refers to no analogous  extrinsic evidence of fitness to hold a license, and allows  license cancellation to rest solely on failure to pay a dischargeable debt.


74
Finally, noting that section 525 is entitled "Protection  against discriminatory treatment," and that the House Report  on the bankruptcy bill provides that section 525 "extends only  to discrimination or other action based solely ... on the basis  of nonpayment of a debt discharged in the bankruptcy case,"  H.R. Rep. No. 95-595, at 366-67, the Commission suggests  that the provision is inapplicable here because "[a]ll licensees lost their licenses if they failed to meet the payment deadline."  Appellee's Br. at 23.


75
The text of section 525, however, includes "discriminat[ion]"  only as an item in a series of prohibited actions:  "a governmental unit may not deny, revoke, suspend, or refuse to  renew a license ... to, [or] condition such a grant to, discriminate with respect to such a grant against, [or] deny  employment to, [or] terminate the employment of, or discriminate with respect to employment against[ ] a person that is  ... a debtor under this title...."  11 U.S.C.   525(a) (emphasis added).  Another prohibited action in the series is (as  we have just seen) to "revoke" the license of a bankrupt  "solely because such bankrupt" has "not paid a debt dischargeable" under the Bankruptcy Code--precisely what happened in this case.  And the House Report itself explicitly  states that section 525 "extends only to discrimination or  other action based solely ... on the basis of nonpayment of a  debt discharged in the bankruptcy case...."  H.R. Rep. No.  95-595, at 366-67 (emphasis added);  see also Walker v. Wilde  (In re Walker), 927 F.2d 1138, 1142-43 (10th Cir. 1991)  (invalidating under section 525 a license cancellation policy  that applied to bankrupts and non-bankrupts alike).


76
We have no doubt that in developing its installment payment plan, the Commission made a good faith effort to  implement Congress's command to encourage small businesses with limited access to capital to participate in PCS  auctions.  We are also mindful that, as the Commission  suggests, allowing NextWave to retain its licenses may be  "grossly unfair" to losing bidders and licensees who "complied  with the administrative process and forfeited licenses or made  timely payments despite their financial difficulties."  Appellee's Br. at 9.  Any unfairness, however, was inherent in the  Commission's decision to employ a licensing scheme that left  its regulatory actions open to attack under Chapter 11 of the  Bankruptcy Code, the very purpose of which is "to permit  successful rehabilitation of debtors."  NLRB v. Bildisco &  Bildisco, 465 U.S. 513, 527 (1984);  see also H.R. Rep. No.  95-595, at 220 ("The purpose of a business reorganization  case, unlike a liquidation case, is to restructure a business's finances so that it may continue to operate, provide its  employees with jobs, pay its creditors, and produce a return  for its stockholders.").  The Code expressly contemplates that  bankrupts will sometimes avoid the consequences of late or  non-payment they might have faced had they not filed for  bankruptcy.  See, e.g., 11 U.S.C.   1123(a)(5)(G) (stating that  a reorganization plan may, among other options, provide for  "curing or waiving of any default");  United States v. Whiting  Pools, Inc., 462 U.S. 198, 204 (1983) ("The creditor with a  secured interest in property included in the estate must look  to [the provisions of the Bankruptcy Code] for protection,  rather than to the nonbankruptcy remedy of possession."). And the Code's restrictions have been applied even to the  official actions of Government agencies.  See, e.g., Whiting  Pools, 462 U.S. at 209 (enforcing the Bankruptcy Code  against the IRS to prevent seizure of property under a tax  lien and concluding that "[n]othing in the Bankruptcy Code or  its legislative history indicates that Congress intended a  special exception for the tax collector").  Here, as we have  explained, we think section 525 prevents the Commission,  whatever its motive, from canceling the licenses of winning  bidders who fail to make timely installment payments while in  Chapter 11.


77
We do not think this conclusion frustrates the purposes of  the Communications Act, because nothing in the Act required  the Commission to choose the licensing scheme at issue here. Although section 309(j) suggests the possibility of using guaranteed installment payments of some kind, the statute also  suggests alternative methods of facilitating small business  participation.  See 47 U.S.C.   309(j)(4)(A).  Indeed, in 1998,  the Commission decided that "until further notice, installment  payments should not be offered in auctions as a means of  financing small businesses and other designated entities seeking to secure spectrum licenses."  See Competitive Bidding  Proceeding, 63 Fed. Reg. 2315, 2318-19 (Jan. 15, 1998). Moreover, irrespective of the Commission's decision to use  installment payments as part of its licensing scheme, nothing  in the Act required it to enter a creditor relationship with  winning bidders, take liens on licenses, or--most important for our decision here--make timely payment a license condition.  For example, the Commission could have required  winning bidders to obtain third party guarantees for their  license fee obligations, or required full upfront payment from  C Block licensees and helped them obtain loans from third  parties.  The Commission could also have made license  grants conditional on periodic checks of financial health, a  more extensive credit check, or some other evidence that  winning bidders were capable of using their licenses in the  public interest.  Having chosen instead a scheme that put it  in a creditor-debtor (and lienholder) relationship with its  licensees and conditioned licenses on timely payment of their  debts, and having as a consequence run afoul of section 525 of  the Bankruptcy Code, the Commission may not escape that  provision's clear command simply because it acted for a  regulatory purpose.

IV

78
In view of our conclusion that the Commission violated  section 525 of the Bankruptcy Code in canceling NextWave's  licenses, we need not consider NextWave's remaining Bankruptcy Code arguments, nor its arguments that the cancellation violated principles of due process and fair notice.  We  therefore reverse and remand to the Commission for proceedings not inconsistent with this opinion.


79
So ordered.

