Airadigm Comm Inc v. FCC ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-2212, 07-2430 & 07-2529
IN RE:
AIRADIGM COMMUNICATIONS, INC.,
Debtor.
AIRADIGM COMMUNICATIONS, INC.,
Appellant, Cross-Appellee,
v.
FEDERAL COMMUNICATIONS COMMISSION,
Appellee, Cross-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
Nos. 07-C-0073-S, 06-C-0747-S—John C. Shabaz, Judge.
____________
ARGUED NOVEMBER 6, 2007—DECIDED MARCH 12, 2008
____________
Before FLAUM, KANNE, ROVNER, Circuit Judges.
FLAUM, Circuit Judge. Debtor-appellant, Airadigm
Communications, Inc. is a cellular-service provider. In
1996, it successfully bid for fifteen personal communica-
tions services (“PCS”) licenses as part of an FCC auction
and opted to pay off the licenses under an installment
2 Nos. 07-2212, 07-2430 & 07-2529
plan set up by the FCC. For Airadigm, however, the
airwaves were too turbulent, and by 1999 it had filed for
chapter-11 bankruptcy. Almost immediately, the FCC
cancelled Airadigm’s PCS licenses and filed a proof of
claim in bankruptcy court for the remaining amounts
owed under the installment plan. The ensuing reorgan-
ization proceeded under the assumption that the licenses
were gone, having been validly cancelled. And although
the ultimate reorganization plan set out several contin-
gencies in the event the FCC reinstated the licenses—which
it never did—it provided little else regarding the licenses’
status after the reorganization. In 2003, the Supreme
Court decided NextWave Personal Communications, Inc. v.
FCC, 537 U.S. 293 (2003), and held that the FCC could not
cancel a debtor’s PCS licenses just because it had filed
for bankruptcy. The FCC conceded a few months later
that it had been wrong to terminate Airadigm’s licenses
and reinstated them as though they had never been
cancelled.
Airadigm filed a second chapter-11 petition in May 2006
to tie up the loose ends from the fairly significant legal
developments that had come about since its first reorgani-
zation. As part of its second filing, Airadigm commenced
this adversary proceeding against the FCC, seeking to
eliminate the FCC’s continuing interest in the licenses
based on the 2000 reorganization plan. The bankruptcy
court held that the 2000 plan had not affected the FCC’s
interests in the licenses and subsequently ratified a sec-
ond plan with the FCC as a partially secured creditor.
Both parties appealed—the FCC objected to its treatment
under the plan; Airadigm objected to the FCC’s continuing
interests in the licenses. The district court affirmed the
bankruptcy court in all relevant respects, and, for the
reasons set out below, so do we.
Nos. 07-2212, 07-2430 & 07-2529 3
I. Background
Section 309(j) of the Communications Act of 1934, as
amended in 1993, authorizes the FCC to award licenses to
use the electromagnetic spectrum “through a system
of competitive bidding,” that is, an auction. 47 U.S.C.
§ 309(j)(1) (2006). Congress recognized that an auction
had several advantages over the available alternatives,
such as the “development and rapid deployment of new
technologies,” 47 U.S.C. § 309(j)(3)(A) (2006), and the
“recovery for the public . . . a portion of the value of the
public spectrum resource,” 47 U.S.C. § 309(j)(3)(C).
Despite these benefits, a market-based design could
concentrate ownership of licenses in the hands of those
relatively few businesses that could afford the up-front
cost. As a result, the Communications Act directs the FCC
to structure the auction to “avoid the excessive concentra-
tion of licenses,” 47 U.S.C. § 309(j)(3)(B), specifically by
“consider[ing] alternative payment schedules . . ., includ-
ing . . . guaranteed installment payments.” 47 U.S.C.
§ 309(j)(4).
Against this legislative backdrop, the FCC adopted rules
to auction off portions of the spectrum used for personal
communications services (“PCS”), that segment used for
a number of forms of wireless communication. In re
Implementation of Section 309(j) of the Communications Act,
9 F.C.C.R. 5532 (1994). The FCC specified two of the
six frequency blocks being auctioned—Blocks C and F—
for smaller businesses who, being unable to afford the
lump sum, could pay for their licenses in installments. 47
C.F.R. § 24.709 (2007). To ensure payment, the FCC made
payment-in-full a condition precedent to obtaining a
license, 47 C.F.R. § 1.2110(g)(4)(iv), and executed a promis-
sory note and security agreement to secure its interest in
4 Nos. 07-2212, 07-2430 & 07-2529
each license, id. § 1.2110(g)(3). If the successful bidder fell
into default, “its license [would] automatically cancel,
and it [would] be subject to debt collection procedures.” Id.
In 1996, the FCC conducted the auction. Airadigm was
the highest bidder for fifteen licenses—thirteen of which
were “C-block” and two of which “F-block” segments
covering Michigan, Iowa, and Wisconsin—and agreed to
pay off what it had bid in quarterly installments, plus
interest, over a ten-year period. Airadigm paid 10% of the
purchase price, signed fifteen promissory notes recognizing
its debt to the FCC, and executed fifteen security agree-
ments. The licenses themselves stated that they
were conditioned on the “full and timely payment of
all monies due pursuant to [FCC regulations] and the
terms of the Commission’s installment plan.” The FCC then
sought to perfect its interests in the licenses by, among
other things, filing UCC financing statements with the
office of the Wisconsin Secretary of State.
Airadigm soon met financial problems and could not
meet its obligations to the FCC. In 1999, it filed a petition
for reorganization in the Western District of Wisconsin. The
FCC allowed Airadigm to continue using its portion of
the spectrum but cancelled Airadigm’s licenses and filed
a proof of claim in the bankruptcy court for $64.2 million,
Airadigm’s remaining balance. In its proof of claim, the
FCC stated that, because it had cancelled the licenses, it
was an unsecured creditor. Hedging a bit, the FCC also
said that if it did not actually have the authority to cancel
the licenses, its debt was instead secured by the licenses
themselves, attaching proof of its security interests to its
claim. The FCC otherwise participated in Airadigm’s
bankruptcy, filing a notice of appearance and ultimately
objecting to its treatment as an unsecured creditor under
the plan.
Nos. 07-2212, 07-2430 & 07-2529 5
The 2000 reorganization proceeded under the assump-
tion that the FCC had properly cancelled the licenses.
The plan provided that the FCC had an allowed claim of
$64.2 million and laid out several contingencies should the
FCC reinstate the licenses. The reorganization hinged on
financing by a third party, Telephone and Data Systems
(“TDS”). Should the FCC reinstate the licenses by Feb-
ruary 2001, TDS would pay the FCC’s claim in full. If
the FCC did not reinstate the licenses by February 2001,
but did so by June 2002, TDS had the option of paying
off the claim, but was not obligated to do so. But if the
FCC never reinstated the licenses or “fail[ed] to act . . . in
a timely manner,” the plan provided that TDS would
obtain all of Airadigm’s assets except the licenses. The plan
was otherwise silent as to the FCC’s exact interests in the
licenses and what would happen if the FCC reinstated
them after June 2002. And the plan didn’t expressly
preserve the FCC’s security interest in the licenses, in-
stead stating that the plan “shall not enjoin or in any
way purport to limit, restrict, affect or interfere with
action initiated by the FCC in the full exercise of its reg-
ulatory rights, powers and duties with respect to the
Licenses.”
The FCC never reinstated the licenses and maintained its
position that it had validly cancelled them after Airadigm’s
1999 bankruptcy. In 2003, the Supreme Court held other-
wise in FCC v. NextWave Personal Communications, Inc.,
537 U.S. 293 (2003). In nearly identical circumstances,
the FCC had cancelled NextWave’s C- and F-block licenses
after it had filed for bankruptcy. The Court held that this
action violated the bankruptcy code and set aside the FCC’s
decision. After its own bankruptcy in 1999, Airadigm had
filed a petition before the FCC seeking to reinstate its
cancelled licenses. On August 8, 2003, the FCC denied this
6 Nos. 07-2212, 07-2430 & 07-2529
petition as moot, reasoning that, in light of NextWave, its
cancellation of the licenses had been “ineffective.” In re
Airadigm Communications, Inc., 18 F.C.C.R. 16296 (Aug. 8,
2003). Airadigm thus had its licenses back as though they
had never been cancelled.
In light of this development, Airadigm filed a second
petition for reorganization on May 8, 2006. As part of that
reorganization, Airadigm filed the present adversary
proceeding against the FCC, seeking to divest it of any
continuing interests in the licenses. The bankruptcy court
granted the FCC’s motion for summary judgment and
rejected Airadigm’s claims.
Ultimately, on October 31, 2006, the bankruptcy court
approved a second plan of reorganization, to which the
FCC raised two general objections. The first went to the
payment options under the plan. Even though Airadigm
owed the FCC $64.2 million, the plan treated the FCC as
a secured creditor for only $33 million—the then-cur-
rent market value for the licenses. As a result, the FCC
would have two options with respect to Airadigm’s debt:
It could take an immediate payout of $33 million1 and
lose its liens in the licenses; or it could treat its entire
$64.2 million claim as secured and receive deferred pay-
ments totaling this greater amount over a number of
years. Under the latter option (called a § 1111(b) election),
the FCC would retain liens for the full $64.2 million and
Airadigm would purchase and hold $33 million of
government-backed securities or low-risk annuities.
1
Airadigm could elect to surrender some or all of its licenses
back to the FCC. The value of these surrendered licenses would
then be subtracted from the secured amount. For present
purposes, we assume that Airadigm will not make that election.
Nos. 07-2212, 07-2430 & 07-2529 7
Airadigm would use the interest or payments from these
instruments to make deferred payments to the FCC over
(at most) a thirty-year period. When the payments totaled
$64.2 million, the liens would expire. If Airadigm sold
the licenses before making full payment, the FCC
would receive the proceeds of the sale and, if the sale
amount was less than $64.2 million, retain its liens in the
licenses.
The FCC argued in the bankruptcy court that this last
provision did not square with the code. Specifically, the
FCC argued that a “due on sale” provision set out in its
regulations—stating that the full auction bill is due if
Airadigm transfers the licenses to a third party that
would not otherwise qualify for installment payments—
was part of the lien it held in a license. The FCC wanted
the full $64.2 million at the time of a sale to a non-qualify-
ing third party, not the proceeds of the sale plus a continu-
ing lien in the licenses. Thus, in the FCC’s estimate, the
plan’s failure to preserve this provision meant that the
FCC had not “retain[ed] its liens” as required by the
bankruptcy code. The bankruptcy court disagreed, reason-
ing that due-on-sale provision was not part of the lien
itself and was instead contractual and subject to mod-
ification in bankruptcy.
The FCC’s second objection went to a provision that
released the third-party financier, TDS, from liability for
“any act or omission arising out of or in connection with
the . . . confirmation of this Plan . . . except for willful
misconduct.” Airadigm owed TDS over $188 million in
secured claims, debt that Airadigm would somehow
have to finance if TDS were not involved in the reorgan-
ization. In the bankruptcy court’s estimate, there was
“adequate” proof that TDS would not go forward with-
8 Nos. 07-2212, 07-2430 & 07-2529
out the limitation on liability ultimately contained in the
plan. The court held that the release was reasonable given
both TDS’s centrality to the reorganization and the po-
tential for liability should TDS engage in “willful miscon-
duct.”
Both parties appealed to the district court, who affirmed
the bankruptcy court’s decisions in relevant respects.
Notably, for the first time before the district court, the
FCC challenged the rate at which the securities or
annuities would pay out should the FCC make the
§ 1111(b) election. The FCC wanted a higher interest rate
to move the secured $33 million up to $64.2 million at a
quicker pace, theoretically compensating the FCC for the
risk that Airadigm would not ultimately pay over the
accrued amounts. The district court held that the FCC had
waived this claim by not presenting it before the bank-
ruptcy court. In the alternative, the court reasoned that
the full-payment option complied with the terms of the
bankruptcy code and rejected the claim. This appeal
followed.
II. Discussion
In their respective appeals, the parties raise two issues
each. Airadigm first argues that the bankruptcy and dis-
trict courts erred in holding that the FCC’s security inter-
ests in the C- and F-block licenses were not extinguished
by the 2000 reorganization plan. In addition, Airadigm
argues that the courts below erred in holding that
Airadigm could not avoid the FCC’s interests in the
licenses under 11 U.S.C. § 544(a)(1), the “strong-arm”
provision of the bankruptcy code. In its cross-appeal, the
FCC challenges its treatment as an undersecured creditor
Nos. 07-2212, 07-2430 & 07-2529 9
in the 2006 reorganization plan. Finally, the FCC argues
that the 2006 reorganization plan’s provision limiting TDS’s
liability to “willful misconduct” does not comport with the
bankruptcy code. The following sections discuss each in
turn.
A. FCC’s Interests in the Licenses Following the 2000
Reorganization
The 2000 reorganization proceeded under the assumption
that the FCC had validly cancelled Airadigm’s licenses
after it declared bankruptcy in 1999, and thus the plan
made no mention of the status of the FCC’s security
interests following the reorganization. But the NextWave
decision proved this assumption wrong. The anti-discrimi-
nation provision of the bankruptcy code, 11 U.S.C. § 525(a),
prohibits the FCC from cancelling PCS licenses just be-
cause a license-holder has entered bankruptcy. Now
the parties dispute the effect of the 2000 reorganization
plan’s silence in light of NextWave. Both the bankruptcy
court and the district court held that the silence did not
extinguish the FCC’s continuing interests—decisions
involving mixed questions of fact and law that we re-
view de novo. Mungo v. Taylor, 355 F.3d 969, 974 (7th Cir.
2004). For the reasons set out below, we affirm.
Under some circumstances, a reorganization plan’s
silence regarding a creditor’s continuing secured interest
in the debtor’s property can result in the elimination of the
creditor’s lien. Section 1141(c) of the bankruptcy code
provides that “after confirmation of a plan, the property
dealt with by the plan is free and clear of all claims and
interests of creditors. . . .” 11 U.S.C. § 1141(c). As applied to
liens and security interests, this means that “unless the
10 Nos. 07-2212, 07-2430 & 07-2529
plan of reorganization, or the order confirming the plan,
says that a lien is preserved, it is extinguished by the
confirmation.” In re Penrod, 50 F.3d 459, 463 (7th Cir. 1995).
This “default rule” applies provided that the creditor
“participated in the reorganization” and, as required by
§ 1141(c) and at issue here, the property was “dealt with
by the plan.” Id. In other words, if a secured creditor
participates in the debtor’s bankruptcy and the ultimate
plan does not preserve the creditor’s interest, the inter-
est is gone.
We first articulated this rule in In re Penrod. The Penrods
were a family of hog farmers who had given security
interests in their hogs to Mutual Guaranty Corporation
in exchange for a $150,000 loan. The Penrods soon filed
for bankruptcy, and Mutual Guaranty then filed a proof
of claim. The resulting reorganization plan provided
that the Penrods would pay back the remainder of the
$150,000 loan in full plus interest. But the plan said noth-
ing about Mutual Guaranty’s original liens. When the
Penrods sold their hogs for slaughter after the reorganiza-
tion, Mutual Guaranty sought to enforce its liens in the
proceeds of the sale, as it could have done under the
original security agreement. This Court, applying the
rule stated above, held that Mutual Guaranty’s security
interests in the hogs were gone, replaced by the payment
schedule. The absence of an express provision in the plan
gave rise to the presumption that Mutual Guaranty had,
in effect, “give[n] up [its] preexisting liens” in exchange
for the stream of payments. 50 F.3d at 463.
Neither party denies that the FCC “participated in the
[2000] reorganization” or that the security interests in the
licenses would otherwise constitute “interests of creditors”
under § 1141(c). But the parties do dispute whether the
Nos. 07-2212, 07-2430 & 07-2529 11
2000 reorganization plan “dealt with” the licenses so as to
pull them within the ambit of § 1141(c)’s “default rule.”
Airadigm points to the provisions in the 2000 plan that
set out the various payment options should the FCC ever
reinstate the licenses. For example, if the FCC had rein-
stated the licenses by February 2001, TDS would pay
the FCC’s claim in full. Or, barring that, if the FCC rein-
stated the licenses by June 2002, TDS had the option of
paying the claims, but was not required to do so. These
contingencies should suffice, in Airadigm’s view, to
show that the plan “dealt with” the licenses. Because the
plan did not expressly preserve the FCC’s continuing
interests, Penrod applies, and the FCC’s secured interests
in the licenses would be gone, relegating it to the heap of
unsecured creditors. The FCC, on the other hand, argues
that the bankruptcy court was correct in holding that a
plan cannot “deal[ ] with” a security interest in a license
if everyone erroneously believed that the licenses were
validly cancelled. We agree.
The 2000 reorganization plan’s silence regarding the
FCC’s security interests did not extinguish its continuing
interests in the licenses. A chapter-11 reorganization
“modifies the capital structure of a bankrupt enterprise.”
Penrod, 50 F.3d at 462. In reorganizing the bankrupt
entity, a secured creditor’s interests in the debtor’s prop-
erty can be “dealt with” in a variety of ways: through
modification, impairment, exchange, or even elimination.
See, e.g., 11 U.S.C. § 1129(b)(2)(A)(I) (permitting secured
creditors to retain the liens); 11 U.S.C. § 1129(b)(2)(A)(i)(II)
(permitting approval of plan that exchanges the liens for
“deferred cash payments”); 11 U.S.C. § 1129(b)(2)(A)(iii)
(permitting exchanging the liens for “indubitable equiva-
lent” of the value of creditor’s secured claim); 11 U.S.C.
12 Nos. 07-2212, 07-2430 & 07-2529
§ 1126(d) (permitting impairment of some interests if two-
thirds of other creditors in class approve). Among other
things, these powers facilitate the reorganization. See In re
Regional Bldg. Systems, Inc., 254 F.3d 528, 532 (4th Cir. 2001).
A creditor wants to get something for its secured interest,
and these provisions allow the creditor to do so, such as
an interest in the reorganized business. The debtor also
emerges from bankruptcy with property cleansed of all
hidden liens, ensuring that future businesses will transact
with the reorganized entity without fear that an unantici-
pated creditor will emerge with a superior interest in
purchased property. Penrod, 50 F.3d at 463; In re Regional
Bldg. Systems, Inc., 254 F.3d at 533.
Penrod recognizes the practical reality that if it appears
that a creditor has received some sort of payment or
otherwise had its interest in property affected during
the reorganization, the parties did not also agree to allow
the creditor to keep its lien after the reorganization unless
the plan specifically says so. Section 1141(c) and the de-
fault rule announced in Penrod ensure that a potential
creditor can look to a reorganization plan to determine
the extent of any other creditor’s continuing interest in
property after the reorganization. Penrod, 50 F.3d at 463.
If the property is “dealt with” by the plan, the property
is “free and clear of all claims and interests of creditors.”
11 U.S.C. § 1141(c).
But for the plan to “deal[ ] with” property for purposes
of § 1141(c), the plan itself must give some indication
that it has compensated the creditor for or otherwise
impliedly affected its interest. In other words, there must
be some evidence that the powers to affect the creditor’s
interest contained in the bankruptcy code—to exchange,
extinguish, impair or otherwise impact the interest—have
Nos. 07-2212, 07-2430 & 07-2529 13
in some way been exercised—whether expressly or im-
pliedly. In Penrod, the plan clearly “dealt with” the bank’s
liens in the hogs. Mutual Guaranty was entitled to a full
payment plus interest for the rest of the amount owed
by the Penrods after the reorganization, and Mutual
Guaranty only participated in the bankruptcy because of
its interest in the hogs. The inference was that the pay-
ments contained in the plan compensated Mutual Guaranty
for its contingent property right in the hogs and thus
extinguished that interest after reorganization. See generally
In re Regional Bldg. Sys., Inc., 254 F.3d at 530-33.
Not so here. Everyone, including the bankruptcy court,
the creditor, and the debtor, assumed that the FCC had
validly cancelled the licenses. The plan thus only
affected or mentioned the licenses to the extent that the
FCC would eventually reinstate Airadigm’s interests in
the licenses, an event that never came to pass. The plan
itself referred to PCS licenses as the “Reinstated Licenses”
throughout, defining them as those “Licenses as to
which the FCC grants by Final Order the relief requested
by the Debtor in the Petition for Reinstatement.” To the
extent that the FCC would receive any future payment
from Airadigm for “Allowed claims,” it would only occur
“[o]n the Reinstatement Payment Date,” meaning the
“third Business Day after the” FCC reinstated the licenses.
Finally, the plan set out contingencies should the FCC
reinstate the licenses before June 2002, but made no
provision for anything after this date. A potential creditor
transacting with Airadigm after June 2002 could not
look to the plan to determine any other creditor’s poten-
tial interests in the licenses because the plan did not
purport to affect the licenses in any way if the FCC did not
reinstate them before June 2002. As a result, the 2000 plan
14 Nos. 07-2212, 07-2430 & 07-2529
did not “deal[ ] with” the licenses in the event that the
FCC did not reinstate them, and this Court’s rule from
Penrod does not control.
B. Applicability of the “Strong Arm” Provision to the
FCC’s Interests
Airadigm also appeals the lower courts’ conclusions
that the FCC’s liens could not be avoided under § 544(a)
of the bankruptcy code, a decision regarding a mixed
question of law and fact that we review de novo. Mungo,
355 F.3d at 974. Airadigm, as the debtor-in-possession,
has the “rights and powers of . . . a creditor that extends
credit to the debtor at the time of the commencement of
the case, and that obtains, at such time and with respect
to such credit, a judicial lien” on the property in question.
11 U.S.C. § 544(a)(1). This “strong arm” power functions
much like a foreclosure. If at the time of Airadigm’s fil-
ing some hypothetical unsecured creditor could have
obtained a judicial lien superior to the interest of the party
bringing a secured claim in the bankruptcy proceeding,
the estate can avoid the interest. See In re Leonard, 125
F.3d 543, 545 (7th Cir. 1997). But unlike a regular fore-
closure, the property simply becomes the estate’s free of the
secured lien. Here, if some hypothetical creditor could have
obtained an interest superior to the FCC’s at the time of
Airadigm’s filing, the FCC will become an unsecured
creditor with respect to the licenses.
To resolve the question, we must look to the rules
governing the FCC’s interests in the licenses. For although
the “strong arm” power comes from federal bankruptcy
law, the rules governing the perfection of security inter-
ests do not. In the mine-run case—for example one con-
Nos. 07-2212, 07-2430 & 07-2529 15
cerning a private creditor’s interest in a tractor or some
type of inventory—state law governs. But when the
property in question falls outside of state commercial codes
by virtue of the federal interest or the nature of the prop-
erty, federal law provides the rule of decision. Grogan v.
Garner, 498 U.S. 279, 283-84 & n. 9 (1991). In such instances,
if a federal statute speaks to the issue directly, the court
will look no further. See United States v. Kimbell Foods, Inc.,
440 U.S. 715, 726 (1979). Barring that, courts can either
adopt state law as the rule of decision, see, e.g., Kimbell
Foods, Inc., 440 U.S. at 729; see also Powers v. U.S. Postal Svce.,
671 F.3d 1041, 1043 (7th Cir. 1982), or craft a federal rule of
common law. See, e.g., Clearfield Trust Co. v. United States,
318 U.S. 363, 366 (1943). The issues before us are whether
state or federal law governs the perfection of the FCC’s
interests in the licenses and, if the latter, what federal law
demands.
Airadigm argues on appeal that Wisconsin law
should govern the perfection of the FCC’s interests in the
licenses. After the 1996 auction, the FCC executed fifteen
security agreements, and Airadigm signed fifteen prom-
issory notes for the amounts owed. Initially, the FCC
filed financing statements in Wisconsin to perfect its
interests in the licenses. But financing statements lapse
after five years, and the FCC didn’t renew them when
the time came in June and July 2002, waiting until
June 2006 to file a continuation statement. See WIS. STAT.
§ 409.515(1), (3) (2003). Due to this lapse, if Wisconsin law
(or more generally the UCC) governs, the FCC’s interests
would be unperfected—and thus avoidable—due to this
failure to renew.
But neither the UCC nor Wisconsin law decides the
issue, as federal statutory and regulatory law prevent a
hypothetical lien creditor from obtaining a superior inter-
16 Nos. 07-2212, 07-2430 & 07-2529
est in an FCC license for purposes of the bankruptcy code.
The liens held by the FCC are unlike liens held by the
federal government as part of other federal lending pro-
grams, where the lien secures the loan by attaching to
property that is otherwise defined by state law. See, e.g.,
United States v. Kimbell Foods, Inc., 440 U.S. 715, 737 (1979).
Instead, the property itself—the license—is a creature of
federal law. Accordingly, federal law also defines the
FCC’s retained interest in that license. Cf. id. at 734-35(contrasting federal interest in tax liens with its interest
in consensual liens). And as defined by federal law, the
FCC does not have to perfect its interest in a spectrum
license because federal law prevents another creditor
from holding a superior interest.
The licenses created by the Communications Act, as
amended in 1993, “maintain the control of the United States
over all the” invisible spectrum. 47 U.S.C. § 301. The
licenses give permission “for the use of such channels,
but not the ownership thereof,” and “no such license
shall be construed to create any right, beyond the terms,
conditions, and periods of the license.” Id. Although these
licenses provide license-holders the right to exclude, they
are not freely transferable as no license “or any rights
thereunder, shall be transferred, assigned, or disposed
of in any manner, voluntarily or involuntarily, directly
or indirectly, . . . except upon application to the Com-
mission.” 47 U.S.C. § 310(d). Even then, the Commission
will only approve the transfer “upon finding . . . that the
public interest, convenience, and necessity will be served
thereby.” Id.The rules governing the auctions themselves also pre-
serve the FCC’s interests in the licenses. In 1993, Con-
gress gave the FCC the authority to “grant [a] license or
Nos. 07-2212, 07-2430 & 07-2529 17
permit to a qualified applicant through a system of com-
petitive bidding” that would “recover[ ] for the public . . .
a portion of the value of the public spectrum resource
made available for commercial use.” 47 U.S.C. § 309(j)(1),
(j)(3)(C). In so doing, the Commission was required to
“consider alternative payment schedules and methods of
calculation, including . . . guaranteed installment pay-
ments.” Id. at 309(j)(4)(a). Pursuant to this authority,
and after a notice-and-comment period, see In re Implemen-
tation of Section 309(j) of the Communications Act, 9 F.C.C.R.
5532 (1994), the FCC crafted regulations governing the
auction and the installment plan. These regulations condi-
tioned a successful bidder’s use of the licenses “upon the
full and timely performance of the licensee’s payment
obligations under the installment plan.” 47 C.F.R.
§ 1.2110(g)(4). And finally, the very “terms of the . . .
license[s]”—which 47 U.S.C. § 301 provided would define
any “right” in them—stated that they were “conditioned
upon the full and timely payment of all monies due
pursuant to” the regulations and the security agreements.
These statutory and regulatory provisions indicate that
federal law precludes a private party from obtaining a
superior interest to the FCC. Generally, when a lien-
creditor forecloses on a lien, the affected property is
sold, and the lien-creditor recovers its debt from the
proceeds of the sale. In terms of priority, a lien-creditor
receives payment prior to any secured creditor whose
interest is unperfected. See, e.g., U.C.C. § 9-317(a)(2). In
other words, the unperfected secured creditor—in this case,
the FCC—will not get paid anything unless there is money
left over after superior creditors recover from the proceeds
of the sale. 3-28 DEBTOR-CREDITOR LAW § 28.03.
But if the forced sale of the PCS licenses were to occur
18 Nos. 07-2212, 07-2430 & 07-2529
with the FCC as merely an unperfected secured creditor,
the sale would conflict with the statutes and regulations
covering the FCC’s licensing scheme. This conflict gives
rise to a negative inference—controlling in this case—that
federal law does not allow private creditors to obtain an
interest in PCS licenses superior to the FCC’s. In the first
place, a judicially enforced sale would mean that a
“transfer” of the licenses occurred without an “applica-
tion to the Commission and upon finding by the Com-
mission that the public interest, convenience, and neces-
sity will be served thereby.” 47 U.S.C. § 310(d); see also
FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946).
In addition, if the lien-holder were to be paid before the
FCC, this would conflict with 47 U.S.C. § 301 and 47 C.F.R.
§ 1.2110(g)(4). Section 301 provides for the “use” of licenses
subject to the “terms, conditions, and periods of the
license.” And the “terms . . . of the license[s]” require
that the licensee make “full and timely payment of all
monies due.” The FCC’s regulations, crafted after Con-
gressional authorization and a notice-and-comment period,
similarly predicate the auction-winner’s use of the li-
censes on “the full and timely performance of the licensee’s
payment obligations under the installment plan.” 47 C.F.R.
§ 1.2110(g)(4). Pursuant to Congress’s command to “re-
cover . . . a portion of the value of the public spectrum
resource,” the FCC made full payment a regulatory con-
dition on the use of the invisible spectrum when imple-
menting the installment plan. Subordinating its interests
to that of a private lien-creditor would conflict with the
FCC’s statutory and regulatory authority.
As a result, under federal non-bankruptcy law the rights
afforded to a hypothetical lien creditor at the time of
Airadigm’s filing could not have been superior to the
Nos. 07-2212, 07-2430 & 07-2529 19
FCC’s interests in the licenses. Accordingly, the lower
courts were correct to conclude that Airadigm cannot
avoid the FCC’s interests in the licenses under 11 U.S.C.
§ 544(a). We conclude by noting that we do not decide
whether a private party can in fact take an interest in the
proceeds of PCS licenses.2 This decision is unnecessary
2
A previous decision of this Court, In re Tak Communications,
985 F.2d 916 (7th Cir. 1993), held that a “creditor may [not]
hold a security interest in [a] license.” This decision reflected
the FCC’s stated policy at the time, see In re Tak, 985 F.2d at 918-
19; In re Twelve Seventy, Inc., 1 F.C.C.2d 965, 967 (1965), and
ended with the proviso that any change in this policy was “a
matter for the FCC rather than the courts to decide.” In re Tak,
985 F.2d at 919. A subsequent decision coming from within the
FCC then expressly disagreed with In re Tak. The Chief of the
Mobile Services Division held that, despite the FCC’s general
“policy against a licensee giving a security interest in a license,”
a “security interest in the proceeds of the sale of a license does
not violate Commission policy.” In re Cheskey, 9 F.C.C.R. 986, 987
& n.8 (Mobile Serv. Div. 1994). Other circuits have found this
statement persuasive. See, e.g., MLQ Investors, L.P. v. Pacific
Quadracasting, Inc., 146 F.3d 746, 748-49 (9th Cir. 1998); In re
Beach Television Partners, 38 F.3d 535, 537 (11th Cir. 1994). But the
FCC has not argued before this Court that this decision is
entitled to Chevron deference, which would have meant that
the FCC effectively overruled In re Tak. See Nat’l Cable & Tele-
communications Inc. v. Brand X Internet Svces., 545 U.S. 967, 982-84
(2005) (“A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron
deference only if the prior court decision holds that its con-
struction follows from the unambiguous terms of the statute
and thus leaves no room for agency discretion.”). Nor is Chevron
deference likely given that the Commission subsequently
(continued...)
20 Nos. 07-2212, 07-2430 & 07-2529
because, regardless what interest a license-holder can
give a creditor in these licenses, it could not be superior
to the FCC’s for purposes of 11 U.S.C. § 544(a).
C. FCC’s Treatment as an Undersecured Creditor
In its cross-appeal, the FCC challenges its treatment as
an undersecured creditor. Airadigm still owes the FCC
$64.2 million for the licenses it purchased. But if the
licenses had been sold at the time of Airadigm’s 2006
reorganization, the going rate was only $33 million. So the
bankruptcy court treated the FCC as an undersecured
creditor in the 2006 reorganization plan. 11 U.S.C. § 506(a).
The plan, tracking the bankruptcy code, gave the FCC two
options. It could either receive immediate payment for
the entirety of its $33 million secured claim and treat
the remaining $31.2 million as unsecured. Id. Or it could
opt to treat the entire allowed $64.2 million claim as
secured and receive a deferred stream of payments
from Airadigm over a number of years. See 11 U.S.C.
§§ 1111(b)(1), (b)(2), 1129(b)(2)(A)(i)(II). To finance this
stream of payments, Airadigm would purchase
2
(...continued)
declined to adopt this policy in affirming the Chief’s order in
Cheskey. See In re Cheskey, 13 F.C.C.R. 10656, 10659-60 (1998)
(expressly declining to reach issue); 47 U.S.C. §§ 154(i) (powers
of Commission), 155(c)(1)-(6) (powers, unused in Cheskey, to
delegate authority to an employee of the FCC). Accordingly,
because the answer to this question is not necessary for our
decision and because “it is [not] clear that a private party
can take and enforce a security interest in an FCC license,”
NextWave, 537 U.S. at 307, it is for a future case (or the FCC)
to readdress the matter if necessary.
Nos. 07-2212, 07-2430 & 07-2529 21
$33 million of government-backed securities or annu-
ities and would then use the interest from this principal
to pay the FCC over a term of years. In the alternative,
Airadigm could choose to pay the FCC from the proceeds
of the sale of the licenses. Should the FCC opt to treat the
whole claim as secured, it would retain its liens in the
licenses until it receives full payment, at which point
the liens would expire. See 11 U.S.C. § 1129(b)(2)(A)(i)(I);
see generally 7-1111 COLLIER ON BANKRUPTCY P.1111.03
(15th ed. 2007).
The FCC raises two objections related to the plan’s
provisions should it make the so-called § 1111(b) election.
The first need not detain us because it is waived. The
FCC argued for the first time in its appeal to the district
court that it was entitled to a higher interest rate on the
$33 million worth of securities. In short, the FCC claimed
that there is a risk that Airadigm will abscond with the
principal and accrued interest, and it wants the $64.2
million to accrue at a higher interest rate to compensate
for this risk. For this Court to entertain the merits of this
claim, which are questionable in this context, the FCC
must have raised it before the bankruptcy court so as to
preserve it for appeal. See In re Rimsat, Ltd., 212 F.3d 1039,
1048 (7th Cir. 2000). The FCC concedes that it didn’t,
so the claim is waived.
The FCC’s second claim is that the bankruptcy court did
not properly preserve the liens securing its claim in the
licenses because it did not keep the FCC’s due-on-sale
rights in the plan of reorganization. To approve of a plan
over the objection of a secured creditor, the bankruptcy
plan must “retain the liens securing [a secured creditor’s]
claims.” 11 U.S.C. § 1129(b)(2)(A)(i)(I). The FCC’s regula-
tions provide that a licensee who obtained its licenses
22 Nos. 07-2212, 07-2430 & 07-2529
under the installment plan must pay back the full amount
if it seeks to transfer the licenses to an entity that
wouldn’t otherwise qualify for the installment plan. 47
C.F.R. § 1.2111(c)(1). Because, in the FCC’s estimation, the
2006 plan does not preserve the due-on-sale provision,
it does not “retain the liens” and the plan cannot be
“crammed down” over its objection. The district court
disagreed with the FCC, a decision involving statutory
interpretation that we review de novo. In re Till, 301
F.3d 583, 586 (7th Cir. 2002), rev’d in part on other grounds,
541 U.S. 465 (2004).
The issue before the Court is what to make of the FCC’s
regulations for purposes of the bankruptcy code. As the
Supreme Court’s decision in NextWave makes clear, the
FCC participates in a debtor’s bankruptcy as a creditor
subject to the terms of the bankruptcy code. 537 U.S.
293, 302-03 (2003). Unlike most creditors, the FCC is a
creature of federal statutory law and a source of regulatory
laws. These laws can come into conflict or at least create
tension with the bankruptcy code. In the event that the FCC
has issued regulations that conflict with the requirements
of the bankruptcy code, NextWave commands that the
former give way.3 For example, even though FCC regula-
tions state that when a license-holder is in “default, its
license shall automatically cancel,” 47 C.F.R. § 1.2110(g)(iv),
the bankruptcy code prevents the FCC from cancelling a
license “solely because such . . . debtor . . . has not paid a
debt that is dischargeable in the case under this title.” 11
3
In the event that the bankruptcy code conflicted with the
statutes governing the FCC, a different situation—one not
presented here—would arise. See United States v. Energy Re-
sources Co., Inc., 495 U.S. 545, 550-51 (1990).
Nos. 07-2212, 07-2430 & 07-2529 23
U.S.C. § 525(a); see also NextWave, 537 U.S. at 302. The
bankruptcy code governs due to the time-honored rule of
legislative supremacy. See, e.g., Butner v. United States, 440
U.S. 48 (1979) (superseded in part by Pub. L. 103-394); see
also Diersen v. Chicago Car Exchange, 110 F.3d 481, 486 (7th
Cir. 1997).
Things are somewhat more complicated, however,
where the FCC’s regulations do not conflict with the
bankruptcy code, but instead contain substantive obliga-
tions with which the bankruptcy court must contend.
In this case, the FCC’s regulations provide that “[i]f a
licensee that utilizes installment financing under this
section seeks to assign or transfer control of its license to
an entity not meeting the eligibility standards for install-
ment payments, the licensee must make full payment of
the remaining unpaid principal.” 47 C.F.R. § 1.2111(c)(1).
On the one hand, a bankruptcy court cannot nullify the
effect of a duly enacted regulation as part of the plan unless
the regulation conflicts with the bankruptcy code
or otherwise falls within the ambit of the powers con-
ferred upon the court. Cf. generally Midlantic Nat. Bank v.
New Jersey Dept. of Environmental Protection, 474 U.S. 494(1986). In providing the debtor with a “fresh start,” the
bankruptcy court could not bolster the reorganization
with a prospective freedom from all regulation. See, e.g.,
Ohio v. Kovacs, 469 U.S. 274, 284-85 (1985). Conversely,
the bankruptcy court has broad powers under the code
to modify terms of payment for a “claim.” NextWave,
537 U.S. at 302. This power obtains with no less sweep
when the terms of payment are contained in federal
regulations. Id. (“[W]here Congress has intended to
provide regulatory exceptions to provisions of the Bank-
ruptcy Code, it has done so clearly and expressly,
24 Nos. 07-2212, 07-2430 & 07-2529
rather than by a device so subtle as denominating a mo-
tive a cause.”).
In these circumstances and for purposes of the cramdown
provision, the bankruptcy court must first ensure that the
plan complies with the bankruptcy code and, second,
ensure that, if the plan affects the FCC’s regulations, it has
done so pursuant to a specific power that Congress has
conferred upon the bankruptcy court. In light of this
framework, we affirm. The due-on-sale provisions con-
tained in the FCC’s regulations do not constitute part of its
lien that the bankruptcy court had to “retain” in order to
approve the plan pursuant to § 1129. The bankruptcy code
defines a “lien” as a “charge against or interest in property
to secure payment of a debt or performance of an obliga-
tion.” 11 U.S.C. § 101(37). The due-on-sale provision
contained in the federal regulation is not a “charge against
or interest in property” but is instead a regulation regard-
ing the terms of payment for the debt. A creditor can take
a lien in exchange for a loan and require payment over any
period of time, subject to nearly any rate of interest and
with prepayment penalties or acceleration clauses. And a
creditor can use a due-on-sale provision to prevent third-
party assumption of desirable financial or lending condi-
tions governing a secured interest. See generally 6-51
DEBTOR-CREDITOR LAW § 51.09. This is what the FCC has
done with the regulation at issue. Such regulatory terms do
not affect or attend the FCC’s underlying lien so that the
bankruptcy court must “retain” them in a plan, but are
instead simple terms of payment.
In addition, the bankruptcy plan does not purport to
affect the FCC’s powers to regulate outside of bankruptcy,
including through the due-on-sale provision. Accordingly,
there is no question that this provision falls within
Nos. 07-2212, 07-2430 & 07-2529 25
the power of the bankruptcy court. The plan provides
that “[w]hen the [FCC] has received the payments re-
quired [by the plan] . . . then the . . . Claim will be satisfied
in full, and such holder will have no further right or
interest in or to [sic] such securities or annuity contracts,
which will then become the exclusive property of the
Reorganized Debtor.” These “payments” can be made
“either from the proceeds of such securities or annuity
contracts, the proceeds of a sale of the corresponding
License or Partial License, direct payment by the Reorga-
nized Debtor, or any assignee, designee or successor of
the Reorganized Debtor, or otherwise.” The plan does
not require the FCC to approve of a particular sale to
repay the amounts owed. Nor does it affect the FCC’s
regulatory powers should Airadigm decide to sell the
licenses to a party that would not qualify for install-
ment payments. It merely states that should Airadigm
sell the licenses such that the FCC “has received the
payments required” by the plan, then the FCC will not
have any continuing interest in the underlying “securities
or annuity contracts” that would otherwise provide the
stream of payments. Because the plan “retain[ed] the
liens” and did not otherwise affect the FCC’s regulatory
authority, the bankruptcy court did not err by omitting
reference to the due-on-sale provisions in the 2006 re-
organization plan.
D. Release of TDS from Liability
Finally, the FCC challenges the fact that the 2006 plan
releases TDS from all liability “in connection with” the
reorganization except for willful misconduct. The plan,
as is relevant, states “[e]xcept as expressly provided . . .
[TDS shall not] have or incur any liability to . . . any holder
26 Nos. 07-2212, 07-2430 & 07-2529
of any Claim . . . for any act or omission arising out of or
in connection with the Case, the confirmation of this
Plan, the consummation of this Plan, or the administra-
tion of this Plan or property to be distributed under this
Plan, except for willful misconduct.” The FCC argues that
this violates the bankruptcy code and was therefore
improper. For the reasons set out below, we disagree.
The question whether a bankruptcy court can release
a non-debtor from creditor liability over the objections
of the creditor is one of first impression in this circuit. See
In re Specialty Equipment, Co., 3 F.3d 1043, 1046-47 (7th
Cir. 1993) (approving of consensual non-debtor releases);
see also Union Carbide Corp. v. Newboles, 686 F.2d 593,
595 (7th Cir. 1982) (holding under previous version of
bankruptcy code that such releases are improper). And
the circuits that have addressed the matter have set out
a variety of approaches. Some have held that a non-consen-
sual release of liability violates the bankruptcy code and
is thus beyond the power of the bankruptcy court. See
In re Lowenschuss, 67 F.3d 1394, 1401 (9th Cir. 1995); In re
Western Real Estate, 922 F.2d 592, 600 (10th Cir. 1990).
Others permit the releases but have splintered on the
governing standard. See, e.g., Deutsche Bank AG v.
Metromedia Fiber Network, Inc., 416 F.3d 136, 142 (2d Cir.
2005) (permitting release if it is “important” to reorganiza-
tion); Gillman v. Continental Airlines (In re Continental
Airlines), 203 F.3d 203, 214 (3d Cir. 2000); In re A.H. Robins,
Co., 880 F.2d 694, 701-02 (4th Cir. 1989); In re Dow Corning
Corp., 280 F.3d 648, 658 (6th Cir. 2002) (setting out a seven-
factor balancing test).
The nub of the circuits’ disagreement concerns two
interrelated questions, one of which we have already
resolved and another that we answer here. The first is
Nos. 07-2212, 07-2430 & 07-2529 27
whether § 524(e) of the bankruptcy code bars a bank-
ruptcy court from releasing non-debtors from liability to
a creditor without the creditor’s consent. See, e.g.,
Lowenschuss, 67 F.3d at 1401 (yes); Deutsche Bank AG,
416 F.3d at 142 (no). Section 524(e) provides that the
“discharge of a debt of the debtor does not affect the
liability of another entity on, or the property of any other
entity for, such debt.” 11 U.S.C. § 524(e). The natural
reading of this provision does not foreclose a third-party
release from a creditor’s claims. Specialty Equipment,
3 F.2d at 1047. Section 524(e) is a saving clause; it limits
the operation of other parts of the bankruptcy code and
preserves rights that might otherwise be construed as
lost after the reorganization. Id.; see also In re Hunter,
970 F.2d 299, 311 (7th Cir. 1992). Thus, for example, because
of § 524, a creditor can still seek to collect a debt from a co-
debtor who did not participate in the reorganization—even
if that debt was discharged as to the debtor in the plan.
Compare 11 U.S.C. § 524(a)(2) with 11 U.S.C. § 524(e). Or a
third party could proceed against the debtor’s insurer or
guarantor for liabilities incurred by the debtor even if the
debtor cannot be held liable. See In re Shondel, 950 F.2d
1301, 1306-07 (7th Cir. 1991); see also In re Hendrix, 986 F.2d
195, 197 (7th Cir. 1993).
In any event, § 524(e) does not purport to limit the
bankruptcy court’s powers to release a non-debtor from
a creditor’s claims. If Congress meant to include such a
limit, it would have used the mandatory terms “shall” or
“will” rather than the definitional term “does.” And it
would have omitted the prepositional phrase “on, or . . .
for, such debt,” ensuring that the “discharge of a debt of
the debtor shall not affect the liability of another en-
tity”—whether related to a debt or not. See 11 U.S.C. § 3428 Nos. 07-2212, 07-2430 & 07-2529
(repealed Oct. 1, 1979) (“The liability of a person who is
a co-debtor with, or guarantor or in any manner a
surety for, a bankrupt shall not be altered by the dis-
charge of such bankrupt.”) (prior version of § 524(e)).
Also, where Congress has limited the powers of the
bankruptcy court, it has done so clearly—for example, by
expressly limiting the court’s power, see 11 U.S.C. § 105(b)
(“[A] court may not appoint a receiver in a case under
this title”), or by creating requirements for plan confirma-
tion, see, e.g., 11 U.S.C. § 1129(a) (“The court shall con-
firm a plan only if the following requirements are
met . . . .”). As a result, for the reasons set out in Specialty
Equipment, § 524(e) does not bar a non-consensual third-
party release from liability.4
The second related question dividing the circuits is
whether Congress affirmatively gave the bankruptcy
court the power to release third parties from a creditor’s
claims without the creditor’s consent, even if § 524(e)
does not expressly preclude the releases. A bankruptcy
court “appl[ies] the principles and rules of equity jurispru-
dence,” Pepper v. Litton, 308 U.S. 295, 304 (1939), and its
4
This Court had previously held that all non-debtor releases
were prohibited under the prior version of the bankruptcy
code. Union Carbide Corp. v. Newboles, 686 F.2d 593 (7th Cir.
1982). The language before these 1979 modifications—the 1982
case applied the pre-amendment version of the code—quite
explicitly answered the question at issue here. It provided that
“[t]he liability of a person who is a co-debtor with, or guarantor
or in any manner a surety for, a bankrupt shall not be altered
by the discharge of such bankrupt.” 11 U.S.C. § 34 (repealed
Oct. 1, 1979). Given Congress’s elimination of the statutory
language that formerly decided the issue, Union Carbide is
no longer controlling on this point of law.
Nos. 07-2212, 07-2430 & 07-2529 29
equitable powers are traditionally broad, United States v.
Energy Resources Co., Inc., 495 U.S. 545, 549 (1990). Section
105(a) codifies this understanding of the bankruptcy court’s
powers by giving it the authority to effect any “necessary
or appropriate” order to carry out the provisions of the
bankruptcy code. Id. at 549; 11 U.S.C. § 105(a). And a
bankruptcy court is also able to exercise these broad
equitable powers within the plans of reorganization
themselves. Section 1123(b)(6) permits a court to “include
any other appropriate provision not inconsistent with
the applicable provisions of this title.” 11 U.S.C.
§ 1123(b)(6). In light of these provisions, we hold that
this “residual authority” permits the bankruptcy court
to release third parties from liability to participating cred-
itors if the release is “appropriate” and not inconsistent
with any provision of the bankruptcy code.
In this case, the bankruptcy court did not exceed its
authority in granting the limitation on TDS’s liability.
Ultimately, whether a release is “appropriate” for the
reorganization is fact intensive and depends on the nature
of the reorganization. Given the facts of this case, we
are satisfied that the release was necessary for the reorgani-
zation and appropriately tailored. First, the limitation
itself is narrow: it applies only to claims “arising out of
or in connection with” the reorganization itself and does
not include “willful misconduct.” See Deutsche Bank, 416
F.2d at 142 (noting that “potential for abuse is heightened
when releases afford blanket immunity”). This is not
“blanket immunity” for all times, all transgressions, and
all omissions. Nor does the immunity affect matters
beyond the jurisdiction of the bankruptcy court or unre-
lated to the reorganization itself. See 28 U.S.C. § 157(b); Cf.
In re Johns-Manville Corp., 2008 U.S. App. LEXIS 3228 (2d
30 Nos. 07-2212, 07-2430 & 07-2529
Cir. Feb. 16, 2008). Thus, should TDS have recklessly
committed some wrong during the 2000 or 2006 proceed-
ings, it would still be liable to the FCC or any other third
party. Second, the limitation is subject to the other provi-
sions of the plan, including one that expressly preserves
the FCC’s regulatory powers with respect to the licenses.
Therefore, TDS cannot use this limitation as a way of
skirting the FCC’s regulations regarding the use, posses-
sion, or transfer of the licenses. Third, the bankruptcy
court found “adequate” evidence that TDS required this
limitation before it would provide the requisite financing,
which was itself essential to the reorganization. See Deut-
sche Bank, 416 F.3d at 143. Airadigm owes TDS $188,264,000
for its secured claims, and it owes the FCC another
$33 million in secured claims for the licenses. As the
bankruptcy court found, without TDS’s involvement,
Airadigm would be on the hook for over $221 million in
debt—an amount that some other would-be financier
would not likely pay considering Airadigm’s financial
situation. Absent TDS’s involvement, the reorganization
simply would not have occurred. Given how narrow
the limitation is and how essential TDS was for the reorga-
nization, the release is “appropriate” and thus within
the bankruptcy court’s powers.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
decision affirming the bankruptcy court.
USCA-02-C-0072—3-12-08