UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: KANSAS PERSONAL COMMUNICATIONS SERVICES, LTD.,

Debtor.

UNITED STATES OF AMERICA, on behalf of the Federal

Communications Commission,

Appellee,

v.

KANSAS PERSONAL COMMUNICATIONS SERVICES, LTD.,

Appellant.

No. 01-3042

(D.C. No. 00-CV-2392-JWL)

(D. Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR and PORFILIO, Circuit Judges, and STAGG,** District Judge.

This appeal has been abated pending resolution of Federal Communications Commission v. Nextwave Personal Communications, et al., in the Supreme Court of the United States. At issue in Nextwave was a question which dominates this case: whether an FCC license holder who has filed a petition for relief under Chapter 11 of the Bankruptcy Code is protected by the provisions of 11 U.S.C. §§ 362 and 525 from cancellation of the license for non-payment of license fees. The Supreme Court has answered that question in the affirmative, 537 U.S. ____, 123 S.Ct. 832 (2003).

We issued an order directing the parties to state their positions on the effect of Nextwave in this appeal. Both have responded agreeing the decision leaves nothing for this court to decide.

Nextwave makes clear the district court's decision in this matter was erroneous. The Chapter 11 filing barred the FCC from taking any action against the license of Kansas Personal Communication Services, Ltd. without first obtaining authority to do so from the bankruptcy court. Consequently, the judgment of the district court is REVERSED and the matter REMANDED WITH DIRECTIONS to remand the case to the bankruptcy court for further proceedings.

ENTERED FOR THE COURT

John C. Porfilio

Senior Circuit Judge