### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40122

IN THE MATTER OF: HALO WIRELESS, INCORPORATED,
Debtor

------------------------ ------------------------ ------------------------ -------------- HALO WIRELESS, INCORPORATED, Appellant

v. ALENCO COMMUNICATIONS INCORPORATED; ALMA COMMUNICATIONS COMPANY; BPS TELEPHONE COMPANY;BELLSOUTH TELECOMMUNICATIONS, L.L.C., doing business as AT&T Alabama; BIG BEND TELEPHONE COMPANY, INCORPORATED; BLUE RIDGE TELEPHONE COMPANY; BRAZORIA TELEPHONE COMPANY; CAMDEN TELEPHONE & TELEGRAPH COMPANY, INCORPORATED; CHARITON VALLEY TELECOM CORPORATION; CHARITON VALLEY TELEPHONE CORPORATION; CHOCTAW TELEPHONE COMPANY; CITIZENS TELEPHONE COMPANY OF HIGGINSVILLE, MISSOURI; CONCORD TELEPHONE EXCHANGE, INCORPORATED; CRAW-KAN TELEPHONE COOPERATIVE, INCORPORATED; EASTEX TELEPHONE COOPERATIVE, INCORPORATED; ELECTRA TELEPHONE COMPANY, INCORPORATED; ELLINGTON TELEPHONE COMPANY; FARBER TELEPHONE COMPANY; FIDELITY COMMUNICATION SERVICES I, INCORPORATED; FIDELITY COMMUNICATION SERVICES II, INCORPORATED; FIDELITY TELEPHONE COMPANY; FIVE AREA TELEPHONE COOPERATIVE, INCORPORATED; GANADO TELEPHONE COMPANY; GOODMAN TELEPHONE COMPANY; GRANBY TELEPHONE COMPANY; GRAND RIVER MUTUAL TELEPHONE COMPANY; GREEN HILLS AREA CELLULAR; GREEN HILLS TELEPHONE CORPORATION; U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 18 , 20 12 Lyle W . Cayce Clerk Case: 12-40122 Document: 00511889658 Page: 1 Date Filed: 06/18/2012No. 12-40122

HILL COUNTRY TELEPHONE COOPERATIVE, INCORPORATED; HOLWAY TELEPHONE COMPANY; HUMPHREYS COUNTY TELEPHONE COMPANY; IAMO TELEPHONE COMPANY; ILLINOIS BELL TELEPHONE COMPANY, doing business as AT&T Illinois; INDIANA BELL TELEPHONE COMPANY, INC., doing business as AT&T Indiana; INDUSTRY TELEPHONE COMPANY; K.L.M. TELEPHONE COMPANY; KINGDOM TELEPHONE COMPANY; LAKE LIVINGSTON TELEPHONE COMPANY, INCORPORATED; LATHROP TELEPHONE COMPANY; LE-RU TELEPHONE COMPANY; LIVINGSTON TELEPHONE COMPANY; MARK TWAIN COMMUNICATION COMPANY; MARK TWAIN RURAL TELEPHONE COMPANY; MCDONALD COUNTY TELEPHONE COMPANY; MICHIGAN BELL TELEPHONE COMPANY, doing business as AT&T Michigan; MID-MISSOURI TELEPHONE COMPANY; MID-PLAINS RURAL TELEPHONE COOPERATIVE, INCORPORATED; MILLER TELEPHONE COMPANY; MOKAN DIAL, INCORPORATED; NELSON-BALL GROUND TELEPHONE COMPANY; NEVADA BELL TELEPHONE COMPANY, doing business as AT&T Nevada; NEW FLORENCE TELEPHONE COMPANY; NEW LONDON TELEPHONE COMPANY; NORTEX COMMUNICATIONS COMPANY; NORTH TEXAS TELEPHONE COMPANY; ORCHARD FARM TELEPHONE COMPANY; OZARK TELEPHONE COMPANY; PACIFIC BELL TELEPHONE COMPANY, doing business as AT&T California; PEACE VALLEY TELEPHONE COMPANY, INCORPORATED; PEOPLES TELEPHONE COOPERATIVE, INCORPORATED; QUINCY TELEPHONE COMPANY; RIVERA TELEPHONE COMPANY, INCORPORATED; ROCK PORT TELEPHONE COMPANY; SANTA ROSA TELEPHONE COOPERATIVE, INCORPORATED; SENECA TELEPHONE COMPANY; SOUTHWEST TEXAS TELEPHONE COMPANY; SOUTHWESTERN BELL TELEPHONE COMPANY, doing business as AT&T Arkansas; STEELVILLE TELEPHONE EXCHANGE, INCORPORATED; STOUTLAND TELEPHONE COMPANY; TATUM TELEPHONE COMPANY; TELLICO TELEPHONE COMPANY; TENNESSEE TELEPHONE COMPANY; MISSOURI PUBLIC SERVICE COMMISSION; OHIO BELL TELEPHONE COMPANY, doing business as AT&T Ohio; TOTELCOM COMMUNICATIONS, L.L.C.; VALLEY TELEPHONE COOPERATIVE INC; WEST PLAINS TELECOMMUNICATIONS, INCORPORATED; WISCONSIN BELL TELEPHONE, INCORPORATED, doing business as AT&T Wisconsin; AT&T KANSAS; AT&T MISSOURI; AT&T OKLAHOMA; AT&T TEXAS; AT&T FLORIDA; AT&T GEORGIA; AT&T KENTUCKY; AT&T LOUISIANA; AT&T MISSISSIPPI; AT&T NORTH CAROLINA; AT&T SOUTH CAROLINA; AT&T TENNESSEE; TDS TELECOMMUNICATIONS

2 Case: 12-40122 Document: 00511889658 Page: 2 Date Filed: 06/18/2012No. 12-40122

CORPORATION; CROCKETT TELEPHONE CO; WEST TENNESSEE TELEPHONE COMPANY INC; NORTH CENTRAL TELEPHONE COOP, INCORPORATED; HIGHLAND TELEPHONE COOPERATIVE, INCORPORATED; GUADALUPE VALLEY TELEPHONE COOPERATIVE, INCORPORATED; NORTHEAST MISSOURI RURAL TELEPHONE COMPANY; PEOPLES TELEPHONE COMPANY, INCORPORATED, Appellees

Appeal from the United States Bankruptcy Court for the Eastern District of Texas,

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges. BENAVIDES, Circuit Judge: This case involves disputes between Halo Wireless, Inc. and the Texas and Missouri Telephone Companies (“TMT Companies”), TDS Communications Corp., and the AT& T C o m p a nies. The local telephone companies initiated 1 twenty separate suits against H a lo before ten state public utility commissions (“PUCs”). Halo filed for bankruptcy as a result of this colle c t iv e a c t i o n. The

2 telephone companies requested that the ban k r u p t c y court determine that the variou s PUC actions are not subject to the automatic stay provided by the Bankruptcy Code at 11 U.S.C. § 362(a), because t h e y a r e excepted under § 362(b)(4), or that the bankruptcy court modify the automatic s t a y f o r cause,

TDS Telec om mun icat ions Corp

. ope rat es in variou s st ates , and it has fil ed com plai nts 1 agains t Ha lo in public utility com mi ss ions in Ge orgia and Tennes se e. The AT&T Com pani es als o ope rat e in variou s s t a t es , and have fil ed com plai nts agains t Ha lo in Alabam a, Flori da, Ke ntuc ky, Mis sis sip pi, North Carol ina, Sout h Carol ina, and Tennes se e. Aft er the bank rup tcy co u r t e x e m p ted PUC pr oce edi ngs fr om the auto mat ic st ay, AT&T als o fil ed act ions in Louis iana and Calif

orni a. The TMT Com pani es fil e d a c t i o n s agains t Ha lo in Texas and Mis so uri.
The tot al number of a c t i ons now app ear to be mo re than tw enty, tak ing plac e in

2 thir tee n jur isdict ions

. 3 Case: 12-40122 Document: 00511889658 Page: 3 Date Filed: 06/18/2012No. 12-40122

pursuant to § 362 ( d) (1). The bankruptcy court held that the exception to the automatic stay in § 362(b)(4) applies t o th e state commission proceedings, allowing the telephone companies to proceed with their litigation in the PUCs, but held that the state adjudicative bodies could not issue any ruling or order to liquidate the amount o f a ny claim against Halo, and that the bodies could not take any action that affects the debtor-creditor relationship between Halo and
any creditor or potential creditor. Halo now appeals this ruling, contending that because the PUC actions were brought by private parties, they should be subject to the automatic stay. We agree w i t h t h e b a n kruptcy court that the PUC proceedings are exempt from the automatic stay, and we thus AFFIRM.

I. FA C T UA L AN D P R O C E D U R A L BA C K G R O U N D Halo states that it is a small telecommunications company that provides wireless phone and data service to its customers pursuant to a license from the Federal Communications Commission (“FCC”). According to Halo, it provides wir e l ess Commercial Mobile Radio Service (“CMRS”), as defined by Section 332(d)(1) of the Federal Telecommunications Act, 47 U.S.C. §§ 151 et seq
. (“FTA”

or “Act”). The Appellees are all privately-owned local telephone companies. Their dis p u t es with Halo center around the type of service Halo actually provides, and whether or not Halo is properly compensating local companies for the call traffic it transfers to them. 3 Starting with the TMT Companies in May 2 0 1 1 , t he Appellees have all filed actions against Halo in state PUCs. The TMT Companies claim that Halo is not a CMRS carrier, and that it w a s improperly using the TMT Companies’ networ k s w ithout an interconnection agreement (“ICA”) or payment of access fees. The TDS Companies allege that Halo has used service to Transcom (which

T he allegat ions agains t Ha lo dif fer sli ghtly amo ng the App elle e phon e com pani es
. 3 In each sit uatio n, how e v er, the loca l tel epho ne com pani es have brou ght thei r grievanc es to st ate PUCs , wh ich is wh eret hey f ind com mo nality.

4 Case: 12-40122 Document: 00511889658 Page: 4 Date Filed: 06/18/2012No. 12-40122

Halo calls a “cus t o m e r , ” but the TDS Companies allege is a related entity) to avoid state regulation and the payment of access charges to the TDS Companies. The AT&T companies all claim that Halo is violating its ICAs wi t h t h e m , and they have asked the PUCs to determ i n e t h at H a lo’s traffic is not wireless. As summarized b y th e bankruptcy court, “[t]he complainants contend that the debtor is inv o lved in an arbitrage scheme and that the debtor owes them fees under applicable law an d r e gu l ations. And more generally, that the debtor is subject to the authority of the Public Utility Commi s s i o n [ s ]. The debtor contends that it is regulated by the FCC, not the Public Utility Commissions and denies that it is engaged in an arbitrage scheme.” Because of the numerous suits filed against Halo by the Appellees, Halo filed a voluntary petition under Chapter 11 of the Bankruptcy Code on August 8, 2011. Halo also removed the various PUC actions to federal court, pursuant to 28 U.S.C. § 1452, and it then filed motions to have those actions transferred to the bankruptcy court. In response to Halo’s declaration of bankruptcy, the Appellees filed motions requ e sting that the state PUC proceedings be exempt from the automatic stay under § 362(b)(4) of the Bankruptcy Code. The bankruptcy court held an initial hearing on September 30, 2 0 11 to

c o n s i d e r the Appellees’ motions, and it then made its findings of fact an d conclusions of law on the record on October 7, 2011. The bankruptcy court found that “[i]t is the nature of the action[, not] the identity of the parties which initially precipi t at[e] the action[,] that determines whether Section 362(b)(4) applies.” Despite the fact that the PUC acti o n s h a d b e e n initiated by private parties, because they were all state regulatory proceedings, the court ruled that they were excepted from the automatic stay under § 362(b)(4). The bankruptcy court then in c o r p o r a ted its findings of fact and conclusions of law in Stay Exception Orders entered for each Appellee on October 26, 2011. On that same

5 Case: 12-40122 Document: 00511889658 Page: 5 Date Filed: 06/18/2012No. 12-40122

d a y , H a l o filed notices of appeal. The bankruptcy court certified the appeal 4 directly to this Court on November 7, 2011, stating that “[t]he judgment, order

or decree involves a question of law as to which there is no controlling decision of the court of appeals for this c i r c u i t o r of the Supreme Court of the United States,” pursuant to 28 U.S.C. § 158(d)(2). Since the bankruptcy court’s ruling, sixteen (of twenty total) of the Appellees’ motions to remand their actions from federal courts back to the state PUCs have been granted. II. S TAN D A R D O F R E V I EW “When directly reviewing an order of the bankruptcy court, we apply the

same standard of review that would have bee n used by the district court. Findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo.” Drive Fin. Servs., L.P. v. Jordan , 521 F.3d 343 , 346 (5th Cir. 2008) (citing Fed. R. Bankr. P. 8013). III. ANA LY S I S Normally, when a party declares Chapter 11 bankruptcy, an automatic stay is imposed on any other pending or future actions against the party. Under the Bankruptcy Code,

[ e]xcept as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 o f t his title

. . . operates as a stay, applicable to all entities, of the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action o r proceeding against the debtor that was or could have been c o m m e nced

Ha lo als o fil ed a mo tio n for st ay pend ing app eal, wh ich the bankrup tcy cour t deni ed. 4 The bank rup tcy cou rt f oundthat H alo had f

ailedto mee t the fo ur cri ter ia for a stay pendi ng app eal, relyi ng on In re First South Sav ings As soc ia tion , 82 0 F.2d 700, 709 (5t h Cir. 1987)

. Sp ecif ical ly, the cour t held that Ha lo had “not mad e a sho wi ng of irrep arabl e injury abs ent a st ay,” wh ile “th e grant ing of a st ay wo uld sub st antia lly harm othe r par tie s by inte rf erin g wi th the stat e util ity com mi ss ions ’ abilit y to regulate public utiliti es and by requ iring credi tor s to cont inue pr ovidi ng se rvice s to the deb tor in the fut ure. ” The cour t fur ther fou nd that grant ing
a st ay pend ing app eal wo uld not fur ther the publ ic inte res t, and that Ha lo had not es tabl ish ed
a s ubs tant ial lik eliho od of suc ces s on the me rit s. 6 Case: 12-40122 Document: 00511889658 Page: 6 Date Filed: 06/18/2012No. 12-40122 before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]

11 U.S.C. § 362(a). “The purposes of the bankruptcy stay under 11 U.S.C. § 362

are to protect the debtor’s assets, p r ovide temporary relief from creditors, and further equity of distribution among the creditors by forestalling a r a c e t o the courthouse.” Reliant Energy Servs., Inc. v. Enron Canada Corp ., 349 F.3d 816, 825 (5th Cir. 2003) (internal quotation marks and citation omitted); see also Matter of Commonwealth Oil Refining Co., Inc. , 805 F.2d 1175, 1182 (5th Cir. 1986) (“The purpose of the automatic stay is to give the debtor a ‘breathing spell’ from his creditors, and also, to protect c r e di t ors by preventing a race for the debtor’s assets.” (quoting H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97)); Hunt v. Bankers Trust Co. , 799 F.2d 1060, 1069 (5th Cir. 1986) (“The pu r p o s e o f the automatic stay is to protect creditors in a

manner consistent w it h the bankruptcy goal of equal treatment.”). Thus, Congress considered the automati c stay “one of the fundamental debtor protections provided by the bankruptcy laws” when it was instituted. H.R. Rep. No. 95-595, at 340, reprinted in 1978 U.S.C.C.A.N. 5963, 6296. As noted in the text of § 362(a), however, there are exceptions to the stay found in subsection (b) of the statute. The exception at issue here allows

the c ommencement or continuation of an action or proceeding by a governmental unit

. . . to enforce such go vernmental unit’s or organization’s police a n d regulatory power, including the e n forcement of a judgment other than a money judgment, obtained in an a c t i on or proceeding by the governmental unit to enforce such go v ernmental unit’s or organization’s police or regulatory power. 11 U.S.C. § 362(b)(4). The statute further defines a “governmental unit” as:

7 Case: 12-40122 Document: 00511889658 Page: 7 Date Filed: 06/18/2012No. 12-40122 United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States (but not a United States trustee while serving as a trustee in a case under this title), a State, a Commonw e a l t h , a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.

11 U.S.C. § 101(27). As stated in the accompanying House Report , “w h ere a governmental unit is suing a debtor t o p r e v e nt or stop violation of fraud, environmental protection, consumer protection , safety, or similar police or regulatory laws, or attempting to fix damages for vi o l a t i on of such a law, the action or procee di n g i s not stayed under the automatic stay.” H.R. Rep. No. 95–595, at 343, reprinted in 1978 U.S.C.C.A.N. 5963, 6299. “This exception discourages debtors from s ub m itting bankruptcy petitions either primarily or solely for the purpose of evading impending governmental efforts to invoke the governmental police powers to enjoin or deter ongoing debto r c onduct which would seriously threa t e n t h e public safety and welfare.” In re McMullen , 386 F.3d 320, 324-35 (1st Cir. 2004); see also In re Commonwealth Co s
. , I n c
. , 913 F.2d 518, 527 (8th Cir. 1990) (stating that “a fundamental policy behind the police or regulatory power exception

. . . is to prevent the bankruptcy court from becoming a haven for wrongdoers” (internal quotation marks and citation omitted)); In re Nortel Networks, Inc ., 669 F.3d 128, 137 (3d Cir. 2011) (same); S.E.C. v. Brennan , 230 F.3d 65, 71 (2d Cir. 2000) (same); CFTC v. Co Petro Mktg. Grp., Inc ., 700 F.2d 1279, 1283 (9th Cir. 1983) ( same). The exception does not allow enforcement of a money ju d g m e n t against the debtor, however; at most,

a money judgment may be entered. Brennan , 2 3 0 F

. 3 d at 71 (“It is well established that the governmental unit exception of § 362(b)(4) permits the entry of a mon e y j u dgment against a debtor so long as the proceeding in which such

a judgmen t i s entered is one to enforce the governmental unit’s police or

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regulatory power. . . . However, . . . anything beyond the mere entry of a money judgment against a debtor is prohibited by t h e a u tomatic stay.” (citations omitted)). 5 Therefore, the automatic stay and its exception present two different, and at times competing, policies. On the one hand, the stay aims to protect debtors and creditors during the pendency of a bankrup t cy proceeding to ensure that debtors get appropriate relief and that c r e di t ors receive payment in a fair and orderly manner. See Commonwealth Oil , 805 F.2d at 1182. On the other hand, the exception to the stay helps to ensure that debtors do not use a declaration of bankruptcy to avoid the consequences of their actions that threaten the public interest. See Brennan , 230 F.3d at 71 (stating that the purpose of the exception is to “prevent a debtor from frustrating necessary governmental functions by seeking refuge in bankruptcy court.” (quotation marks and citation omitted)).

The court in Brenn an cit ed othe r cas es w h e r e cour ts allow ed the entry of a mo ney 5 judgm ent agains t t h e d ebto r, so long as ther e wa s no eff ort to coll ect on the judgm ent. See , e. g. , N. L.R. B. v. 15th Av e. Iron Wo rk s , In c
. , 9 6 4 F.2d 1336, 1337 (2d Cir. 1992) (p er curiam) (“The ‘enf

orc em ent’ of the NLRB ord er that we com man d pur sua nt to 29 U. S. C. § 160( e) allow s the entry of this asp ect of the NLRB’s ord er as, in eff ect , a ‘m oney judgm ent’ a g a i n s t 1 5 t h Avenue. The collec tio n of thatjudgmen t aft er ent ry, on theotherhand, is not aut hori zed by this ‘ enf orc em ent’p roc eeding, and requ ires a se par ate app lica tio n t o t he bank rup tcy cour t. ” (c itat ions om itt ed) ); N. L.R. B. v. Edw ar d Coop er Pai nting, Inc ., 804 F.2d 934, 942- 43 (6t h Cir. 1986) (“ [O ]nc e pr oce edi ngs are excep ted fr om the st ay by se cti on 362(b)( 4), cour ts have allow ed governm enta l units to fix the amo unt of pena ltie s, up to a n d i nclud ing entry of a mo ney judgm ent. ” (c itat ion om itt ed) ); E.E. O. C. v. Rath Pack ing Co. , 787 F.2d 318, 326 (8t h Cir. 1986) (“The entry of a judgm ent for injunct ive reli ef and back pay is per mi tte d unde r § 362(b)( 5), but the act ual enf

orc em ent of the back pay judgm ent is not perm itt ed. ”) ; Penn Ter ra Ltd. v. De p’t of Env. Res ., Com

. of Pa. , 733 F.2d 267, 275 (3d Cir. 1984) (“As the legis lative his tory expli cit ly note s, t h e m e r e entry of a mo ney judgm ent by a governm enta l unit is not aff ect ed by the auto mat ic st ay, pr ovide d of cour se that suc h pr oce edi ngs are rela ted to t h a t governm ent’ s pol ice or regula tory pow ers .” ). The reas oning in so m e o f t hes e cas es wa s bas ed on the now rep ealed§ 362(b) (5) , which s tat ed: “[t]hefiling of a pet itio n unde r se cti on 301, 302, or 303 of this tit le doe s not ope rat e as a st ay unde r sub se cti on (a) (2) of this se cti on, of the enf orc em ent of a judgm ent, othe r than a mo ney judgm ent.

. . .” That sub se cti on wa s rep ealed in 1998; how ever, as evide nced by the Sec ond Circuit ’sdeci sio n in Brenn an , ren der ed in 2000, court s st ill findt he reas oning of thos e c ase s per sua siveandap pli cableund er currentla w. 9 Case: 12-40122 Document: 00511889658 Page: 9 Date Filed: 06/18/2012No. 12-40122

To determine wh e ther proceedings fall within the police or regulatory
power exception to the automatic stay, “courts have applied two ‘related, and somewhat overlappin g’ t e s t s: the pecuniary purpose test and the public policy test.” Nortel , 669 F.3d at 139 (quoting Lockyer v. Mirant Corp ., 398 F.3d 1098, 1108 (9th Cir. 2005)); see also Chao v. Hosp. Staffing Servs., Inc. , 270 F.3d 374, 385 (6th Cir. 2001); In re Spookyworld, Inc ., 346 F.3d 1, 9 (1st Cir. 2003); Chao

v. Mike & Charlie’s Inc ., No. H-05-1780, 2006 WL 18467, at *1 (S.D. Tex. Jan. 4, 2006). “The pecuniary purpose test asks whether th e govern m e nt p ri m arily seeks to protect a pecuniary governmental interest in the debtor’s property, as opposed to protecting the public safe t y a n d h e alth.” Nortel , 669 F.3d at 139-40. “The public policy test asks whether the govern m e n t i s effectuating public policy rather than adjudicating private rights.” Id

. at 140. Thus, “[i]f the purpose of the law is to promote public safety and welfare or to effectuate public policy, then the exception to the automatic stay a p p l ies. If, on the other hand, the
purpose of the law is to protect the government’s pecuniary interest in the debtor’s property or primarily to adjudicate private rights, then the exception is inapplicable.” Id .; see also Lockyer , 398 F.3d at 1109; Eddleman v. U.S. Dep’t of Labor , 923 F.2d 782, 791 (10th Cir. 1991), overruled in part on other grounds by Temex Energy, Inc. v. Underwood, Wilson, Berry, Ste i n & J o h nson , 968 F.2d 1003, 1005 n.3 (10th Cir. 1992); In re Gandy , 327 B.R. 796, 803 (Bankr. S.D. Tex. 2005). The pecuniary purpose and public policy tests both “contemplate that the bankruptcy court, after assessing the totality o f t h e c ircumstances, [will] determine whethe r the particular regulatory proceeding at issue is designed primarily to protect the public safety and welfare, or represents a governmental attempt to recover from property of the debtor estate, whether on its own claim,

or on the nongovernmental debts of private parties.” McMullen , 386 F.3d at 325; see also Hosp. Staffing , 270 F.3d at 389 (stating that the tests “are designed to

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sort out cases in which the government is bringing suit in furtherance of either its own or certain p rivate parties’ interest in obtaining a pecuniary advantage over other creditors”). There are two main issues of contention bet w een Halo and the Appellee telephone co m p a n i e s on appeal: (a) whether the PUC proceedings are being “continued by” a governmental unit, (b) and whether those proceedings are in furtherance of the states’ police and regulatory powers. A. “Continued by” Halo argues that none of the PUC proceedings should be exempted from the automatic stay because an action must be prosecuted by and in the name of

a governmental unit in order to be excepted from the automatic stay. Halo bases its claim on the statutory text, as well as court decisions that have applied the exception to the stay only where the proceeding is advanced by a governmental unit that sued or prosecuted the debtor to enforce the governmental unit’s own police or regulatory powers. It notes that, while in som e c a s e s an action may have originated with a private party complaint to a governmental unit, that unit then conducted an investigatio n a n d adopted the role of the plaintiff or prosecutor. The Appellees respond that the bankruptcy court’s r u l i n g was correct because the private party-initiated proceedings are essentiall y i dentical to proceedings initiated by PUCs. Therefore, these actions should be excepted in the same manner as those instituted by the state. The Appellees also argue that Halo focuses on only one part of the statutory language when it states that an action must be initiated b y th e government, because the exception applies to “the commencement or continuation of an action or proceeding by a governmental unit

. . . to e n f

o r c e s u ch governmental unit’s or organization’s police and regulatory power.” § 362(b)(4) (emphasis added). According to the Appellees, all of the state PUC actions are being conti n u e d by governmental units because

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they are ongoing, and they thus fall within the exception to the automatic stay. I n s u p p o r t of their argument, the Appellees point to cases where a complain t

was initially filed by a private party, but then prosecuted or continued by a state agency. Halo waxes hyperbolic when it states that “ e v e ry reported case that has applied the exception t o the automatic stay has involved an independent proceeding advanced by a governmental unit that sued or prosecuted the debtor to enforce the governmental unit’s own police or regulatory powers.” While most

cases do involve actions pursued by a governmental unit in its o w n n a m e , the circumstances vary. As the Appellees make clear, many cases are initiated by the filing of a compl a i n t b y a private party. This is especially true in actions seeking to vindicate workers’ rights. See , e.g. , NLRB v. Evans Plu m b i ng , 6 3 9 F.2d 291, 292 (5th Cir. Unit B 1 9 8 1 ) (two employees filed a charge of unfair labor practices with the National Labor Relations Board, and the charge was set for a hearing when the employer filed for bankruptcy; the hearing was held, and the NLRB then filed a petition in this Court to enforce its decision ordering the employer to reinstate the employees with backpay, which p e tition the Court
gr a nted). Courts have recognized that though these actions may h av e

6 similarities to private l i ti g ation, they also promote the public interest by

See general ly In re Mo haw k Greenfi el d Mo tel Corp ., 239 B.R. 1 (Bank r. D. Mas s. 1999) 6 (t wo for me r em plo yees fil ed com p l a i n ts wi th the Mas sac huse tts Com mi ss ion Agains t Di sc rim inati on, and aft er cond uct ing hearings, the Com mi ss ion fou nd for them and so ught to enf orc e a mo neta ry judgm ent; the bank rup tcy court held that the hearings and the entry of
a mo neta ry judgm ent we re excep ted fr om the auto mat ic st ay, largel y due to the st ate’ s publ ic pol icy agains t dis cri mi natio n, but that any eff ort to enf

orc e the aw ard wo uld not be allow ed) ; In reN gan Gu ng Re staurant, Inc ., 183 B.R. 689 (Bank r. S .D .N .Y

. 1995) (private individual s com plai ned to the Atto rney Ge nera l about a res taur ant’ s labor pr act ices ; the Atto rney Ge nera l inves tigat ed and then fil ed a N o t i c e o f Petit ion agains t the res taur ant in st ate cour t, wh ich act ion the bank rup tcy cour t held wa s exem pt fr om the auto mat ic st ay); In re SSS of Ky. , Inc ., 29 B.R. 19 ( Bank r. W. D. Ky. 1983) (wh erep rivat e p art ies f iledan opp os itio n t o t he sal e o f a broa dc ast lice nse wi th t h e FCC, the bank rup tcy cour t rule d that the pr oce edi ngs bef ore the FCC w ereexe mp t fr omt he auto mat ic st ay). 12 Case: 12-40122 Document: 00511889658 Page: 12 Date Filed: 06/18/2012No. 12-40122

enforcing state laws and regulations. See , e.g. , In re D. M. Barber, Inc ., 13 B.R. 962, 963 ( B a n kr . N.D. Tex. 1981) (“Proceedings before the National Labor Relations Board are commenced by the initiative of aggri eved individual persons and thus have some characteristics of private litigation. However the case law reflects that the proceedings by the Board are n o t t o a d judicate private rights but to effectuate public policy.” (citations omitted)). There are some cases in which courts h av e r u l e d that an action must be brought by the governmental unit in order for it to be exempt from the automatic stay under § 362(b)(4). In I n re Re y e s , for example, a private party filed a compla i n t w ith the Texas Real Estate Commission (“TREC”) against a debtor after she had declared bankruptcy. See No. 10–52366–C, 2011 WL 1522337, at *1 (Bankr. W.D. Tex. Apr. 20, 2011). The bankruptcy court held that the action before the TREC was not exempt from the automatic stay. Id

. at *7. The court relied, in part, on the fact that once a complaint was filed, “the TREC would be obligated to investigate the allegations if the complaint, together with any evidence submitted with the complaint, provided r easonable cause for an investigation.” Id

. at *4. Thus, “[t]he Commission has no discretion in deciding 7 whether to investigate if the compla i n t provides sufficient grounds for an investigation.” Id

. The court also found that the action was not in furtherance

o f t h e public interest, but rather to benefit the pecuniary interests of th e complainant. Id

. at *6. The court therefore he l d t h a t § 3 62(b)(4) should be “narrowly construed” and “applied only when an action against the debtor has been brought by the government.” Id

. at *7; see als o N o r t e l , 669 F.3d at 139

The cour t in Reye s als o note d that the com plai nant an d h e r att orne y fil ed the 7
com plai nt agains t the deb torinthe TREC in ord er to coll ectona mo ney jud gmen t rend ere d ag a i n s t the deb tor prior to her fil ing for bank rup tcy: “[The plai ntif f’ s att orne y] had als o wa rned the deb tor

. . . aft e r [h e ] had obta ined the judgm ent for his clie nt that , if the deb tor fil ed f o r bank rup tcy, he wo uld mak e sur e that she los t her real es tat e lice nse .” 2011 WL 1522447 , at *4. 13 Case: 12-40122 Document: 00511889658 Page: 13 Date Filed: 06/18/2012No. 12-40122

(stating that though the U.K. Pensions Regulator is a governmental entity, and though it initiated a regulatory procedure, it “is not a p art y t o the pending bankruptcy proceedi n g s . . . [and] did not file a claim and therefore cannot assert the police power exception”) ; G andy , 327 B.R. at 802 (stating that “the court must determine whether the plaintiff in the state co u r t a ction is a ‘governmental unit ’” ( emphasis added)); City of New York v. Exxon Corp ., 932 F.2d 1020, 1025 (2d Cir. 1991) (“11 U.S.C. § 362(b)(4)

. . . requires that such suits be brought by governmental units, not private persons.”). The court i n Reyes relied in part on United States International Trade Commission v. Jaffe , 433 B.R. 53 8 ( E

. D

. Va. 2010), in making its decision. In Jaffe , a proceeding before the International Trade Commission (“ITC”) was initiated by a private party’s complaint, but the court found it “noteworthy that the filing of the compl aint does not initiate a formal ITC § 337 investigation; rather, th e a c t ion simply results in a ‘preinstitution proceeding,’ in which the ITC ‘examine[s] the complaint for suffic i ency and compliance,’ and performs a preliminary investigation.” Id

. at 541 (quoting 19 C.F.R. § 210.8). Once the ITC does the preinvestigation and determines th a t a complaint was properly filed, it institutes an investigation and provides official notice by publication. Id

. The 8
matter is then referred to an administrative law judge, who determines, through

an advers a ri a l process, whether or not the respondent has violated the Tariff Act. Id

. Therefore, even though the suit at issue was brought by private parties, the court found that it “fits squarely within the § 362(b)(4) statutory exception to the automatic stay” because “the ITC took a f f i rmative steps to order the commencement of a § 337 investigation.” Id

. at 543. In Jaffe , then, though the suit was commenced and pursued by a private party, the court held that it still

It wa s on this bas is that the cour t in Reye s dis tinguis hed its cas e, beca use the TREC 8 had no “p rein st itut ion pr oce edi ng,” nor did it have dis cre tio n i n d e t e rm ining wh ethe r a com plai nt wa s validl y f iledandt hus sho uld go f orw ard

. See201 1 WL 152 2337, at*5

. 14 Case: 12-40122 Document: 00511889658 Page: 14 Date Filed: 06/18/2012No. 12-40122

met the two requirements of § 362(b)(4): “(i) the act i on is brought by the government, and (ii) the action seeks to vindicate the public interest, as opposed to a specific individual’s or entity’s rights.” Id

. Similarly, in McMullen , a couple filed a complaint against a realtor with the Massachusetts Division of Registration for Real Estate Agen t s after the realtor had declared bankruptcy. 386 F.3d at 323. The court held that submitting a complaint after the filing of bankruptcy, which the Division then investigated, was excepted from the stay, n o t w i t hstanding the fact that the action was initiated by a private party. Id . at 327-28. While the court in Jaffe took pains to point out the discretion the government agency had in allowing an action to proceed, other courts have held that actions brought by p riv a te parties are excepted from the automatic stay without going into such an analysis. For instance, in Alpern v. Lieb , 11 F.3d 689 (7th Cir. 1993), the Seventh Circuit held that a proceeding to impose sanctions under Rule 11 was exempt from the automatic stay. The court stated:

[t]he Rule 11 sanction is meted out by a governmental unit, the court, thou gh t ypically sought by a private indivi du al or organization–a nongovernmental litigant, the opponent of the litigant to be sanctioned. There is no anomaly, given the long h i s t o ry of private enforcement of penal and regulatory law. The private enforcer, sometimes called a ‘private attorney general,’ c an be viewed as an agent of the ‘governmental unit,’ the federal judiciary, that promulgated Rule 11 in order to punish unprofessional behavior.
Id

. at 690. In In re Berg , 230 F.3d 1165 (9th Cir. 2000), the Ninth Circuit held that an aw ard of attorneys’ fees imposed as a sanction for unprofessional conduct

was exempted from the automatic stay. The court stated that “it is clear that the
purpose of such sanctions is to effectuate public policy, not t o p r o t e ct private rights or the government’s interest in the sanctioned person’s property.” Id

. at 1168. B o t h t h e S e venth and Ninth Circuits focused on the fact that the
15 Case: 12-40122 Document: 00511889658 Page: 15 Date Filed: 06/18/2012No. 12-40122

sanctions at issue would help to promote the public policy of the state, in the

same way that the Jaffe c o u r t found that “ITC § 337 investigations plainly evidence an objectiv e purpose of protecting the public interest at each stage of the ITC investigation.” 433 B.R. at 545. 9 In this case, the bankruptcy court did not make any findi n gs as to the specific procedures in each state PUC, which wou l d a i d u s in determining

w h e t her the individual commissions conduct preinvestigation proceedings, o r have discretion over whether an action goes forward, as the courts in Jaffe and Reyes did. According to AT&T, there is no real difference between proceedings initiated by private parties and those initiated by the State Co m m i s s ions themselves. As an example, AT&T points to a recent action commenced by the Wisconsin Public Service Commission, inv e s t i g ating the actions of Halo and Transcom, among other companies, which it says is “substantively identical” to the proceedings at issue in this case. Similarly, the TDS Appellees state that the Georgia P ub l i c Interest Advocacy Staff and the consumer’s utility counsel division become parties to the proceedings once a private party files a complaint. When a representative of the Mi s s o u ri Public Service Commission (“MoPSC”) appeared to give t e s ti m o ny at the hearing before the bankruptcy court, she stated that the MoPSC bec o m es a party when a complaint is filed with it. See M O

. AN N

. S TAT

. § 386.390(1) (West 2012). Thus, there is evidence that at least

some of the PUC act i o n s at issue here are similar to any action that a state

It has been heldthat qui tamactio ns are excep tedfromthe autom aticstay, as we ll. 9 In Uni ted States ex rel

. Do e v. X, Inc ., 246 B.R. 817 (E. D. Va. 2000) , a private par ty brou ght
a qui tam Fals e Claim s act ion, and the fed eral governm ent had not yet dec ide d wh ethe r or not to inte rvene. The cour t held that the excep tio n to the auto mat ic st ay a p pli ed beca use “th e Unit ed Sta tes is the real par ty in inte res t in all qui tam suits ,” suc h that “th e ins tant qui tam sui t is ‘br ought by a governm enta l unit’ for the pur pos es of § 362(b)( 4)’ s pol ice pow ers excep tio n, even thou gh t he Unit ed Sta tes has no t yet mad e its in terventio n e lect ion. ” Id

. at 820. 16 Case: 12-40122 Document: 00511889658 Page: 16 Date Filed: 06/18/2012No. 12-40122

regulatory commission might take itself, and that i n s o m e instances, a “governmental unit” actually becomes a party to the action. Perhaps more importantly, as the Appellees note, the statutory language directs that “the commencement or continuation of an action or proceeding by a governmental unit” is excepted from the automatic stay. § 362(b)(4) (emphasis added). It n e i t h e r i gnores nor twists the words of the statute to interpret this phrase as excepting suits continued by a governmental unit, without regard to who initially filed the complaint. Accordingly, w e f i nd that the PUC actions meet the first requirement of the exception to the automatic stay, because they are being continued by governmental units.

B. The State’s Police and Regulatory Power Halo next argues that the various PUC proceedings are private contract actions brought by the telephone company Appellees in the i r o w n pecuniary interest, so they do not meet the second statutory requirement that an excepted action be intended “to enforce such governmental unit’s or organization’s police and regulatory power.” § 362(b)(4). In both its briefs and at oral argument, Halo also stated that many of the Appellees’ cl a i m s a r e federal questions. For instance, according to Halo, Transcom’s st a t u s as either an enhanced service provider or an end user “is a federal question that sev eral federal courts have decided without prior regulatory input.” Halo also argues that whether or not it provides CMRS is a question that is not within the state commissions’ jurisdiction, and but rather must be resolved by the FCC. According to the Appellee s , the bankruptcy court’s order does effectuate the policies of the Bankruptcy Code because it prevents Halo from using bankruptcy to frustrate gove r nmental functions and to avoid the states’ police and regulatory powers. The telephone companies argue that the order protects importa n t state regulatory powers, as well as public policies underlying t el e c ommunications statutes, regulations, and tariffs, inclu din g m aint ainin g th e

17 Case: 12-40122 Document: 00511889658 Page: 17 Date Filed: 06/18/2012No. 12-40122

proper balance of f

ederal and state authority in telecommunications law. In addition, the Appellees note that since ICAs must be approved by the state

comm i s s i o n s , they are not merely private contract disputes, but rather are an

a s p e c t o f t h e s t a t e s ’ r e g u l a t i o n a n d e n f o r c e m e n t o f i nt r a - s t a t e telecommunications. Finally, the Appellees state that the fact that the PUCs
may determine whether Halo owes the Appellee companies fees or enter money judgments does not preclude application of § 362(b)(4), because the bankruptcy court’s order requires that the partie s r e t u r n to that court before the enforcement of any money judgment can occur. Halo may be correct that some of the claims made by the Appellees in the PUCs will ul t i m a t ely need to be decided by a federal court. However, as this Court has noted before, the FTA envisions a “carefully crafted federal-state balance” that “erects a scheme of ‘cooperative federalism.’” Budget Prepay, Inc.

v. AT&T Corp ., 605 F.3d 273, 281 (5th Cir. 2010) (quoting Core Commc’ns, Inc.

v. Verizon Pa., Inc ., 493 F.3d 333, 335 (3d Cir. 2007)). Under this arrangement, “responsibility for complex regulatory schemes [is divided] between states and the federal government, with the federal government setting general standards and ensuring overall complianc e , w h ile state agencies are given latitude to proceed in any number of fashions, provided that they are not inconsistent with the Act and FCC regulations.” Id

. (internal quotation marks and citation omit t e d). The Appellees have brought claims under both federal and state telecommunications laws, and further, interpretation and enforcement of ICAs is entrusted in the first instance to s t a t e c o m m issions. See 47 U.S.C. § 252; Budget Prepay , 605 F.3d at 279 (stating that “interpretation of the terms of an ICA, even if the ICA terms are intertwined with federal law, is a claim governed by and arising under state law” (citing Sw. Bell Tel. Co. v. Pub. Utility Comm’n of Tex ., 208 F.3d 475 (5th Cir. 2000)).

18 Case: 12-40122 Document: 00511889658 Page: 18 Date Filed: 06/18/2012No. 12-40122

Furthermore, state PUC rulings are subject to federal court review. See 47 U.S.C. §§ 251, 252; Sw. Bell , 208 F.3d at 480 (“We also hold that the district courts have jurisdiction to review such interpretation and enforcement decisions of the state commissions.”). We have held that this federal review encompasses not only commission decisions regarding compliance with the requirements of the FTA, but also permits courts to review “the PUC’s state law determinations

. . . under the

. . . arbitrary-and-capricious standard.” Sw. Bell , 208 F.3d at 482. Thus, Halo is not being denied a federal forum by the requirement that it first submit to the jurisdiction of the state PUCs. While Halo may feel that it would be more expedient and efficient to have all of these actions heard in one court, 1 0

we responded to a similar argument in Budget Prepay by n o t i n g t hat “the potential for inconsistent results” that arises from litigating in multiple state commissions “[is] part and parcel of co o p e r a t ive federalism,” and this result is consistent with congressional intent. 605 F.3d at 281. By choosing to conduct business in a number of different states, Halo has consented to such a system. We also find that the PUC actions at issue here pass both the pecuniary
purpose and public policy tests outlined above, and are thus in furtherance of the states’ regulatory and police powers. Through these proceedings, the states do not “primarily see[k] to protect a pecuniary governmental interest in the debtor’s
pr o p e rty, as opposed to protecting the public safety and health.” Nortel , 669 F.3d at 139-40. Non e o f the PUC proceedings would give the states access to Halo’s property. In addition, the bankruptcy court’s order ensures that if a PUC rules that Halo owes fees to one of the Appellees, no enforcement of any money ju d g m e nt may take place without first going back to the bankruptcy court. Thus, the suits are not strictly in the pecuniary interest of the Appellees, either.

While we need n ot delve fur ther into this iss ue here , we note that even if it we re 1 0 app rop riat e to cons olid ate all of thes e act ions in one fed eral for um, we do not agree wi th Ha lo thatitne ces sar ily f

ollo ws t hat a f

ede ral bankr uptcyc ourtis t he mo stf itt ing c hoic e. 19 Case: 12-40122 Document: 00511889658 Page: 19 Date Filed: 06/18/2012No. 12-40122

Instead, they will aid in determining what kind of telecommunications provider Halo is, how it should interact with the local telephone companies with which it deals, and whether its interactions with t h e m thus far have followed the applicable rules and regulations. The fact that Halo must expend money in defending these multiple actions d o e s n ot mean that the exception should not apply. As this Circuit has recognized , “in contemporary times, almost everything costs something.” Commonwealth Oil , 805 F.2d at 1186 ( quoting Penn Terra , 733 F.2d at 278). Even if a PUC enters a money judgment against H alo, as long as it does not seek to enforce that judgment, the action sti l l f a l l s under the exception to the automatic stay. Brennan , 230 F.3d at 71. This fact seriously weakens Halo’s argument that the bankruptcy court’s ruling will undermine “the ordered administration or re-organization of [its] est ate or business.” M o r e o v e r , t h e F TA i n di c a t e s t h a t r e gu l a t i o n o f t e l e c o m m u n i c a t i o n s carriers serves the public interest. The Act was passed in part to ensure that “all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, [h ave available] a rapid, efficient, Nation-wide, and world-wide wire and radio communic a tion service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. This demonstrates

a clear public purpose to federal regulation of tele c o m m u n ications. The Act

r e quires that “[a]ny interconnection agreement adopted by negotiation or arbitration shall be submitted for approval to the State commission. ” 47 U.S.C. § 252(e)(1). Thus, the Act contemplates a public purpose to state regulation of telecommunications, as well. Furthermore, even ICAs between two private companies, such as those in dispute between AT&T and Halo (what Halo calls “private contracts”), have a public nature, as they must be approved by the applicable State commission.

20 Case: 12-40122 Document: 00511889658 Page: 20 Date Filed: 06/18/2012No. 12-40122

Halo argues that “[t]he facts underlying the partie s ’ disputes involve commercial competition and compensation–not government enforcement in the public interest.” H o wever, state case law and statutes regarding PUCs demonstrate their public purpose. For instance, the Missouri Publi c S e rvice Commission Act “was the result of growing feeling that such c o m p etition, as existed in this field, was inadequate to protect the public.” May Dep’t Stores Co.

v. Union Elec. Light & Power Co. , 341 Mo. 2 9 9 , 3 1 6 ( 1 9 37). The Missouri Act

uses the “police power of the state,” id

. at 316, in order “to secure equality in service and in rates for all who needed or desired these services and who were similarly situated,” id

. at 317. In Georgia, the Public S e rvice Commission “clearly has enfor c e m e n t a n d regulatory powers. It not only has the power to conduct hearings and rend e r d e c i s i ons, it also has the power to act on those decisions, such as granting or denying licenses and rate increases.” Campaign for a Prosperous Ga. v. Ga. Power Co. , 174 Ga. App. 263, 264 (Ct. App. 1985). It is the policy of Texas “t o protect the public interest in having adequate and efficient telecommunications service available to each residen t of this state at just, fair, and reasonable rates.” V.T.C.A., Util. Code § 52.001(a). This policy is effected through the Texas PUC, which “has the general power to regulate and supervise the business of each public utility within its jurisdi c ti o n a n d to do anything specifical l y d e s ignated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction.” Id. § 14.001. When resolving disputes, the Texas PUC is directed to consider the effect on “(1) consumers, (2) competitors; and (3) the incumbent local exchange company.” I d

. § 6 0

. 0 03(c). These cases and statutes provide examples of state PUCs’ mandate to protect the public interest, and show that they utilize the police and regulatory powers of the states in doing so. Under the pecuniary purpose and public policy tests, a bankruptcy court must “determine whether the particular regulatory proceeding at iss ue is

21 Case: 12-40122 Document: 00511889658 Page: 21 Date Filed: 06/18/2012No. 12-40122

designed primarily to protect the public safety and welfare[.]” M cM u llen , 386 F.3d a t 3 2 5

. The bankruptcy court here recognized that “the actions of the Public Utilities Commission

. . . are aimed at effectuating public policies[.] [T]he Public Utility Commissions are seeking to enforce regulatory statutes, including their tariffs and rules.” The bankruptcy judge’s order limiting the effect of any monetary judgments issued by the PUCs ensures that the actions at issue pass the pecuniary purpose test; federal and state regulations and case law demonstrate that telecommunications regulation is intended to serve the public interest. Consequently, we find that the PUC proceedings meet the requirement of § 362(b)(4) that the governmental unit be enforci n g i t s police or regulatory powers, and they were properly excepted from the automatic bankruptcy stay. C. Motion to Strike The Missouri Public Service Commission (“MoPSC ” ) filed a brief at the

same time as the telephone company Appellees. Halo th e n f iled a motion to strike the MoPSC’s brief and to remove it f r o m th e c a ption of the case, on the grounds that the MoPSC is not a party to this action, the bankruptcy judge did not grant the MoPSC’s motion to intervene, and that the MoPSC had not

r e qu ested permission to file an amicus brief from this Court. The M o P S C responded to the motion, asking the Court to accept its brief as the brief o f an amicus curiae under Federal Rule of Appellate Procedure 29(a) or (b) if the Court does not recognize it a s a n i n t e rvenor. Halo opposes the MoPSC’s request for alternative relief. The MoPSC first argues that the bankruptcy judge granted its motion to intervene. However, while the record shows that on October 7, 2011, a motion to intervene was granted, the record does not reveal any court order associated with that docket entry. According to Halo, the entry “reflects only the electronic submission of a proposed order by the MoPSC.” The bankruptcy court did allow the M o P S C t o appear at the October 7, 2011 hearing in which it made its

22 Case: 12-40122 Document: 00511889658 Page: 22 Date Filed: 06/18/2012No. 12-40122

findings of fact and conclusions of law, and any testimony by a representative of the MoPSC there is now part of the record. However, it does not appear that the MoPSC was ever formally made a party to this action. Halo opposes the MoPSC’s alternative request that its brief be considered that of an amicus, arguing that the MoPSC has not met the requirements of Rule 29. Under that rule, “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the co n s e nt o f the parties or leave of court. Any other amicus curiae may file a brief only by leave of c o u r t o r if the brief states that all parties have consented to its filing.” Fed. R. App. P. 2 9 ( a)

. We agree that t h e MoPSC’s brief does not fall within the parameters of Rule 29. However , it would still be within our discretion to accept the brief. See Fry v. Exelon Corp. Cash Balance Pension Plan , 576 F.3d 723, 725 (7th Cir. 2009) (“The court has discretion to accept an untimely filing when the value of the potential amicus brief justifies the inconvenience of requiring the judges to review a case multiple times . . . .”). More fundamentally, Halo contends that the MoPSC’s brief “adds nothing to this appeal.” The MoPSC counters that “[t]he other appellees in this case do not adequately represent the interests of the MoPSC[,]” because the y are “regulated telephone companies” with “different interests than the MoPSC has as a regulator.” As Judge Posner has written,

[a]n amicus brief should normally b e allowed when a party is not represented c ompetently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus t o i n tervene and become a party in the pr e s e n t case), or when the amicus has unique information or perspective that can h e lp the court beyond the help that the lawyers for the parties are able to provide.

23 Case: 12-40122 Document: 00511889658 Page: 23 Date Filed: 06/18/2012No. 12-40122

Ryan v. CFTC, 125 F.3d 1062, 1063 ( 7 t h C i r . 1 997); see also New England Patriots Football Club, Inc. v. Univ. of Colo. , 5 9 2 F.2d 1196, 1198 n.3 (1st Cir. 1979) (stating that an amicus is one who “f or the assistance of the court gives information of some matter of law in regard to which the court is doubtful or mistaken” (quotation marks and citation omitted)). Here, there is no evidence that any of the Appellees are poorly represented, or that there is a case outside of those between Halo and these Appellees in which the MoPSC has an interest. While the MoPSC may have a “unique perspe c tiv e , ” d u e to its status as a regulator, its brief in fact contains no informati o n or arguments that the Appellees did not already provide to the Court. Furthermore, b e cause the b a n kruptcy judge permitted a representative of the MoPSC to testify a t th e October 7, 2011 hearing, this Court is already aware of the MoPSC’s concerns. “Whether to permit a nonparty to submit a brief, as amicus curiae, is, with immaterial exceptions, a matter of judicial grace.” Nat’l Org. for Women, Inc. v. Scheidler , 223 F.3d 615, 616 (7th Cir. 2000). Because the MoPSC’s brief does not

m e et the requirements of Rule 29, and we do not find that it adds anything consequential to our consideration of this case, Halo’s motion t o s t ri ke is granted. See Ysleta Del Sur Pueblo v. El Paso Cn t y
. W a t er Improvement Dist. No. 1 , 222 F.3d 208, 209 (5th Cir. 2000) (p e r curiam) (“We find that Southwestern Bell’s motion is untimely, that the issue Southwestern Bell seeks to address has been adequately briefed by the Pueblo and the District, and that granting Southwestern Bell’s motion would result in the needless delay of this case’s disposition. Accordingly, Southwestern Bell’s motion is denied.” (citation omitted)). D. Motion to Take Judicial Notice AT&T has filed a motion for the Court t o t a k e judicial notice of federal court and state commission proceedings and orders t h a t have been referenced and/or discussed in the parties’ briefing in this appeal. Halo opposes AT&T’s

24 Case: 12-40122 Document: 00511889658 Page: 24 Date Filed: 06/18/2012No. 12-40122

motion, arguing that all but two of the matters come from outside the record and

were not considered by the bankruptcy court. Halo also contends that AT&T is simply attempting to circu m vent judicial rules regarding record excerpts and record supplementation. Halo cites case law for the premise that judicial notice cannot be used as “an impermissible attempt to supplement the record on appeal” with evidence not before the district court. United States v. Okoronkwo , 46 F.3d 426, 435 (5th Cir. 1995). However , “[a]lthough a court of appeals will not ordinarily enlarge the record to include material not before the district court, it is clea r t h a t the authority to do so exists.” Gibson v. Blackburn , 744 F.2d 403, 405 n.3 (5th Cir. 1984). In a d di tion, it is within the Court’s discretion to take judicial notice of information “capable of accurate and ready determination by resort to a source whose accur a c y o n the matter cannot reasonably be questioned.” Kitty Hawk Aircargo, Inc. v. Chao , 418 F.3d 453 , 457 (5th Cir. 2005); see also Bauer v. Texas , 341 F.3d 352, 362 n.8 ( 5 t h C ir. 2003). As AT&T has filed copies of publiclyavailabl e o r ders and proceedings, it is within our discretion to take judicial notice of them. Ultimately, AT&T’s filing does not add anything to the record that assists

us in deciding this case. The reasoning of a federal court in remanding an action by AT&T against Halo to a PUC, or a notice of proceedings by a state PUC not involved in the present dispute, do not help us to determine whether the state PU C p roceedings should be excepted from the automatic bankruptcy st ay . Whil e the remand orders may give mor e d e t a i l regarding federal and state telecommunicatio n s l aw and how the two interact, they do not answer the central question: whether the state PU C actio n s are “c o m m e nc e [ d] or continu[ed]

. . . by a governmental unit” in the enforcement of its “police or regulatory power.” 362(b)(4). Therefore, while we grant AT&T’s motion to supplement the

25 Case: 12-40122 Document: 00511889658 Page: 25 Date Filed: 06/18/2012No. 12-40122

record, we do so with the understanding that these documents are not especially helpful to the Court. IV. C O N C L U S I O N “It is well to remember that s e c t i o n 362(b)(4) embodies a fundamental judgment of Congress: that protecting the public welfare and safety trumps the

concerns that underlie the automatic stay, a provision whose main purpose is to prevent some private creditors from gaining priority on other c r editors.” Spookyworld , 346 F.3d at 10. In addition , “ a f u n d amental policy behind the police or regulatory power exception

. . . is to prevent the bankruptcy court from becoming a haven fo r wrongdoers.” Commonwealth Cos. , 913 F.2d at 527 (internal quotation marks and citation omitted). If Halo is permitted to stay all of the PUC proceedings , i t w i l l have used its bankruptcy filing to avoid the potential c onsequences of a business model it freely chose and pursued. A finding that the state PUC actions are being continued by governmental units does not run afoul of the statutory language of § 362(b)(4), and is in keeping with the policy animating the exception. The PUC proceedings are also being used to enforce the police and regulatory power of the states. Accordingly, the bankruptcy court’s order was not in error, and the judgment of the bankruptcy court is AFFIRMED. Halo’s motion to strike the brief submitted by the Missouri Public Service C o m mission and to remove the Missouri Public Service Commission from the caption of the case is GRANTED. AT&T’s motion to take judicial notice is also GRANTED.

26 Case: 12-40122 Document: 00511889658 Page: 26 Date Filed: 06/18/2012