181 F.3d 1370 (D.C. Cir. 1999)
QUALCOMM Incorporated, Petitionerv.Federal Communications Commission and United States of America, RespondentsPrime Co Personal Communications, L.P., and Sprint Spectrum L.P., Intervenors
No. 98-1246
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 1999Decided July 23, 1999

On Petition for Review of Orders of the Federal Communications Commission
Veronica M. Ahern argued the cause and filed the briefs  for petitioner.


1
James M. Carr, Counsel, Federal Communications Commission, argued the cause for respondents.  With him on the  brief were Joel I. Klein, Assistant Attorney General, U.S.  Department of Justice, Robert B. Nicholson and Robert J.  Wiggers, Attorneys, Christopher J. Wright, General Counsel,  Federal Communications Commission, Daniel M. Armstrong,  Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel.


2
Robert A. Long, Jr. argued the cause for intervenors.  On  the brief was Luisa L. Lancetti.  Andrew J. Heimert entered  an appearance.


3
Before:  Edwards, Chief Judge, Wald and Rogers, Circuit  Judges.


4
Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

5
In Freeman Engineering Associates v. FCC, 103 F.3d 169 (D.C. Cir. 1997), the court held that  although the Federal Communications Commission ("FCC")  could reasonably interpret its rules for awarding pioneer's  preferences to mean that adaptations of technology are not  innovative, it had not applied the interpretation equally  among all preference applicants to QUALCOMM's detriment. See id. at 180.  The court granted QUALCOMM's petition for  review, vacated that part of the FCC's decision denying  QUALCOMM's preference request, and remanded "for further proceedings to remedy this inconsistency."  Id.  Before  the FCC granted such a remedy, but after the court's mandate issued in Freeman Engineering, Congress advanced the  sunset date for the FCC's authority to award pioneer's preferences and the FCC dismissed all pending preference applications, including QUALCOMM's.  We grant QUALCOMM's  petition for review of this dismissal because the FCC misinterpreted Freeman Engineering as ordering no more than a  general remand for further proceedings, and thereby misapplied the sunset provision withdrawing its authority to award  new pioneer's preferences to a final judgment that entitled  QUALCOMM to a pioneer's preference under the rules then  in effect.

I.

6
The background for this appeal is set forth in Freeman  Engineering, and therefore we summarize only four relevant  areas.  First, the FCC promulgated the pioneer's preference  rules in 1991 in an effort "to reduce the risk and uncertainty  innovating parties face in our existing rulemaking and licensing procedures, and therefore to encourage the development  of new services and new technologies."  Establishment of  Procedures to Provide a Preference to Applicants Proposing  an Allocation for New Services, 6 F.C.C.R. 3488, 3492 (1991)  ("Pioneer's Preference Order").  Thus, an applicant demonstrating "that it (or its predecessor-in-interest) has developed  an innovative proposal that leads to the establishment of a  service not currently provided or a substantial enhancement  of an existing service," id. at 3494, would "effectively ... [be]  guarantee[d] ... a license in the new service (assuming it is  otherwise qualified) by permitting the recipient of a pioneer's  preference to file a license application without being subject  to competing applications."  Id. at 3492;  see also 47 C.F.R.  S 1.402(a) (1995);  Adams Telcom, Inc. v. FCC, 38 F.3d 576,  578 (D.C. Cir. 1994).


7
Second, QUALCOMM applied for a pioneer's preference,  the FCC denied it, and on appeal QUALCOMM prevailed. QUALCOMM requested a pioneer's preference for a license  in the Southern Florida Major Trading Area ("MTA") based  on technology developed for use in broadband (2 GHz) personal communications services ("PCS").  See Request for a  Pioneer's Preference for a Personal Communications Services System, Gen. Docket 90-314 (May 4, 1992).  In 1992,  the FCC tentatively granted three pioneer's preferences--to  American Personal Communications ("APC"), Cox Enterprises, Inc. ("Cox"), and Omnipoint Communications, Inc. ("Omnipoint")--and dismissed the remaining applications.  See  Amendment of the Commission's Rules to Establish New  Personal Communications Services:  Tentative Decision and  Memorandum Opinion and Order, 7 F.C.C.R. 7794, 77977809 (1992) ("Tentative Decision").  The FCC explained in  rejecting QUALCOMM's application that its proposed technology was "essentially ... identical to that which it already ... developed for use in the 800 MHz cellular bands."  Id. at  7807.  In 1994, the FCC affirmed its decision granting preferences to APC, Cox, and Omnipoint, and denying  QUALCOMM a preference because its work was merely an  adaptation of previously developed technology.  See Amendment of the Commission's Rules to Establish New Personal  Communications Services:  Third Report and Order, 9  F.C.C.R. 1337, 1339-48, 1368-70 (1994) ("Third Report and  Order").  After the FCC denied its petition for reconsideration, see Amendment of the Commission's Rules to Establish  New Personal Communications Services:  Memorandum  Opinion and Order, 9 F.C.C.R. 7805, 7810-11 (1994) ("Reconsideration Order"), QUALCOMM petitioned for review by  this court.


8
On appeal, the court vacated that part of the FCC's decision denying QUALCOMM's preference application, concluding that although the FCC could reasonably interpret its  pioneer's preference rules to mean that adaptation of technology was not innovative, it could not discriminate among  preference applicants in applying its rules.  See Freeman  Eng'g, 103 F.3d at 178-80.  Because Omnipoint had also  based its 2 GHz application on technology adapted from work  it had done on 900 MHz cellular bands tested at 900 MHz, in  part prior to the promulgation of the pioneer's preference  rules, the court concluded that the FCC had acted arbitrarily  and capriciously in denying QUALCOMM's application on the  ground that its "proposed technology was a non-innovative  adaptation" because it " 'ha[d] been developing its ... technology since 1985' and had 'validated [it] for 800 MHz.' "  Id.  at 180 (quoting Reconsideration Order, 9 F.C.C.R. at 7811).The court noted that although "[n]umerous parties to the  FCC proceedings pointed out this disparate treatment to the  Commission," the FCC had responded not by applying the  "developed specifically for a particular service" test applied to  QUALCOMM, but by reverting to the "associated with" test,  noting that " 'Omnipoint has demonstrated that it performed  significant new work related to 2 GHz PCS after adoption of  the pioneer's preference rules.' "  Id. (quoting Third Report  and Order, 9 F.C.C.R. at 1346).  Yet, the court noted, the  same could be said of QUALCOMM:  its "adaptation was also 'significant new work related to 2 GHz PCS.' "  Id.  Concluding that the FCC "applied a newly developed (and questionable) interpretation of its pioneer's preference rules" only to  QUALCOMM, the court observed that "[w]ere this case  remanded, it is not at all clear whether the Commission would  continue to adhere to this interpretation of the pioneer's  preference rules."  Id. The court's disposition in granting  QUALCOMM's petition read:


9
[W]e find reasonable the Commission's interpretation of the pioneer's preference rules such that adaptations of technology are not innovative and thus not deserving of a preference.  However, we conclude that the Commission failed to apply this interpretation consistently to the detriment of QUALCOMM's application for a preference. We therefore vacate that portion of the Commission's decision denying QUALCOMM's preference request. We remand for further proceedings to remedy this inconsistency. Id.  The court's mandate issued April 18, 1997.


10
Third, Congress changed the landscape of the pioneer's  preference program in two ways relevant here, the first  occurring before the court issued its mandate, and the second  occurring after.  As to auctions, before the court's mandate,  Congress authorized the FCC in 1993 to auction licenses for  radio spectrum.  See Omnibus Budget Reconciliation Act of  1993, Pub. L. No. 103-66, S 6002, 107 Stat. 312, 387-392  (codified at 47 U.S.C. S 309(j)(1)-(12) (1994));  see also  Amendment of the Commission's Rules to Establish New  Personal Communications Services:  Second Report & Order,  8 F.C.C.R. 7700, 7707-09 (1993).  One of the auctions resulted  in the issuance of a license for the area sought by  QUALCOMM, the Miami-Fort Lauderdale MTA, to Prime Co  Personal Communications and Sprint Spectrum, intervenors  in this appeal.


11
In addition, Congress precluded review of granted preferences and established a sunset date for the FCC's authority  to grant preferences.  After the first auction for narrowband PCS generated over $650 million,1 see FCC Report to Congress on Spectrum Auctions, FCC 97-353 at 10 (Sept. 30,  1997), and in view of the fact that "pioneers" received the  license of their choice without payment, Congress amended  the Communications Act in 1994 to require the FCC to  "recover for the public a portion of the value of the public  spectrum resource" from pioneers, with provisions for installment payments over a five year period.  Uruguay Round  Agreements Act, Pub. L. No. 103-465, S 801, 108 Stat. 4809,  5050-51 ("GATT") (codified at 47 U.S.C. S 309(j)(13) (B) &  (C) (1994));  see also H.R. Rep. No. 103-826, pt. 2, at 26  (1994).  Congress also directed the FCC to award licenses  within fifteen days to those granted preferences in the Third  Report and Order (namely, APC, Cox, and Omnipoint) and  prohibited further agency or judicial review of those preferences and licenses.  See GATT, 108 Stat. at 5051 (codified at  47 U.S.C. S 309(j)(13)(E)(i)).  Further, Congress added a  sunset provision, terminating the FCC's authority to grant  pioneer's preferences after September 30, 1998.  See id. at  5052 (codified at 47 U.S.C. S 309(j)(13)(F)).  After the court  issued its mandate, Congress advanced the sunset date from  September 1998 to August 5, 1997.  See Balanced Budget Act  of 1997, Pub. L. No. 105-33, S 3002(a)(1)(F), 111 Stat. 251,  259 (1997) (amending 47 U.S.C. S 309(j)(13)(F)).


12
Fourth, on remand, despite QUALCOMM's urging of the  FCC to comply with 47 U.S.C. S 402(h),2 by "forthwith" granting it a pioneer's preference, the FCC reopened the  proceedings for comment on QUALCOMM's application and  ultimately dismissed QUALCOMM's application for lack of  power to act.  From the start of the remand proceedings,  QUALCOMM sought prompt agency action to implement  Freeman Engineering.  In responding to a February 25,  1997, request of the General Counsel and the Office of  Engineering and Technology ("OET"), QUALCOMM summarized their meeting on January 31, 1997, (24 days after the  court issued its decision in Freeman Engineering and almost  three months before the mandate issued on April 18, 1997),  when QUALCOMM advised that it sought a preference for its  pioneering work and emphasized the need for a quick award  to minimize prejudice to QUALCOMM in the marketplace. At that meeting QUALCOMM also advised that it was willing  to work with the FCC on alternative remedies that did not  require rescission of Sprint's Miami license, referring specifically to available C Block Basic Trading Area ("BTA") licenses and the Phoenix BTA.  In response to OET's February 18,  1997, notice announcing a filing period for comments on  QUALCOMM's preference application, see Public Notice DA  97-351, 12 F.C.C.R. 2364 (1997), PrimeCo and Sprint submitted comments on March 20, 1997, recommending that, assuming the FCC found that QUALCOMM was entitled to a  preference, it award QUALCOMM a license for alternative  spectrum.3  QUALCOMM in its comments stated that under  Freeman Engineering, it was entitled to be treated in the  same manner as Omnipoint and, thus, to have its preference  granted.


13
On April 15, 1997, OET advised QUALCOMM that it was  "actively working" on the remand and that FCC "action  c[ould] be anticipated 'by summer.' "4  On May 27, 1998,  QUALCOMM wrote directly to the Chairman of the FCC  that it "should grant QUALCOMM's preference application  promptly, with the understanding that" while "the substantive  decision is foreordained by the record, ... we recognize that  implementation of the decision has certain practical ramifications," and that "QUALCOMM is willing to discuss substitution of presently unlicenced service areas of comparable  significance [to the MTA in South Florida]."


14
On September 11, 1997, the FCC dismissed all pending  pioneer's preference applications, including QUALCOMM's,  on the ground that the Balanced Budget Act of 1997 withdrew the FCC's authority to grant any preferences.  See  Dismissal of All Pending Pioneer's Preference Requests, 12  F.C.C.R. 14006, 14007 (1997) ("Dismissal Order").  As to  QUALCOMM, the FCC noted that although the court had  vacated the denial of QUALCOMM's preference request and  "remanded to the Commission for further consideration ...  [it] no longer ha[d] authority to act on it."  Id. at 14008 n.10.


15
The court denied QUALCOMM's motion to enforce the  mandate in Freeman Engineering for lack of exhaustion  because its petition for reconsideration was pending before  the FCC.  See Freeman Eng'g  Assocs. v. FCC, No. 94-1779  (D.C. Cir. Nov. 5, 1997).  Having been denied reconsideration, see Dismissal of All Pending Pioneer's Preference Requests, 13 F.C.C.R. 11485 (1998) ("Reconsideration Order"),  QUALCOMM now appeals the FCC's Dismissal and Reconsideration Orders of September 11, 1997, and April 23, 1998,  respectively.

II.

16
Under Chevron, the court must first determine "whether  Congress has directly spoken to the precise question at  issue."  Chevron, U.S.A., Inc. v. Natural Resources Defense  Council, Inc., 467 U.S. 837, 842 (1984).  "If the intent of  Congress is clear, that is the end of the matter;  for the court,  as well as the agency, must give effect to the unambiguously  expressed intent of Congress."  Id. at 842-43.  There is no  dispute here that the Budget Act of 1997 terminated the  FCC's authority, effective August 5, 1997, to grant pioneer's  preferences.  Because the statute is silent, however, with  respect to QUALCOMM's situation, the question is whether  the FCC properly interpreted the sunset provision to apply to  QUALCOMM's application;  in other words, the question is  whether Congress intended its withdrawal of the FCC's  authority to grant pioneer's preferences to foreclose the FCC  from carrying out the mandate of a final judicial decision. See id. at 843.


17
Rejecting QUALCOMM's contentions of entitlement arising from the court's mandate, the FCC maintains that its  interpretation of the sunset provision is entitled to deference  under Chevron, id. at 842-45 (1984), because Congress unambiguously intended to extinguish the FCC's authority to grant  pioneer's preferences after August 5, 1997.  In the FCC's  view, QUALCOMM's application was no different from the  other pending applications inasmuch as the court in Freeman  Engineering had "simply directed the FCC to reconsider  whether QUALCOMM was entitled to the same sort of  pioneer's preference that Omnipoint received--an opportunity  to obtain a broadband PCS license without having to face  competing applications" and it was "required ... only to  consider whether QUALCOMM was entitled to the pioneer's  preference for which it applied."  Respondents' Brief at 24,  26.


18
Although a court will generally defer to an agency's reasonable interpretation of a statute, the effect of such deference  here would be to make retroactive a statute that does not  expressly call for it, see Landgraf v. USI Film Prod., Inc.,  511 U.S. 244 (1994), and to pose a constitutional question of whether Congress could change the result of a final judicial  decision, see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,  240 (1995).  While we agree with the FCC that the sunset  provision extinguished its authority to grant preferences, we  disagree that it applied to QUALCOMM's application.  The  mandate in Freeman Engineering provided the FCC with the  authority it required to carry out the court's instruction to  "remedy this inconsistency" by granting QUALCOMM a  pioneer's preference and awarding a license for a suitable  spectrum.  The court had subject matter jurisdiction and  ordered a remedy that was within its discretion.  We hold,  therefore, that the sunset provision did not extinguish  QUALCOMM's entitlement to a preference, much less the  FCC's authority and duty to provide a remedy for  QUALCOMM under the mandate in Freeman Engineering.Accordingly, we grant QUALCOMM's petition and remand  for the FCC "forthwith" to grant QUALCOMM a pioneer's  preference and to identify and award an appropriate license  to it, commensurate with the spectrum it had requested in its  application.

A.

19
The only plausible reading of Freeman Engineering required the FCC to grant QUALCOMM a pioneer's preference  under either of two theories.  First, the FCC could abandon  the "newly developed" and "questionable" interpretation of its  pioneer's preference rules that it had applied to  QUALCOMM and award QUALCOMM a preference under  the same interpretation of the rules that permitted the award  of a preference to Omnipoint.  Freeman Eng'g, 103 F.3d at  180.  Second, the FCC could adhere to its newly developed  interpretation, but it still had to award QUALCOMM a  preference "to remedy th[e] inconsistency" in its treatment of  two similarly situated applicants, QUALCOMM and Omnipoint.  Id.  As the FCC made clear in its brief in Freeman  Engineering, Congress had precluded reconsideration of the  awards to the three original preference recipients, including  Omnipoint.  See 47 U.S.C. S 309(j)(13)(E)(i);  Respondents'  Brief in Freeman Engineering at 18, 54 n.59.


20
Contrary to its apparent assumption, the FCC had no  discretion on remand to reevaluate QUALCOMM's application;  it had previously ruled, explaining its reasons for denying QUALCOMM a pioneer's preference, and it had reaffirmed its ruling and reasoning on reconsideration.  The court  nonetheless agreed with QUALCOMM's claim of discriminatory treatment and on remand did not accord to the FCC  another bite at the explanation apple.  In Freeman Engineering, the FCC did not raise the possibility of further evaluation on remand in its brief on appeal.  Nor did the FCC have  discretion on remand to show that there was no inconsistency  because Omnipoint satisfied the pioneer's preference rules as  newly interpreted and applied to QUALCOMM;  this argument was raised and rejected in Freeman Engineering, 103  F.3d at 180.  Although the FCC did maintain that if  QUALCOMM and Omnipoint were similarly situated, then  the FCC would have been required to deny both applications,  see Respondents' Brief in Freeman Engineering at 54, neither the FCC nor QUALCOMM claimed that Omnipoint was  not entitled to a pioneer's preference under the FCC's rules.See id.;  Petitioners' Reply Brief at 23.


21
The FCC's sole discretion on remand, therefore, was to  fashion an appropriate remedy for QUALCOMM in view of  the fact that the Miami-Fort Lauderdale MTA sought by  QUALCOMM had been awarded as a result of an auction to  Sprint.  QUALCOMM and the intervenors argued on remand, and the FCC did not claim to the contrary, that the  FCC had authority to grant QUALCOMM alternative relief.QUALCOMM repeatedly indicated its willingness to accept  relief comparable to the original license sought in its preference application, suggesting several specific alternatives.  According to the FCC at oral argument, this could have been  technically achieved by allowing QUALCOMM to amend its  application, and at that point, the FCC could have awarded  the pioneer's preference.  Even if the identification of an  appropriate alternative spectrum could not be accomplished  "forthwith"--a claim the FCC does not make- QUALCOMM's May 1997 letter to the FCC chairman made  clear that the grant of a pioneer's preference and the grant of a license were not inseparable:  the FCC could formally grant  QUALCOMM a pioneer's preference based on the work  identified in its preference application and award a license for  a specific spectrum at a later time.  Indeed, to the extent that  the FCC did not dispute QUALCOMM's recitation of its  January 31, 1997 meeting, the FCC initially appeared to be  proceeding on remand to craft a remedy, but somehow became diverted when, contrary to S 402(h), it reopened the  proceedings, over QUALCOMM's objection, issuing a public  notice for comment and joining the intervenors as parties.


22
The FCC's contention that the mandate in Freeman Engineering was not to grant QUALCOMM a pioneer's preference per se because the language of the court's opinion was  rather vague, remanding for "further proceedings," which the  FCC has now interpreted to give it greater remedial discretion, reveals its misunderstanding of the mandate.  The FCC  chooses to focus on only the first part of the court's express  and pointed instruction to the FCC in Freeman Engineering. The court did not remand generally for "further proceedings," but rather for "further proceedings to remedy this  inconsistency."  Freeman Eng'g, 103 F.3d at 180.  By noting  the similarities between QUALCOMM's and Omnipoint's applications, and the FCC's unpersuasive attempts to distinguish them during administrative proceedings and on appeal,  the court made clear that it was not remanding for a better  explanation from the FCC of its denial of QUALCOMM's  application, but rather had rejected the FCC's explanations  and instead ordered concrete relief for QUALCOMM.  In  addition, the FCC chooses to ignore the effect of its own brief  in Freeman Engineering, which had pointed out that  QUALCOMM's application could not be granted for the original license that it sought because that license had been  awarded in auction.  See Respondents' Brief in Freeman  Engineering at 20.  Hence, the court recognized that alternative relief remained to be identified and that a remand for  "further proceedings" for that purpose was required.  While  all of this appears rather clear from the court's opinion, the FCC has chosen to ignore both the instructions of the court  and the requirements of S 402(h).


23
In short, the FCC misinterpreted the mandate in Freeman  Engineering to assign it more than a ministerial role with  regard to the grant of a pioneer's preference to  QUALCOMM.The remand in Freeman Engineering was  not simply "for further proceedings," but to afford  QUALCOMM a remedy in view of the FCC's inconsistent  treatment of it, and that remedy--given the statutory context--meant that QUALCOMM was entitled to a pioneer's  preference.  Although the court might have been more explicit, its instruction to the FCC to "remedy this inconsistency"  was unusual language and clear in the context of a complex  administrative appeal in which QUALCOMM alone, out of  many petitioners, prevailed and where Congress had barred  the FCC from rescinding Omnipoint's preference.

B.

24
Had the FCC acted "forthwith" in accordance with the  Freeman Engineering mandate, QUALCOMM would have  been granted its pioneer's preference before Congress advanced the sunset date in the 1997 Budget Act.  By extending  the remand proceeding, however, the FCC created a need to  interpret the new sunset provision, which it read to relieve  itself of the duty to carry out the mandate issued more than  four months previously.  This interpretation of Congress'  withdrawal of the FCC's authority to award new pioneer's preferences is flawed for several reasons.


25
First, the statute is silent on whether it applies retroactively to divest QUALCOMM of the fruits of its victory in court. QUALCOMM's application was different than other pending  applications before the FCC.  For the other numerous pending applications, of course, the mere filing of a license application did not give the applicant a vested right to consideration  under then-prevailing standards, see Hispanic Info. & Telecomm. Network v. FCC, 865 F.2d 1289, 1294-95 (D.C. Cir.  1989), and the FCC retained discretion to change the standards during the course of proceedings. See Melcher v. FCC,  134 F.3d 1143, 1164 (D.C. Cir. 1998);  Chadmoore Communications, Inc. v. FCC, 113 F.3d 235, 241 (D.C. Cir. 1997).QUALCOMM, however, had prevailed on appeal and obtained  an express judicial instruction to the FCC that was more than  a mere opportunity for the FCC to reevaluate its application. To view the relief that QUALCOMM had obtained in Freeman Engineering as extinguished by a later-enacted sunset  provision would contravene Supreme Court doctrine governing interpretation of potentially retroactive statutes.  As  Landgraf and similar authority make clear, absent an express  statement that a statute will apply to events preceding its  enactment, it may not be interpreted to impair rights a party  possessed when Congress acted.  See Landgraf, 511 U.S. at  280;  see also Martin v. Hadix, No. 98-262, (S. Ct. June 21, 1999);  Lindh v. Murphy, 521 U.S. 320, 32426 (1997).  Congress gave no such express command in either  the 1994 or 1997 sunset provisions.  Consequently, because  QUALCOMM's preference application was not simply a pending application as to which no vested entitlement had attached, the FCC could not properly interpret the sunset  provision to extinguish QUALCOMM's entitlement to a preference under Freeman Engineering.


26
Second, the FCC mistakenly conflated the sunset of its  authority to issue new pioneer's preferences and its continuing obligation under the mandate in Freeman Engineering to  "remedy this inconsistency."  In the FCC's view, until it  acted to grant QUALCOMM a pioneer's preference on remand, QUALCOMM had no right to one, and once Congress  eliminated the FCC's authority to grant such preferences, the  FCC was without authority to act in accordance with the  mandate of this court.  This position overlooks the fact that  Congress amended the Communications Act to add subsection  (h) to S 402 so that the court would remain in control of the remand and the FCC could not deprive a victor in the courts  of the spoils of its victory.  See S. Rep. No. 82-44, at 12  (1951);  Greater Boston Television Corp. v. FCC, 463 F.2d  268, 281-82 (D.C. Cir. 1971).  As explained in the Senate  Report, subsection (h) was "intended to confer upon the  appellate court a measure of control commensurate with the  dignity and responsibility of that tribunal."  S. Rep. No.  82-44, at 12 (1951).  In Greater Boston Television Corporation, the court viewed subsection (h) as designed to "ensure  deference to the court's intention in its disposition...."  463  F.2d at 281-82.  Accordingly, on remand, the FCC had "the  duty" to give immediate and effective relief to QUALCOMM  consistent with Freeman Engineering.  Id. at 282.


27
The FCC's contrary interpretation ignores settled law that  the mandate of a court issuing a final judgment carries force  beyond a victory in that immediate court.  The "action[s] of a  court in setting aside the order of the Commission [are not]  an empty gesture," but rather a judgment that is the "final  and indisputable basis of action as between the Commission  and the defendant."  FPC v. Pacific Power & Light Co., 307  U.S. 156, 160 (1939) (internal quotation omitted);  see also  International Union of Mine, Mill & Smelter Workers v.  Eagle-Picher Mining & Smelting Co., 325 U.S. 335,340-41  (1945).  Thus, the court's mandate obliged the FCC to award  QUALCOMM a pioneer's preference with such spectrum  adjustment as was necessitated by the GATT provision barring the reconsideration or withdrawal of granted preferences, see 47 U.S.C. S 309(j)(13)(E)(i), and the award of the  original spectrum sought by QUALCOMM to another entity.Cf. Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir. 1967).The fact that Congress in the interim extinguished the FCC's  authority to award pioneer's preferences is of no consequence  because S 402(h) provided the FCC with an independent  source of authority to implement the mandate of a court  acting within its jurisdiction and ordering a remedy within its  discretion.


28
Third, the FCC's interpretation of the sunset provision  raises constitutional concerns under Plaut v. Spendthrift  Farm, warranting application of the canon of constitutional doubt, which states that ambiguous statutes should not be  read to raise a serious constitutional question when a reasonable and clearly constitutional alternative is available.  See,  e.g., Jones v. United States, 119 S. Ct. 1215, 1222 (1999).  In  Plaut, the Supreme Court surveyed the legal history underlying the now settled proposition that a final judgment of a  court cannot be undone by congressional legislation as to the  parties before the court.  514 U.S. at 219-225.5  Distinguishing the rule that changes in statutory law occurring during  the pendency of litigation generally must be applied to that  litigation, see United States v. Schooner Peggy, 5 U.S. (1  Cranch) 103, 110 (1801), the Supreme Court instructed in  Plaut that the separation of powers doctrine embedded in the  Constitution protects the final judgment of Article III courts  from legislative interference.6  Plaut, 514 U.S. at 226.  Starting from the premise that Article III establishes a "judicial department" with the "province and duty ... to say what the  law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177  (1803), the Court concluded that the historical record "shows  that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the  Federal Judiciary the power, not merely to rule on cases, but  to decide them, subject to review only by" superior Article III  courts.  Plaut, 514 U.S. at 218-19;  see The Federalist No.  81, at 545 (Alexander Hamilton) (J. Cooke ed. 1961).  By  passing retroactive legislation affecting a case already finally  adjudicated, Congress had circumvented the fundamental  principle that the judicial power includes the authority to  render dispositive judgments, and had thus violated the principle of separation of powers.  See Plaut, 514 U.S. at 219,115 S.Ct. 1447.7


29
The fact that the sunset provision, unlike the statute invalidated in Plaut, was not by its terms directed specifically at a  particular disfavored judicial decision is irrelevant;  the Supreme Court explained in Plaut that Congress' use of more  generally applicable terms does not alter the separation of  powers analysis.  See 514 U.S. at 228.  The sunset of the  FCC's preference authority did nothing to deprive the FCC  of the intellectual, staffing, or resource capability to take appropriate action in QUALCOMM's favor.  Nor does the  FCC suggest a lack of capability.  Pursuant to the remand in  Freeman Engineering, then, despite intervening congressional action taking away its own authority, the FCC was obligated to act pursuant to the authority of the court.  Had  Congress expressly commanded what the FCC contends it  meant by its silence, the court would be forced to decide  whether Congress acted constitutionally in light of Plaut. However, the sunset provision can reasonably be read not to  bar relief for QUALCOMM, and it should be so read to avoid  imputing to Congress the rare8 intent to undo a final judicial  mandate and the constitutional questions that such an intent  would raise.9


30
Fourth, the legislative history is consistent with our interpretation of the sunset provision inasmuch as Congress  sought to protect settled expectations.  When Congress in  1994 set the date for withdrawal of the FCC's authority to  grant new pioneer's preferences, its focus was on increasing  federal revenues and not upsetting settled expectations.  It  imposed a new requirement that pioneers pay for part of the  value of the spectrum they received, and it added a sunset  provision ending the FCC's authority to grant pioneer's preferences.  Significantly for our purposes, Congress also directed the FCC not to reconsider the pioneer's preference grants  that it had approved in the Third Report and Order and not  to delay by more than 15 days the issuance of licenses based  on such grants;  it also prohibited any further administrative  or judicial review of the preferences that had already been  granted.  See 47 U.S.C. S 309(j)(13)(E))(i).  In so doing,  Congress made clear its intent not to undo the settled expectations of APC, Cox, and Omnipoint based on final agency  action granting their pioneer's preferences.  There is nothing  in the legislative history to suggest that Congress nevertheless intended to interfere with settled expectations derived  from a final judicial mandate directing agency action.  The  House Report expressly stated that the provision finalizing  the grants in the Third Report and Order was not intended to  "affect the rights of persons who have been denied a pioneer's  preference," such as QUALCOMM;  those persons could still  pursue further administrative and judicial review of the denial  of their applications.  H.R. Rep. No. 103-826, pt. 2, at 8  (1994).  So too, nothing suggests that when Congress advanced the sunset date in 1997, it intended to upset settled  expectations much less undo the vested rights of an applicant  that had already obtained an entitlement to a pioneer's preference under a judicial mandate with which the FCC was  obliged to comply under S 402(h).


31
Accordingly, we grant QUALCOMM's petition and remand  to the FCC "forthwith" to grant a pioneer's preference to  QUALCOMM and to take prompt action to identify a suitable  spectrum and award QUALCOMM the license for it.



Notes:


1
  As of September 30, 1997, winning net bids in FCC spectrum  auctions totaled almost $23 billion.  See FCC Report to Congress on  Spectrum Auctions, FCC 97-353 at 10-11 (Sept. 30, 1997).


2
  Section 402(h) provides:
In the event that the court shall render a decision and enter an order reversing the order of the Commission, it shall remand the case to the Commission to carry out the judgment of the court and it shall be the duty of the Commission, in the absence of the proceedings to review such judgment, to forthwith give effect thereto, and unless otherwise ordered by the court, to do so upon the basis of the proceedings already had and there cord upon which said appeal was heard and determined.
47 U.S.C. S 402(h).


3
  QUALCOMM objected to reopening the proceeding on the  grounds that (1) three years had passed since the FCC denied  QUALCOMM's preference, (2) the court's vacation and remand  were narrow, requiring no further factual development, and (3) the  FCC's obligation under S 402(h) did not contemplate reopening the  proceeding.  The FCC nonetheless reopened the proceeding and  made Sprint and PrimeCo parties.  See QUALCOMM Inc., Request  for Pioneer's Preference, Public Notice DA 97-423, 12 F.C.C.R.  2417 (1997).


4
  QUALCOMM had requested a meeting with OET after reading a quote in the April 7 issue of Wireless World from an FCC  staff member that resolution of the matter could take "a year or  two."  See Letter from Richard M. Smith, Chief of OET, to  Veronica M. Ahern, Counsel for QUALCOMM (Apr. 15, 1997).


5
  Plaut concerned Congress' extension of the statute of limitations in civil actions to enforce the federal securities laws.  In 1987,  Plaut filed a securities fraud action seeking damages for alleged  violations in 1983 and 1984.  See Plaut, 514 U.S. at 213.  While the  lawsuit was pending, however, the Supreme Court held in Lampf,  Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350  (1991), that such actions had to be commenced within one year after  the discovery of the facts constituting the violation and within three  years after the violation.  See id. at 364.  Applying Lampf, the  district court in 1991 dismissed Plaut's complaint with prejudice as  untimely filed;  the judgment became final 30 days later.  Responding to Lampf, and after the dismissal order in Plaut become final,  Congress enacted a statute purporting to reinstate the lawsuits  dismissed by reason of Lampf that would have been timely under  the prior limitations period.  See Plaut, 514 U.S. at 214.  Because  the dismissal of Plaut's complaint had become final before a new  statute that would have precluded dismissal went into effect, the  Court held that Congress had exceeded its authority.  See id. at  217-18.


6
  Thomas v. Network Solutions, 176 F.3d 500, 506 n.9 (D.C.  Cir. 1999), does not suggest anything to the contrary.  The judgment of the district court in that case was pending on appeal and  therefore not final when Congress enacted the statute at issue.


7
  A final judgment for purposes of separation of powers does  not include all forms of judgment by the courts.  As stated in Plaut,  a judgment at law is generally immune to subsequent legislative  changes, and an attempt by Congress to alter the legal judgment of  a court implicates separation of powers principles.  A judgment  providing prospective equitable relief, however, remains vulnerable  to subsequent legislative action that accordingly would not raise the  same separation of powers concerns.  See Plaut, 514 U.S. at 232;Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.)  421, 431 (1855);  see also System Fed'n No. 91 v. Wright, 364 U.S.  642, 649-52 (1961);  BellSouth Corp. v. FCC, 162 F.3d 678, 692-93  (D.C. Cir. 1998).  The mandate in Freeman Engineering to remedy  the FCC's prior inconsistent treatment of QUALCOMM and Omnipoint, and thereby grant QUALCOMM a pioneer's preference, was  a final judgment entitling QUALCOMM to a preference, not a  judgment with prospective effects subject to evolving conduct or  conditions.


8
  Until Plaut, the Supreme Court was unaware of any "instance  in which Congress has attempted to set aside the final judgment of  an Article III court by retroactive legislation."  Plaut, 514 U.S. at  230.  In light of this historical pattern, and as with retroactive  legislation generally, see Landgraf, 511 U.S. at 277-80, the court  will not read a statute retroactively to alter a final judgement  absent an express statement of intent.


9
  Saco River Cellular, Inc. v. FCC, 133 F.3d 25 (D.C. Cir. 1998),  is not to the contrary.  In that case, the mandate called for a  remand to afford the FCC an opportunity to provide a better  explanation for its waiver of a financial reporting requirement.  See  Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1167 (D.C. Cir.  1990).  Hence, the FCC's subsequent decision to award a license to  a different applicant stemmed from its own reconsideration of the  case rather than a judicial order compelling a specific result.  The  direction to "remedy this inconsistency" in Freeman Engineering is  not comparable;  it afforded the FCC no opportunity to develop  better reasons for denying QUALCOMM's application, much less to  reevaluate QUALCOMM's application.  Rather, the court's instruction was clear from context:  both Omnipoint and QUALCOMM had  sought preferences on the basis of technological modifications on  which work had commenced before the FCC had promulgated its  pioneer's preference rules.  Yet the FCC had denied QUALCOMM  a preference on this basis while granting Omnipoint a preference,  and Congress had barred the FCC from rescinding Omnipoint's  preference.  While the court afforded the FCC the opportunity to  reevaluate its interpretation of its rules--either to abandon its  "newly developed" and "questionable" interpretation of its preference rules that it applied only to QUALCOMM or retain that  interpretation--it required in any event that the FCC grant  QUALCOMM a preference.  No such relief was obtained by the  prevailing party in Saco River.


