Opinion for the Court filed by Circuit Judge ROGERS.
In
Freeman Engineering Associates v. FCC,
I.
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 rulеmak-ing 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] guaranteed] ... 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. § 1.402(a) (1995);
Adams Telcom, Inc. v. FCC,
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 Ameriсan 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, 7797-7809 (1992) (“Tentative Decision”). The FCC explained in rejecting QUAL-COMM’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 QUAL-COMM a preference because its work was merely an adaptation of previously developed technology. See Amеndment 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.
On appeal, the court vacated that part of the FCC’s decision denying QUAL-COMM’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,
[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.
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, § 6002, 107 Stat. 312, 387-392 (codified at 47 U.S.C. § 309(j)(l)-(12) (1994)); see also Amendment of the Commission’s Rules to Establish Neiu 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 QUAL-COMM, the Miami-Fort Lauderdale MTA, to PrimeCo Personal Communications and Sprint Spectrum, intervenors in this appeal.
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, § 801, 108 Stat. 4809, 5050-51 (“GATT”) (codified at 47 U.S.C. § 309QX13) (B) & (C) (1994));
see also
H.R.Rep. No. 103-826, pt. 2, at 26 (1994), U.S. Code Cong. & Admin. News at 3773, 3798. Congress also directed the FCC to award licenses within fifteen days
*1374
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,
Fourth, on remand, despite QUAL-COMM’s urging of the FCC to comply with 47 U.S.C. § 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., QUAL-COMM 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 QUAL-COMM 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 QUAL-COMM in its comments stated that under Freeman Engineering, it was entitled to be treated in the same manner as Omni-point and, thus, to have its preference granted.
On April 15, 1997, OET advised QUAL-COMM 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 appliсation promptly, with the understanding that” *1375 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 unlicensed service areas of comparable significance [to the MTA in South Florida].”
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 OrdeP’). As to QUAL-COMM, the FCC noted that although the court had vacated the denial of QUAL-COMM’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.
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 As socs. 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 OrdeP’), QUALCOMM now appeals the FCC’s Dismissal and Reconsideration Orders of September 11, 1997, and April 23, 1998, respectively.
II.
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.,
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, Í04 S.Ct. 2778 (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.
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 Prods.,
A.
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 devel- ■ oped” 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 Omni-point.
Freeman Eng’g,
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 reaffirmеd its ruling and reasoning on reconsideration. The court nonetheless agreed with QUAL-COMM’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,
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 оral argument, this could have been technically achieved by allowing QUALCOMM ,to amend its application, and at' that point, *1377 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 а 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 § 402(h), it reopened the proceedings, over QUAL-COMM’s objection, issuing a public notice for comment and joining the intervenors as parties.
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 foсus 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,
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 QUAL-COMM a remedy in view of the FCC’s inсonsistent 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.
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 pio *1378 neer’s preferences is flawed for several reasons.
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,
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 аuthority 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 § 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,
The FCC’s contrary interpretation ignores settled law that the mandate of a court, issuing a final judgment carries force b.eyond 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.,
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,
— U.S. -,
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
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 upset *1381 ting 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. § 309(j)(13)(E)(i). In sо doing, Congress made clear its intent not to undo the settled expectations of APC, Cox, and Omni-point 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 appliсations. 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 § 402(h).
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
. 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).
. Section 402(h) provides:
In the event that the court shall render a decision аnd 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 the record upon which said appeal was heard and determined.
47 U.S.C. § 402(h).
. QUALCOMM objected to reopening the proceeding on the grounds that (1) three years had passed since the FCC denied QUAL-COMM’s preference, (2) the court’s vacation and remand were narrow, requiring no further factual development, and (3) the FCC’s obligation under § 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).
.' 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).
.
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 Plant,
.
Thomas v. Network Solutions,
. 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 separatiоn of powers concerns.
See Plaut,
. 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,
. Saco River Cellular, Inc. v. FCC,