concurring:
One of the interesting features of a circle is that if you start traveling in one direction along its rim you will eventually wind up exactly where you began. The majority opinion starts by declaring the language of statute “plain.” Maj. op. at 227, 229. Why is it “plain”? Because it is “presumed” that Congress meant what it said. Id. at 230. What did Congress say? Whatever the language of the statute makes plain.
The opinion also observes, rather curiously, that although the statute has a plain meaning, it is not “perfectly crafted” and represents “inartful [inartistic?] drafting.” Maj. op. at 229. Notice the argument assuming its conclusion. The statute is not perfectly crafted, indeed is grammatically incoherent, if and only if the majority’s reading of it is correct, which of course is the issue. If the majority is mistaken, as I think it is, the language of the statute simply conveys what its authors intended. There is no flaw in its drafting.
Let us now examine the language of 47 U.S.C. § 309(j)(2)(C) in the context of the entire subsection:
(j) Use of competitive bidding
(1) General authority
If, consistent with the obligations described in paragraph (6)(E), mutually exclusive applications are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the requirements of this subsection.
(2) Exemptions
The competitive bidding authority granted by this subsection shall not apply to licenses or construction permits issued by the Commission—
*232(A) for public safety radio services, including private internal radio services used by State and local governments and non-government entities and including emergency road services provided by not-for-profit organizations, that—
(i) are used to protect the safety of life, health, or property; and
(ii) are not made commercially available to the public;
(B) for initial licenses or construction permits for digital television service given to existing terrestrial broadcast licensees to replace their analog television service licenses; or
(C) for stations described in section 397(6) of this title.
Section 397(6) defines “noncommercial educational broadcast station” or, NCE.
Attention must be paid to the word “issued” in § 309(j)(2) — competitive bidding does not apply to “licenses or construction permits issued by the Commission” for NCEs. Now if we read this to mean what it says the exemption from competitive bidding for licenses would apply only to licenses already “issued.” How can that make sense? One answer is that the auction exemption is limited to renewals of licenses issued to NCEs in the non-reserved spectrum. In other words, Congress intended that new licenses may be auctioned off even if an NCE is vying for the license, but the Commission should not refuse to renew “licenses [already] ... issued” to stations merely because NCEs cannot compete with commercial applicants in an auction.
What does the majority offer in response? That “issued” cannot possibly mean what it means, maj. op. at 229-30— an answer that refutes the majority’s next point that “Congress meant precisely what it said.” Id. at 230. I do not deny the feasibility of the majority’s interpretation of § 309(j)(2)(C) nor do I deny the possibility of the Commission (not the court) interpreting the statute in that manner, although it would be a bit of a stretch. But to claim that the majority’s reading derives from the “plain meaning” of the provision crosses the boggle threshold.
We ought to just face up to the obvious- — this subsection is a mess. The problem is not just with § 309(j)(2)(C). Look at § 309(j)(2)(B) — the “competitive bidding authority granted by this subsection shall not apply to licenses ... for initial licenses ... for digital television service.... ” 47 U.S.C. § 309(j)(2)(B). To what does “licenses for initial licenses” refer? When asked at oral argument the Commission was as baffled as we were.
The Commission, at least, did not fall into the trap of treating the statute as clear when it clearly is not. See maj. op. at 230-31; In re Reexamination of the Comparative Standards for Noncommercial Educational Applicants, 15 F.C.C.R. 7386 ¶ 106 (2000). The Commission relied instead on the idea that some conflict existed between the general rule embodied in § 309(j)(l), requiring auctions, and the exception in § 309(j)(2). I agree with the majority that this rationale cannot be sustained. See maj. op. at 230; In re Reexamination of the Comparative Standards for Noncommercial Educational Applicants, 15 F.C.C.R. 7386 ¶ 106 (2000). Section 306(j)(2) is an exception; an exception deviates from a general rule, it does not “conflict” with it. Because the Commission’s explanation for its decision is erroneous, we must remand under SEC v. Chen-ery, 318 U.S. 80, 88, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
I therefore concur that the Commission’s order must be set aside and the case remanded to the agency. I do not agree that on remand the Commission must *233adopt the majority’s interpretation of § 309(j)(2)(C).