verizon communications et al federal communications commission et argued october decided may order foster competition monopolistic carriers providing local telephone service companies seeking enter local markets provisions telecommunications act act entitle new entrants lease elements incumbent carriers networks direct federal communications commission fcc prescribe methods state utility commissions use setting rates sharing elements reasonable rates must inter alia based cost determined without reference proceeding providing network element regulations appended fcc first report order act provide among things treatment cost economic cost cfr something distinct kind historically based cost previously relied valuing rate base see fpc hope natural gas define economic cost element sum total element incremental cost element telric reasonable allocation common costs incurred providing group elements attributed directly individual elements importantly specify telric measured based use efficient telecommunications technology currently available lowest cost network configuration given existing location incumbent wire centers regulations also contain combination rules requiring incumbent upon request compensation perform functions necessary combine network elements entrant unless combination technically feasible challenges regulations mostly incumbent carriers state commissions consolidated eighth circuit initially held inter alia fcc authority control state commissions ratesetting methodology fcc misconstrued plain language implementing combination rules reversing large part iowa utilities board among rulings upheld fcc jurisdiction impose new ratesetting methodology reinstated principal combination rule rule forbids incumbents separate currently combined network elements leasing entrants ask combined form remand incumbents primary challenge went fcc ratesetting methodology eighth circuit understood ambiguous historical cost ratesetting method presumably reasonable held foreclosed use telric methodology act plainly required rates based actual hypothetical cost providing network element also invalidated additional combination rules rules reading reference allow ing requesting carriers combine elements unambiguously requiring requesting carriers providing incumbents combining held fcc require state commissions set rates charged incumbents leased elements basis untied incumbents investment incumbents met burden showing unreasonableness defeat deference due fcc see chevron natural resources defense council eighth circuit judgment reversed insofar invalidated telric pp rejects incumbents argument cost requirement rate based cost providing network element mean plain language particular technical context past cost incumbent furnishing specific network element actually physically provided distinct value price paid open market basic level common usage cost clear implication merchant asked cost goods may reasonably quote current wholesale market price cost items shelves may bought higher lower prices reference shifts technical realm incumbents still unconvincing cost used calculating rate base traditional method stand past capital expenditures prudent prudent investment denied recovery unexpected events rendered investment useless duquesne light barasch even investment wholly includable rate base ratemakers often rejected utilities embedded costs estimates typically geared maximize rate base high statements past expenditures working capital combined unduly low depreciation rates see hope natural gas supra equally important incumbents argument ignores statutory setting mandate use cost valuing network elements occurs first act uses cost intermediate term calculation reasonable rates point hope natural gas regulatory bodies required set rates expressed terms ample discretion choose methodology second strange think congress tied cost historical cost without specific indication sentence requires cost pricing also prohibits reference proceeding identified historical cost ever since hope natural gas decided without better indication meaning unadorned term word cost gives ratesetting commissions broad methodological leeway says little method employed iowa utilities supra pp also rejected incumbents alternative argument telric calculates cost reference hypothetical efficient element existing wire centers actual network element provided fcc particular methodology neither consistent plain language within zone reasonable interpretation subject chevron deference pp term cost simply protean support incumbents argument plain language bars definition cost untethered historical investment incumbents call hypothetical element simply element valued terms piece equipment incumbent may pp similarly claim telric exceeds reasonable interpretative leeway open objection responsibility reasonable rates leaves methodology largely subject discretion permian basin area rate cases incumbents nevertheless field three arguments rejects pp incumbents argue first method calculating wholesale lease rates based costs providing hypothetical efficient elements may simulate competition envisioned act induce basically three answers unreasonableness claim pp basic assumption argument perfectly efficient market one lease telric rate ever build contrary fact telric assume perfectly efficient wholesale market one likely resemble perfection foreseeable time cf iowa utilities board supra includes several features inefficiency undermine incumbents argument first fcc qualified assumption efficiency requiring ratesetters calculate cost basis existing location incumbent wire centers certain network elements priced efficient cost configuration second telric rates practice differ products perfectly competitive market owing lags price adjustments built ratesetting process finally measurement telric based use efficient telecommunications technology currently available marginal cost efficient element entrant alone built uses set new pricing standard became available competitors alternative incumbent corresponding element pp ii said fcc acted unreasonably picking telric promote mandated competition comparison telric alternatives proposed incumbents reasonable methodologies efficient component pricing rule ramsey pricing commonly proposed variant recovery ratesetting plausibly answered fcc stated reasons reject alternatives first report order pp iii claim telric unreasonable matter law simulates produce competition founders fact entrants say invested billion new facilities incumbents contest figure regulatory scheme boast substantial competitive capital spending four years easily described unreasonable way promote competitive investment facilities pp also unavailing incumbents second reason calling telric unreasonable exercise fcc regulatory discretion supposed incapacity methodology provide enough depreciation allowance capital costs induce rational competition theory terms argument rests upon fundamentally false premise telric rules limit depreciation capital costs ratesetting commissions may recognize contrary first report order gave state commissions considerable discretion matters specifically permitting favorable allowances costs capital depreciation generally allowed traditional ratemaking practice incumbents fallback position existing rates depreciation costs capital even reasonable starting points unpersuasive attack tends argue highly general terms whereas telric rates calculated basis individual elements rates leave plenty room differences appropriate depreciation rates capital costs depending nature technology specific element priced light many telric rates calculated state commissions across country fcc prescription general starting point reasonable enough pp finally incumbents third argument telric needlessly unreasonably complicated impracticable unpersuasive record suggests telric rate proceedings surprisingly affairs incumbents competitors typically presenting two conflicting economic models supported expert testimony state commissioners customarily assigning rates based predictions one model others counterpart bottom battles experts bound part ratesetting scheme fcc reasonable prefer telric alternative schemes preserve advantages incumbents pp incumbents attempt apply rule constitutional avoidance present serious question say cost construed reference historical investment order avoid serious constitutional question whether methodology divorced actual investment lead taking property violation fifth fourteenth amendment however argue particular actual telric rate unjust confiscatory despite fact state commissions already put telric rates place want rate reviewed significant given never considered taking challenge ratesetting methodology without presented specific rate orders alleged confiscatory see duquesne supra indeed general rule question constitutionality ratesetting raised rates methods see hope natural gas thus policy construing statute avoid constitutional questions presumptively place construing measure like telric prescribes method incumbents argue unpersuasively action placed outside general rule strong signs takings occur telric interpretation allowed first comparison historical investment local telephone markets corresponding estimate telric evaluation spurious assumed numbers clearly wrong second misplace reliance dicta duquesne effect may taking challenge ratemaking body makes opportunistic methodology changes minimize utility return capital investment evidence decision adopt telric arbitrary opportunistic undertaken confiscatory purpose indeed indications record much contrary pp fcc require incumbents combine elements networks request entrants combine lease entrants thus eighth circuit erred invalidating additional combination rules rules pp rejects incumbents threshold objection government competing carriers challenge rules invalidation barred waiver iowa utilities board petition review eighth circuit earlier invalidation rule extend simultaneous invalidation rules incumbents argue eighth circuit exceeded scope mandate revisited unchallenged portion earlier holding decline reach validity rules encourage sort strategic piecemeal litigation disapproved communist party subversive activities control however case block consideration rules addressing issue make waste years efforts fcc eighth circuit threaten leave constitutional ruling pointless direct attention isolated procedural error agency invalidation fcc rules meant general continuing applicability indication litigation tactics prompted failure last time appeal rules reexamined remand eighth circuit behest government competing carriers issue pressed passed upon federal subject broad discretion certiorari good reasons look rules eighth circuit passed significant issue placed state flux split among federal cases pp eighth circuit read requirement incumbent provide network elements manner allows requesting carriers combine elements unambiguously excusing incumbents obligation combine provided elements language plain congress treated incumbents entrants equals probably plain enough incumbents obligations stopped furnishing element combined act however proceeds understanding incumbent monopolists contending competitors unequal cf within actual statutory confines obligating incumbents furnish congress silently negated duty combine reads language leaving open work combination chevron leaves additional combination rules intact unless incumbents show unreasonable finds however rules reflect reasonable reading statute meant remove practical barriers competitive entry markets avoiding serious interference incumbent network operations rules say incumbent shall payment perform functions necessary rules combine elements order put competing carrier equal footing incumbent requesting carrier unable combine first report order place incumbent disadvantage operating network place competing carriers competitive disadvantage rule duty consistent act goals competition nondiscrimination imposing sensible way reach result act requires pp affirmed part reversed part remanded souter delivered opinion rehnquist stevens kennedy ginsburg joined scalia thomas joined part iii thomas also joined part iv breyer filed opinion concurring part dissenting part scalia joined part vi took part consideration decision cases verizon communications et petitioners federal communications commission et al worldcom et petitioners verizon communications et al federal communications commission et petitioners iowa utilities board et al petitioners iowa utilities board et al general communications petitioner iowa utilities board et al writs certiorari appeals eighth circuit may justice souter delivered opinion cases arise telecommunications act power federal communications commission regulate relationship monopolistic companies providing local telephone service companies entering local markets compete incumbents act new entrants entitled among things lease elements local telephone networks incumbent monopolists issues whether fcc authorized require state utility commissions set rates charged incumbents leased elements basis untied incumbents investment require incumbents combine elements entrants request lease entrants uphold fcc assumption exercise authority issues consent decree settling government antitrust suit american telephone telegraph company divested carriers leaving equipment company limiting divested carriers provision local telephone service american telephone telegraph supp dc aff sub nom maryland decree nothing however increase competition persistently monopolistic local markets thought root natural monopoly telecommunications industry see benjamin lichtman shelanski telecommunications law policy hereinafter benjamin et al huber kellogg thorne federal telecommunications law pp ed hereinafter huber et al baumol sidak toward competition local telephony breyer regulation reform markets addressed provisions telecommunications act act act pub stat intended eliminate monopolies enjoyed inheritors local franchises objective considered end important step toward act goals boosting competition broader markets revising mandate provide universal telephone service see benjamin et al two sets related provisions opening local markets concern us first congress required incumbent carriers share facilities services terms agreed upon new entrants markets supp second knowing incumbents prospective entrants sometimes disagree prices facilities services congress directed fcc prescribe methods state commissions use setting rates subject incumbents entrants risks incentives competitive market produce particular method devised fcc setting rates charged interconnection lease network elements act regulations fcc imposed implement statutory duty share elements subjects litigation must understood background ratemaking public utilities structure local exchanges made accessible act companies providing telephone service traditionally regulated monopolistic public see bonbright principles public utility rates ed hereinafter bonbright barnes economics public utility regulation hereinafter barnes dawn modern utility regulation order offset monopoly power ensure affordable stable public access utility goods services legislatures enacted rate schedules fix prices utility charge see phillips regulation public utilities hereinafter phillips see smyth ames statement case munn illinois job became complicated legislatures established specialized administrative agencies first local state federal set regulate rates barnes phillips see minnesota rate cases interstate commerce commission shreveport rate cases jurisdictional dispute icc texas railroad commission see generally mccraw prophets regulation familiar mandate enabling acts see rates reasonable discriminatory barnes see transportation act stat rates subject regulation way retail rates charged directly public wholesale rates charged among businesses involved providing goods services offered retail utility intrastate retail rates regulated municipalities wholesale generally responsibility national government since transmission transportation involved characteristically see phillips historically classic scheme administrative ratesetting federal level called rates set regulated utility companies proposed tariff schedules model applied railroad carriers interstate commerce act stat interested parties notice proposals chance comment tariffs accepted controlling agency long reasonable reasonable unduly discriminatory hale commissions rates policies harv rev see southern pacific icc generally followed model barnes see smyth supra way rates regulated businesses national government respects however different regulation rates businesses public state local level wholesale markets party charging rate party charged often sophisticated businesses enjoying presumptively equal bargaining power expected negotiate reasonable rate two accordingly federal power act stat natural gas act stat congress departed scheme purely regulation acknowledged contracts commercial buyers sellers used ratesetting federal power act natural gas act see gas pipe line mobile gas service commercial parties avail rate agreements principal regulatory responsibility relieve contracting party unreasonable rate fpc sierra pacific power improvident bargain protect potential discrimination favorable contract rates allied businesses detriment wholesale customers see ibid cf new york principal evil interstate commerce act discrimination various manifestations summed matters wholesale level way hile may commission may normally impose upon public utility rate produce less fair return follow public utility may agree contract rate affording less fair return entitled relieved improvident bargain circumstances sole concern commission seem whether rate low adversely affect public interest might impair financial ability public utility continue service cast upon consumers excessive burden unduly discriminatory sierra pacific supra citation omitted see also gas pipe line supra regulation retail rates state local levels hand focused demand reasonable rates public perils rate discrimination see barnes indeed regulated local telephone markets evolved arenas discrimination engineered public utility commissions cause universal service huber et al see also vietor order hold charges telephone service rural markets higher marginal costs due lower population densities lesser volumes use urban business users charged subsidizing premiums marginal costs providing service see huber et al cross subsidies markets necessarily transfers truly independent companies however thanks largely position attained satellites known bell system century come possess overwhelming monopoly power telephone markets nationwide supplying services well equipment vietor see also garnet telephone enterprise evolution bell system horizontal structure pp appendix pervasive market presence bell providers made simple provide cross subsidies aid universal service however also frustrated conventional efforts hold retail rates see huber et al bell system predominance regulators might played competing carriers one another get lower rates public see cohen strategy became virtually impossible single company become provider nearly every town city across country regulatory frustration led turn new thinking reasonable retail rates ultimately cases traditional regulatory notion reasonable rate aimed navigating straits gouging utility customers confiscating utility property fpc hope natural gas see also barnes bonbright century ago reviewing courts charged determining whether utility rates sufficiently reasonable avoid unconstitutional confiscation took touchstone revenue fair return certain utility property known rate base fair rate return usually set rate generated similar investment property time rate proceeding smyth ames smyth proved troublesome mandate justice brandeis joined justice holmes famously observed years later missouri ex rel southwestern bell telephone public serv dissenting opinion smyth described without irony complexity required enquiry fair value alternative historical investment order ascertain fair value original cost construction amount expended permanent improvements amount market value bonds stock present compared original cost construction probable earning capacity property particular rates prescribed statute sum required meet operating expenses matters consideration given weight may right case say may matters regarded estimating value property bewildered smyth simply threw hands prescribing one method limiting use numbers declaring facts relevant southwestern bell telephone supra brandeis dissenting customary checks calculations value circumstances hard come utility property costly facilities rarely changed hands seldom tagged price buyer actually pay seller accept west chesapeake potomac telephone baltimore neither reviewing courts resort utility revenue index fair value since revenues necessarily determined rates subject review rate return applied property subject valuation duquesne light barasch hope natural gas supra small wonder justice brandeis able demonstrate basing rates smyth galactic notion fair value produce revenues grossly excessive insufficient gauged costs capital gave example simplified million plant built promised returns equity year southwestern bell telephone supra value fall time rate proceeding rate return similar investments percent smyth say rate confiscatory returned least shortfall costs capital value plant rise time rate proceeding rate return comparable investments stood percent constitutionality smyth require rates generating least capital costs upshot smyth specter utilities forced bankruptcy rates inadequate pay costs capital even drop value resulted general economic decline imprudent investment robust economy investment prescient claim seemed rapacious return equity invested justice brandeis accordingly advocated replacing fair value calculation rate base cost capital prudently invested assets used provision public good service although live enjoy success campaign smyth came fruition fpc hope natural gas hope natural gas disavowed position natural gas act constitution required fair value sole measure rate base reasonable rates calculated see also fpc natural gas pipeline black douglas murphy concurring matter review federal power commission valued rate base using actual legitimate cost reflecting sound depreciation depletion practices calculated value roughly percent figure generated company methods using estimated reproduction cost trended original cost hope natural gas nn upheld commission rates enable company operate successfully maintain financial integrity attract capital compensate investors risks assumed certainly condemned invalid even though might produce meager return fair value rate base although hope natural gas repudiate everything said smyth since fair value still end product process federal state commissions setting rates aftermath hope natural gas largely abandoned old approach turned methods calculating rate base basis cost kahn economics regulations principles institutions cost neither immune confusion however witness invocation reproduction cost popular method calculating fair value smyth see supra federal power commission rejection trended original cost apparently derivation cost capital originally invested favor actual legitimate cost hope natural gas supra still time general agreement developed method primus inter pares essentially modern gloss method incumbent carriers say fcc used set rates issue method worked simple calculation rate base original cost prudently invested capital justice brandeis assumed presumably reference utility balance sheet time rate proceeding southwestern bell telephone rather cost came mean cost service cost prudently invested capital used provide service bonbright garfield lovejoy public utility economics calculated subject deductions accrued depreciation allowances working see phillips table typical electric utility rate base naturally leading utilities minimize depreciation using slow depreciation rates assumption long useful lives maximize working capital claimed distinct constituent formula commonly called rule addressed natural temptations utilities part claim return outlays producing nothing value public meant one hand discourage unnecessary investment fictitious capitalization feared smyth protect ratepayers supporting excessive capacity abandoned destroyed phantom assets kahn tardiff weisman telecommunications act three years economic evaluation implementation federal communications commission information economics policy hereinafter kahn telecommunications act time rule intended give utilities incentive make smart investments deserving fair return thus mimic natural incentives competitive markets though without eye fostering actual competition markets defined theory qualification gave ratepayer important protection mitigating tendency regulated market lack competition support monopolistic prices mitigation little rule practice often match capacity utilities relevant information manipulate rate base renegotiate rate return every time rate set regulatory response markets adoption method commonly called price caps telephone assn fcc cadc example fcc setting maximum access charges paid large companies interexchange carriers policy rules concerning rates dominant carriers fcc rcd scheme starts rate generated conventional formula takes benchmark decreased average percent year reflect productivity growth kahn telecommunications act subject upward adjustment necessary reflect inflation certain unavoidable exogenous costs company authorized recover return fcc rcd although price caps eliminate gamesmanship since still battles fought productivity offset allowable exogenous costs telephone supra give companies incentive improve productivity maximum extent possible entitling outperform productivity offset keep resulting profits fcc rcd ultimately goal basic rule encourage investment productive equipment passage act price cap federal level final stage century developing ratesetting methodology changed throughout era beginning smyth ames prevailing opinion calculate useful rate base disagreement cost advocates turning whether invested capital key right balance investors ratepayers scheme simply offset utilities advantage superior knowledge facts employed ratemaking remarkable evolution reasonable ratesetting however change enduring feature ratesetting smyth ames institution price caps idea calculating rate base allowing fair rate return sensible way identify range rates reasonable investors ratepayers equally enduring throughout period dissatisfaction successive variants constancy dissatisfaction one possible lesson drawn congress act regulation using traditional methodologies gave monopolies great advantage answer lay moving away assumption common methods monopolistic structure within discrete markets endure provisions act congress called ratemaking different historical practice achieve entirely new objective uprooting monopolies traditional methods perpetuated conf leading backer act senate put new goal way extraordinary sense telling private industry order let competitors come try beat economic brains kind almost everything let business used bottleneck used monopoly used control everything legislation says control much anything allow nondiscriminatory access unbundled basis network functions services bell operating companies network least equal type quality price access bell operating company affords cong rec remarks breaux la pub first time congress passed ratesetting statute aim balance interests sellers buyers reorganize markets rendering regulated utilities monopolies vulnerable interlopers even meant swallowing traditional federal reluctance intrude local telephone markets approach deliberate hybrid jurisdictional scheme fcc setting basic default methodology use setting rates carriers fail agree leaving state utility commissions set actual rates act like predecessors tying methodology objectives reasonable nondiscriminatory rates radically unlike previous statutes providing rates set without reference proceeding act thus appears explicit disavowal familiar model rate regulation whether incarnations presumably still applied many retail sales see implementation local competition telecommunications act fcc rcd first report order favor novel ratesetting designed give aspiring competitors every possible incentive enter local retail telephone markets short confiscating incumbents property physical incarnation market local exchange network connecting terminals like telephones faxes modems terminals within geographical area like city terminal network interface devices feeder wires collectively called local loop run local switches aggregate traffic common trunks local loop traditionally still largely made copper wire though cable also used albeit far lesser extent loop runs terminals local switches trunks run local switches centralized tandem switches originally worked hand computer operate much like railway switches directing traffic trunks signal sent toward destination terminal common ways far necessary routed back another hierarchy switches intended telephone equipment local exchange thus transportation network communications signals radiating like root system central office several offices larger areas individual telephones faxes like easy see company owns local exchange act calls incumbent local exchange carrier almost insurmountable competitive advantage routing calls within exchange control local market markets terminal equipment calling well newcomer compete incumbent carrier provide local service without coming close replicating incumbent entire existing network costly difficult part laying last mile feeder wire local loop thousands millions terminal points individual houses incumbent company also control plant connect terminals manufactured selected place conditions fees called access charges carriers seeking connect network unregulated world another telecommunications carrier forced comply conditions never reach customers local exchange ii act prohibits state local regulation impedes provision telecommunications service obligates incumbent carriers allow competitors enter local markets section addresses practical difficulties fostering local competition recognizing three strategies potential competitor may pursue first competitor entering market requesting carrier may decide engage pure competition build network replace supplement network incumbent entrant takes course act obligates incumbent interconnect competitor facilities network whatever extent necessary allow competitor facilities operate end spectrum statute permits entrant skip construction instead simply buy resell telecommunications service incumbent duty sell wholesale extremes entering competitor may choose lease certain incumbent network elements incumbent duty provide unbundled basis terms reasonable nondiscriminatory since wholesale markets companies engaged resale leasing interconnection facilities created without addressing rates congress provided rates set either contracts carriers state utility commission rate orders like federal utility statutes authorize contracts approved regulatory agency setting rates businesses federal power act natural gas act act permits incumbent entering carriers negotiate private rate agreements see also duty negotiate good faith state utility commissions required accept agreement unless discriminates carrier party contract otherwise shown contrary public interest carriers course might well agree case entering carrier statutory option request mediation state commission option comes strings mediation subjects parties duties specified pricing standards set forth interpreted fcc regulations regulations issue pricing act provides incumbent requesting carriers fail agree state commissions set reasonable nondiscriminatory rate interconnection lease network elements based cost providing network element may include reasonable profit setting rates state commissions however subject important limitation previously unknown utility regulation rate must determined without reference proceeding ibid iowa utilities upheld fcc jurisdiction impose new methodology setting rates attack today legality logic particular methodology commission chose act required six months effective date fcc implemented provisions first report order included appendix new regulations issue challenges order mostly incumbent carriers state commissions consolidated appeals eighth circuit iowa utilities bd fcc aff part rev part see also california fcc rev part challenges implementation local competition provisions telecommunications act fcc rcd second report order far bears today initial decision eighth circuit held fcc authority control methodology state commissions setting rates incumbent carriers charge entrants network elements cfr iowa utilities supra eighth circuit also held fcc misconstrued plain language implementing set combination rules cfr important provided incumbent lec shall separate requested network elements incumbent lec currently combines hand appeals accepted fcc view act required threshold ownership facilities requesting carrier first report order upheld rule cfr read network elements broadly require incumbent carriers provide equipment also services functions operations support systems billing databases operator services directory assistance vertical switching features like caller first report order affirmed part larger part reversed iowa utilities reversed upholding fcc jurisdiction design pricing methodology bind state ratemaking commissions well one fcc combination rules rule barring incumbents separating currently combined network elements furnishing entrants request combined form also reversed striking rule holding provision blanket access network elements inconsistent necessary impair standards affirmed eighth circuit however upholding fcc broad definition network elements provided fcc understanding act imposed requirement case returned eighth circuit fcc general authority establish pricing methodology secure incumbent carriers primary challenge remand went method commission chose also renewed controversy combination rules rules eighth circuit struck along rule upon expressed opinion reversed invalidation latter rule method derive nondiscriminatory reasonable rate network elements act requires fcc decide value cost providing network element may include reasonable profit although fcc already seen forbidden allow reference proceeding within discretion left eliminating dependence proceeding commission chose way treating cost economic cost cfr something distinct kind historically based cost generally relied upon valuing rate base hope natural gas rule fcc defined economic cost element sum total element incremental cost element telric reasonable allocation common costs common costs costs incurred providing group elements attributed directly individual elements important fcc decided telric measured based use efficient telecommunications technology currently available lowest cost network configuration given existing location incumbent wire centers telric element three components operating expenses depreciation cost appropriate cost capital first report order omitted see also cfr concrete example may help assume cost year operate loop element take interest payments capital carrier invest build lowest cost loop centered upon incumbent carrier existing wire centers say percent per annum reasonable depreciation loop useful life annual telric loop element appeals understood reference cost providing network element ambiguous historical cost ratesetting method presumably reasonable implementation statute eighth circuit thought ambiguity afforded leeway beyond read act require methodology based incremental costs incumbent actually incurs incur providing unbundled access specific network elements hence eighth circuit held foreclosed use telric methodology words read act plainly requiring rates based actual hypothetical cost providing network element reasoned telric clearly latter eighth circuit added however wrong telric permitted claim prescribing telric fcc effected unconstitutional taking ripe resulting rates determined applied appeals also second time invalidated rules cfr fcc additional combination rules apparently reason rejected struck rule main combination rule brief rules require incumbent carrier upon request compensation perform functions necessary combine network elements entrant unless combination technically feasible eighth circuit read language reference allow ing requesting carriers combine elements unambiguously requiring requesting carrier providing incumbent combining ibid us incumbent carriers claim error eighth circuit holding cost methodology opposed use historical cost consistent conclusion use telric cost methodology presents ripe takings claim fcc entrants side seek review eighth circuit invalidation telric methodology additional combination rules granted certiorari affirm issues raised incumbents reverse raised fcc entrants iii incumbent carriers first attack charges fcc ignoring plain meaning word cost occurs provision reasonable rate network elements shall based cost determined without reference proceeding providing network element incumbents argue theory statute precludes methodology claim cost providing competitor network element future must calculated using incumbent past investment element means providing contend cost statute refers historical cost define fact paid capital asset distinct value price paid open market brief petitioners say technical meaning cost past capital expenditure suggest equation historical embedded costs fcc defines costs incumbent lec incurred past recorded incumbent lec books accounts cfr argument boils proposition cost providing network element mean plain language particular technical context past cost incumbent furnishing specific network element actually physically provided incumbents picked uphill battle basic level common usage cost clear implication merchant asked cost providing goods sells may reasonably quote current wholesale market price cost particular items happens shelves may bought higher lower prices reference shifts common speech technical realm incumbents still attack uphill begin even dealt historical costs ratesetting basis cases never assumed sense cost generous incumbents seem cost used calculating rate base traditional method stand past capital expenditures prudent prudent investment denied recovery unexpected events rendered investment useless duquesne light barasch even investment wholly includable rate base ratemakers often rejected utilities embedded costs estimates typically geared maximize rate base high statements past expenditures working capital combined unduly low rates depreciation see hope natural gas also mistake forget cost term ratemaking figured contemporary state federal ratemaking untethered historical equally important incumbents argument ignores statutory setting mandate use cost valuing network elements occurs first act uses cost intermediate term calculation reasonable rates point hope natural gas regulatory bodies required set rates expressed terms ample discretion choose methodology second passing strange think congress tied cost historical cost without specific indication sentence requires cost pricing also prohibits reference proceeding identified historical cost ever since hope natural gas fact without better indication meaning unadorned term word cost accounting generally chameleon strickland commissioner maine dept human services virtually meaningless term estes dictionary accounting ed justice breyer put iowa utilities words like cost give ratesetting commissions broad methodological leeway say little method employed determine particular rate opinion concurring part dissenting part accordingly reach conclusion adopted appeals nothing plainly requires reference historical investment pegging rates cost incumbents alternative argument even without stern anchor calculating cost providing network element particular methodology fcc chose neither consistent plain language within zone reasonable interpretation subject deference chevron natural resources defense council say telric calculates cost reference hypothetical efficient element existing actual network element provided short answer objection telric violates plain language much answer previous argument incumbents call hypothetical element simply element valued terms piece equipment incumbent may claim like one considered plain language bars definition cost untethered historical investment explained already term cost simply protean support incumbents argument similarly claim telric exceeds reasonable interpretative leeway open objection already noted responsibility reasonable rates leaves methodology largely subject discretion permian basin area rate cases must reiterate breadth complexity commission responsibilities demand given every reasonable opportunity formulate methods regulation appropriate solution intensely practical difficulties see generally chevron supra challenge agency construction statutory provision fairly conceptualized really centers wisdom agency policy rather whether reasonable choice within gap left open congress challenge must fail incumbents nevertheless field three arguments contend first method calculating wholesale lease rates based costs providing hypothetical efficient elements may simulate competition envisioned act induce second argue even rates based hypothetical elements induce competition theory telric provide depreciation capital costs theory compels finally incumbents say even objections answered telric needlessly hence unreasonably complicated impracticable incumbents justice breyer basic critique telric setting rates leased network elements assumption perfect competition telric perversely creates incentives competition fact see post incumbents say purporting set incumbents wholesale prices level exist perfectly competitive market order make retail prices similarly competitive telric sets rates low entrants always lease never build network elements see post even entrant otherwise consider building network element efficient best one market one assumed setting telric rate likewise deterred prospect lower cost building operating new element immediately available competitors telric incumbents assert lease rate incumbent existing element instantly drop match marginal entrant new element built see ibid brief respondents bellsouth et al nos pp according incumbents result competition sort parasitic leaving telric incapable stimulating competition intended congress think basically three answers claim unreasonableness telric methodology assume relevant markets perfectly competitive scheme includes several features inefficiency undermine plausibility incumbents argument comparison telric alternatives proposed incumbents reasonable plausibly answered fcc stated reasons reject alternatives actual investment competing facilities since effective date act simply belies argument conclusion basic assumption incumbents argument contrary fact explained argument rests assumption perfectly efficient market one lease telric rate ever build telric assume perfectly efficient wholesale market one likely resemble perfection foreseeable time incumbents thus make mistake attributed different setting fcc iowa utilities board rejected fcc rule cfr required incumbents lease network element might reduce however slightly entrant marginal cost providing telecommunications service compared providing service using entrant equivalent element world perfect competition carriers providing service marginal cost commission total equating increased cost decreased quality necessity impairment might reasonable established existence ideal world fcc accord allowed inefficiency telric design additional ways affecting likelihood telric squelch competition facilities first commission qualified assumption efficiency requiring ratesetters calculate cost basis existing location incumbent wire centers cfr means certain network elements principally elements priced efficient cost configuration extent say shorter loop serve local exchange incumbent wire centers relocated snugger fit current geography terminal locations second telric rates practice differ products perfectly competitive market owing lags price adjustments perfectly competitive market retail prices drop instantly marginal cost efficient company see mankiw incumbents point deter market entry potential entrant know even provide retail service lower marginal cost instantly lose competitive edge entered market competitors adjusted match price see brief respondents bellsouth et al nos wholesale telric rates however set state commissions usually arbitrated agreements terms see brief respondent qwest communications international nos etc reply brief petitioners worldcom et al reply brief respondent sprint reply brief petitioner one claims competitor receive immediately demand telric rate leased element marginal cost entrant introduces efficient element even competitor call new telric rate proceeding immediately upon introduction efficient element competing entrant competitor necessarily know enough make call fact element greater efficiency become apparent reflected lower retail prices drawing demand away existing competitors including incumbent forcing look lowering marginal costs practice take time innovating entrant install new equipment engage marketing offering lower retail price attract business steal away enough customer subscriptions given limited opportunity capture untapped customers local telephone service competitors register drop demand finally bears reminding fcc prescribes measurement telric based use efficient telecommunications technology currently available cfr owing condition current availability marginal cost element entrant alone built uses set new pricing standard became available competitors alternative incumbent corresponding reviewing course position assess precise economic significance exceptions perfectly functioning market incumbents criticism assumes instead enough recognize incumbents assumption may well incorrect inefficiencies built scheme may provide incentives opportunities competitors build network elements perhaps reasons unrelated pricing possibility expansion markets deploying broadband technologies cf post breyer concurring part dissenting part desirability independence incumbent management maintenance network elements event significance incumbents mistake fact may indicated best argument evidence actual investment competition since telric went effect discussed part perhaps sensing futility unsupported theoretical attack incumbents make complementary argument fcc choice telric whatever might said terms unreasonable matter law methods determining cost done better job inducing competition considered proffered alternatives reasons fcc gave rejecting cfr first report order say fcc acted unreasonably picking telric promote mandated competition incumbents present three principal alternatives setting rates network elements methodologies efficient component pricing rule ramsey arguments one another methodologies preferable telric share basic claim unreasonable fcc choose method setting rates fails include least theory additional costs beyond efficient long lease rates incorporate costs better job inducing theory entrant foot door greater incentive build operate efficient network element lease rates reflect something incumbents actual inefficient marginal costs entrant develops element lower marginal cost retail price drops accordingly incumbent choice innovate building efficient element finding ways reduce marginal cost retain market share generic feature incumbents proposed alternatives words degree inefficiency preserved lease rates order give entrant efficient alternative leasing course already seen telric tolerates degree inefficient pricing existing configuration requirement ratemaking development lags described aside however least two objections generally undercut desirability alternatives may seem offer telric first objection turns fact lease rate compensates lessor degree existing inefficiency least perspective long run simply higher rate difference higher rate telric rate difference keeps potential competitor entering market see infra cf first report order areas efficient means providing competing service may use unbundled loops cases preventing access unbundled loops either discourage potential competitor entering market area thereby denying consumers benefits competition cause competitor construct unnecessarily duplicative facilities thereby misallocating societal resources telric rate bottleneck elements elements say switches entering competitor provide efficient switch amounts rate enter market lease rate bottleneck elements higher say reflect inefficiency bottleneck elements actually cost incumbent entrant kept better risk keeping potential entrants induce compete less facilities lessened incentives build bottleneck facilities obviously unreasonable fcc prefer second general objection turns incumbents attack telric incumbents alternatives problem telric entrant never build instant builds competitors lease analogous existing less efficient element incumbent rate assuming efficient marginal cost problem persists incumbents methods soon entrant builds efficient element incumbent forced price rate available competitors point course things simple said telric price adjustment instantaneous rates leased element corresponding innovating entrant efficient element presumably true incumbents alternative methods though come say get details specific alternative methods infirmities become evident undermine claim fcc reasonably preferred telric methodology problem method relies part historical cost cost incumbents say actually incur leasing network elements pass lessees difference cost embedded see first report order cost difference inefficiency whether caused poor management resulting higher operating costs poor investment strategies inflated capital depreciation leased elements priced according embedded costs incumbents pass inefficiencies competitors need wholesale elements extent defeat competitive purpose forcing efficient choices carriers whether incumbents entrants upshot higher retail prices consumers pay course objections inefficiency method ratemaking relies embedded costs allegedly reflected incumbents data possibilities manipulation presents even incumbents built operating leased elements economically efficient costs temptation remain overstate book costs ratemaking commissions perpetuate intractable problems led innovation see supra even argument act forbids methods fcc rejected absolutistic reading statute first report order seems safe say statutory language places heavy presumption method resembling traditional model least proposing alternative counterintuitive way show selecting telric unreasonable incumbents say fcc unreasonable pick telric method ratesetting commonly called efficient component pricing rule ecpr see brief respondent qwest communications international nos ecpr base rate leased element efficient incremental cost presumably something like telric plus opportunity cost incumbent entrant leasing element provides competing telecommunications service using see iowa utilities board breyer concurring part dissenting part sidak spulber deregulatory takings regulatory contract first report order opportunity cost pegged retail revenue loss suffered incumbent entrant provides service stead former customers ibid fcc rejected ecpr calculation opportunity cost relied existing retail prices monopolistic markets bore relation efficient marginal cost conclude ecpr improper method setting prices interconnection unbundled network elements existing retail prices used compute incremental opportunity costs ecpr moreover ecpr provide mechanism moving prices towards competitive levels simply takes prices given effect adjustment opportunity cost turns retail prices generated embedded costs pass inefficiencies vulnerable asymmetries information ratemaking straightforward third category alternative methodologies proposed focuses costs intermediate term fixed costs unavoidable opposed telric long run see supra defining long run fundamental intuition underlying method ratesetting competition actually favored allowing incumbents rate recovery certain fixed costs efficiently incurred intermediate term commonly proposed variant recovery ratesetting ramsey pricing see iowa utilities supra breyer concurring part dissenting part ramsey pricing originally theorized method discriminatory taxation commodities generate revenue minimal discouragement desired consumption ramsey contribution theory taxation econ underlying principle goods taxed priced according demand taxes prices higher goods demand relatively inelastic train optimal regulation economic theory natural monopoly applied wholesale market ramsey pricing allow rate recovery certain costs incurred incumbent marginal cost costs associated providing unbundled network element fixed unavoidable intermediate run typically term rate arbitration agreement specific mechanism recovery wholesale lease rates spread costs across different elements leased according demand particular element first report order cf mitchell vogelsang telecommunications pricing theory practice thus demand among entrants loop elements high compared demand switch elements higher proportion fixed costs added premium lease rate switch lease rate feature appears drawback used method setting rates wholesale market unbundled network elements elements demand among entrants highest costly bottleneck elements duplication neither likely desired high lease rates elements rates likely deter market entry earlier example showed rate bottleneck elements went competitor kept fcc said conclude allocation methodology relies exclusively allocating common costs inverse proportion sensitivity demand various network elements services may used conclude allocation unreasonably limit extent entry local exchange markets allocating costs thus raising prices critical bottleneck inputs demand tends relatively inelastic allocation costs undermine objectives act first report order omitted end day theory aside claim telric unreasonable matter law simulates produce competition founders fact entrants presented figures showing invested new facilities tune billion since passage act see association local telecommunications services local competition policy new economy hearing house committee energy commerce ser statement james henry managing general partner greenfield hill capital llp see also glover epps telecommunications act working admin rev billion invested fcc statistics indicate substantial resort pure partial competition among three entry strategies june percent entrants using facilities percent reselling services percent leasing network elements percent entrants leasing loops switching percent without switching see fcc local telephone competition status june tables incumbents contradict figures merely speculate investment much ratemaking approaches note investment recently shifted nonfacilities entry options course idea whether different pricing scheme generated even greater competitive investment billion entrants claim suffices say regulatory scheme boast substantial competitive capital spending period easily described unreasonable way promote competitive investment incumbents second reason calling telric unreasonable exercise fcc regulatory discretion supposed incapacity methodology provide enough depreciation allowance capital costs induce rational competition theory terms challenge must assessed background utilities customary preference extended depreciation schedules ratemaking preserve high rate bases see supra already noted consequence utilities approach book value embedded costs capital presented traditional ratemaking bodies often bore little resemblance economic value capital see fcc releases audit reports rbocs property records report cc wl fcc ook costs may overstated approximately billion huber et al know early bell system accumulated vast library accounting books belonged alongside novels works fiction widely estimated book value telephone company investments exceeded market value billion dollars telric seeks avoid problem basing valuation market price efficient elements rates figured reference hypothetical element instead incumbent actual element incumbent gets unfair advantage favorable depreciation rates traditional sense according incumbents fatal competition argument telric result constantly changing rates based ever cheaper efficient technology incumbents unable write new piece technology rapidly enough anticipate even newer gadget portending new lower rate stuck say sunk costs less efficient plant equipment investment unrecoverable depreciation increased risk unrecognized argument however rests upon fundamentally false premise telric rules limit depreciation capital costs ratesetting commissions may recognize fact telric prescribes fixed percentage rate capital costs recognizes particular useful life basis calculating depreciation costs contrary fcc committed considerable discretion state commissions matters based current record conclude currently authorized rate return federal state level reasonable starting point telric calculations incumbent lecs bear burden demonstrating specificity business risks face providing unbundled network elements interconnection services justify different cost capital depreciation rate may adjust cost capital party demonstrates state commission either higher lower level cost capital warranted without commission conducting rate based proceeding note cost capital need uniform elements intend issue appropriate cost capital ongoing basis particularly light state commissions experiences addressing issue specific situations first report order order thus treated capital costs rates depreciation mere starting points adjusted upward incumbents demonstrate need calculating leased element rates commission specifically permits favorable allowances costs capital depreciation generally allowed traditional ratemaking practice incumbents fallback position existing rates depreciation costs capital even reasonable starting points unpersuasive depreciation rates well start asking serious threat may galloping obsolescence requiring commensurately rising depreciation rates answer support incumbents plant makes least percent elements incumbents provide see first report order ocal loop plant comprises approximately billion total plant service represents percent network plant technology certain elements like switches evolved rapidly recent years loop technology generally gone copper wire cable past couple decades see supra less percent telephone lines employ technologies copper fiber informed specter imminently obsolescent loops requiring radical revision currently reasonable significant fcc found general matter federally prescribed rates depreciation counterparts many fairly date current state telecommunications technologies different elements see first report order costs capital competition fact slow materialize retail markets june incumbents retained percent share markets fcc local telephone competition status june table whether fcc assumption adequate risk adjustment based hypothetical actual competition seems fair say rate percent mentioned fcc first report order reasonable starting point return equity calculations based current lack significant competition markets basic weakness incumbents attack indeed tendency argue highly general terms whereas telric rates calculated basis individual elements telric rates leave plenty room differences appropriate depreciation rates capital costs depending nature technology specific element priced switches loops example matter even blanket assumption telric valuation estimated purchase price efficient element necessarily lower actual costs current elements suspect new york public service commission example used cost expensive cable basis telric loop fixed rates notwithstanding fact competitors argued cheaper loop efficient voice communications underlying valuation loop rates see lodging material respondents worldcom et al opinion effective apr opinion order setting rates first group network elements light many different telric rates calculated state commissions across country see brief petitioners worldcom et al millions commission prescription general starting point reasonable enough finally incumbents accusation telric complicated practical criticism least telling leveled traditional ratemaking methodologies alternatives proffered one important potential advantage lric approach however relative ease calculation rather estimate costs reflecting present incumbent network difficult task even incumbents provided reliable data possible generate lric estimates based green field approach assumes construction network scratch app reply comments national telecommunications information administration may extent traditional model generally relied embedded costs similar sorts complexity reckoning exacerbated asymmetry information much utilities benefit see supra see record suggests telric rate proceedings surprisingly affairs incumbents competitors typically presenting two conflicting economic models supported expert testimony state commissioners customarily assigning rates based predictions one model others counterpart see lodging material respondents worldcom et al pub serv determination cost basic local telecommunications service pursuant section florida statues issued pub serv opinion supra bottom battles experts bound part ratesetting scheme fcc reasonable prefer telric alternative schemes preserve advantages incumbents say whether passage time show competition prompted telric illusion telric appears reasonable policy counts see chevron incumbents failed show telric unreasonable terms largely fall trap mischaracterizing fcc departures assumption perfectly competitive market limitation regulatory development lags refusal prescribe high depreciation capital costs inconsistencies rather pragmatic features telric plan shown unreasonable fcc pick telric alternative methods presented evidence rebut entrants figures level competitive investment markets short incumbents failed carry burden showing unreasonableness defeat deference due commission therefore reverse eighth circuit judgment insofar invalidated telric method setting rates act incumbents claim telric inherent inadequacy deal depreciation capital costs counterpart argument seek apply rule constitutional avoidance saying cost construed reference historical investment order avoid serious constitutional question whether methodology divorced investment actually made lead taking property violation fifth fourteenth amendment eighth circuit think serious question offing neither outset well understand incumbent carriers present portent constitutional taking claim way usual ratemaking cases argue particular actual telric rate unjust confiscatory threatening incumbent financial integrity duquesne light indeed incumbent carriers even presented us instance telric rates set approved state commissions reviewed first instance federal district courts despite fact apparently put rates place already using telric see first report order accompanying footnotes number already employ plans utilize form incremental cost methodology approach setting prices unbundled network elements want rate reviewed significant given never considered taking challenge ratesetting methodology without presented specific rate orders alleged confiscatory see duquesne light supra denial million million increases rate bases electric utilities smyth ames indful distinctive function enforcement constitutional rights refused bound artificial rule formula changed conditions might upset undeniably general rule question constitutionality ratesetting raised rates methods means policy construing statute avoid constitutional questions possible presumptively place construing statutes prescribing methods incumbents say action one rare ones placed outside general rule signs strong ignore takings occur telric interpretation allowed first compare level entire network opposed industry indications historical investment local telephone markets corresponding estimate telric evaluation cost build new efficient national system local exchanges providing universal service brief petitioners pp estimated billion new system incumbents juxtapose value representing total plant industry balance sheet roughly billion argue huge unreasonable difference proof telric necessarily result confiscatory rates ibid citing fcc statistics communications common carriers table line comparison however spurious numbers assumed incumbents clearly wrong one side billion supposed based constructing barebones telephone network fails cover elements associated advanced telecommunications services incumbents required provide lease see application bell atlantic new york authorization section communications act fcc rcd aff cadc see also joint bd universal fcc rcd explaining model may appropriate determining prices unbundled network elements know much higher efficient replacement figure reasonably assume billion low side comparison balance sheet number patently misstated explained rates traditional model calculated rate base whether fair value cost service subject deductions accrued depreciation see phillips net plant investment depreciation billion billion fcc statistics communications common carriers table line amount less telric figure incumbents like us assume even increase billion amount net current liabilities billion balance sheet line minus line rough generous estimate allowance cost service rate base billion still far cry billion incumbents tout less percent incumbents billion telric figure best numbers may position say point numbers thrown incumbents evidence telric lease rates confiscatory sight unseen incumbent carriers second try nonrate constitutional litigation focuses reliance interests allegedly jeopardized intentional switch ratesetting methodologies rely duquesne held usual ratesetting methodology normally judged overall impact rate orders went dicta remarked state decision arbitrarily switch back forth methodologies way required investors bear risk bad investments times denying benefit good investments others raise serious constitutional questions words may taking challenge distinct objection arbitrary capricious agency action ratemaking body make opportunistic changes ratesetting methodologies minimize return capital investment utility enterprise duquesne need decide whether might exception requirement claim taking rates reason decide whether policy constitutional avoidance invoked order anticipate taking claim reason case incumbent carriers like electric utilities duquesne failing present evidence decision adopt telric arbitrary opportunistic undertaken confiscatory purpose know much contrary first switch methodologies since wholesale market leasing network elements something brand new act replacement predecessor methods much less opportunistic switch back forth extent incumbents argue least expectation historically anchored method set wholesale lease rates promise ever made first report order ontrary assertions incumbents regulation guarantee full recovery embedded costs guarantee exceed assurances fcc provided past cf duquesne supra investor paying attention realize rely indefinitely traditional ratemaking methods simply rely constitutional bar confiscatory iv effort government competing carriers overturn eighth circuit invalidation additional combination rules cfr draws incumbents threshold objection challenge barred waiver since petition review invalidation rule extend eighth circuit simultaneous invalidation four companion rules rules incumbents must course acknowledge appeals sua sponte invited briefing status rules remand reinstatement rule iowa utilities demands orderly procedure due procedure means achieving justice according law require case brought review administrative action rulings agency upon party seeks reversal available presented otherwise promoting sporting theory justice potential cost substantial expenditures agency time allow counsel withhold save later stage procedural error tend foist upon constitutional decisions avoided errors invoked earlier think communist party blocks consideration rules issue raised petitioner failure earlier trip pursue procedural objection agency action litigation procedural point obviated need review constitutionality act congress case got saved five years litigation time board appeals twice reconsidered steadily growing record time petitioner sought review procedural point nothing like said cases addressing issue make waste years efforts fcc appeals threaten leave constitutional ruling pointless direct attention isolated procedural error agency invalidation fcc rules meant general continuing applicability indication litigation tactics behind failure last time appeal rules reexamined remand behest government competing carriers issue pressed passed upon federal williams internal quotation marks omitted subject broad discretion questions chooses take certiorari good reasons look rules appeals passed significant issue one placed state flux see virginia bankshares sandberg citations omitted split cases us west communications mfs intelenet affirming identical rules cert denied accordingly rejected incumbents claim waiver raised opposition petition certiorari reject today see stevens department treasury eighth circuit found four additional combination rules odds plain language final sentence quote fully ach incumbent local exchange carrier duty provide requesting telecommunications carrier provision telecommunications service nondiscriminatory access network elements unbundled basis technically feasible point rates terms conditions reasonable nondiscriminatory incumbent local exchange carrier shall provide unbundled network elements manner allows requesting carriers combine elements order provide telecommunications service bundling combination related distinct concepts bundling lease pricing provide network element unbundled basis lease element however described requesting carrier stated price specific element iowa utilities board fcc regulations identify advance certain number elements separate pricing cfr regulations limit elements subject specific rates separately priced element need simplest possible configuration equipment function predesignated unbundled element might actually comprise items considered separate elements example require incumbent lecs provision subloop elements together constitute local loop incumbent lecs must still provision local loop single combined element requested identify local loops single element proceeding first report order combination provided rules hand refers mechanical connection physical elements within incumbent network connection competitive carrier element incumbent network manner allow requesting carrier offer telecommunications service additional combination rules best understood meant ensure statutory duty provide unbundled elements gets practical result separate rate unbundled element much good incumbent refuses lease element except combination others competing carriers need incumbents refuse allow leased elements combined competitor equipment happening fcc devised combination rules incumbents according fcc findings refusing give competitors technicians access physical plants make necessary connections implementation local competition provisions telecommunications act fcc rcd third report order petitions review pending sub nom telecom assn fcc nos etc cadc challenged additional combination rules issued include two substantive two procedural latter independent significance rule requires incumbent perform functions necessary combine unbundled network elements manner even elements ordinarily combined incumbent network long combination echnically feasible ould impair ability carriers obtain access unbundled network elements interconnect incumbent network companion rule likewise requires incumbent combining network elements leases requesting carrier elements long technically rules challenged alternatively inconsistent statutory plain language unreasonable interpretations plain language question sentence incumbent local exchange carrier shall provide unbundled network elements manner allows requesting carriers combine elements order provide telecommunications service eighth circuit read unambiguously excusing incumbents obligation combine provided elements ruling familiar ring reason appeals invalidated rules along rule inconsistent plain limit incumbents obligation provide elements unbundled basis language plain course true statute violated literally incumbent provided elements requesting carrier combine thereafter sat hands combining done whether plain incumbents right sit question context much grammar congress treated incumbents entrants equals probably plain enough incumbents obligations stopped furnishing element combined act however proceeds understanding incumbent monopolists contending competitors unequal cf additional obligations incumbent local exchange carriers within actual statutory confines obligating incumbents furnish congress negated duty combine inconsistent obligation furnish expressly mentioned thus takes stretch get permissive statutory silence statutory right part incumbents refuse combine requesting carrier say unable make combination first report order may even unaware needs combine certain elements provide telecommunications service instances additional combination rules obligate incumbents according fcc clarification first report order conclusion language open certainly harmony required holding iowa utilities board dealing rule reinstating rule rejected argument furnishing elements unbundled basis must mean physically separated leaves fcc rules intact unless incumbents show unreasonable decision whether rules survive chevron step two iowa utilities board sure less immediate help since case found rule reasonable prevented incumbents dismantling existing combinations sabotage competitors whereas deal splitting joining together think nonetheless additional combination rules reflect reasonable reading statute meant remove practical barriers competitive entry markets avoiding serious interference incumbent network operations outset well repeat duties imposed rules subject restrictions limiting burdens placed incumbents obligation part incumbent combine elements entrant rules arises entrant unable job first report order carrier unable combine elements incumbent must incumbent obligation rules specify duty perform functions necessary combine necessarily complete actual combination cfr entrant must pay reasonable fee whatever incumbent brief petitioner federal parties nos see also force objections limited fcc implementation rules statutory conditions incumbents duty arises requested combination discriminate carriers impeding access requested combination technically feasible latter restriction commission decline adopt view proffered parties incumbents must combine network elements technically feasible manner requested first report order concern rule potentially affect reliability security incumbent network ability carriers obtain interconnection request use unbundled elements ibid thus incumbents wrong claim restriction technical feasibility places minimal limits duty combine since first report order makes clear technically feasible mean merely economically reasonable simply practical possible engineering sense see limitation meant preserve network reliability security combination technically feasible impedes incumbent carrier ability retain responsibility management control performance network demanding sense technical feasibility condition protecting incumbent ability control performance network accord said iowa utilities board example reinstated commission pick choose part duty provide network elements matching terms comers arise technically feasible technically feasible meant merely possible limitation two substantive rules additional features consistent purposes rule extent raises duty combine ordinarily combined neatly complements facially similar rule upheld iowa utilities forbidding incumbents separate currently combined network elements entrant requests combined form latter rule incumbent might well within rights insist example providing loop switch combined form na entrant asked refusing later combine network interface device also ordinarily combined loop switch necessary set telecommunications link rule entrant later requires element missed first time incumbent obligation perform functions necessary cfr combination entrant combine alone first report order needed combine known enough request elements together combined form first place cf first report order ncumbent must work new entrants identify elements new entrants need offer particular service manner new entrants intend course aspect rule requiring combination ordinarily combined draws incumbents justice breyer see post principal objection focus attack rather additional requirement rule incumbents combine unbundled network elements even elements ordinarily combined incumbent network cfr build upon previous example seemingly require incumbent combine loop switch interface ordinarily combined network second loop network interface provided incumbent separate unbundled element competitive carrier charge connection fax modem see brief petitioners worldcom et al providing example provision rule justified statutory requirement nondiscriminatory access said fcc interpreted rule obligating incumbent combine carrier unable combine elements first report order dispute incumbent make combination efficiently entrant contested incumbent provide combination customer wanted combination otherwise served business purpose see third report order hardly seems unreasonable require incumbent make combination entitled reasonable fee otherwise entrant enjoy true nondiscriminatory access notwithstanding bare provision unbundled basis network elements needs provide service rule hard see rule less reasonable imposes statutory duty interconnect rule simply requires incumbent perform functions necessary combine unbundled elements provides elements owned requesting carrier technically feasible manner essentially appears nothing version incumbents statutory duty provide facilities equipment requesting carrier interconnection local exchange carrier network sum rules say incumbent shall payment perform functions necessary cfr combine network elements put competing carrier equal footing incumbent requesting carrier unable combine first report order place incumbent disadvantage operating network place competing carriers competitive disadvantage cfr duty consistent act goals competition nondiscrimination imposing sensible way reach result statute requires act sought bring competition markets part requiring incumbent carriers lease elements networks rates attract new entrants efficient lease build resell whether fcc picked best way set rates stuff debate economists regulators versed technology telecommunications microeconomic pricing theory job judges ask whether commission made choices reasonably within pale statutory possibility deciding items must leased way set rates leasing fcc pricing additional combination rules survive scrutiny judgment appeals reversed part affirmed part cases remanded proceedings consistent opinion ordered justice took part consideration decision cases verizon communications et petitioners federal communications commission et al worldcom et petitioners verizon communications et al federal communications commission et petitioners iowa utilities board et al petitioners iowa utilities board et al general communications petitioner iowa utilities board et al writs certiorari appeals eighth circuit may justice breyer justice scalia joins part vi concurring part dissenting part agree majority telecommunications act act telecommunications act et seq ed supp require historical cost pricing system also agree present time taking incumbent firms property violation fifth amendment occurred disagree however conclusion specific pricing unbundling rules issue authorized act primary goal telecommunications act promote competition reduce regulation local telecommunications markets preamble stat see also conf part effort act requires incumbent local telecommunications firms make certain elements local systems available new competitors seeking enter local markets supp incumbents competitors agree price incumbent charge new entrant local regulators determine price regulated price depend upon element cost iowa utilities held act authorizes fcc set rules determining prices cases require review commission rules rules create version commission calls total element incremental cost system telric see kahn tardiff weisman telecommunications act three years economic evaluation implementation federal communications commission info econ policy lodged clerk referring fcc system slate hereinafter kahn essence commission requires local regulators determine cost supplying particular incumbent network element new entrant looking cost incumbent supply element past looking cost incumbent supply element future rather regulator must look cost hypothetical perfectly efficient firm supply element future assuming hypothetical firm build essentially scratch new perfectly efficient communications network concession incumbent actual network presumption presently existing wire centers hold switching equipment local area remain current locations see implementation local competition provision telecommunications act fcc rcd hereinafter order describing telric based costs assume wire centers placed incumbent lec current wire center locations reconstructed local network employ efficient technology reasonably foreseeable capacity requirements example help explain system understand imagine incumbent local telephone company major switching center say downtown chicago cables wires run conduits along poles subsidiary switching equipment electronic equipment eventually equipment telephone handsets computer modems fax machines located office buildings private residences new competitor law entitles use element incumbent firm system asks use element say single portion system thereby obtaining access downtown office buildings commission telric incumbent cost upon rates must based equals real resources chicago incumbent must spend provide element demanded resources hypothetical perfectly efficient new supplier spend supplier rebuilding entire downtown chicago system local wire center scratch latter figure course might different incumbent actual costs reviewing must determine among things whether commission abuse statutorily delegated create implementing rules motor vehicle mfrs assn state farm mut automobile ins quoting administrative procedure act must assume congress intended grant commission broad legal leeway respect substantive content rules citizens preserve overton park volpe fpc hope natural gas particularly since subject matter highly technical one namely ratemaking agency possesses expert knowledge chevron natural resources defense council nonetheless leeway unlimited bounded example scope statute grants authority need agency show rational connection regulations statute purposes state farm must determine whether despite leeway given experts technical subject matter agency regulations exceed legal limits see overton park supra administrative procedure act requiring agency action set aside arbitrary capricious abuse discretion otherwise accordance law reluctantly come conclusion considering incumbents objections commission responses find rational connection statutory purpose implementing regulation law demands state farm supra ii critical legal problem concerns relation commission regulations statute purpose must ask outset purpose relevant statutory provision says agency shall set rate elements based cost first blush word cost calls mind traditional see natural gas act natural gas act stat interstate commerce act supp federal aviation act supp ii repealed see also ante discussing traditional bonbright danielsen kamerschen principles public utility rates ed hereinafter bonbright implementation sections cable television consumer protection competition act rate regulation fcc rcd commission rules referring riginal cost traditional basis public utility valuation agency engaged traditional ratemaking seek protect consumers mandating low prices end result agency sometimes try mimic prices believes hypothetically regulated firm often legal monopoly set unregulated firm competitively structured industry see ante bonbright economists declared prices result without regulation pure perfect competition ideal prices kahn economics regulation principles institutions hereinafter economics regulation traditional legal criteria proper public utility rates always borne strong resemblance criteria competitive market equilibrium commission regulations least arguably consistent agency effort find prices replicate end results theoretically perfect competition see order regulatory objective low prices objective relevant statutory provision telecommunications act ratemaking statute seeking better regulation deregulatory statute seeking competition assumes given modern technology local telecommunications markets may prove large enough several firms compete provision services necessarily services without serious economic waste finds competitive process indirect effective way bring common objectives competition regulation alike namely low prices better products efficient production methods authorizes commission promulgate rules help achieve procedural goal substitution competition regulation local markets transformation economically feasible see ante accepting rationale act authorize commission promulgate rules hinder transition regulated competitive marketplace whether rules directly mandate lower element prices along way five considerations taken together convince description statutory goal given accurate one first act says objective substitute competition regulation preamble stat stating goal act promote competition reduce regulation local long distance telecommunications markets see also conf ante second act history suggests congress thought goal reasonable one century history telecommunications markets primarily one regulation decades experts justified regulation ground telecommunications providers natural monopolists telecommunications markets support one firm efficient size see ante beginning technological developments led change expert opinion undermining natural monopoly rationale long distance telecommunications markets seemed newly capable supporting several competing firms without significant economic waste see vietor contrived competition regulation deregulation america opinion began change similarly respect local markets case local markets however change marked hesitation lingering uncertainty see huber kellogg thorne federal telecommunications law ed hereinafter huber huber kellogg thorne geodesic network ii report competition telephone industry local telecommunications service long demanded expensive fixed investment example digging streets lay cables stringing wires overhead poles see ante whether extent new competitor replicate avoid kind investment without significantly wasting resources remained unclear see huber thus time congress wrote new act technological development seemed permit nonwasteful competition respect aspects local service respect aspects incumbent local telecommunications provider might continue possess natural monopoly advantages circumstances made reasonable congress try secure local competition insofar competition prove economically feasible competition prove seriously wasteful see order see also recognizing local markets support one firm third act structure language indicate congressional effort secure end act dismantles artificial legal barriers new entry local markets thereby permitting new firms enter wish see ante act recognizes simple permission may prove sufficient perhaps incumbent retain natural monopoly form control certain necessary elements service consequently goes promote new entry three ways see ante first requires incumbents interconnect new entrants price determined regulations us thereby allowing new entrant small set subscribers connect incumbent firm likely larger customer base second requires incumbents sell retail services new entrants wholesale rates thereby allowing newly entering firms automatically compete retailing desire third requires incumbents provide new entrants access network elements say telephone lines connecting homes offices switching centers unbundled basis third requirement permits new entrant compete selectively without replicating substituting elements incumbent uses offer service question suppose example incumbent control certain existing cables lines switching equipment put new entrant economic disadvantage duplication elements prove unnecessarily expensive new act require new entrant incumbent compete respect elements say wasteful duplication rather act permits new entrant offer compete respect related service obtaining access therefore using elements incumbent network finding elements necessary service railroad regulator anxious promote railroad competition city city aware prove wasteful duplicate certain railroad bridge across mississippi river ordered bridge owner share bridge new competitors sharing avoid wasteful duplication resource namely bridge time facilitate competition remaining aspects railroad service assume act says elements must shared access necessary respect failure provide access impair ability new entrant provide services seeks offer see iowa utilities commission must give substance necessary impair requirements cf breyer concurring part dissenting part stating necessary impair provision object require access thereby force sharing elements incumbent system prove significant degree economically wasteful duplicate put matter concretely imagine communications firm potential new entrant wishes sell voice data text pictures entertainment communications services perhaps competition incumbent firm must decide service reach customer inside house office firm run new cable house run wires electricity conduit communicate without wires say wireless satellite use incumbent pair twisted copper telephone service wires already place potential new entrant claims last possibilities impractical far expensive using existing telephone wires far cheaper terms real resources expended alternatives new entrant claiming incumbent wires kind bridge must access may ask regulator make new entry feasible requiring incumbent permit use element reasonable price fourth commission described act goals including promotion nonwasteful competition preamble commission price regulations describes statutorily based aim giv ing appropriate signals producers consumers ensur ing efficient entry utilization telecommunications infrastructure order emphasis added commission also says prices potential entrants pay elements reflect economic costs order encourage efficient levels investment entry emphasis added adds congress specifically determined input prices based costs foster competition retail market see also fifth solicitor general confirmed view oral argument said rates question set order encourage new entrants come market tr oral arg allow enter market competitive rates encourage develop new technologies statute seeks new local market competition insofar local markets support competition without serious waste must read relevant rate setting provision including critical word cost goal mind iii commission critics verizon incumbents experts whose published articles verizon lodged concede statute grants commission broad authority define cost also concede every system flaws cf missouri ex rel southwestern bell telephone public serv brandeis joined holmes dissenting criticizing reproduction cost systems administrative difficulty determining costs economics regulation criticizing historical cost systems failure provide proper incentives nonetheless critics argue commission lawfully choose system thwarts basic statutory purpose without offering significant compensating advantage take relevant purpose furthering local competition feasible see part ii supra add rates purpose discourage new firms using incumbent facilities elements significantly less expensive economically speaking entrant build buy elsewhere encourage new firms use incumbent facilities significantly less expensive economically speaking entrant point prices approximately reflect actual incumbent actual additional costs supplying services element demanded come close things see kahn prices set incremental cost cost supplying added increment give challengers proper target shoot cost reflects cost society actually incur purchase resources save purchase less knieps interconnection network access fordham see also sidak spulber deregulatory takings regulatory contract arguing efficient component pricing rule satisfies objectives fcc misunderstood system prices like commission based costs hypothetical efficient firm incur hypothetically building largely scratch order neither indeed exactly opposite creating incentives hinder rather statute basic objective first critics ask given system new entrant ever build buy new element commission system sets incumbent compulsory leasing rate level rarely exceed price building buying elsewhere commission system chooses basis hypothetical cost efficient method providing relevant service cost entering house use electrical conduits using wireless cheaper general applies costs based say hypothetical wireless cost system place twisted pair wires new entrant use electrical conduit wireless system enter house definition commission require incumbent lease pair twisted wires equivalent price lower whether incumbent spend fact provide twisted wires rules discourage independent building buying assessing special penalty upon new entrant entrant worry soon another newer new entrant insist upon sharing incumbent equivalent element still lower price based subsequent technological developments commission system tend create instances incumbent actual future cost maintaining element say set wires exceed new entrant cost building buying elsewhere say wireless wires electrical conduits turn equal even exceed hypothetical future best practice cost namely experts decide general cheapest case related cases technological improvements actual predicted tend offset various cost differences new entrant uneconomically share incumbent facilities leasing rather building buying elsewhere result assumed circumstances wasteful undermines efficiency goal majority claims act seeks achieve compare ante sharing facilities wire pairs result embodies consistent competition act written promote firms share existing facilities compete respect facilities share several grain producers auction grain single jointly owned market compete respect auction services cf iowa utilities supra breyer concurring part dissenting part unshared shared portions enterprise meaningful competition likely emerge yet rules combine strong monetary incentive share broad definition network element see order tend produce widespread sharing entire incumbent systems regulatory supervision result different competitive market statute seeks create see iowa utilities supra affirming commission broad definition network element least rules inconsistent commission view sometimes serve transitional arrangement fledgling competitors develop customer base complete construction networks implementation local competition provisions telecommunications act fcc rcd third report order given pricing rules fledgling competitors ever try fly second incentive commission rules leave incumbents either innovate invest new element rules seem say incumbent share competitors benefits successful innovation leaving incumbent bear costs unsuccessful investments see infra investment stagnate see jorde sidak teece innovation investment unbundling yale reg makes economic sense incumbent invest technologies lower marginal costs long competitors achieve identical cost savings regulatory fiat sidak spulber deregulation managed competition network industries yale reg deprived return capital facilities capital sunk irreversible investments faced reduced returns investments already made economically rational company eliminate reduce similar capital investments future armstrong scoffs possible common carrier status telecommunications reports chief executive officer supports commission regulations cited huber company invest billions dollars competitors invested penny capital taken ounce risk come along get free ride investments risks recognize regulator likely enforce commission rules strictly investment literally slows trickle indeed majority cites figures showing past several years new firms invested billion local communications markets see ante know much investment represents facilities say broadband incumbent historical network offers substitute know whether number small large compared might compare federal communications commission statistics common carriers edition table federal communications commission statistics common carriers edition table federal communications commission statistics common carriers edition table federal communications commission statistics common carriers edition table incumbents similar investment period amounts billion compare federal communications commission statistics common carriers edition table total depreciated investment plus working capital equals billion ante new entrants market share provided entrants facilities alone regardless given incentives independent investment seem made despite start scratch rules best statistics show least coincidences describe happily commission public alike come pass see infra critics mention several problems well say example commission regulations exacerbate problem stranded costs need incumbent recover reasonable technologically outdated historical investment see supra add regulations make nearly redundant statute provisions element rates set negotiation see given commission regulations much negotiate regulations entitle new entrant price equal lower price rational incumbent agree see brief mathias worldcom technologies practical matter carriers little incentive negotiate critics view regulations possess offsetting advantages lack ease administration led justices holmes brandeis favor use ratesetting purposes incumbent historic costs despite economic inaccuracy see southwestern bell telephone dissenting opinion see also ante hypothetical nature commission system means experts must estimate imaginary firms rebuild systems scratch whether example hypothetically receive permission dig streets maintain unsightly telephone poles share pole costs users say cable operators must estimate turn efficient hypothetical future circumstances speculative nature enterprise critics say lead battle experts asking commission favor amount little guess see kahn describing three models introduced regulatory proceedings one reduced actual expenses railroad regulation brought similar efficiency gains another assumed utilities including electricity producers rebuild entire systems scratch time third assumed new hampshire telecommunications system administratively efficient reduced actual administrative expenses administrative difficulties seem far greater difficulty likely involved effort determine actual incumbent actual past likely future costs see affidavit baumol ordover willig comments cc docket matter implementation local competition provisions telecommunications act may app telric estimates simply accept architecture sizing technology operating decisions incumbents bases calculating costs assumptions inevitable resulting uncertainties mean somewhat random sort rate either exacerbate incentive problems previously mentioned alleviate problems kind regulatory coincidence see ante describing state commissioners customarily assig rates based predictions one model others counterpart iv criticisms described part iii serious potentially severing rational relation commission regulations statutory provision basic purposes state farm hence commission responses important responses reduce force criticisms blunt edges suggest offsetting virtues found six major responses none convincing first fcc points rates include charge reflecting hypothetical costs also depreciation charge charge reconcile firm initial historic investment say equipment equipment current value diminishes time see order roperly designed depreciation schedules account expected declines value capital goods example incumbent reasonable investment measured actually historically came million fcc experts predict future replication cost million depreciation charge permit incumbent recoup otherwise missing million theory state commission might structure potentially complex depreciation charge permit recovery historic investment also offset many improper investment incentives described part ii supra response however reflect commission regulations actually say regulations say nothing permitting recovery reasonable historic investment varying charge offset perverse investment incentives rather strongly indicate opposite clearly require state commissions use current depreciation rates right alongside commission new different charges see order create exception current rates take advantage exception incumbent lecs bear burden demonstrating specificity business risks face providing unbundled network elements interconnection services justify different depreciation rate ibid unless exception swallow rule term business risks must refer special situation ordinary circumstance new entrant simply asks share element rates determined commission rules event state commissions read language see biennial regulatory review review depreciation requirements incumbent local exchange carriers fcc rcd fcc nowhere explicitly says contrary hence fcc depreciation rules written respond critics claims ordinary case otherwise transform system system reflects historic costs second fcc points state commission adjust permissible profit rates theory adjustment offset many improper investment incentives described part ii supra like depreciation regulations profit regulations say nothing matter indeed like depreciation regulations suggest opposite relevant fcc regulations say currently authorized rate return federal state level reasonable starting point order emphasis added add exception available incumbent lec successfully bear burden demonstrating specificity business risks face providing unbundled network elements interconnection services justify different cost capital ibid exception like depreciation exception respond critics claims ordinary case similar reasons fcc adds time offer tentative guidance reply brief federal parties profits may high order incumbents may find ways lower capital costs additions however concede critics basic point profit rules written provide answer part iii claims rather considered response claims must rest upon hope regulatory coincidence significantly hope current market conditions mean current profit rates somehow magically offset adverse effects commission regulations see part iii supra see reply affidavit hausman submitted reply comments telcom association cc docket fcc filed may app testifying critics profit rates double triple secure investment compare hubbard lehr capital recovery issues tslric pricing response professor jerry hausman july app arguing fcc defenders hausman overstates need change stating adjustments required adjustments modest majority relies belief hope realized ante stating light fact competition fact slow materialize seems fair say current rate reasonable starting point course one must sympathize fcc time problem statute require fcc quickly create complex system rather statute seems foresee rates set fcc regulations primarily detail negotiations among parties state commissions see iowa utilities breyer concurring part dissenting part third commission supports reasonableness practicality system claim number used successfully several european nations order domestic experience find evidence prior promulgation rules issue state successfully implemented fcc version telric hardly surprising since several tried apply surprising implementation produced criticisms similar made see mci telecommunications gte northwest supp dc discussing problems fcc telric foreign nation part commission claim rests upon european community paper referring best current practice approach future goal see commission european communities recommendation interconnection liberalised telecommunications market http ispo infosoc telecompolicy en indeed britain fcc counterpart said absence showing inefficiency incumbent actual current expenditures capacity additions used starting point see office telecommunications oftel access bandwidth indicative prices pricing principles may http publications broadband llu fact understand european system may turn practice work roughly follows relevant european regulatory agency seeking competition encourages new firms enter local markets order provide new voice data text picture entertainment communications service like commission agency normally authority insist incumbent firm unbundle permit new entrant use pair twisted wires running switching center inside house also authority set prices exercising authority neither required likely rely upon one method rather may encourage negotiation among parties order reach prices low enough prevent incumbent blocking entry high enough encourage new firm consider entry methods use electricity conduits new cables economically feasible agreement reached regulator determining price use formulas modified take proper account depreciation historical cost look prices set european nations yardstick help produce competition less formal kind play ear system view statute us intended act provides price negotiation among parties brings state regulators necessary break deadlocks permits use variety different approaches looking experience appropriate order determine proper prices mysterious statutory parenthetical phrase determined without reference proceeding makes sense point view reflects congress desire obtain perfect prices speedy results specifies need use formal methods relying instead upon bargaining yardstick competition see iowa utilities supra breyer concurring part dissenting part cf order describing new york commission se prices basis recognize however fcc rejected approach favor extraordinarily complex national standards review determine whether serve obstacles competitive marketplace statute seeks fourth fcc adds system seeks base rates costs hypothetical efficient firm hypothetically incur building scratch system view simulate best replicat extent possible conditions competitive market order see also response however describe feature system upon critics focus attack previously said supra objective perhaps consistent ordinary ratesetting statute seeks low prices problem us lack rational connection regulations statute grows fact act typical regulatory statute asking regulators simply seek low prices perhaps trying replicate hypothetical competitive market rather statute deregulatory statute asks regulators create prices induce appropriate new entry see part ii supra may assume purely argument sake fcc rules successfully replicate prices toward perfectly efficient perfectly competitive markets tend see kahn stating prices never achieved actual market kahn gods destroy deregulate lodged clerk stating firm actual market determine efficient investment light actual system hypothetical system built scratch still rules successful produce strong incentives demand sharing strong disincentives build independently part ii describes create sharing interconnection price equal lower price associated creation independent facilities thereby tend towards system regulatory price setting supplant promote competition however congenial institutional regulators might find system differs dramatically system statute seeks bring see part ii supra cf iowa utilities supra setting aside commission rules granting new entrants power obtain access virtually existing element least claim underlies much criticism set forth part iii supra commission response system simulates conditions competitive market respond basic criticism fifth commission says regulations simply suggestive leaving free depart reply brief federal parties short conclusive answer response commission considered suggestive approach rejected see order refusing characterize rules setting forth requirements preferred outcomes latter approach fail establish explicit national standards arbitration fail provide sufficient guidance parties options negotiations sixth majority commission points local commissions likely leave given set rates effect period time regulatory lag solve problem see ante understand solve main problem leading new entrants lease costly incumbent element building buying independently prove less costly see supra given new entrant legal right obtain regulator decision certain lags prove significant event lags differ depending upon regulator time circumstance thereby introducing near random element might might ameliorate system otherwise adverse effects sum neither commission majority responses convincing judges long recognized difficulty reviewing substance highly technical agency decision making compare ethyl epa cadc en banc bazelon concurring best way courts guard unreasonable administrative decisions scrutinize technical merits establish process assures reasoned decision internal quotation marks omitted leventhal concurring stating judges must assure substantive review conformance statutory standards requirements rationality acquiring whatever technical background necessary emphasized limitations law imposes upon judges authority insist upon special agency procedures vermont yankee nuclear power natural resources defense council also made clear judges nonetheless must review rationality substance agency decisions including technical decisions state farm review requires agencies undertake difficult task translating technical matters language judges understand preparing technical responses challenges sort found despite difficulty review generalist judges important technical agency decisions often great importance general public law forbids agencies name technical expertise wrest free public control agencies course expert technical areas judge leventhal wrote judges reviewing rationality substantive decisions must act restraint ethyl agree added judges may abstain substantive review agree case critics claims strong suggest fcc pricing rule together original forced leasing twin see iowa utilities supra finding original leasing rule unlawful bring competitive marketplace statute demands highly regulated marketplace characterized widespread sharing facilities innovation technological change reflecting mandarin regulation rather decentralized based interaction freely competitive market forces commission replies unsatisfactory majority nonetheless finds commission pricing rules reasonable regulatory theory conclusion might supportable deregulatory statute circumstances amount abstention indeed abdication rational basis review agree record demonstrates rational connection regulations statutory purpose upon law insists state farm supra administrative procedure act see also state farm supra may supply reasoned basis agency action agency given judge leventhal properly put restraint yes abdication ethyl supra course pages careful analysis abdicate reviewing responsibility reasons stated agree substantive conclusion consequently affirm eighth circuit determination regulations unlawful vi disagree majority one legal issue statute imposes upon incumbent duty provide provision telecommunications service nondiscriminatory access network elements unbundled basis manner allows requesting carriers combine elements order provide telecommunications service emphasis added fcc pointing provision said upon request incumbents must combine among things elements ordinarily combined rules cfr incumbents ask statute speaks requesting carriers combining elements grant fcc authority insist incumbents combine elements iowa utilities supra found authority somewhat similar rule rule forbids incumbents uncombine elements ordinarily found combination majority recognizes ante different rule rests upon rationale absent incumbent takes apart elements ordinarily keeps together normally discriminating requesting carriers statutory provision forbids discrimination incumbent simply keeps apart elements ordinarily keeps apart absence new entrant demand discriminate discriminate statutory provision give fcc authority forbid find statutory authority consequently affirm lower point reasons dissent footnotes together worldcom et al verizon communications et federal communications commission et al iowa utilities board et iowa utilities board et general communications iowa utilities board et also certiorari footnotes justice scalia joins part iii opinion justice thomas joins parts iii iv section separately provides ratesetting respect reciprocal compensation interconnected facilities resale nationalization historical policy choice regulation telephone service many countries rejected cohen telephone problem road telephone regulation policy history hereinafter cohen vogel freer markets rules regulatory reform advanced industrial countries first noteworthy federal statute interstate commerce act stat principally concerned railroad rates generally governed interstate rates model subsequent federal statutes like federal power act stat communications act stat natural gas act stat civil aeronautics act stat communications act created fcc first statute address interstate telephone regulation independent substantive way federal regulation area previously undertaken incidentally general interstate carrier regulation interstate commerce act act stat earliest federal statute prescribing rates interstate foreign telephone telegraph carriers part revisions railroad rates set interstate commerce commission see vietor contrived competition regulation deregulation america hereinafter vietor doubt make sacrifice corporation maintain highway earn dividends stockholders misfortune constitution require remedied imposing unjust burdens upon public smyth ames citation omitted one referents value prove possible current replacement reproduction cost primitive version criterion challenged case see mccardle indianapolis water goddard problem valuation evolution cost reproduction rate base harv rev concept survived degree used useful qualification rule utility recover prudently invested capital used useful providing public good service example pennsylvania rate statute upheld duquesne light barasch provided capital invested prudence time rendered useless unforeseen events recoverable regulated rates worthless terms market value loss utilities prudent ultimately unsuccessful investments system greater pure prudent investment rule less fair value approach operating cash inventory accounts receivable constitute typical current assets current liabilities consist accounts payable taxes wages rents interest payable debt example accounts receivable may collected liabilities come due working capital capital needed pay current liabilities interim bodie merton finance prelim ed example regulated incumbent carriers average depreciation cycle years assets average depreciation cost per line gross plant investment per line roughly twice long average cycle years unregulated competitive carriers like worldcom weingarten stuck rethinking depreciation business communications review competitive market company may simply raise prices much may need compensate poor investments say plant becomes unproductive competitors company goods see mankiw principles economics hereinafter mankiw loop lines employ coaxial cable fixed wireless technologies constitute less percent total number reported lines fcc local telephone competition status june table mininetwork connecting users local exchange minimal value customers correspondingly value customers exponentially increased interconnection users network see generally arthur increasing returns path dependence economy title supp provides state local statute regulation state local legal requirement may prohibit effect prohibiting ability entity provide interstate intrastate telecommunications service network element defined facility equipment used provision telecommunications service term also includes features functions capabilities provided means facility equipment including subscriber numbers databases signaling systems information sufficient billing collection used transmission routing provision telecommunications service section provides agreements arrived negotiation voluntary negotiations upon receiving request interconnection services network elements pursuant section title incumbent local exchange carrier may negotiate enter binding agreement requesting telecommunications carrier carriers without regard standards set forth subsections section title agreement shall include detailed schedule itemized charges interconnection service network element included agreement agreement including interconnection agreement negotiated february shall submitted state commission subsection section rates wholesale purchases telecommunications services covered separately must based incumbent retail rates actual telric rate charged entrant leasing element fraction telric figure based reasonable projection entrant use element whether flat basis divided aggregate total use element entrant incumbent competitor leases cfr see also first report order possible argue cost mean past incurred cost technical context economics see carlton perloff modern industrial organization ed hereinafter carlton perloff sunk costs unrecoverable past costs practically every sort economic cost forward looking either historical forward looking opportunity cost example value best forgone alternative use resources employed always forward looking see sidak spulber tragedy telecommons government pricing unbundled network elements telecommunications act colum rev hereinafter sidak spulber telecommons opportunity costs definition see mobil oil exploration producing southeast distribution potomac elec power icc cadc alabama elec ferc cadc cf national assn greeting card publishers postal service incumbents make argument based statutory context relying part provides reasonable rate may include reasonable profit say separate provision made factoring cost rate reasonable profit may understood income recovery actual cost incumbent investment fcc noted profit may also mean normal profit total revenue required cover costs firm including opportunity costs first report order citing pearce mit dictionary modern economics say reasonable profit may refer normal return based cost obtaining debt equity financing prevailing industry first report order latter sense cost accordingly reasonable profit fully incorporated fcc provisions cost capital namely may adjust cost capital party demonstrates either higher lower level cost capital warranted without conducting rate based proceeding justice breyer explicitly challenge propriety chevron deference relies decision motor vehicle mfrs assn state farm mut automobile ins argue fcc choice telric bears rational connection act deregulatory purpose see post state farm involved review agency changing course interpretation statute case contrast involves fcc first interpretation new statute state farm inapposite extent may read prescribing searching judicial review circumstances case indeed state farm may read suggest obverse conclusion fcc explaining changed course favoring telric methodologies tethered actual costs given congress clear intent depart past ratesetting statutes passing act even justice breyer terms fcc rules stressing low wholesale prices means inconsistent deregulatory competitive purposes act discuss policy promoting lower lease prices expensive facilities unlikely duplicated reduces barriers entry particularly smaller competitors puts competitors afford wholesale prices higher prices incumbents like charge position build versions less expensive facilities sensibly duplicable see infra see also infra discussing fcc objection ramsey pricing true justice breyer says act deregulatory intended sense departing traditional regulatory ways coddled monopolies see supra remarks breaux deregulatory character necessarily require fcc employ passive pricing rules deferring incumbents proposed methods cost data contrary statutory provisions obligating incumbents lease property offer services resale wholesale rates consistent promulgation ratesetting method leaving state commissions work setting rates without reliance data provided incumbents marginal cost increase total cost producing goods arises extra unit production see mankiw see also carlton perloff michigan state commission september order implementing incremental cost method leasing network elements fcc considered see first report order makes limitation explicit specifying rates set based costs elements using efficient technology currently available purchase michigan pub serv methodology determine long run incremental cost justice breyer characterizes inefficiencies well provisions discretion permitted costs depreciation capital see part infra coincidences favored considerable competitive investment sheer luck see post thus shares assumption efficient market made incumbents argument like incumbents dismisses departures theoretical assumption perfectly competitive market inconsistencies rather pragmatic recognitions fcc course obligation adopt ratesetting scheme committed realizing perfection economic theory see first report order rejecting pricing premised fully hypothetical efficient network justice breyer proposes less formal kind play ear system based recent european community practices yet another alternative see post incumbents appear advocated informal ratesetting scheme fcc see first report order argued alternative extent justice breyer proposal emphasizes state commissions discretion vary rates according local circumstances particulars case feature already built telric see infra long run firm costs become variable avoidable first report order see also kahn telecommunications act costs variable minimized general costs producing good include variable fixed costs variable costs depend much good produced like cost copper make loop rises loop made longer fixed costs like rent must paid event without regard much produced see carlton perloff long run time frame sufficient duration company fixed costs production argument rates incorporating fixed costs necessary avoid unconstitutional taking taken part infra indeed expert literature incumbents rely advocate ratesetting systems see infra almost exclusively premise averting unwanted confiscation thus offer little support incumbents argument recovery fixed costs better way spur competition opposed compensating incumbents justice breyer may right firms share existing facilities compete respect facilities share post least near future fully consistent fcc point entrants may need share facilities expensive duplicate say loop elements order able compete sensibly duplicable elements say digital switches technology words justice breyer makes accommodation practical difficulty fcc faced competition unshared elements may many cases possible incumbents simultaneously share entrants elements jointly necessary provide desired telecommunications service reality faced hundreds smaller entrants without resources large competitive carrier worldcom seeking gain toeholds markets see fcc local telephone competition status june firms competitive carriers justice breyer elsewhere recognizes act require new entrant incumbent compete respect elements duplication prove unnecessarily expensive post way act allows entrant may lease unnecessarily expensive elements conjunction building elements provide telecommunications service consumers case low prices elements leased become crucial inducing competitor enter build cf first report order wholesale prices send appropriate signals say entrant offer telecommunications service lower retail price competitors including incumbent match price looking ways reduce marginal costs incumbents recalibrated costs form basis new lease rates theory embedded cost lower efficient cost see brief respondent federal parties though incumbents understandably avail tack case goal efficient competition set back different reason much market entry find parenthetical determined without reference proceeding define type costs may considered rather specifies type proceeding may employed determine cost interconnection unbundled network elements first report order omitted parenthetical provision cost ratemaking purposes must determined without reference proceeding senate version act house version charge shall based cost determined without reference proceeding providing unbundled element senate house bills contained additional language enacted effect rate return regulation eliminated prescribing abolition provided rate return regulation eliminated instituting price flexibility required paragraph commission shall establish alternative forms regulation tier telecommunications carriers include regulation rate return earned carrier stated notwithstanding provision law extent carrier complied sections part commission respect rates interstate foreign communications state commissions respect rates intrastate communications shall require regulation commission inferred omission express prohibitions congress intended forbid type proceeding method reasonable inference light common practice setting wholesale rates contracts incorporating retail rates set state proceedings see boston edison ferc though one congress may example balked limiting state regulation level specificity less plausible justice breyer interpretation statutory language reflect ing congress desire obtain perfect prices speedy results post concludes provision specifies need use formal methods relying instead upon bargaining yardstick competition ibid section however specifies state commission set rates incumbent entrant fail reach bargain seems strange read statutory prohibition affirmatively urging bargaining regulatory flexibility rather firing warning shot state commissions steer clear entrenched practices perceived perpetuate incumbent monopolies ecpr advocates since responded fcc wrong assume static tether uncompetitive retail prices ecpr properly employed dynamically readjust factor retail prices drop sidak spulber telecommons cure distortions caused passing difference retail price efficient cost back incumbents lease premium matter evidence support justice breyer assertion telric stifle incumbents incentive either innovate invest new elements post justice breyer notes incumbents invested billion period post figure affirms commonsense conclusion long telric brings competition incumbents continue incentives invest improve services hold existing customer base incumbents also contend underdepreciation book values excess economic value assets another reason increasing depreciation costs telric brief petitioners pp argument unpersuasive described underdepreciation extent continuation today government disputes brief respondent federal parties undertaken largely incumbents forced upon regulators means keep rate base inflated model regulation see supra know incumbent carriers may yet seeking low rates depreciation state proceedings still conducted model even seek high depreciation rates today factor wholesale prices may charge elements use provide retail services short incumbents already benefited underdepreciation calculation retail rates reason allow recovery wholesale rates justice breyer makes much availability new technologies specifically use fixed wireless electrical conduits see post use wireless technology markets negligible present lines entire nation less percent total lines fcc local telephone competition status june table fcc reported use whatsoever electrical conduits provide local telecommunications service upheld pennsylvania statute barring rate recovery capital prudently invested canceled power plants overall impact rate orders allowed returns common equity percent overall returns percent constitutionally objectionable see also theory impact rate order quoting hope natural gas utilities duquesne like incumbents made argument reduced rates jeopardize financial integrity companies either leaving insufficient operating capital impeding ability raise future capital show allowed rates inadequate compensate current equity holders risk associated investments modified prudent investment scheme ibid justice scalia joined justice white justice concurred noted prudently incurred investment may well counted determine whether government action confiscatory incumbents make additional argument arbitrary capricious fcc reject historical costs brief petitioners pp simply restatement argument fcc unreasonable interpreting foreclose use historical cost ratesetting already addressed see part supra fact fcc order hospitable early taking claims duquesne incumbent lecs may seek relief commission pricing methodology provide specific information show pricing methodology applied result confiscatory rates first report order fcc words willing consider challenge telric advance rate order challenger needs go beyond general criticism method tendency show specific information confiscatory rate bound result additionally fcc acknowledged smallest rural incumbent carriers likely suffer immediately imposition unduly low rates expressly exempt telric pricing rules see first report order rural incumbents may obtain exemptions rules applying state commissions raise issue relevant petition certiorari claims see pet cert iowa utilities pp see order iowa utilities bd fcc etc june pp briefs also address whether light decision take action respect rules incumbent denies requested combination burden prove technical infeasibility show combination impede others access incumbent lec shall make available without unreasonable delay requesting telecommunications carrier individual interconnection service network element arrangement contained agreement party approved state commission pursuant section act upon rates terms conditions provided agreement cfr