535 U.S. 467 (2002)

VERIZON COMMUNICATIONS INC. et al.
v.
FEDERAL COMMUNICATIONS COMMISSION et al.

No. 00-511.

United States Supreme Court.

Argued October 10, 2001. Decided May 13, 2002.^[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

*469 *469 *470 *471 *472 *473 Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined, in which Scalia and Thomas, JJ., joined as to Part III, and in which Thomas, J., also joined as to Part IV. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined as to Part VI, post, *474 p. 539. O'Connor, J.,took no part in the consideration or decision of the cases.

William P. Barr argued the cause for Verizon Communications, Inc., et al., petitioners in No. 00-511, and for BellSouth Corp. et al., respondents in Nos. 00-555, etc. With him on the briefs were M. Edward Whelan, Patrick F. Philbin, Michael E. Glover, Mark L. Evans, Michael K. Kellogg, Henk Brands, Charles R. Morgan, James G. Harralson, Andrew G. McBride, Scott Delacourt, Roger K. Toppins, Gary Phillips, Sean A. Lev, and Steven G. Bradbury.

Solicitor General Olson argued the cause for the federal parties, petitioners in Nos. 00-587, etc., and respondents in No. 00-511. With him on the briefs were Acting Solicitor General Underwood, Acting Assistant Attorney General Nannes, Deputy Solicitor General Wallace, Barbara McDowell, Catherine G. O'Sullivan, Nancy C. Garrison, and Laurence N. Bourne. David P. Murray filed briefs for respondent Sprint Corporation in Nos. 00-511, etc., in support of petitioner federal parties and in opposition to petitioners Verizon Communications, Inc., et al.

Donald B. Verrilli, Jr., argued the cause for WorldCom, Inc., et al., petitioners in No. 00-555 and respondents in No. 00-511, and for AT&T Corp., petitioner in No. 00-590 and respondent in Nos. 00-511, etc. With him on the briefs for WorldCom, Inc., et al. were Jodie L. Kelley, Ian Heath Gershengorn, Thomas F. O'Neil III, William Single IV, Carol Ann Bischoff, Robert M. McDowell, and Robert J. Aamoth. David W. Carpenter, Peter D. Keisler, Stephen B. Kinnaird, C. Frederick Beckner III, and Mark C. Rosenblum filed briefs for AT&T.

Briefs for respondents in Nos. 00-511, etc., were filed by Irwin A. Popowsky for the National Association of State Utility Consumer Advocates, by James Bradford Ramsay and Lawrence G. Malone for the Public Service Commission of New York et al., and by William T. Lake, John H. Har- *475 wood II, and Robert B. McKennna for Qwest Communications International, Inc.^[†]

Justice Souter delivered the opinion of the Court.^[*]

These cases arise under the Telecommunications Act of 1996. Each is about the power of the Federal Communications Commission to regulate a relationship between monopolistic companies providing local telephone service and companies entering local markets to compete with the incumbents. Under the Act, the new entrants are entitled, among other things, to lease elements of the local telephone networks from the incumbent monopolists. The issues are whether the FCC is authorized (1) to require state utility commissions to set the rates charged by the incumbents for leased elements on a forward-looking basis untied to the incumbents' investment, and (2) to require incumbents to combine such elements at the entrants' request when they lease them to the entrants. We uphold the FCC's assumption and exercise of authority on both issues.

I

The 1982 consent decree settling the Government's antitrust suit against the American Telephone and Telegraph Company (AT&T) divested AT&T of its local-exchange carriers, leaving AT&T as a long-distance and equipment company, and limiting the divested carriers to the provision of local telephone service. United States v. American Telephone & Telegraph Co., 552 F. Supp. 131 (DC 1982), aff'd sub nom. Maryland v. United States, 460 U. S. 1001 (1983). The decree did nothing, however, to increase competition in the persistently monopolistic local markets, which were thought *476 to be the root of natural monopoly in the telecommunications industry. See S. Benjamin, D. Lichtman, & H. Shelanski, Telecommunications Law and Policy 682 (2001) (hereinafter Benjamin et al.); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law § 2.1.1, pp. 84-85 (2d ed. 1999) (hereinafter Huber et al.); W. Baumol & J. Sidak, Toward Competition in Local Telephony 7-10 (1994); S. Breyer, Regulation and Its Reform 291-292, 314 (1982). These markets were addressed by provisions of the Telecommunications Act of 1996 (1996 Act or Act), Pub L. 104-104, 110 Stat. 56, that were intended to eliminate the monopolies enjoyed by the inheritors of AT&T's local franchises; this objective was considered both an end in itself and an important step toward the Act's other goals of boosting competition in broader markets and revising the mandate to provide universal telephone service. See Benjamin et al. 716.

Two sets of related provisions for opening local markets concern us here. First, Congress required incumbent localexchange carriers to share their own facilities and services on terms to be agreed upon with new entrants in their markets. 47 U. S. C. § 251(c) (1994 ed., Supp. V). Second, knowing that incumbents and prospective entrants would sometimes disagree on prices for facilities or services, Congress directed the FCC to prescribe methods for state commissions to use in setting rates that would subject both incumbents and entrants to the risks and incentives that a competitive market would produce. § 252(d). The particular method devised by the FCC for setting rates to be charged for interconnection and lease of network elements under the Act, § 252(d)(1),^[1] and regulations the FCC imposed to implement the statutory duty to share these elements, § 251(c)(3), are the subjects of this litigation, which must be understood against the background of ratemaking for public *477 utilities in the United States and the structure of local exchanges made accessible by the Act.

A

Companies providing telephone service have traditionally been regulated as monopolistic public utilities.^[2] See J. Bonbright, Principles of Public Utility Rates 3-5 (1st ed. 1961) (hereinafter Bonbright); I. Barnes, Economics of Public Utility Regulation 37-41 (1942) (hereinafter Barnes). At the dawn of modern utility regulation, in order to offset monopoly power and ensure affordable, stable public access to a utility's goods or services, legislatures enacted rate schedules to fix the prices a utility could charge. See id., at 170-173; C. Phillips, Regulation of Public Utilities 111-112, and n. 5 (1984) (hereinafter Phillips). See, e. g., Smyth v. Ames, 169 U. S. 466, 470-476 (1898) (statement of case); Munn v. Illinois, 94 U. S. 113, 134 (1877). As this job became more complicated, legislatures established specialized administrative agencies, first local or state, then federal, to set and regulate rates. Barnes 173-175; Phillips 115-117. See, e. g., Minnesota Rate Cases, 230 U. S. 352, 433 (1913) (Interstate Commerce Commission); Shreveport Rate Cases, 234 U. S. 342, 354-355 (1914) (jurisdictional dispute between ICC and Texas Railroad Commission). See generally T. McCraw, Prophets of Regulation 11-65 (1984). The familiar mandate in the enabling Acts was to see that rates be "just and reasonable" and not discriminatory. Barnes 289. See, e. g., Transportation Act of 1920, 49 U. S. C. § 1(5) (1934 ed.).

*478 All rates were subject to regulation this way: retail rates charged directly to the public and wholesale rates charged among businesses involved in providing the goods or services offered by the retail utility. Intrastate retail rates were regulated by the States or municipalities, with those at wholesale generally the responsibility of the National Government, since the transmission or transportation involved was characteristically interstate.^[3] See Phillips 143.

Historically, the classic scheme of administrative ratesetting at the federal level called for rates to be set out by the regulated utility companies in proposed tariff schedules, on the model applied to railroad carriers under the Interstate Commerce Act of 1887, 24 Stat. 379. After interested parties had had notice of the proposals and a chance to comment, the tariffs would be accepted by the controlling agency so long as they were "reasonable" (or "just and reasonable") and not "unduly discriminatory." Hale, Commissions, Rates, and Policies, 53 Harv. L. Rev. 1103, 1104-1105 (1940). See, e. g., Southern Pacific Co. v. ICC, 219 U. S. 433, 445 (1911). The States generally followed this same tariffschedule model. Barnes 297-298. See, e. g., Smyth, supra, at 470-476.

*479 The way rates were regulated as between businesses (by the National Government) was in some respects, however, different from regulation of rates as between businesses and the public (at the state or local level). In wholesale markets, the party charging the rate and the party charged were often sophisticated businesses enjoying presumptively equal bargaining power, who could be expected to negotiate a "just and reasonable" rate as between the two of them. Accordingly, in the Federal Power Act of 1920, 41 Stat. 1063, and again in the Natural Gas Act of 1938, 52 Stat. 821, Congress departed from the scheme of purely tariff-based regulation and acknowledged that contracts between commercial buyers and sellers could be used in ratesetting, 16 U. S. C. § 824d(d) (Federal Power Act); 15 U. S. C. § 717c(c) (Natural Gas Act). See United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 338-339 (1956). When commercial parties did avail themselves of rate agreements, the principal regulatory responsibility was not to relieve a contracting party of an unreasonable rate, FPC v. Sierra Pacific Power Co., 350 U. S. 348, 355 (1956) ("its improvident bargain"), but to protect against potential discrimination by favorable contract rates between allied businesses to the detriment of other wholesale customers. See ibid. Cf. New York v. United States, 331 U. S. 284, 296 (1947) ("The principal evil at which the Interstate Commerce Act was aimed was discrimination in its various manifestations"). This Court once summed up matters at the wholesale level this way:

"[W]hile it may be that the Commission may not normally impose upon a public utility a rate which would produce less than a fair return, it does not follow that the public utility may not itself agree by contract to a rate affording less than a fair return or that, if it does so, it is entitled to be relieved of its improvident bargain. In such circumstances the sole concern of the Commission would seem to be whether the rate is so low as to *480 adversely affect the public interest—as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory." Sierra Pacific Power Co., supra, at 355 (citation omitted).

See also United Gas Pipe Line Co., supra, at 345.

Regulation of retail rates at the state and local levels was, on the other hand, focused more on the demand for "just and reasonable" rates to the public than on the perils of rate discrimination. See Barnes 298-299. Indeed, regulated local telephone markets evolved into arenas of statesanctioned discrimination engineered by the public utility commissions themselves in the cause of "universal service." Huber et al. 80-85. See also Vietor 167-185. In order to hold down charges for telephone service in rural markets with higher marginal costs due to lower population densities and lesser volumes of use, urban and business users were charged subsidizing premiums over the marginal costs of providing their own service. See Huber et al. 84.

These cross subsidies between markets were not necessarily transfers between truly independent companies, however, thanks largely to the position attained by AT&T and its satellites. This was known as the "Bell system," which by the mid-20th century had come to possess overwhelming monopoly power in all telephone markets nationwide, supplying local-exchange and long-distance services as well as equipment. Vietor 174-175. See also R. Garnet, Telephone Enterprise: Evolution of Bell System's Horizontal Structure, 1876-1909, pp. 160-163 (1985) (Appendix A). The same pervasive market presence of Bell providers that made it simple to provide cross subsidies in aid of universal service, however, also frustrated conventional efforts to hold retail rates down. See Huber et al. 84-85. Before the Bell system's predominance, regulators might have played competing carriers against one another to get lower rates for the public, see Cohen 47-50, but the strategy became virtually *481 impossible once a single company had become the only provider in nearly every town and city across the country. This regulatory frustration led, in turn, to new thinking about just and reasonable retail rates and ultimately to these cases.

The traditional regulatory notion of the "just and reasonable" rate was aimed at navigating the straits between gouging utility customers and confiscating utility property. FPC v. Hope Natural Gas Co., 320 U. S. 591, 603 (1944). See also Barnes 289-290; Bonbright 38. More than a century ago, reviewing courts charged with determining whether utility rates were sufficiently reasonable to avoid unconstitutional confiscation took as their touchstone the revenue that would be a "fair return" on certain utility property known as a "rate base." The fair rate of return was usually set as the rate generated by similar investment property at the time of the rate proceeding, and in Smyth v. Ames, 169 U. S., at 546, the Court held that the rate base must be calculated as "the fair value of the property being used by [the utility] for the convenience of the public." In pegging the rate base at "fair value," the Smyth Court consciously rejected the primary alternative standard, of capital actually invested to provide the public service or good. Id., at 543-546. The Court made this choice in large part to prevent "excessive valuation or fictitious capitalization" from artificially inflating the rate base, id., at 544, lest "`[t]he public . . . be subjected to unreasonable rates in order simply that stockholders may earn dividends,' " id., at 545 (quoting Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 596 (1896)).^[4]

But Smyth proved to be a troublesome mandate, as Justice Brandeis, joined by Justice Holmes, famously observed *482 25 years later. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Serv. Comm'n of Mo., 262 U. S. 276, 292 (1923) (dissenting opinion). The Smyth Court itself had described, without irony, the mind-numbing complexity of the required enquiry into fair value, as the alternative to historical investment:

"[I]n order to ascertain [fair] value, original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property." 169 U. S., at 546-547.

To the bewildered, Smyth simply threw up its hands, prescribing no one method for limiting use of these numbers but declaring all such facts to be "relevant."^[5]Southwestern Bell Telephone Co., 262 U. S., at 294-298, and n. 6 (Brandeis, J., dissenting). What is more, the customary checks on calculations of value in other circumstances were hard to come by for a utility's property; its costly facilities rarely changed hands and so were seldom tagged with a price a buyer would actually pay and a seller accept, id., at 292; West v. Chesapeake & Potomac Telephone Co. of Baltimore, 295 U. S. 662, 672 (1935). Neither could reviewing courts resort to a utility's revenue as an index of fair value, since its revenues *483 were necessarily determined by the rates subject to review, with the rate of return applied to the very property subject to valuation. Duquesne Light Co. v. Barasch, 488 U. S. 299, 309, n. 5 (1989); Hope Natural Gas Co., supra, at 601.

Small wonder, then, that Justice Brandeis was able to demonstrate how basing rates on Smyth `s galactic notion of fair value could produce revenues grossly excessive or insufficient when gauged against the costs of capital. He gave the example (simplified) of a $1 million plant built with promised returns on the equity of $90,000 a year. Southwestern Bell Telephone Co., supra, at 304-306. If the value were to fall to $600,000 at the time of a rate proceeding, with the rate of return on similar investments then at 6 percent, Smyth would say a rate was not confiscatory if it returned at least $36,000, a shortfall of $54,000 from the costs of capital. But if the value of the plant were to rise to $1,750,000 at the time of the rate proceeding, and the rate of return on comparable investments stood at 8 percent, then constitutionality under Smyth would require rates generating at least $140,000, $50,000 above capital costs.

The upshot of Smyth, then, was the specter of utilities forced into bankruptcy by rates inadequate to pay off the costs of capital, even when a drop in value resulted from general economic decline, not imprudent investment; while in a robust economy, an investment no more prescient could claim what seemed a rapacious return on equity invested. Justice Brandeis accordingly advocated replacing "fair value" with a calculation of rate base on the cost of capital prudently invested in assets used for the provision of the public good or service, and although he did not live to enjoy success, his campaign against Smyth came to fruition in FPC v. Hope Natural Gas Co., 320 U. S. 591 (1944).

In Hope Natural Gas, this Court disavowed the position that the Natural Gas Act and the Constitution required fair value as the sole measure of a rate base on which "just and *484 reasonable" rates were to be calculated. Id., at 601-602. See also FPC v. Natural Gas Pipeline Co., 315 U. S. 575, 602-606 (1942) (Black, Douglas, and Murphy, JJ., concurring). In the matter under review, the Federal Power Commission had valued the rate base by using "actual legitimate cost" reflecting "sound depreciation and depletion practices," and so had calculated a value roughly 25 percent below the figure generated by the natural-gas company's fair-value methods using "estimated reproduction cost" and "trended original cost." Hope Natural Gas, 320 U. S., at 596-598, and nn. 4-5. The Court upheld the Commission. "Rates which enable the company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed certainly cannot be condemned as invalid, even though they might produce only a meager return on the so-called `fair value' rate base."^[6]Id., at 605. Although Hope Natural Gas did not repudiate everything said in Smyth, since fair value was still "the end product of the process of rate-making," 320 U. S., at 601, federal and state commissions setting rates in the aftermath of Hope Natural Gas largely abandoned the old fair-value approach and turned to methods of calculating the rate base on the basis of "cost." A. Kahn, Economics of Regulations: Principles and Institutions 40-41 (1988).

"Cost" was neither self-evident nor immune to confusion, however; witness the invocation of "reproduction cost" as a *485 popular method for calculating fair value under Smyth, see n. 5, supra, and the Federal Power Commission's rejection of "trended original cost" (apparently, a straight-line derivation from the cost of capital originally invested) in favor of "actual legitimate cost," Hope Natural Gas, supra, at 596. Still, over time, general agreement developed on a method that was primus inter pares, and it is essentially a modern gloss on that method that the incumbent carriers say the FCC should have used to set the rates at issue here.

The method worked out is not a simple calculation of rate base as the original cost of "prudently invested" capital that Justice Brandeis assumed, presumably by reference to the utility's balance sheet at the time of the rate proceeding. Southwestern Bell Telephone Co., 262 U. S., at 304-306. Rather, "cost" came to mean "cost of service," that is, the cost of prudently invested capital used to provide the service. Bonbright 173; P. Garfield & W. Lovejoy, Public Utility Economics 56 (1964). This was calculated subject to deductions for accrued depreciation and allowances for working capital,^[7] see Phillips 282-283 (table 8-1) ("a typical electric utility rate base"), naturally leading utilities to minimize depreciation by using very slow depreciation rates (on the assumption of long useful lives),^[8] and to maximize working capital claimed as a distinct rate-base constituent.

*486 This formula, commonly called the prudent-investment rule, addressed the natural temptations on the utilities' part to claim a return on outlays producing nothing of value to the public. It was meant, on the one hand, to discourage unnecessary investment and the "fictitious capitalization" feared in Smyth, 169 U. S., at 543-546, and so to protect ratepayers from supporting excessive capacity, or abandoned, destroyed, or phantom assets. Kahn, Tardiff, & Weisman, Telecommunications Act at three years: an economic evaluation of its implementation by the Federal Communications Commission, 11 Information Economics & Policy 319, 330, n. 27 (1999) (hereinafter Kahn, Telecommunications Act). At the same time, the prudent-investment rule was intended to give utilities an incentive to make smart investments deserving a "fair" return, and thus to mimic natural incentives in competitive markets^[9] (though without an eye to fostering the actual competition by which such markets are defined). In theory, then, the prudent-investment qualification gave the ratepayer an important protection by mitigating the tendency of a regulated market's lack of competition to support monopolistic prices.

But the mitigation was too little, the prudent-investment rule in practice often being no match for the capacity of utilities having all the relevant information to manipulate the rate base and renegotiate the rate of return every time a rate was set. The regulatory response in some markets was adoption of a rate-based method commonly called "price caps," United States Telephone Assn. v. FCC, 188 F. 3d 521, 524 (CADC 1999), as, for example, by the FCC's setting of maximum access charges paid to large local-exchange companies *487 by inter exchange carriers, In re Policy and Rules Concerning Rates for Dominant Carriers, 5 FCC Rcd. 6786, 6787, ¶ 1 (1990).

The price-cap scheme starts with a rate generated by the conventional cost-of-service formula, which it takes as a benchmark to be decreased at an average of some 2-3 percent a year to reflect productivity growth, Kahn, Telecommunications Act 330-332, subject to an upward adjustment if necessary to reflect inflation or certain unavoidable "exogenous costs" on which the company is authorized to recover a return. 5 FCC Rcd., at 6787, ¶ 5. Although the price caps do not eliminate games manship, since there are still battles to be fought over the productivity offset and allowable exogenous costs, United States Telephone Assn., supra, at 524, they do give companies an incentive "to improve productivity to the maximum extent possible," by entitling those that out perform the productivity offset to keep resulting profits, 5 FCC Rcd., at 6787-6788, ¶¶ 7-9. Ultimately, the goal, as under the basic prudent-investment rule, is to encourage investment in more productive equipment.

Before the passage of the 1996 Act, the price cap was, at the federal level, the final stage in a century of developing rate setting methodology. What had changed throughout the era beginning with Smyth v. Ames was prevailing opinion on how to calculate the most useful rate base, with the disagreement between fair-value and cost advocates turning on whether invested capital was the key to the right balance between investors and ratepayers, and with the price-cap scheme simply being a rate-based offset to the utilities' advantage of superior knowledge of the facts employed in costof-service rate making. What is remarkable about this evolution of just and reasonable rate setting, however, is what did not change. The enduring feature of rate setting from Smyth v. Ames to the institution of price caps was the idea that calculating a rate base and then allowing a fair rate of *488 return on it was a sensible way to identify a range of rates that would be just and reasonable to investors and ratepayers. Equally enduring throughout the period was dissatisfaction with the successive rate-based variants. From the constancy of this dissatisfaction, one possible lesson was drawn by Congress in the 1996 Act, which was that regulation using the traditional rate-based methodologies gave monopolies too great an advantage and that the answer lay in moving away from the assumption common to all the rate-based methods, that the monopolistic structure within the discrete markets would endure.

Under the local-competition provisions of the Act, Congress called for rate making different from any historical practice, to achieve the entirely new objective of uprooting the monopolies that traditional rate-based methods had perpetuated. H. R. Conf. Rep. No. 104-230, p. 113 (1996). A leading backer of the Act in the Senate put the new goal this way:

"This is extraordinary in the sense of telling private industry that this is what they have to do in order to let the competitors come in and try to beat your economic brains out. . . . "It is kind of almost a jump-start. . . . I will do everything I have to let you into my business, because we used to be a bottleneck; we used to be a monopoly; we used to control everything.

"Now, this legislation says you will not control much of anything. You will have to allow for nondiscriminatory access on an unbundled basis to the network functions and services of the Bell operating companies network that is at least equal in type, quality, and price to the access [a] Bell operating company affords to itself." 141 Cong. Rec. 15572 (1995) (remarks of Sen. Breaux (La.) on Pub. L. 104-104).

*489 For the first time, Congress passed a rate setting statute with the aim not just to balance interests between sellers and buyers, but to reorganize markets by rendering regulated utilities' monopolies vulnerable to interlopers, even if that meant swallowing the traditional federal reluctance to intrude into local telephone markets. The approach was deliberate, through a hybrid jurisdictional scheme with the FCC setting a basic, default methodology for use in setting rates when carriers fail to agree, but leaving it to state utility commissions to set the actual rates.

While the Act is like its predecessors in tying the methodology to the objectives of "just and reasonable" and nondiscriminatory rates, 47 U. S. C. § 252(d)(1), it is radically unlike all previous statutes in providing that rates be set "without reference to a rate-of-return or other rate-based proceeding," § 252(d)(1)(A)(i). The Act thus appears to be an explicit disavowal of the familiar public-utility model of rate regulation (whether in its fair-value or cost-of-service incarnations) presumably still being applied by many States for retail sales, see In re Implementation of Local Competition in Telecommunications Act of 1996, 11 FCC Rcd. 15499, 15857, ¶ 704 (1996) (First Report and Order), in favor of novel ratesetting designed to give aspiring competitors every possible incentive to enter local retail telephone markets, short of confiscating the incumbents' property.

B

The physical incarnation of such a market, a "local exchange," is a network connecting terminals like telephones, faxes, and modems to other terminals within a geographical area like a city. From terminal network interface devices, feeder wires, collectively called the "local loop," are run to local switches that aggregate traffic into common "trunks." The local loop was traditionally, and is still largely, made of copper wire, though fiber-optic cable is also used, albeit to a *490 far lesser extent than in long-haul markets.^[10] Just as the loop runs from terminals to local switches, the trunks run from the local switches to centralized, or tandem, switches, originally worked by hand but now by computer, which operate much like railway switches, directing traffic into other trunks. A signal is sent toward its destination terminal on these common ways so far as necessary, then routed back down another hierarchy of switches to the intended telephone or other equipment. A local exchange is thus a transportation network for communications signals, radiating like a root system from a "central office" (or several offices for larger areas) to individual telephones, faxes, and the like.

It is easy to see why a company that owns a local exchange (what the Act calls an "incumbent local exchange carrier," 47 U. S. C. § 251(h)) would have an almost insurmountable competitive advantage not only in routing calls within the exchange, but, through its control of this local market, in the markets for terminal equipment and long-distance calling as well. A newcomer could not compete with the incumbent carrier to provide local service without coming close to replicating the incumbent's entire existing network, the most costly and difficult part of which would be laying down the "last mile" of feeder wire, the local loop, to the thousands (or millions) of terminal points in individual houses and businesses.^[11] The incumbent company could also control its local-loop plant so as to connect only with terminals it manufactured or selected, and could place conditions or fees (called "access charges") on long-distance carriers seeking to connect *491 with its network. In an unregulated world, another telecommunications carrier would be forced to comply with these conditions, or it could never reach the customers of a local exchange.

II

The 1996 Act both prohibits state and local regulation that impedes the provision of "telecommunications service," § 253(a),^[12] and obligates incumbent carriers to allow competitors to enter their local markets, § 251(c). Section 251(c) addresses the practical difficulties of fostering local competition by recognizing three strategies that a potential competitor may pursue. First, a competitor entering the market (a "requesting" carrier, § 251(c)(2)) may decide to engage in pure facilities-based competition, that is, to build its own network to replace or supplement the network of the incumbent. If an entrant takes this course, the Act obligates the incumbent to "interconnect" the competitor's facilities to its own network to whatever extent is necessary to allow the competitor's facilities to operate. §§ 251(a) and (c)(2). At the other end of the spectrum, the statute permits an entrant to skip construction and instead simply to buy and resell "telecommunications service," which the incumbent has a duty to sell at wholesale. §§ 251(b)(1) and (c)(4). Between these extremes, an entering competitor may choose to lease certain of an incumbent's "network elements,"^[13] which *492 the incumbent has a duty to provide "on an unbundled basis" at terms that are "just, reasonable, and nondiscriminatory." § 251(c)(3).

Since wholesale markets for companies engaged in resale, leasing, or interconnection of facilities cannot be created without addressing rates, Congress provided for rates to be set either by contracts between carriers or by state utility commission rate orders. §§ 252(a)—(b). Like other federal utility statutes that authorize contracts approved by a regulatory agency in setting rates between businesses, e. g., 16 U. S. C. § 824d(d) (Federal Power Act); 15 U. S. C. § 717c(c) (Natural Gas Act), the Act permits incumbent and entering carriers to negotiate private rate agreements, 47 U. S. C. § 252(a);^[14] see also § 251(c)(1) (duty to negotiate in good faith). State utility commissions are required to accept any such agreement unless it discriminates against a carrier not a party to the contract, or is otherwise shown to be contrary to the public interest. §§ 252(e)(1) and (e)(2)(A). Carriers, of course, might well not agree, in which case an entering carrier has a statutory option to request mediation by a state commission, § 252(a)(2). But the option comes with strings, for mediation subjects the parties to the duties specified in § 251 and the pricing standards set forth in § 252(d), as *493 interpreted by the FCC's regulations, § 252(e)(2)(B). These regulations are at issue here.

As to pricing, the Act provides that when incumbent and requesting carriers fail to agree, state commissions will set a "just and reasonable" and "nondiscriminatory" rate for interconnection or the lease of network elements based on "the cost of providing the . . . network element," which "may include a reasonable profit."^[15] § 252(d)(1). In setting these rates, the state commissions are, however, subject to that important limitation previously unknown to utility regulation: the rate must be "determined without reference to a rate-of-return or other rate-based proceeding." Ibid. In AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 384-385 (1999), this Court upheld the FCC's jurisdiction to impose a new methodology on the States when setting these rates. The attack today is on the legality and logic of the particular methodology the Commission chose.

As the Act required, six months after its effective date the FCC implemented the local-competition provisions in its First Report and Order, which included as an appendix the new regulations at issue. Challenges to the order, mostly by incumbent local-exchange carriers and state commissions, were consolidated in the United States Court of Appeals for the Eighth Circuit. Iowa Utilities Bd. v. FCC, 120 F. 3d 753, 792 (1997), aff'd in part and rev'd in part, 525 U. S. 366, 397 (1999). See also California v. FCC, 124 F. 3d 934, 938 (1997), rev'd in part, 525 U. S. 366, 397 (1999) (challenges to In re Implementation of Local Competition Provisions in Telecommunications Act of 1996, 11 FCC Rcd. 19392 (1996) (Second Report and Order)).

So far as it bears on where we are today, the initial decision by the Eighth Circuit held that the FCC had no authority *494 to control the methodology of state commissions setting the rates incumbent local-exchange carriers could charge entrants for network elements, 47 CFR § 51.505(b)(1) (1997). Iowa Utilities Bd. v. FCC, supra, at 800. The Eighth Circuit also held that the FCC misconstrued the plain language of § 251(c)(3) in implementing a set of "combination" rules, 47 CFR §§ 51.315(b)—(f) (1997), the most important of which provided that "an incumbent LEC shall not separate requested network elements that the incumbent LEC currently combines," § 51.315(b). 120 F. 3d, at 813. On the other hand, the Court of Appeals accepted the FCC's view that the Act required no threshold ownership of facilities by a requesting carrier, First Report and Order ¶¶ 328-340, and upheld Rule 319, 47 CFR § 51.319 (1997), which read "network elements" broadly, to require incumbent carriers to provide not only equipment but also services and functions, such as operations support systems (e. g., billing databases), § 51.319(f)(1), operator services and directory assistance, § 51.319(g), and vertical switching features like call-waiting and caller I. D., First Report and Order ¶¶ 263, 413. 120 F. 3d, at 808-810.

This Court affirmed in part and in larger part reversed. AT&T Corp. v. Iowa Utilities Bd., 525 U. S., at 397. We reversed in upholding the FCC's jurisdiction to "design a pricing methodology" to bind state ratemaking commissions, <