Cite as: 535 U. S. 1 (2002)
Opinion of Thomas, J.
mission. Therefore, when a bundled retail sale is un-bundled and becomes separate transmission and power sales transactions, the resulting transmission transaction falls within the Federal sphere of regulation." Ibid.
FERC here concludes that the act of unbundling itself changes its jurisdictional lines. Unbundling, FERC notes, may occur in one of two ways: (1) voluntarily by a public utility or (2) as a result of a state retail access program that orders unbundling. Ibid. Either action brings the transmission within the scope of FERC's jurisdiction.
Subsequently, in Order No. 888-A, FERC responded to rehearing requests by supplanting its earlier conclusion that "the matter raises numerous difficult jurisdictional issues" with the explanation quoted above from Order No. 888, at 31,781. See Order No. 888-A, at 30,225. It is possible, therefore, that FERC abandoned its "difficult jurisdictional issues" explanation altogether. Thus, while it is true that FERC, at one point, evades the jurisdictional question by deeming it too "difficult" to resolve, more often than not FERC affirmatively concludes that it in fact does not have jurisdiction over the transmission at issue here. From this survey of FERC's positions, I can only conclude that the Court's singular reliance on the one statement is misguided.
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Finally, to the extent that FERC has concluded that it lacks jurisdiction over transmission connected to bundled retail sales, it ignores the clear statutory mandate. By refusing to regulate the transmission associated with retail sales in States that have chosen not to unbundle retail sales, FERC has set up a system under which: (a) each State's internal policy decisions concerning whether to require un-bundling controls the nature of federal jurisdiction; (b) a utility's voluntary decision to unbundle determines whether FERC has jurisdiction; and (c) utilities that are allowed to
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