524
Opinion of the Court
taking claim in the way that is usual in ratemaking cases. They do not argue that any particular, actual TELRIC rate is "so unjust as to be confiscatory," that is, as threatening an incumbent's "financial integrity." Duquesne Light Co., 488 U. S., at 307, 312. Indeed, the incumbent carriers have not even presented us with an instance of TELRIC rates, which are to be set or approved by state commissions and reviewed in the first instance in the federal district courts, 47 U. S. C. §§ 252(e)(4) and (e)(6). And this, despite the fact that some States apparently have put rates in place already using TELRIC. See First Report and Order ¶ 631 and accompanying footnotes ("A number of states already employ, or have plans to utilize, some form of [long-run incremental cost] methodology in their approach to setting prices for unbundled network elements").
This want of any rate to be reviewed is significant, given that this Court has never considered a taking challenge on a ratesetting methodology without being presented with specific rate orders alleged to be confiscatory. See, e. g., Duquesne Light Co., supra, at 303-304 (denial of $3.5 million and $15.4 million increases to rate bases of electric utilities); Smyth v. Ames, 169 U. S., at 470-476 (Nebraska carrier-rate tariff schedule alleged to effect a taking). Granted, the Court has never strictly held that a utility must have rates in hand before it can claim that the adoption of a new method of setting rates will necessarily produce an unconstitutional taking, but that has been the implication of much the Court has said. See Hope Natural Gas Co., 320 U. S., at 602 ("The fact that the method employed to reach [just and reasonable rates] may contain infirmities is not . . . important"); Natural Gas Pipeline Co., 315 U. S., at 586 ("The Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas"); Los Angeles Gas & Elec. Corp. v. Railroad Comm'n of Cal., 289 U. S. 287, 305 (1933) ("[M]indful of its distinctive function in the enforcement of constitutional rights, the Court has refused to be bound by
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