Verizon Communications Inc. v. FCC, 535 U.S. 467, 77 (2002)

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Cite as: 535 U. S. 467 (2002)

Opinion of Breyer, J.

(discussing traditional ratesetting); J. Bonbright, A. Daniel-sen, & D. Kamerschen, Principles of Public Utility Rates 109-110, 388 (2d ed. 1988) (hereinafter Bonbright); In re Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, 9 FCC Rcd. 4527, 4555, ¶ 55 (1994) (Commission rules referring to "[o]riginal cost" as traditional basis "for public utility valuation").

An agency engaged in traditional ratemaking will seek to protect consumers by mandating low prices as the end result. In doing so, the agency will sometimes try to mimic the prices that it believes (hypothetically) the regulated firm (often a legal monopoly) would have set had it been an unregulated firm in a competitively structured industry. See ante, at 486; Bonbright 89 ("[M]any economists have declared that . . . the prices that would result without regulation but under pure or perfect competition would be the 'ideal' prices"); 1 A. Kahn, Economics of Regulation: Principles and Institutions 63 (1988) (hereinafter Economics of Regulation) ("The traditional legal criteria of proper public utility rates have always borne a strong resemblance to the criteria of the competitive market in long-run equilibrium"). And the Commission's regulations are at least arguably consistent with an agency effort to find prices that replicate the end results of theoretically perfect competition. See Order

¶¶ 679, 738.

But that regulatory objective—low, competition-mimicking prices—is not the objective of the relevant statutory provision here. The Telecommunications Act is not a ratemaking statute seeking better regulation. It is a de-regulatory statute seeking competition. It assumes that, given modern technology, local telecommunications markets may now prove large enough for several firms to compete in the provision of some services—but not necessarily all services—without serious economic waste. It finds the competitive process an indirect but more effective way to bring

543

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