Cite as: 535 U. S. 467 (2002)
Opinion of Breyer, J.
strong monetary incentive to share with a broad definition of "network element," see 47 CFR §§ 51.319(f)-(g) (1997); Order
¶ 413, will tend to produce widespread sharing of entire incumbent systems under regulatory supervision—a result very different from the competitive market that the statute seeks to create. See Iowa Utilities Bd., supra, at 386-387 (affirming the Commission's broad definition of "network element"). At the least, those rules are inconsistent with the Commission's own view that they will sometimes "serve as a transitional arrangement until fledgling competitors could develop a customer base and complete the construction of their own networks." In re Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, 15 FCC Rcd. 3696, 3700, ¶ 6 (1999) (Third Report and Order). Why, given the pricing rules, would those "fledgling competitors" ever try to fly on their own?
Second, what incentive would the Commission's rules leave the incumbents either to innovate or to invest in a new "element?" The rules seem to say that the incumbent will share with competitors the cost-reducing benefits of a successful innovation, while leaving the incumbent to bear the costs of most unsuccessful investments on its own. But see infra, at 552. Why would investment not then stagnate? See, e. g., Jorde, Sidak, & Teece, Innovation, Investment, and Unbundling, 17 Yale J. Reg. 1, 8 (2000) ("It makes no economic sense for the [incumbent] to invest in technologies that lower its own marginal costs, so long as competitors can achieve the identical cost savings by regulatory fiat"); Sidak & Spulber, Deregulation and Managed Competition in Network Industries, 15 Yale J. Reg. 117, 124-125 (1998) ("If deprived of a return to capital facilities after capital has been sunk in irreversible investments, or if faced with reduced returns to investments already made, any economically rational company will eliminate or reduce similar capital investments in the future"); Armstrong, AT&T Scoffs at Possible Common Carrier Status, Telecommunications Reports,
551
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