Cite as: 535 U. S. 467 (2002)
Opinion of Breyer, J.
technologically outdated, historical investment. See Part III-C, ante. They add that the regulations will make nearly redundant the statute's provisions for "element" rates set through negotiation. See 47 U. S. C. § 252(a)(1). After all, given the Commission's regulations, how much is there to negotiate about? The regulations entitle the new entrant to a price equal to, or lower than, the price to which any rational incumbent could agree. See Brief for United States in Mathias v. Worldcom Technologies, Inc., O. T. 2001, No. 00-878, p. 18, n. 5 ("[A]s a practical matter" carriers have little incentive to negotiate).
Nor, in the critics' view, do the regulations possess any offsetting advantages. They lack that ease of administration that led Justices Holmes and Brandeis to favor use (for ratesetting purposes) of an incumbent's historic costs despite their economic inaccuracy. See Southwestern Bell Telephone Co., 262 U. S., at 292-296 (dissenting opinion); see also ante, at 481-483. The hypothetical nature of the Commission's system means that experts must estimate how imaginary firms would rebuild their systems from scratch— whether, for example, they (hypothetically) would receive permission to dig up streets, to maintain unsightly telephone poles, or to share their pole costs with other users, say, cable operators—and they must then estimate what would turn out to be most "efficient" in such (hypothetical) future circumstances. The speculative nature of this enterprise, the critics say, will lead to a battle of experts, each asking a commission to favor what can amount to little more than a guess. See Kahn 333, 334, n. 36, 335 (describing three models introduced in regulatory proceedings, one of which reduced all actual expenses by 27% because railroad regulation had brought similar efficiency gains, another of which assumed that all utilities, including electricity producers, would rebuild entire systems from scratch at the same time, and the third of which assumed New Hampshire's telecommunications system was administratively most efficient but then reduced its actual administrative expenses by 25%).
553
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