Cite as: 535 U. S. 467 (2002)
Opinion of Breyer, J.
its substantive conclusion. Consequently, I would affirm the Eighth Circuit's determination that the regulations are unlawful.
VI
I disagree with the majority about one further legal issue. The statute imposes upon an incumbent the
"duty to provide . . . for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis . . . in a manner that allows requesting carriers to combine such elements in order to provide such telecommunications service." 47 U. S. C. § 251(c)(3) (emphasis added).
The FCC, pointing to this provision, has said that (upon request) incumbents must themselves combine, among other things, elements that are ordinarily not combined. Rules 315(c)-(f), 47 CFR §§ 51.315(c)-(f) (1997). How, the incumbents ask, can a statute that speaks of the requesting carriers combining elements grant the FCC authority to insist that they, the incumbents, combine the elements?
In Iowa Utilities Bd., the Court found authority for a somewhat similar rule—a rule that forbids incumbents to uncombine elements ordinarily found in combination. But, as the majority recognizes, ante, at 534-535, that different rule rests upon a rationale absent here. If an incumbent takes apart elements that it ordinarily keeps together, it is normally discriminating against the requesting carriers. And the statutory provision forbids discrimination. But here the incumbent simply keeps apart elements that it ordinarily keeps apart in the absence of a new entrant's demand. How does that discriminate? And if it does not discriminate, where does this statutory provision give the FCC authority to forbid it?
I cannot find the statutory authority. And I consequently would affirm the lower court on the point.
For these reasons, I dissent.
563
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