Peevey

We must decide whether an incumbent local exchange carrier’s challenge to nominally “interim” rates for access to its network by competitive local exchange carriers, which rates are set by a state utilities commission pursuant to the Telecommunications Act of 1996, is ripe for judicial review, even though such rates are subject to later adjustment by the state utilities commission (“a true-up”). When the incumbent local exchange carrier has cognizable claims which cannot and will not be compensated by the true-up, we hold such challenge is ripe for judicial review.

BACKGROUND

The Telecommunications Act of 1996 (“the Act”), Pub.L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C.) aims in part to introduce competition among local exchange carriers. Verizon Communs., Inc. v. FCC, 535 U.S. 467, 476-77 , 122 S.Ct. 1646 , 152 L.Ed.2d 701 (2002). A “local exchange” is “a network connecting terminals like telephones, faxes, and modems to other terminals within a geographical area like a city.” 535 U.S. at 489 , 122 S.Ct. 1646 . The Act recognizes two types of local exchange carriers. An “incumbent local exchange carrier” (“ILEC”) is a carrier that owns a…

concurring:

Although I join in the majority’s holding and its conclusion that Verizon’s claims are ripe for judicial review, I do not find its distinction of US West Communications v. MFS Intelenet, 193 F.3d 1112 (9th Cir.1999), to be compelling. I nevertheless find US West to be distinguishable on a different basis, and take this opportunity to articulate that basis and also to respond to the many arguments advanced by the CPUC and intervenors in support of their view that Verizon’s claims are not ripe for judicial review even independent of US West.

I. US West Communications v. MFS Intelenet, Inc.

The majority distinguishes US West on the basis that “neither the legitimacy of interim rates nor possible adjustment by later pricing proceedings (a so-called true up) is accepted by Verizon,” slip op. at 1073, suggesting that, by contrast, U.S. West did not contest “the legitimacy of interim rates.” I take this to mean that, according to the majority’s reading, U.S. West did not contest the legitimacy of rates that, by virtue of being interim, need not be in compliance with the Act so long as U.S. West was later made whole.

With this I do not agree. As we explained there, “US…

BACKGROUND

The Telecommunications Act of 1996 (“the Act”), Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C.) aims in part to introduce competition among local exchange carriers. Verizon Communs., Inc. v. FCC, 535 U.S. 467, 476-77 (2002). A “local exchange” is “a network connecting terminals like telephones, faxes, and modems to other terminals within a geographical area like a city.” 535 U.S. at 489. The Act recognizes two types of local exchange carriers. An “incumbent local exchange carrier” (“ILEC”) is a carrier that owns a local exchange. Id. at 490 (citing 47 U.S.C. § 251(h)). A “competitive local exchange carrier” (“CLEC”) is a carrier new to the market, without a local exchange of its own. See 535 U.S. at 491-92. Absent regulation, “[a] newcomer could not compete with the incum- bent carrier to provide local service without coming close to replicating the incumbent’s entire existing network [or local exchange] . . . .” Id. at 490.

To foster competition, the Act requires that ILECs make available to CLECs “access” to the ILECs’ “network ele- ments” “on an unbundled basis.” 47 U.S.C. § 251(c)(3). A “network element” is “a facility or…