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Grey Pash, Jr. 60Times New RomanCourierTimes New Roman Bold;XPX@Times New RomanCourierÍ ÍX0Í Í2J0u;<JJKx6X@X@<6X9`("Courier 10cpiXXx6X@X@<4 9Z .Courier New RegularXu\  PP(9 Z 6Times New Roman Regular[\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularX[\  PP(9 Z 6Times New Roman Regular6X@@<4 9Z .Courier New Regular[\  PP(9 Z 6Times New Roman Regular[\  PP(9 Z 6Times New Roman Regularx6X@ X@<6X9`("Courier 10cpiX[\  P P(9 Z 6Times New Roman Regularx6X@ X@<6X9`("Courier 10cpiX[\  P P(9 Z 6Times New Roman Regularx6X@ X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  PP(9 Z 6Times New Roman Regularx6X@X@<6X9`("Courier 10cpiX[\  P P(9 Z 6Times New Roman Regularx6X@!X@<6X9`("Courier 10cpiX[\  P"P(9 Z 6Times New Roman Regularx6X@#X@<6X9`("Courier 10cpiX[\  P$P(9 Z 6Times New Roman Regularx6X@%X@<6X9`("Courier 10cpiX[\  P&P(9 Z 6Times New Roman Regularx6X@'X@<6X9`("Courier 10cpiX[\  P(P(9 Z 6Times New Roman Regularx6X@)X@<6X9`("Courier 10cpiX[\  P*P(9 Z 6Times New Roman Regularx6X@+X@<6X9`("Courier 10cpiX[\  P,P(9 Z 6Times New Roman Regularx6X@-X@<6X9`("Courier 10cpiX[\  P.P(9 Z 6Times New Roman Regularx6X@/X@<6X9`("Courier 10cpiX[\  P0P(9 Z 6Times New Roman Regularx6X@1X@<6X9`("Courier 10cpiX[\  P2P(9 Z 6Times New Roman Regularx6X@3X@<6X9`("Courier 10cpiX[\  P4P(9 Z 6Times New Roman Regularx6X@5X@<6X9`("Courier 10cpiX[\  P6P(9 Z 6Times New Roman Regularx6X@7X@<6X9`("Courier 10cpiX[\  P8P(9 Z 6Times New Roman Regular[\  P9P(9 Z 6Times New Roman Regularx6X@:X@<6X9`("Courier 10cpiX[\  P;P(9 Z 6Times New Roman Regularx6X@<X@<6X9`("Courier 10cpiX[\  P=P(9 Z 6Times New Roman Regularx6X@>X@<6X9`("Courier 10cpiX[\  P?P(9 Z 6Times New Roman Regularx6X@@X@<6X9`("Courier 10cpiX[\  PAP(9 Z 6Times New Roman Regularx6X@BX@<6X9`("Courier 10cpiX[\  PCP(9 Z 6Times New Roman Regularx6X@DX@<6X9`("Courier 10cpiX[\  PEP(9 Z 6Times New Roman Regularx6X@FX@<6X9`("Courier 10cpiX[\  PGP(9 Z 6Times New Roman Regularx6X@HX@<6X9`("Courier 10cpiX[\  PIP(9 Z 6Times New Roman Regular[\  PJP(9 Z 6Times New Roman Regularx6X@KX@<6X9`("Courier 10cpiX[\  PLP(9 Z 6Times New Roman Regularx6X@MX@<6X9`("Courier 10cpiX[\  PNP(9 Z 6Times New Roman Regularx6X@OX@<6X9`("Courier 10cpiX[\  PPP(9 Z 6Times New Roman Regularx6X@QX@<6X9`("Courier 10cpiX[\  PRP(9 Z 6Times New Roman Regularx6X@SX@<6X9`("Courier 10cpiX[\  PTP(9 Z 6Times New Roman Regularx6X@UX@<6X9`("Courier 10cpiX[\  PVP(9 Z 6Times New Roman Regularx6X@WX@<6X9`("Courier 10cpiX6X@X@<6X9`("Courier 10cpi3|x23SIJKCLKNKPTimes New RomanCourierTimes New Roman BoldTimes New Roman Bold Italic<?xxx,x6X@`7X@>RdW,d\  P6G;P@|ND,_|\  P6G;P"i~'^DO]uuĶOOOu=O=AuuuuuuuuuuAAgרOYͨۨOAOkuOgugugOuuAAuAuuuuOYAuuuugp/p~O=~kOOO=OOOOOOuOuAggggg͘gggggOAOAOAOAuuuuuuuuuuguruuuuggggg~ggggguuu~u~uOAOuOOOu~~uA]OOAuuuuuͨOOOYYY~bAkuuuuuuۨ~ggguOuYOu=uuN*NWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNTTkuOguuuuuAKuFKuFOOgguPPuu匱T錌TOguF"u錇~u匌u"i~'^#)0<RdW,d\  P6G;P?@|ND,_|\  P6G;P<I,G6X@`7@@W!@(#,h@\  P6G;hP7nC:,RdW,d\  P6G;P?@|ND,_|\  P6G;P<I,G6X@`7@@W!@(#,h@\  P6G;hPA7nC:,x4X` hp x (#%'0*,.8135@8:"ЍX` hp x (#%'0*,.8135@8:FCC's mandates. After carefully reading the language of the Act and fully considering and  x1reviewing all of the arguments, we conclude that the FCC exceeded its jurisdiction in promulgating the pricing rules.  Xb-  1. The Plain Language of Sections 251 and 252 ă  XK-x   xThe petitioners point to the language contained in subsections 252(c)(2) and 252(d) to  xsupport their claim that the Act directly grants the state commissions the authority to determine  x!the rates involved in implementing the local competition provisions of the Act. Indeed,  X- xsubsection 252(c)(2) requires a state commission to "establish any rates for interconnection,  xservices, or network elements according to subsection (d) of this section." Meanwhile, subsection  X- x252(d), entitled "Pricing standards," lists the requirements that the state commissions must meet  x.in making their determinations of the appropriate rates for interconnection, unbundled access,  xkresale, and transport and termination of traffic. 47 U.S.C.A. 252(d)(1)(3). These statutory  xKprovisions undeniably authorize the state commissions to determine the prices an incumbent LEC may charge for fulfilling its duties under the Act.   xThe FCC and its supporters do not contest the fact that state commissions have the  X - x-responsibility to set prices under the Act. Instead, they claim that subsection 251(d)(1) gives the  xFCC parallel authority to issue regulations governing the ratemaking methods by which state  xcommissions establish the prices that incumbent LECs may charge their new competitors for  xconnecting with and piggybacking on the LECs' networks. They claim that subsection 252(c)(1)" 0*0*0*"  xrequires the state commissions to follow these FCC mandates when they determine the actual  xprices. The FCC also believes that several general rulemaking provisions of the Communications  xAct of 1934, namely subsections 154(i), 201(b), and 303(r), provide it with additional authority  X-to promulgate its pricing rules. See 47 U.S.C. 154(i), 201(b), 303(r) (1994).   \xDespite the FCC's contentions, we are not convinced that these provisions supply the FCC  xwith the authority to issue regulations governing the pricing of the local intrastate  x<telecommunication services that the incumbent LECs are now legally obligated to provide to their  xynew competitors. Subsection 251(d)(1) provides that "[w]ithin 6 months after February 8, 1996,  xthe Commission shall complete all actions necessary to establish regulations to implement the  xrequirements of this section." 47 U.S.C.A. 251(d)(1). The FCC believes this provision supplies  x-the Agency with overarching plenary authority to regulate all aspects of section 251 and reasons  xthat because subsection 251(c) requires rates for interconnection, unbundled access, and  X - x.collocation to be "just, reasonable, and nondiscriminatory," id. 251(c)(2)(d), (c)(3), (c)(6), the  xFCC has the power to regulate these rates and any other rates mentioned in section 251. We are  xnot persuaded by the FCC's interpretation. We believe that subsection 251(d)(1) operates  xprimarily as a time constraint, directing the Commission to complete expeditiously its rulemaking  xregarding only the areas in section 251 where Congress expressly called for the FCC's  Xb- xinvolvement b X-  Px10Such areas are limited to subsections 251(b)(2) (number portability), 251(c)(4)(B)  x(prevention of discriminatory conditions on resale), 251(d)(2) (unbundled network elements),  x\251(e) (numbering administration), 251(g) (continued enforcement of exchange access), and  X-251(h)(2) (treatment of comparable carriers as incumbents).#x6X@X@#. Nowhere in section 251 is the FCC authorized specifically to issue rules  xgoverning the rates for interconnection, unbundled access, and resale, and the transport and termination of telecommunications traffic.   xThe Commission's reliance on general rulemaking provisions that predate the  X- x.Telecommunications Act of 1996 also fares no better. While subsection 201(b) does grant the  xFCC jurisdiction over charges regarding communications services, those services are expressly  X- xlimited to interstate or foreign communications services by subsection 201(a). See 47 U.S.C.  x201. Consequently, subsection 201(b) does not provide the Commission with the authority to  xregulate the rates of local intrastate phone service and neither do subsections 154(i) or 303(r).  xBoth of these subsections merely supply the FCC with ancillary authority to issue regulations that  xzmay be necessary to fulfill its primary directives contained elsewhere in the statute. Neither  XN- xZsubsection confers additional substantive authority on the FCC. See id. 154(i), 303(r); see also  X7- xmCalifornia v. FCC, 905 F.2d 1217, 1241 n.35 (9th Cir. 1990) (explaining that Title I of the  x]Communications Act of 1934, in which section 154(i) is contained, confers only ancillary  xauthority to the FCC). Thus, we conclude that none of the statutory provisions relied on by the  X-FCC supply it with jurisdiction over the pricing of local telephone service. 4" X%- xy"ЍX` hp x (#%'0*,.8135@8:" competition provisions of the Act.   !xAs explained earlier, the FCC argues that Congress unambiguously granted it intrastate  xpricing authority through the relationship between subsections 251(d)(1) (directing the  xCommission to establish regulations to implement the requirements of section 251 by August 8,  x1996) and 251(c) (periodically mentioning that the incumbent LECs' rates must be just and  x reasonable). We have now rejected this interpretation as being inconsistent with the plain  x>meaning of the Act, and we have concluded exactly the oppositethat the Act directly and  x]straightforwardly assigns to the states the authority to set the prices regarding the local  xcompetition provisions of the Act in subsections 252(c)(2) and 252(d). Consequently, the FCC's  xinterpretation of the Act does not demonstrate an unambiguous grant of intrastate authority to the  X - x=FCC required either to jump over or pass through section 2(b)'s fence. See Louisiana, 476 U.S.  xat 37677 n.5 (explaining that section 2(b) also operates as a rule of statutory construction,  xcommanding that nothing in the Act be construed to extend FCC jurisdiction to intrastate telecommunications).   ?xCongress is fully capable of opening the gate in the 2(b) fence in order to grant the FCC  Xy- xintrastate ratemaking authority when it wishes to do so. Once again, provisions of the Cable Act  xZillustrate this point. One such provision reads, "The Commission shall, by regulation, ensure that  xthe rates for the basic service tier are reasonable." 47 U.S.C. 543(b)(1). Moreover, section 276  xof the Telecommunications Act itself directly requires the FCC to establish a compensation plan  X- x/regarding both intrastate and interstate pay phone calls. 47 U.S.C.A.  276(b); Illinois Pub.  X- xTelecomm. Ass'n v. FCC, No. 961394, 1997 WL 358160, at *5 (D.C. Cir. July 1, 1997). The  x-FCC's roundabout construction in its effort to claim intrastate pricing authority under section 251  xKof the Telecommunications Act is notably strained in stark comparison to the direct grant of such  xauthority contained in both the Cable Act and in section 276 of the Telecommunications Act, thus  xZproviding more indications that Congress intended to reserve for the states the retained authority  xto set the prices regarding the local competition provisions contained in section 251 of the  x1Telecommunications Act of 1996. Additionally, certain nonpricing provisions of the  xTelecommunications Act provide the FCC with much more direct and unambiguous grants of  xintrastate authority than the FCC's strained reading of subsections 251(d) and 251(c). For  xyinstance, subsection 251(b)(2) burdens LECs with "[t]he duty to provide . . . number portability  xin accordance with requirements prescribed by the Commission." 47 U.S.C.A. 251(b)(2) (West  X - xSupp. 1997). In contrast, no provision of the Act unambiguously requires rates for the local  xcompetition provisions to comply with FCCprescribed requirements, no provision unambiguously  X- x|directs the FCC to issue such pricing regulations, and there is no straightforward and  X - xunambiguous modification of section 2(b) in the Act. " X=#- x"ЍX` hp x (#%'0*,.8135@8:"  X-FCC's pricing rules " Xy- xO"ЍX` hp x (#%'0*,.8135@8:to review state commission determinations and to enforce stateapproved agreements. We  xconclude that the language and structure of the Act combined with the operation of section 2(b)  xindicate that the provision of federal district court review contained in subsection 252(e)(6) is the  xexclusive means of obtaining review of state commission determinations under the Act and that  xstate commissions are vested with the power to enforce the terms of the agreements they approve.  XN- "5d c  E. Rule 51.303Review of Preexisting Agreements  X7-   xSome petitioners challenge the FCC's conclusion that subsection 252(a)(1) requires  xpreexisting interconnection agreements that were negotiated before the enactment of the  xTelecommunications Act of 1996, including agreements between neighboring noncompeting  X- xLECs, to be submitted for state commission approval. See First Report and Order,  165, 166,  x169; 47 C.F.R. 51.303 (stating FCC's interpretation of subsection 252(a)(1)). While clearly  xrequiring new agreements negotiated under the terms of the Act to be submitted for state  xcommission approval, the last sentence of subsection 252(a)(1) reads, "The agreement, including  xiany interconnection agreement negotiated before February 8, 1996, shall be submitted to the State  xcommission under subsection (e) of this section." 47 U.S.C.A. 252(a)(1). The petitioners  xobjecting to the FCC's interpretation of this provision claim initially that the Commission does"Q%b0*0*0*'$"  x[not have jurisdiction to determine which agreements must be submitted for approval under the  xAct; alternatively, they attack the Commission's determination on its merits, arguing that the  xFCC's rule violates the terms of the Act. Our review of the arguments leads us to conclude that the FCC exceeded its jurisdiction in promulgating rule 51.303.   xOnce again, section 2(b), 47 U.S.C. 152(b), prevents the FCC from issuing regulations  Xv- xinvolving telecommunication matters that are fundamentally intrastate in character. As we  xexplained above, the duties imposed by sections 251 and 252 and the agreements fulfilling those  xduties almost exclusively involve local intrastate telecommunication services. Consequently,  xsection 2(b) forecloses the ability of the Commission to determine which interconnection  X - xagreements must be submitted for state commission approval.I  " X - x"ЍX` hp x (#%'0*,.8135@8:"  X-issue this regulation. " Xy- x"ЍX` hp x (#%'0*,.8135@8:Commission's regulations under section 251 are binding on the states, even with respect to  xintrastate matters." First Report and Order,  101. With this statement, as well as several others,  xthe FCC purports to preempt any state policy that conflicts with an FCC regulation promulgated  XH- x?pursuant to section 251. See id. at  101103, 180. The petitioners argue that the FCC's position is untenable in light of subsection 251(d)(3) and the structure of the Act. We agree.   xSubsection 251(d)(3), entitled "Preservation of State access regulations," provides the following:     ` pXx` ` In prescribing and enforcing regulations to implement the requirements of  this section, the Commission shall not preclude the enforcement of any regulation, order, or policy of a State commission that   Xy-  XxX` ` (A) establishes access and interconnection obligations of local exchange carriers;x`  XK-XxX` ` (B) is consistent with the requirements of this section; andx`  ` XxX` ` (C) does not substantially prevent implementation of the requirements of this section and the purposes of this part.x`  x 47 U.S.C.A. 251(d)(3). Initially, we note that the FCC's authority to prescribe and enforce  x regulations to implement the requirements of section 251 is confined to the six areas in this  X- xMsection where Congress expressly called for the FCC's participation. See supra note 10 and  xaccompanying text. Subsection 251(d)(3) further constrains the FCC's authority. Even when the  xFCC issues rules pursuant to its valid rulemaking authority under section 251, subsection  X|- xK251(d)(3) prevents the FCC from preempting a state commission order that establishes access and  x>interconnection obligations so long as the state commission order (i) is consistent with the  xrequirements of section 251 and (ii) does not substantially prevent the implementation of the  xrequirements of section 251 and the purposes of Part II, which consists of sections 251 through  x261. This provision does not require all state commission orders to be consistent with all of the  xFCC's regulations promulgated under section 251. The FCC attempts to read such a requirement  x-into this subsection by asserting that a state policy that is inconsistent with an FCC regulation is  xnecessarily also inconsistent with the terms of section 251 and substantially prevents the  X - ximplementation of section 251. See First Report and Order,  102103. The FCC's conflation  xof the requirements of section 251 with its own regulations is unwarranted and illogical. It is  xentirely possible for a state interconnection or access regulation, order, or policy to vary from a""0*0*0*!"  xspecific FCC regulation and yet be consistent with the overarching terms of section 251 and not  xsubstantially prevent the implementation of section 251 or Part II. In this circumstance,  x=subsection 251(d)(3) would prevent the FCC from preempting such a state rule, even though it differed from an FCC regulation.   kxThe FCC asserts that other provisions of the Act justify its belief that state interconnection  Xv- xand access rules must be consistent with the Commission's regulations under section 251. The  xFCC claims that section 253 and subsections 252(c)(1) and 261(c) indicate that state commissions  xare bound by the FCC's regulations. While subsection 253(d) does empower the Commission  xyto preempt some state policies, those state policies are limited to those that violate the terms of  xlsubsections 253(a) or 253(b). 47 U.S.C.A. 253(d). Neither subsection 253(a) nor 253(b)  xrequires state policies to conform to any Commission regulations; 253(a) merely requires state  xpolicies not to prohibit "the ability of any entity to provide any interstate or intrastate  xtelecommunications service," and 253(b) allows states to impose additional telecommunications  xrequirements as long as they are competitively neutral and consistent with the universal service  X - xobligations of section 254. Id. 253(a), (b). Meanwhile, subsection 252(c)(1) does require state  xcommissions to ensure that arbitrated agreements comply with the Commission's regulations made  xpursuant to section 251, but by its very terms this provision confines the states only when they  xare fulfilling their roles as arbitrators of agreements pursuant to the federal Telecommunications  xAct of 1996. This provision does not apply to state statutes or regulations that are independent  xfrom the Telecommunications Act of 1996. Many states enacted legislation designed to open up  X- x.local telephone markets to competition prior to the 1996 federal Act, see Iowa Utilities Bd., 109 F.3d at 427 n.7, and subsection 251(d)(3) was designed to preserve such work of the states.  X- "5e     "5e xFinally, the FCC claims that subsection 261(c) provides support for its conclusion that the  xstate regulations must be consistent with the Commission's rules on interconnection and access  xpromulgated under section 251. While subsection 261(c) does require some state rules to be  x consistent with "the Commission's regulations to implement this part," we believe that this  X|- xprovision applies only to those additional state requirements that are not promulgated pursuant  Xe- x to section 251 or any other section in Part II of the Act. See 47 U.S.C.A. 261(c). Because  x-subsection 251(d)(3) specifically governs state rules that "establish[] access and interconnection  xobligations of local exchange carriers," which is the heart of the subject matter of section 251,  xand subsection 261(b) governs state rules that are issued to "fulfill[] the requirements of this  xLpart," we conclude that the additional state requirements referenced in subsection 261(c) refer  xto separate state rules that do not directly pertain to the matters found in sections 251 through 261  x(Part II) of the Act. Consequently, this provision does not apply to the state rules pertaining to  x<interconnection and access obligations that the Commission believes it has the power to preempt  x<under its section 251 authority, and thus, it does not support the FCC's view that such state rules must conform to the Commission's regulations.   xThe FCC's blanket statement that state rules must be consistent with the Commission's  XQ%- xregulations promulgated pursuant to section 251 is not supportable in light of subsection"Q%0*0*0* $"  X- x251(d)(3).X" Xy- x"ЍX` hp x (#%'0*,.8135@8:X@#X With subsection 251(d)(3), Congress intended to preserve the states' traditional  xauthority to regulate local telephone markets and meant to shield state access and interconnection  xorders from FCC preemption so long as the state rules are consistent with the requirements of  xsection 251 and do not substantially prevent the implementation of section 251 or the purposes  x[of Part II. We conclude that the FCC's belief that merely an inconsistency between a state rule  xand a Commission regulation under section 251 is sufficient for the FCC to preempt the state  x\rule, is an unreasonable interpretation of the statute in light of subsection 251(d)(3) and the  X_-structure of the Act.Z_K" X[ - x"ЍX` hp x (#%'0*,.8135@8:a competing carrier may gain access to such services. We agree with the FCC that such an  xKinterpretation would allow the incumbent LECs to evade a substantial portion of their unbundling  xiobligation under subsection 251(c)(3). We believe that in some circumstances a competing carrier  xmay have the option of gaining access to features of an incumbent LEC's network through either  xunbundling or resale. Regarding the features presently at issue, as explained above, these aspects  xxof telecommunications satisfy the definition of "network element;" consequently, they are subject" (0*0*0*&"  X-to the unbundling requirements of subsection 251(c)(3).G" Xy- x"ЍX` hp x (#%'0*,.8135@8:rises." First Report and Order,  285. The petitioners offer a more restrictive definition that"e  0*0*0*"  x/would require competing carriers to demonstrate that their technical capability to provide a  xservice would be diminished without unbundled access to a particular element. While the  xpetitioners' alternative may be plausible, dictionaries consistently define the word "impair" to  X- xmean "to make worse" or "to diminish in . . . value." See, e.g., Webster's Third New  X- x\International Dictionary 1131 (1986); Webster's New World Dictionary 703 (2d ed. 1970). If  xthe quality of the service declines or the cost of providing the service rises as a result of a  xrequesting carrier's inability to gain access to a network element, then the requesting carrier's  x-ability to provide the service has been made worse. The FCC's interpretation of the "impairment"  XH-standard is reasonable, and we give it deference. See Chevron, 467 U.S. at 844.  X -  e. Superior QualityRules 51.305(a)(4), 51.311(c) ă  X -   ^xAnother source of disagreement between the petitioners and the FCC arises over the  x.Agency's decision to require incumbent LECs to provide interconnection, unbundled network  xelements, and access to such elements at levels of quality that are superior to those levels at  xwhich the incumbent LECs provide these services to themselves, if requested to do so by  X- xcompeting carriers. See 47 C.F.R. 51.305(a)(4), 51.311(c). Here, we believe that the FCC violated the plain terms of the Act when it issued these rules.   xSubsection 251(c)(2)(C) requires incumbent LECs to provide interconnection "that is at  xleast equal in quality to that provided by the local exchange carrier to itself. . . ." Plainly, the  xAct does not require incumbent LECs to provide its competitors with superior quality  xZinterconnection. Likewise, subsection 251(c)(3) does not mandate that requesting carriers receive  X- x=superior quality access to network elements upon demand. The FCC argues that the terms "at  X- xileast equal in quality" permit the provision of superior quality interconnection; it believes that the  xnondiscrimination requirements in both subsections 251(c)(2) and 251(c)(3) require incumbent  xLECs to provide superior quality interconnection and network elements when requested; and it  xasserts that the provision of superior quality interconnection and network elements will not unduly  xburden the incumbent LECs, because the requesting carriers will have to pay for these services. We are not convinced by the Commission's justifications for these rules.   xWhile the phrase "at least equal in quality" leaves open the possibility that incumbent  X - xLECs may agree to provide interconnection that is superior in quality when the parties are  xnegotiating agreements under the Act, this phrase mandates only that the quality be equalnot  xsuperior. In other words, it establishes a floor below which the quality of the interconnection  X- xkmay not go. Because the Commission's rule requires superior quality interconnection when  X - xrequested, see 47 C.F.R. 51.305(a)(4), the rule is not supported by the Act's language. We also  xagree with the petitioners' view that subsection 251(c)(3) implicitly requires unbundled access  X"- xonly to an incumbent LEC's existing networknot to a yet unbuilt superior one. Additionally,  xthe nondiscrimination requirements contained in these subsections of the Act do not justify these  xiFCC rules. The fact that interconnection and unbundled access must be provided on rates, terms,  xand conditions that are nondiscriminatory merely prevents an incumbent LEC from arbitrarily  xxtreating some of its competing carriers differently than others; it does not mandate that incumbent  xLECs cater to every desire of every requesting carrier. Finally, the fact that incumbent LECs  xmay be compensated for the additional cost involved in providing superior quality interconnection  xand unbundled access does not alter the plain meaning of the statute, which, as we have shown,"( 0*0*0*'"  xLdoes not impose such a burden on the incumbent LECs. Therefore, we conclude that sections  X-51.305(a)(4) and 51.311(c) cannot stand in light of the plain terms of the Act.?!_" Xb- xN"ЍX` hp x (#%'0*,.8135@8:unbundled elements from an incumbent LEC to provide a telecommunications service. The  xpetitioners argue that subsection 251(c)(4) makes resale the exclusive means to offer finished  xytelecommunications services for competing carriers that do not own or control any portion of a  x/telecommunications network. Furthermore, the petitioners point out that under subsection  x251(c)(4) a competing carrier may purchase the right to resell a telecommunications service from  x=an incumbent LEC only at wholesale rates. Under subsection 252(d)(1), however, a competing  x-carrier may obtain unbundled access to an incumbent LEC's network elements at a less expensive  xcostbased rate. The petitioners then argue that by allowing a competing carrier to obtain the  x-ability to provide finished telecommunications services entirely through unbundled access at the  x/less expensive costbased rate, the FCC enables competing carriers to circumvent the more  xexpensive wholesale rates that the Act requires for telecommunications services, and thereby  xnullifies the terms of subsection 251(c)(4). Additionally, the petitioners claim that by being able  xZto obtain the ability to provide services at cost under subsection 251(c)(3), competing carriers will  xbe able to capture many of the incumbent LECs' customers to whom the incumbent LECs are  xLexpected to charge high prices for certain services to offset the low prices incumbent LECs are  xrequired to charge other customers in order to promote universal service. The petitioners claim  xthat the competing carriers will simply offer the same services to these particular customers at  xZlower rates and capture a significant share of the market ("cherrypicking") without achieving any  xtrue gain in efficiency or technology. Finally, the petitioners contend that the FCC's view of  xsubsection 251(c)(3) allows carriers to circumvent the Act's restriction on joint   marketing of local  xand longdistance services contained in subsection 271(e)(1). This is because subsection  x271(e)(1) prohibits a carrier's joint marketing only of local service obtained under subsection  x251(c)(4) (resale) with the carrier's ability to provide longdistance service. 47 U.S.C.A.  x271(e)(1). It does not apply to local service that a competing carrier achieves under subsection  x[251(c)(3) (unbundled access). Despite the petitioners' extensive arguments to the contrary, we  xbelieve that the FCC's determination that a competing carrier may obtain the ability to provide  xtelecommunications services entirely through an incumbent LEC's unbundled network elements  xis reasonable, especially in light of our decisions regarding the validity of other specific FCC rules.   xInitially, we believe that the plain language of subsection 251(c)(3) indicates that a  X - xrequesting carrier may achieve the capability to provide telecommunications services completely  x\through access to the unbundled elements of an incumbent LEC's network. Nothing in this  xsubsection requires a competing carrier to own or control some portion of a telecommunications  xnetwork before being able to purchase unbundled elements. To the contrary, this subsection  X - xOimposes a duty on incumbent LECs to provide unbundled access "to any requesting  xMtelecommunications carrier for the provision of a telecommunications service." 47 U.S.C.A.  xZ251(c)(3) (emphasis added). The petitioners contend that the terms of subsection 251(c)(3) only  xallow a requesting carrier access to unbundled elements and that a carrier who obtains an entire  Xh$- x>network is getting more than elements on an unbundled basis. The additional terms of this  x=subsection, however, expressly contemplate that competing carriers will use these elements to  x\provide finished services. The last sentence of this subsection reads, "An incumbent local  x{exchange carrier shall provide such unbundled network elements in a manner that allows  x requesting carriers to combine such elements in order to provide such telecommunications  X(- xservice." Id. Our previous ruling finding that this language does not require an incumbent LEC  x.to combine the elements for a requesting carrier establishes that requesting carriers will in fact")! + + +n("  xbe receiving the elements on an unbundled basis. We now decide merely that under subsection  xz251(c)(3) a requesting carrier is entitled to gain access to all of the unbundled elements that,  xZwhen combined by the requesting carrier, are sufficient to enable the requesting carrier to provide telecommunications services.   xWe do not believe that this interpretation of subsection 251(c)(3) will cause all requesting  x0carriers to select unbundled access over resale as their preferred route to enter the local  x-telecommunications market. Although a competing carrier may obtain the capability of providing  xlocal telephone service at costbased rates under unbundled access as opposed to wholesale rates  xunder resale, unbundled access has several disadvantages that preserve resale as a meaningful  xalternative. Carriers entering the local telecommunications markets by purchasing unbundled  x[network elements face greater risks than those carriers that resell an incumbent LEC's services.  x[A reseller can more easily match its supply with its demand because it can purchase telephone  xservices from incumbent LECs on a unitbyunit basis. Consequently, a reseller is able to  xpurchase only as many services (or as much thereof) as it needs to satisfy its customer demand.  xA carrier providing services through unbundled access, however, must make an upfront  x=investment that is large enough to pay for the cost of acquiring access to all of the unbundled  xelements of an incumbent LEC's network that are necessary to provide local telecommunications  xservices without knowing whether consumer demand will be sufficient to cover such expenditures.  xMoreover, our decision requiring the requesting carriers to combine the elements themselves  x-increases the costs and risks associated with unbundled access as a method of entering the local  xLtelecommunications industry and simultaneously makes resale a distinct and attractive option.  x[With resale, a competing carrier can avoid expending valuable time and resources recombining unbundled network elements.   MxGiven the disadvantages of completely relying on unbundled access as a means to provide  X- x-local telecommunications services, we believe that many new entrant carriers will choose to resell  x<such services under subsection 251(c)(4). Consequently, we do not believe that incumbent LECs  xwill lose all of the customers to whom they charge higher prices in order to fulfill their current  xuniversal service obligations. The increased risk and the additional cost of recombining the  x-unbundled elements will hinder the ability of competing carriers to undercut these prices and lure  X7- xthese customers away from the incumbent LECs."H7" X- xL"ЍX` hp x (#%'0*,.8135@8:xInitially we note that the petitioners' arguments are generally based on the assumption that  x the FCC's unbundling rules would operate in conjunction with the Commission's proposed  xpricing rules. The petitioners have argued that the Commission's pricing rules would result in  xrates that are unreasonably low, making it inexpensive and thus highly profitable for competing  xxcarriers to provide local telecommunications services exclusively through the use of an incumbent  xLEC's network. In these circumstances, the petitioners argue, competing carriers would have no  xincentive to build their own network facilities. We have, however, vacated the FCC's pricing  xrules and determined that the Act requires state commissions to set the rates that competing  xcarriers must pay for access to incumbent LECs' networks. Since we do not know what the state xdetermined rates will be, the petitioners' argument that competing carriers will incur only minimal  xLcosts in gaining access to incumbent LECs' networks and have no incentive to build their own  X7-is merely speculative at best.f#7" X- xx"ЍX` hp x (#%'0*,.8135@8:hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations,  xcitations, and footnote omitted). With respect to this claim, neither the intervenor nor the  xpetitioners have demonstrated that the FCC's unbundling rules will, in fact, enable requesting  xcarriers to have direct access to the copyrights, patents, or trade secrets of these manufacturers.  xPresently, we do not have before us the specific unbundling duties contained in a particular  xnegotiated agreement or a state arbitration decision that would be necessary to be able to  x.determine if such infringements or takings were imminently likely to occur. Instead, we merely  xjhave the hypotheses of the intervenor and the petitioners, but "[a]ssertions of potential future  Xy- xLinjury do not satisfy the injury in fact test." Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994).   xMoreover, to the extent that the petitioners seek to assert the rights of other copyright,  X- xpatent, or trade secret owners, we do not believe that the circumstances of this case warrant an  xjexception to the general rule that prevents "'litigants from asserting the rights or legal interests  X- xof others in order to obtain relief from injury to themselves.'" Oehrleins v. Hennepin County,  X- x!1997 WL 304451, at *3 (8th Cir. June 9, 1997) (quoting Warth v. Seldin, 422 U.S. 490, 509  x(1975)). Before a litigant will be allowed to assert a claim on behalf of a third party, the litigant  X- x=must show, among other things, that the third party is unable to protect its own interests. See  X- xPowers v. Ohio, 499 U.S. 400, 411 (1991); United States v. Metropolitan St. Louis Sewer Dist.,  x952 F.2d 1040, 1043 (8th Cir. 1992). The petitioners have not claimed, nor do we have reason  xto believe, that these thirdparty manufacturers of telecommunications technology are or will be  xunable to protect their intellectual property or constitutional rights. Thus, we conclude that the petitioners do not presently have standing to raise these claims.  X -  4. The Unbundling Rules in Light of the  Fifth Amendment's Takings Clause  X-TP   ]xThe petitioners' final attack on the Commission's unbundling rules is their argument that  xthe rules in general provide competing carriers with such extensive access and use of the  x\incumbent LECs' networks that they effect unconstitutional takings of the incumbent LECs'  xproperty. The petitioners then argue that we should reject the FCC's overly broad interpretation of the Act's unbundling duties in order to avoid such constitutional infirmities. "Q%"b%0*0*0*'$"Ԍ  xOnce again, we note that we have already vacated several of the unbundling rules that  x constitute a significant portion of this particular complaint. Thus, we are skeptical that the  xremaining FCC unbundling rules will effect an actual taking. Nevertheless, because many of the  xratemaking procedures have been held in abeyance in anticipation of our decision and given the  x[fact that we have vacated many of the FCC's pricing rules in this opinion, we cannot, as of yet,  xdetermine whether the incumbent LECs are receiving or will receive just compensation for  xproviding competing carriers with access to their networks. Therefore, we believe that this claim  xin not ripe for review. When a state or the federal government provides an adequate procedure  x[for obtaining compensation, a takings claim is not ripe for review until the litigant has used the  X1- x/procedure and has been denied just compensation. See Williamson County Reg'l Planning  X - xComm'n v. Hamilton Bank, 473 U.S. 172, 195 (1985); McKenzie v. City of White Hall, 112  xF.3d 313, 317 (8th Cir. 1997). Under the Act, if an incumbent LEC and a requesting carrier fail  xto negotiate the rates for unbundled access on their own, a state commission will determine the  xamount of compensation that the requesting carrier must pay to the incumbent LEC for such  X - xLaccess in an arbitration proceeding. See 47 U.S.C.A. 252(c)(2). Because the petitioners have  xinot demonstrated that they have participated in such state arbitration proceedings and have been  xdenied just compensation, we find that their takings claim is not ripe for review. We note that  x{such a claim could be presented to a federal district court under the review provisions of subsection 252(e)(6).   xHaving found that the takings claim on its merits is not ripe, there is no justification for  X- xkwithholding the traditional deference that we afford to reasonable agency interpretations of  X- xstatutes. See Chevron, 467 U.S. at 844. Consequently, we stand by our earlier determinations  xupholding several of the Commission's unbundling rules in light of the Act's terms, and we also  xfind that the Commission's rules and policies regarding the incumbent LECs' duty to provide for  xphysical collocation of equipment to be consistent with the Act's terms contained in subsection  X- x{251(c)(6). See 47 C.F.R. 51.323(f); First Report and Order,  585 (requiring, among other  xthings, incumbent LECs to take account of projected demand for collocation of equipment when  X|-planning renovations or new constructions).&|" X- x"ЍX` hp x (#%'0*,.8135@8: