se taking because it lacked the necessary "element of required acquiescence." The Court found Loretto dispositive, concluding that, "[s]o long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry gen- erally applicable to nonpossessory governmental activity'" (480 U.S. 245, 251, 252 (1987), quoting Loretto, 458 U.S. at 440). Having held that the Pole Attachments Act fell outside Loretto's per se rule governing physical takings, the Court evaluated whether the Act nonetheless repre- sented a nonpossessory taking. Rather than applying the Penn Central factors, as its quotation of Loretto suggested, Florida Power held that the Takings Clause simply required that the set rates not be confiscatory. The Court concluded that the pole attachment rates established by the statute allowed sufficient return on investment to satisfy the requirements of its confiscatory rate-making jurisprudence (480 U.S. at 253-54). Florida Power thus reinforced the same key principles underlying the Court's decision in Loretto. First, although it did not address the issue explicitly, the Court implied that had the Pole Attachments Act compelled utilities to give cable televi- sion systems access to their poles, the Act would have constituted a per se taking under Loretto. Second, Florida Power underscored the sharp distinction between the Court's physical takings and confiscatory ratemaking precedents. Echoing the admonitions of Justices Brandeis and Black that physical takings and confisca- tory ratemaking occupy distinct jurisprudential spheres, the Court established that its confiscatory rate-making precedents did not apply to cases involving physical takings (480 U.S. at 251-52 & n. 6). 4. Toward a Possible Synthesis of Regulatory Takings and Confiscatory Ratemaking Doctrine Although courts and scholars typically treat regulatory takings and confiscatory rate-making as conceptually distinct (Sidak & Spulber 199