viously supported mandat- ing access to telecommunications networks have become increasingly skeptical that doing SO will provide any substantial economic benefits (see, e.g., Joskow and Noll 1999). The FCC has also encountered considerable difficulty in determining the num- ber of network elements that fall within the incumbent local telephone compa- nies' UNE access obligations. Indeed, on three separate occasions, courts vacated the FCC's proffered unbundling rules for failure to comply with the 1996 Act's mandate that UNE access be limited to proprietary elements that are "neces- sary" and without which new entrants would "impair" the new entrants' ability to compete. 28 It was not until the fourth try that the FCC was able to issue rules that could withstand judicial scrutiny, more than a decade after the Act's enactment. And by this time, the unbundling rules had largely become moot with respect to local telephone service, as the FCC had deregulated unbundling of network elements providing service to large businesses, small businesses, and residential customers. The Supreme Court eventually upheld TELRIC as a matter of statutory con- struction in Verizon Communications, Inc. V. FCC. As several lower courts had done previously, the Court declined to reach the merits of the underlying takings claim. Instead, it explicitly adopted the clear implication of its previous decisions and held that takings challenges to ratemaking methodologies were generally inappropriate until the methodology in question had been embodied in an actual rate order. Although the Court entertained the possibility that a ratemaking methodology might have such sweeping implications that would justify addressing the constitu- tionality of a methodology on its face, the facts of the case before the Court did not justify doing SO (Verizon, 535 U.S. at 524-56). C. The Different Types of Access to Local Telephone Networks In addition to providing an opportunity to examine the different theoretical jus- tifications for regulation, local teleph