concurring. I concur with the judgment and rationale of the majority opinion. I write separately, however, to emphasize that *291federal preemption of matters traditionally subject to state regulation will not be presumed in the absence of specific congressional intent.
If the federal judiciary decides that federal preemption of the power to fix depreciation rates for state ratemaking purposes is required as an incident to divestiture and is committed to enforcing it, so be it. However, such a radical change in policy is not, contrary to the implicit suggestion of the dissenters, to be presumed from the adoption of a regulation by the FCC. On the contrary, it is the view of a majority of this court that such a radical departure from the traditional interpretation of Sections 152(b)(1), 220(b), and 221(b), Title 47, U.S. Code requires specific congressional intent or at least a specific judicial declaration, binding upon this court, that such an interpretation is now mandated as the result of modern developments in the telecommunications industry.
For the same reasons, I cannot agree with the dissenters that a rehearing in this court or continuance of the stay will resolve the question. The salient facts will remain the same — prior to January 6, 1983, the Public Utilities Commission of Ohio prescribed depreciation rates for intrastate ratemaking purposes without objection from the federal sector; since that date, the FCC has issued a ruling that the identical statutes now require federal preemption, the validity of which has been upheld by the Fourth Circuit Court of Appeals upon its finding that it will facilitate divestiture.
The unanswered question is whether that FCC rule will be enforced against the states so as to preempt the states’ power to fix depreciation allowances in telecommunications cases. This court is without jurisdiction to make that essential determination and, accordingly, the majority’s decision is based upon the fact that the commission’s order is in conformity with Ohio’s ratemaking statutes.
Unlike the dissenters, I do not believe that CBT will be irreparably harmed by our decision today. If enforcement of the FCC order is sought, procedures are available to CBT to obtain a stay of execution pending any further litigation.
Neither the telecommunications industry nor the consumers are well-served by an ambiguous deregulation policy. Similarly, neither the states nor the federal government is well-served by an ambiguous preemption policy. Application of traditional preemption principles herein would leave the state’s regulatory power intact. If policy requires federal preemption of state regulation of the telecommunications industry, Congress should make it explicit.