concurring:
I write separately only to emphasize what I understand to be the limitations of section II.B.l. of the majority opinion. The FCC’s memorandum opinion is somewhat ambiguous respecting why the FCC regards Intelsat’s proposal as “uneconomical.” The FCC's opinion might be read, as the majority does, to suggest that a mere price differential between Intelsat’s proposal and that of its would-be competitors would justify granting the application. If that were so then I would agree with the majority that the FCC would have great difficulty in squaring that position with its prior precedent. If, on the other hand, the FCC’s decision were based, as at one point it suggests, on a finding that “use of the INTELSAT system would significantly raise the cost of service to the point of being prohibitive,” that position would seem legitimately based on prior precedent. 1 F.C.C.Rcd at 104 (1986) (emphasis added). In Transborder I, for example, the FCC said:
Once the service is duplicated on the INTELSAT satellite and terrestrial links or multi-hop satellite connections are required to reach the transborder locations, the cost of service will be increased significantly____ Therefore, it is doubtful that U.S. programmers would be willing to duplicate their networks over the INTELSAT system or whether the trans-border customers could pay the added costs of service over INTELSAT facilities.
88 F.C.C.2d at 280-81 (emphasis added); see also Transborder II ¶ 42, reprinted in S.A. 50-51; Transborder IV II42, reprinted in S.A. 92. Such a standard would fully serve any FCC policy of protecting Intelsat, since it gives to other carriers only business Intelsat could never capture.
If the FCC indeed understands the use of Intelsat to be uneconomical only when the cost of that use is so substantial that it would prevent the proposed activity from going forward, I assume that any of a range of reasons could support a ruling of uneconomical. We certainly have not been presented with arguments to support the proposition, nor do I understand the majority to hold, that any particular reasons are more credible or noteworthy than others. In that regard, concepts of pure price and *473qualitative cost converge; the obvious significance of qualitative design differences is that they add costs and therefore raise the price of service. As the FCC has noted, “the use of multi-satellite hops, terrestrial facilities and collocated domestic and international earth stations would increase measurably the cost of providing trans-border satellite service.” Transborder I, 88 F.C.C.2d at 280 (emphasis added). The Buckley letter, furthermore, would allow the use of domestic satellites for international telecommunications when use of Intelsat would be either “uneconomical” or “impractical.” If the two criteria are distinct — which I doubt — the former would seem to address pure price differentials and the latter qualitative concerns.
The FCC, however, is less than crystal clear here as to exactly what it means by uneconomical, and since I fully agree with the majority that the agency improperly failed to consider Comsat’s claimed lower price, I hope that the FCC will on remand clarify its position.