29
Commission said, “Section 202 . . . does not prevent carriers
from treating users differently; it bars only unjust or
unreasonable discrimination.
Carriers may differentiate
among users so long as there is a valid reason for doing so.”
Id. at 16730-31(emphasis in original)). It reasoned that, “in
emergency situations, non-[emergency] customers simply are
not ‘similarly situated’ with [emergency] personnel” because
“the ability of [the latter] to communicate without delays
during emergencies is essential.” Id. at 16731. Even when
the Commission engages in full-scale rate regulation (which it
purports to eschew in the Order), it explicitly recognizes that
reasonable price differentials are appropriate where the
services in question are unlike. See, e.g., In re AT&T
Communications Revisions to Tariff F.C.C. No. 12, 6 F.C.C.
Rcd. 7039 ¶ 8 (1991).
Tellingly, in its prioritized emergency mobile services
decision the Commission did not see fit to discuss § 201 at all.
The principle underlying the Commission’s understanding of
§ 202 was a broad one—that allowance of differential rates
based on “valid reasons” advances the public interest.
Whatever explains the lack of any reference to § 201, the
Commission’s recognition that differential rates were not
inherently unjust or unreasonable under § 202 requires, as a
minimum of coherent reasoning, that it offer some explanation
why the same words in § 201 should preclude such
differentials. See Orloff v. Vodafone AirTouch Licenses LLC
d/b/a Verizon Wireless, 17 F.C.C. Rcd. 8987, 8999 (finding
reasonableness and justness under § 202 to be sufficient for
finding the same under § 201). Of course this is no more than
a recognition of the principle, prevailing throughout the era of
federal regulation of natural monopolies, that it is just and
reasonable that customers receiving extra speed or reliability
should pay extra for it. A classic and pervasive example is the
differential in natural gas transmission between firm and
interruptible service. See, e.g., Fort Pierce Utilities Auth. of
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