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In this Article, we examine the neglected tradeoff between innovation and mandatory unbundling of telecommunications networks. Our analysis is prompted by the Supreme Court's 1999 decision in AT&T Corp. v. Iowa Utilities Board and by the Federal Communications Commission's Second Further Notice of Proposed Rulemaking released later the same year, which address which network elements in the local telecommunications network shall be subject to compulsory sharing among competitors at regulated cost-based rates. Economic analysis indicates that mandatory unbundling at prices computed on the basis of the total element long-run incremental cost of the various network elements belonging to an incumbent local exchange carrier will adversely affect the ILEC 's incentives not only to upgrade or maintain existing facilities, but also to invest in new facilities. Mandatory unbundling at TELRIC prices will also encourage competitive local exchange carriers to deviate from the socially optimal level of investment and entry. Finally, the confluence of mandatory unbundling and other FCC policies aggravates the distortion of investment decisions.

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Seven years of attempted deregulation of telecommunications in the United States yield several lessons. First, the transactions costs of the regulatory process have grown since enactment of the Telecommunications Act of 1996. Second, if the Federal Communications Commission ("FCC') had used a consumer-welfare standard rather than a competitor-welfare standard when interpreting the Act, the agency's regulations on mandatory unbundling of local telecommunications networks would have been simpler and more socially beneficial. Third, despite its micromanagement of competition in local telecommunications, the FCC missed WorldCom 's fraud and bankruptcy. WorldCom's false Internet traffic reports and accounting fraud encouraged overinvestment in long-distance capacity and Internet backbone capacity. Because Internet traffic data are proprietary and WorldCom dominated Internet backbone services, and because WorldCom was subject to regulatory oversight, it was reasonable for rival carriers to believe WorldCom's misrepresentation of Internet traffic growth. WorldCom 's accounting fraud may have destroyed billions of dollars of shareholder value in other telecommunications firms. In addition, WorldCom's misconduct may have been intended to harm competition by inducing exit (or forfeiture of market share) by the efficient rivals. Chapter 11 reorganization of WorldCom would further distort competition in the long-distance and Internet backbone markets. The FCC has a unique obligation to investigate the harm that WorldCom caused the telecommunications industry. If WorldCom is unqualified to hold its FCC licenses and authorizations, that legal conclusion would promptly, and properly, propel WorldCom toward liquidation. t F. K. Weyerhaeuser Fellow in Law and Economics Emeritus, American Enterprise Institute for Public Policy Research. This Article is based on my Beesley Lecture in Regulation, delivered at the Royal Society of Arts in London on October 1, 2002. I thank Colin Robinson of the Institute of Economics Affairs and Leonard Waverman of London Business School for inviting me to speak. In the months following my lecture, several telecommunications companies retained me to analyze the WorldCom fraud and bankruptcy in greater depth. They have permitted me to incorporate that additional analysis into this Article. I thank Allan T. Ingraham, Hal J. Singer, and workshop participants at Yale Law School for valuable comments and Brian Fried, Daniel Nusbaum, Brian O'Dea, and Adelene Tan for excellent research assistance. I thank Jerry Hausman for suggesting the title of this Article. The views expressed here are solely my own and not those of the American Enterprise Institute, which does not take institutional positions on specific legislative, regulatory, adjudicatory, or executive matters.

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This 1998 book addresses deregulatory policies that threaten to reduce or destroy the value of private property in network industries without any accompanying payment of just compensation, policies that are termed 'deregulatory takings'. The authors further consider the problem of renegotiation of the regulatory contract, which changes the terms and conditions of operation of utility companies. They argue that constitutional protections of private property from takings, as well as efficient remedies for contractual breach, provide the proper foundation for the competitive transformation of the network industries. The benefits of competition do not stem from government regulations that redistribute income from utility investors to customers, nor do such benefits stem from regulatory policies for network access that promote free riding on incumbent facilities by entrants. Such actions represent a new version of increased regulation, not deregulation.