I found Mayer-Schonberger’s point about de-regulation versus re-regulation to be quite interesting. See Mayer-Schonberger, at 7–8. He asserts that although many may assume that “once burdensome regulations that fostered and facilitated non-competitive market conditions were abolished,” the resultant “deregulation” would “liberat[e]” the market from “stifling regulatory measures,” thus opening the door for innovation and entrepreneurship. Id. at 7. However, notes Mayer-Schonberger, the reality is that some markets “tend to favor first movers, large players and incumbents,” making entrepreneurship difficult, if not impossible, without appropriate and well-crafted regulation as a “leveler.” See id. at 6–7. This “reregulation” “offers new entrants a chance to enter and stay competitive.” Id. at 7.

An example that immediately came to mind is utility poles. Without regulation, the companies owning these poles would likely be tempted to charge exorbitant rates for third party attachment to the poles, in order to stifle competition with those companies’ services. Facing the prohibitively expensive prospect of having to either pay these rates or to permit and erect an entirely new series of poles, new entrants would likely direct their attention to competing in the space of a different good or service. Cf., e.g., id. at 7–8. Additionally, the existing telecom companies could essentially prohibit the entrant from connecting to its network, further disincentivizing innovation.

Instead of this scenario, we have a broad regulatory scheme that attempts to enable innovation in the space. See generally Daniel F. Spulber & Christopher S. Yoo, Access to Networks: Economic and Constitutional Connections, 88 Cornell L. Rev. 885 (2003). For example, the Pole Attachments Act of 1978 “gave the FCC the power to regulate the rates that utilities could charge cable television systems for pole attachments,” and “required that the rates, terms, and conditions” for such to be “just and reasonable.” Id. at 988. Additionally, the Telecommunications Act of 1996, which “was designed to introduce competition into local telephone service,” required “every incumbent local telephone company to interconnect with its competitors reasonable and nondiscriminatory terms.” Id. at 889. Through such Acts, our regulatory scheme (re-regulation) makes it possible for an entrant to attempt to compete with a telecom company, which would most likely be impossible without such a scheme (de-regulation). This comports with Mayer-Schonberger’s theory: sometimes entrepreneurs need re-regulation, not de-regulation, in order to be competitive . See Mayer-Schonberger, at 7–8.