Natural Monopoly and Its Regulation

Preface

It is a curious experience to reread an article that one wrote thirty years ago. Not that this is the first time I have reread Natural Monopoly and Its Regulation. I am sure I reread it from time to time in the five years or so after it was published, when I was writing extensively on regulated industries. But it has probably been at least a quarter of a century since I looked at the article.

What struck me most forcibly in rereading it while composing this foreword to the republished article is how tame now seems. I imagine that most lawyers and economists reading it today would find nothing very startling in it, whether or not they accepted its bold thesis that public utility and common carrier regulation¹ are more trouble than they are worth even in the diminishing number of industries that have pronounced natural-monopoly characteristics, that is, in which average costs decline over so large a range of outputs that a single firm would have a big cost advantage over multiple firms serving the same market.

But in 1969 not only the thesis but also much of the analysis was distinctly heterodox. Not that there wasn't even then a large literature. in economics and in law that was critical of the operation of public utility and common carrier regulation. But the focus of this literature was on ways of improving the operation of the regulatory process to make it a more effective constraint on monopoly pricing, predatory pricing, and other supposed dangers of unregulated monopoly. It was not on deregulation, a term rarely used back then and a concept that was not on the policy agenda. The emphasis on reforming rather than abolishing regulation reflected the fact that most economists and lawyers had considerable faith in considerable distrust of free markets. To put this this differently, they had far more sensitive antennas for sources of market failure than for sources of government failure. The former were thought the latter the product of accident, such as poor appointments to regulatory agencies or corrigible errors in the means of regulation. It was more or less assumed that if a source of market failure (such as declining average costs over the feasible range of output) could be identified, a scheme of regulation could readily be devised and administered that would yield a net increment in social welfare. The benefit-cost ratio of regulation was, in other words, assumed to exceed one.

This assumption was questioned mainly at the University of Chicago, by economists like Milton Friedman, George Stigler, Aaron Director, Harold and Ronald Coase, and by a few lawyers, such as Edmund Kitch. Although I was not yet teaching at Chicago when I wrote and published my article, I was already familiar the Chicago School, in part through reading and in part through having gotten to know one of its illustrious members, Aaron Director; he had retired to California and had an office in the Stanford Law School, where I was teaching. I had also developed a certain skepticism about regulation from my work on the staff of President Johnson's Task Force on Telecommunications Policy during the year (1967-68) before I began teaching at Stanford. I had seen the regulation of the telecommunications at close quarters and been unimpressed. This experience, rather than any conservative or libertarian until I began teaching, I considered myself a liberal ideology—for until I began teaching, I considered myself a liberal Democrat—made me receptive to the Chicago School's critique of regulation.

Natural Monopoly and Its Regulation was the first article I had ever written, and it is synoptic rather than original. Or if it is original, it is so in drawing together a scattered literature and extracting from it the implication that had rarely been made express, that we would be better off without trying to regulate natural monopolies. I did not that unregulated natural monopoly would yield various inefficiencies, primarily the reduction in output that comes about when a monopolist charges a price in excess of cost.² But I thought them exaggerated, and the noneconomic objections shallow. One of the noneconomic points I made, which on rereading my article strikes me as still somewhat fresh, is that a natural monopolist who exploits his monopoly position to obtain large profits is ethically no different from the owner of a scarce natural resource who earns large economic rents by virtue of its scarcity; the natural monopolist's market power [and resulting profits] flows from the cost and demand characteristics of the market in which he is selling, rather than from unfair or restrictive tactics or from legal privileges.³

The article particularly emphasizes the practical difficulties of constraining a monopolist's pricing. The effort to constrain, I argue, is more likely to produce distortions than to bring about a reasonable simulacrum of competitive pricing arid output. This is primarily because of information and incentive problems of regulators and because of efforts by the regulated firms to neutralize regulation or to bend it to their advantage. These sources of regulatory failure, which is likely to be more serious than the market failure that regulation is supposed to correct, are now widely recognized. A position that in 1969 was decidedly outside the mainstream of economic and legal thinking about regulated industries is now thoroughly orthodox. This is not to say, even today, that most economists want to deregulate the local telephone and electrical companies, which are the principal remaining natural monopolists; there is still a case to be made for the regulation of natural monopoly, though one I still find unconvincing. Which is to say only that what was thirty years, ago a tendency to facilely invoke market failure as a more or less automatic justification for public utility of common carrier regulation is today a wary skepticism, a demand for proof. To the extent that my article raised doubts about public utility and common carrier regulation even where the utility or carrier was a genuine natural monopolist, it a fortiori undermined the case for such regulation of firms that were not natural monopolists, such as producers of natural gas, trucking companies, and airlines.

I do not, of course, take credit for the deregulation, movement, which has greatly reduced the scope of public utility and common carrier regulation, and, I am happy to say, with generally very good results.⁴ The causality is complex,⁵ and academic advocacy probably played only a very small role.⁶ What mainly happened is that regulation broke down; it was a microcosm of the breakdown of the Soviet Union's command-and-control economy. This is not the place to explore that history. A combination of inflation in the 1970s and accelerating technological change favorable to competition (the latter a challenge to regulation that was already visible in 1969⁷) brought about a situation in which regulation no longer satisfied the needs of key interest groups, whether of regulated firms or of customers. It is not inevitable that technological change should weaken rather than strengthen the forces of monopoly and resulting demand for regulation. If the change took the form of increasing economies of scale, as well it might, it would make natural monopoly more rather than less common and so strengthen the case for regulation. But the change has been in the opposite direction. Natural monopolies have crumbled; even the local natural monopolies, which are based on the inefficiency of duplicating a local grid of wires or pipes, may soon go the way of the former natural monopoly of long-distance telephone service. When there are no more natural monopolies, my article will indeed be merely a historical curiosity.

Footnotes

¹ These are essentially synonymous. The term public utility tends to be used in power industries and the term common carrier in transportation and communications. Somewhat similar controls are found in financial services in primarily banking, but under different names.

²Notice that I do not say marginal cost. In a situation of declining average setting price equal to marginal cost will produce bankruptcy. The efficient pricing system in such a situation is called Ramsey pricing and involves systematic departures from marginal cost. But the overall price level will be and output higher, than under a system of unregulated monopoly pricing. See Richard A. Posner, Economic Analysis Law 389-390 (5th ed. 1998).

³This volume, p. 19.

⁴See Richard A. Posner, The Effects of Deregulation on Competition: The Experience of the United States (forthcoming in Fordham International Law Journal), and references cited there.

⁵See Joseph D. Kearney and Thomas W. Merrill, The Great Transformation of Regulated Industries Law, 98 Columbia Law Review 1323,1383-1403 (1998).

⁶Kearney and Merrill assign it a larger role than I would be inclined to do. See id. at 1397-1403.

⁷This volume, p. 106.

Natural Monopoly and Its Regulation

A firm that is the only seller of a product or service having no close substitutes is said to enjoy a monopoly.¹ Monopoly is an important concept to this Article but even more important is the related but somewhat less familiar concept of natural monopoly. The term does not refer to the actual number of sellers in a market but to the relationship between demand and the technology of supply. If the entire demand within a relevant market can be satisfied at lowest cost by one firm rather than by two or more, the market is a natural monopoly, whatever the actual number of firms in it. If such a market contains more than one firm, either the firms will quickly shake down to one through mergers or failures, or production will continue to consume more resources than necessary. In the first case competition is short-lived and in the second it produces inefficient results. Competition is thus not a viable regulatory mechanism under conditions of natural monopoly. Hence, it is said, direct controls are necessary to ensure satisfactory performance: controls over profits, specific rates, quality of service, extensions and abandonments of service and plant, even permission whether to enter the business at all. This set of controls has been applied mainly to gas, water, and electric power companies, where it is known as public utility regulation, and to providers of public transportation and telecommunications, where it is known as common carrier regulation. (I shall use regulation or public utility regulation to refer to both.) The question that this Article addresses is whether natural monopoly provides an adequate justification for the imposition of these regulatory controls.²

A critical examination of this question seems timely. The terms public utility and common carrier may have rather an antiquering, but they also have important contemporary applications. The regulated industries provide the essential infrastructure of modern industrial society. They are also on the frontiers of technological progress. The principal civilian use of nuclear energy has been electrical generation, the principal commercial application of space technology satellite communications; both are regulated services. We are also witnessing the emergence of immensely promising industries, such as cable television, that may have sufficient natural monopoly characteristics to invite extension of the regulatory principle to them. And it is even intimated that the extension of price controls to the economy at large must be seriously considered.³

As a perusal of the citations in this Article will disclose, the 1960's have .seen an upsurge of scholarly interest in the regulatory field after many years of comparative neglect. The Brookings Institution is supporting an ambitious program of study in the field. Several high-level federal policy groups, including the President's Task Force on Communications Policy⁴ and the Cabinet Committee on Price Stability, have recently addressed particular aspects of regulation. But what has been lacking thus far is an attempt to evaluate its basic soundness. Much criticized in the details of its application, regulation is assumed by nearly all who work or write in the field, as by the public in general, to be fundamentally inevitable, wise, and necessary. However, personal experience as a government lawyer involved in regulatory matters made me skeptical about the validity of the assumption and this study has convinced me that in fact public utility regulation is probably not a useful exertion of governmental powers; that its benefits cannot be shown to outweigh its costs; and that even in markets where efficiency dictates monopoly we might do better to allow natural economic forces to determine business conduct and performance subject only to the constraints of antitrust policy. I would stress, however, that no general challenge to government regulation of business is intended. One regulatory framework whose continued existence is explicitly presupposed by my analysis is, as just mentioned, the antitrust laws. Regulations enforcing standards of health or safety are instances of the many other government constraints on business activity that lie outside the scope of my critique.

The Article, in four parts, attempts to (1) identify areas of behavior (such as prices and profits) where an unregulated natural monopolist might pursue policies contrary to the welfare of society; (2) describe the regulatory process as it operates today arid, in a rough way, evaluate its social benefits and costs; (3) assess the possibilities of constructive reform; (4) consider some alternatives to regulation and offer some practical suggestions.

I. The Grounds for Regulating Prices, Entry, or Other Business

Conduct in a Natural Monopoly Market

In this opening branch of the analysis, I shall have nothing directly to say about the concepts or practice of regulation. Rather, I shall ask in what respects one might expect business performance under conditions of natural monopoly to be unsatisfactory from a social standpoint. When these elements of predictably deficient performance have been isolated, it will be possible to consider the extent to which the regulatory process is responsive to actual and serious problems.

A. Monopoly Prices and Profits

Under competition, the price of a good to the consumer tends to be bid down by the sellers to its cost (including in cost such profit as is required to attract capital into the industry). Consumers, as a result, obtain many goods at prices that are appreciably lower than the actual value of the goods to them. Monopoly enables the seller to capture much of the extra value that would otherwise accrue to consumers. To illustrate, let us suppose that if aspirin is sold at 1 cent per half grain (its cost) there will be 200 purchasers and that if it is sold at 10 cents there will still be 100 purchasers. The monopolist who desires to maximize his profit will sell at 10 cents—the monopoly price—where his total cost will be $1 and his revenue $10, producing a supracompetitive profit of $9. Monopoly prices are widely considered to be socially undesirable because of their alleged effects on income distribution, overall economic stability, the allocation of economic resources, and proper business incentives. The arguments in support of these grounds are briefly as follows:

The effect of charging a monopoly price is to transfer wealth from the consumers of a product to the owners of the firm selling it.⁵ The consumers are deprived of much of the extra value that they would enjoy in a competitive market, where they would be able to purchase at cost; the stockholders are enriched by capturing a good part of that value in increased profits. Transfers or redistributions of wealth are unavoidable in a society that is not perfectly egalitarian. At the same time, one could argue that it is