Anthony J. Pennings, PhD

WRITINGS ON DIGITAL STRATEGIES, ICT ECONOMICS, AND GLOBAL COMMUNICATIONS

Common Carrier Law and Net Neutrality

Posted on | January 9, 2011 | No Comments


Common Carrier law reflects a business principle that strives to avoid discrimination in a wide range of commercial practices. The idea guided telecommunications regulation since early in the technological development of the telegraph and telephone. With the deregulatory tendencies around data communications, notions of common carriage were pushed aside as the Internet gained momentum.

However, the idea of net neutrality has resuscitated the notion of a common carrier as websites offering content such as music, search results, and video want to ensure that the telecommunications providers do not discriminate against them and offer comparable services at comparable rates and quality. Two good debates on net neutrality highlight the major issues.

Common carrier law was determined by the courts and regulators over time through comparison and case precedent. As put by Ithiel de Sola Pool in his classic (1983) Technologies of Freedom, “The telegraph was analogized to railroads, the telephone to the telegraph, and cable television to broadcasting.”[1]

Rather than reliance on the First Amendment that guarantees the right of free speech, telecommunications law developed partially from the Constitution’s requirement “To establish Post Offices and Post Roads,” but mainly from commercial law developed to protect the rights of consumers as well as suppliers.[2]

Legally, both railroad and telegraph technologies came to be designated as “carriers.” Telegraph law was based on the experiences of the railroads and, to some extent, the mails. The railroads began to come under fire for discriminating against farmers and in some cases, whole towns. Slowly, railroad law was forged which protected customers from being excluded from service and from being forced to give up their rights to equal access. Farmers, for example, needed to be protected from selective carriage schemes that might restrict the movement of farm produce and consequently manipulate the price of food commodities.[3]

Richard John discusses his book Network Nation about how political economy shaped American telecommunications. He uses many political cartoons that were published at time, as shown below.

But these laws were not without precedent. Postal service had long recognized the conflicts of interest that emerged when publishers gained control of postal services. If a single publisher could control the mail, it became possible for them to discriminate against other news publishers and refuse to carry their printed commodities. Thus the US Constitution, in Article 1, Section 8 allowed the young country to set up a postal system. Later, the 1866 Postal Roads Act included special privileges for telegraph companies, including the right “to run their lines freely along post roads and across public lands. It also permitted them to fell trees for poles on public land gratis.”

In return, the companies had to provide service like a common carrier. It had to serve all customers without discrimination. By 1893, the Supreme Court ruled that telegraph companies, though not strictly common carriers, were similar. The court members argued that telegraph companies were “instruments of commerce” and as such were required to provide service without discrimination to any customer.[4]

This legal stance grew out of the populist feelings of the time, which were mobilizing to counteract the power of the big corporate “robber barons” that controlled both the railroads and the telegraph companies. Later these precedents would guide telecommunications policy for telephone and data communications.

The telecommunications environment has changed since the competitive days of the 1990s when dial-up Internet Services Providers (ISPs) proliferated. Broadband services are now only offered by a few telcos and cable companies such as Verizon, AT&T, Comcast, and Time Warner that are interested in offering content services that could potentially compete with other web services and sites.

Notes

[1] Pool, I. (1983) Technologies of Freedom. Cambridge: MA: Belknap Press of Harvard University Press. p. 7.
[2] Ithiel de Sola Pool’s makes this case throughout his (1983) Technologies of Freedom. He traces the development of law and policy around three technologies, telecommunications (common carriage), broadcasting, and print. The Constitution is quoted from p. 17.
[3] Pool, I. (1983) Technologies of Freedom. Cambridge: MA: Belknap Press of Harvard University Press. pp. 91.
[4] Pool, I. (1983) Technologies of Freedom. Cambridge: MA: Belknap Press of Harvard University Press. pp. 95-103.

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AnthonybwAnthony J. Pennings, Ph.D. is Professor at the Department of Technology and Society, State University of New York, Korea. From 2002-2012 was on the faculty of New York University. Previously, he taught at Hannam University in South Korea, Marist College in New York, Victoria University in New Zealand. He keeps his American home in Austin, Texas and has taught there in the Digital Media MBA program atSt. Edwards University He joyfully spent 9 years at the East-West Center in Honolulu, Hawaii.

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    Professor at State University of New York (SUNY) Korea since 2016. Moved to Austin, Texas in August 2012 to join the Digital Media Management program at St. Edwards University. Spent the previous decade on the faculty at New York University teaching and researching information systems, digital economics, and strategic communications.

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