Common Carriage's Domain

49 Pages Posted: 10 Oct 2018

See all articles by Christopher S. Yoo

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Date Written: June 22, 2018


The judicial decision invalidating the Federal Communications Commission’s first Open Internet Order has led advocates to embrace common carriage as the legal basis for network neutrality. In so doing, network neutrality proponents have overlooked the lessons from the history and the academic literature on common carriage. This Essay distills these learnings into five factors that play a key role in promoting common carriage’s success: (1) commodity products, (2) simple interfaces, (3) stability and uniformity in the transmission technology, (4) deployment of the transmission network, and (5) stable demand and market shares. Applying this framework to the Internet suggests that common carriage is not particularly well suited as a basis for regulating broadband Internet access.

Keywords: Internet law and regulation, government regulation, communications law, administrative law, Federal Communications Commission, FCC, Open Internet Order, network neutrality, definition and limits of common carriage, broadband, rate regulation, nondiscrimination

JEL Classification: K23, K24, L86, L96

Suggested Citation

Yoo, Christopher S., Common Carriage's Domain (June 22, 2018). Yale Law Journal, Vol. 34, Forthcoming; U of Penn, Inst for Law & Econ Research Paper No. 18-24. Available at SSRN:

Christopher S. Yoo (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)


University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

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