Common Carriage's Domain

Abstract

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 academic literature on common carriage as well as lessons from its implementation history. 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) full 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