Common Carriage's Domain
49 Pages Posted: 10 Oct 2018
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: Suggested Citation