I don't think the rural telephone surcharge is a necessary component of common carrier. For example railroads are all common carriers and they are under no duty to run rail lines to every single community in the U.S.
My understanding of common carrier is that is simply mandates that the provider must publish a single public rate card with objective criteria for the rates, and then charge everyone equally by those criteria. It's to prevent UPS (which I believe is regulated as a common carrier) from taking extra money from Amazon to slow down or lose shipments from Walmart.
The relevant sense of "common carrier" in this context is as a classification in the Telecommunications Act of 1996. It's a detailed set of regulations applicable to telephone companies. Classifying ISPs as "common carriers" would not just implicate all of those regulations, but implicate one of the animating principles of phone service under the Telecom Act of 1996, which is universal service.
"Common carrier" is also a classification for various services under common law, but that's not what the recent D.C. Circuit opinion was about. Those involve not formal regulations, but certain rights and liabilities under common law, which differ depending on the particular kind of service.
> The relevant sense of "common carrier" in this context is as a classification in the Telecommunications Act of 1996. It's a detailed set of regulations applicable to telephone companies. Classifying ISPs as "common carriers" would not just implicate all of those regulations, but implicate one of the animating principles of phone service under the Telecom Act of 1996, which is universal service.
You are conflating two related but distinct issues, and then compounding that by badly confusing the issue of universal service. Of the conflated issues:
First, is requirements that define a common carrier, which the FCC can apply to entities designated as "telecommunications providers" under the Telecommunications Act but cannot apply to entities designated as "information service providers" under the Act, per the DC Circuit ruling recently, those requirements include things like the non-discrimination/non-blocking rules in the recent Open Internet Order. Designating a new category of "telecommunications service providers" (provided such designation survives any challenge -- there are definitions of what consistutes telecommunication service in the Act and the FCC would have to have reasonable grounds for this designation) allows the FCC to apply provisions that are essentially common carrier rules to entities in the newly defined category.
Second, is the particular regulations that the FCC has applied to particular classes of telecommunications providers, such as landline telephone providers. Designating a new class of telecommunications service providers would not automatically apply any existing regulations that the FCC has adopted for previously-defined classes of telecommunications providers to the newly identifed class.
Finally, universal service is not an "animating principle of phone service under the Telecom Act of 1996". Universal service was adopted for phone service in the Communications Act of 1934. The Telecommunications Act of 1996 was notable in expanding the role of universal service to include "advanced telecommunication and information services". This expressly includes non-common carrier "information services" as well as common carrier "telecommunication services", so it is completely irrelevant tot he common carrier issue.
> "Common carrier" is also a classification for various services under common law, but that's not what the recent D.C. Circuit opinion was about.
Actually, applying the common law definition of "common carrier" to the particular regulations that the FCC adopted in the Open Internet Order to see if they conflicted with the Telecommunication Act's provision that common carrier rules could be applied only to "telecommunication service" providers and not "information service" providers (given the FCC's designation of ISPs as the latter rather than the former) was central to the DC Circuit decision.
I'm not really sure what distinction you're trying to create with the term "telecommunications service provider" versus "telecommunications provider" and "information service." The term "telecommunications service provider" doesn't appear at all in the D.C. Circuit's opinion.
Moreover, the phrase "common carrier" is more or less coextensive with Title II of the Telecommunications Act of 1934, which creates a heavy regulatory oversight regime. I'm not sure how the FCC could classify ISPs as common carriers and not bring them under the purview of Title II.
While Universal Service was not created in the 1996 Act, it is definitely an animating principle of the Act, because the Act expands the program. However, it doesn't go so far as to extend it to ISPs. Universal service contributions aren't totally coextensive with telecommunications provider versus information service classification, but are almost so. Anyone that provides something similar to voice telephone service (including cellular and VOIP), contributes, but internet providers do not.
I don't mention universal service to confuse the issue. I mention it as an example of the heavily-political, expensive, misconceived sort of program that becomes fair game when you bring internet service into the world of common carriers. The world of telecom has many different regimes. Not just from a legal standpoint, but from a philosophical and political standpoint. Phone service is considered crucial public infrastructure. It is subject to Title II. It is subject to USF. It is subject to extensive FCC oversight. It is the subject of political bellyaching about how people in rural America are entitled to have their high-cost service subsidized by everyone else. That's one regime. The other is internet and cable service. This is a land of ponies and cupcakes. Once you reclassify internet services as common carriers, you put internet service in a whole different bucket, not just legally, but philosophically and politically. And you don't want internet service in the same bucket as phone service. It's an awful place, full of people who think that companies shouldn't spend money building gigabit in New York when people in rural Alabama still have 256 kbps DSL.
Your point about the common law definition of common carrier is well-taken. It isn't irrelevant, because the D.C. Circuit did look to it in its opinion. However, it's indirectly relevant.
If you start at the last paragraph of page 45 of the opinion: http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D93... you can see that the court is interpreting the statutory definition of "common carrier." Specifically the phrase: "A
telecommunications carrier shall be treated as a common
carrier under this Act only to the extent that it is engaged in providing telecommunications services.”
47 U.S.C. § 153(51). "Common carrier under this Act" essentially refers to Title II of the Telecommunications Act of 1934.
On page 47, the court notes that: "Offering little guidance as to the meaning of the term 'common carrier,' the Communications Act defines that phrase, somewhat circularly, as 'any person engaged as a common carrier for hire.' 47 U.S.C. § 153(11). Courts and the Commission have therefore resorted to the common law to come up with a satisfactory definition."
In other words, there are two definitions of "common carrier," one in the statute and one at common law, and because the one in the statute is underdefined, the court looks to the common law definition. But they are still separate definitions. 'snowwrestler said: "I don't think the rural telephone surcharge is a necessary component of common carrier. For example railroads are all common carriers and they are under no duty to run rail lines to every single community in the U.S."
The fact that the D.C. Circuit looked to the common law definition of "common carrier" to elucidate the statutory definition does not mean that the statutory definition cannot carry an independent set of obligations, different from the common law definition. Clear as mud?
You write about these two regimes (telephony and cable/internet) as if their separate existence is inviolate. In today's world, where voice is often just another application running on top of IP, the existence of two regimes seems backwards, enshrining a century-old technology (POTS) that already starting to disappear.
If we as a society don't want to impose a requirement that rural communities be connected to the nation's essential communication infrastructure, then let that be the case; let's get rid of the requirement and rethink the whole thing. But if we as a society believe that rural areas should have access to the country's communication infrastructure, then we should change the requirement that service be provided via a 19th century technology. In the 21st century, isn't it just as bad for Internet access to be expensive and slow, as it was 80 years ago for telephone access to be expensive or unavailable? Standards have changed.
It seems to me that (specific legalities of the decision aside) you are focusing too much on the technical aspects of common carrier status, and not enough on the underlying policy objectives of that regulation. If universal service regulation is to have any relevance today, it should align itself with the reality of modern communications technology (where access to the Internet, not telephone networks, is what matters), and with what it means today to be "connected".
A "universal service" policy that ignores the fact that TCP/IP-based broadband Internet has replaced telephony as the essential communication technology is just a farce.
> A "universal service" policy that ignores the fact that TCP/IP-based broadband Internet has replaced telephony as the essential communication technology is just a farce.
It is also not an accurate description of the status quo: the grandparent post talks a lot about the 1996 Telecommunications Act and its supposed foundations, but doesn't understand:
1) The distinction between "telecommunication services" and "information services" that controls where common carrier regulation can be applied, from that Act, or
2) The fact that the 1996 Telecommunications Act eliminated the "separate buckets" treatment of phone and other services for universal service, promoting universal service for access to "advanced telecommunication and information services" not just telephone service.
3) The fact that reforms to the regulations of the Universal Service Fund following and based on the 1996 Telecommunications Act mean that it is now used not just for telephone but also broadband access, demonstrating that -- whether or note ISPs are defined as "telecommunications service" providers subject to common carrier regulations and whether or not open internet / net neutrality rules are adopted -- broadband is already moving substantively into the same "bucket" as telephone service.
I was using USF as an example of the onerous, misguided sort of program that is imposed on telecommunication service providers regulated under Title II. I wasn't trying to imply that only telecommunication service providers can be subject to USF fees (frankly, I was trying to punt on explaining the distinction because in practice voice providers are subject to USF fees but broadband providers are not subject to those fees). The fact that USF money is now being used for broadband doesn't change the fact that internet service is not subject to the tax. Moreover, while classification as an information provider doesn't prevent internet providers from being subject to USF fees, classification as telecommunications providers would pave the way for them to be taxed.
While the regimes aren't inviolate, Congressional action would probably be required to change the status quo. Besides that, the fact that you can reimagine the legal rules doesn't change the philosophical and political positions that led to the existing status quo. It's a mistake to think that the drafters of the 1996 telecom act didn't understand what they were doing. They made a conscious effort to try and deregulate the industry while conceding to keep much of the existing regime applicable to voice service.
All this could be changed if you let Congress have another shot at the classifications, but you really don't want that. The forces that made telephone regulation the morass that it is will conspire to turn internet regulation into a morass as well. It sounds good to say that rural areas should have access to internet service, but opening that can of worms is a disaster in the making.
Infrastructure regulation in the U.S. is a disaster because of the disproportionate power of rural voters. It's not efficient to build infrastructure to rural and exurban areas, but rural votes, particularly in the Senate, hold infrastructure projects hostage unless inefficient infrastructure is built in those areas. That's why Amtrak is obligated to run a nationwide network when it should just run a train line from DC to Boston. Indeed, the desire to provide universal service is responsible for much of the dysfunctional aspects of the telecom industry to begin with. Many cable providers are monopolies because municipalities granted monopoly status as a concession for building service broadly instead of just to the profitable locations.
Look at the aspects of the telecom industry that are actually getting people excited. T-Mobile's new LTE network, for example. The reason it works is because T-Mobile avoids a whole bunch of capital construction by only focusing on urban areas. Cities get LTE, and everyone else gets HSPA or 2G. Or look at Google's fiber service: hitting major urban areas and avoiding anywhere that doesn't yield a lot of subscribers per mile of fiber. That's the right way forward--that's how we get internet speeds in the U.S. that match countries in Asia and Europe that are much more heavily urbanized. Treating internet service the way we treat other public infrastructure will destroy that.
My understanding of common carrier is that is simply mandates that the provider must publish a single public rate card with objective criteria for the rates, and then charge everyone equally by those criteria. It's to prevent UPS (which I believe is regulated as a common carrier) from taking extra money from Amazon to slow down or lose shipments from Walmart.