The basis for the Net neutrality regulation that the FCC implemented
is predicated on a centuries-old legal concept known as "common
carriage." This concept of "common carriage" has been used not just to
regulate telecommunications but other industries as well. It was
developed to ensure that members of the public retained access to
fundamental services that use public rights of way. In the case of the
Internet, it means that the infrastructure used to deliver Web pages,
video, and audio-streaming services, and all kinds of other Internet
content, should be open to anyone accessing or delivering that content.
Other examples of common carriage include transportation services.
For example, a ferry operator under the common carrier concept is free
to operate a business transporting people and goods across a river, but
because he is using a public waterway, he's required to provide service
to everyone. He cannot indiscriminately choose to service some customers
and not others. And while the ferry operator can determine the price
for his services, the prices must be fair and reasonable.
Throughout the 20th century this concept was applied to telecommunications services to ensure that phone companies, which use public rights of way to string wire and cable, service all customers.
Early in the last decade, there was a debate in communications policy circles about how broadband should be regulated. Should it be a telecommunications service subject to "common carrier" regulation like the traditional telephone network? Or should it be classified as an information service, which would exempt it from these "common carrier" requirements?
In 2005, the US Supreme Court ruled in its Brand X decision that broadband services should not be classified as telecommunications services. Therefore, because broadband is not a telecommunications service, broadband providers' infrastructure is not considered a public right of way and should not be regulated under the common carrier concept.
It's this decision that forms the basis of Tuesday's appeals court ruling. The reason the appeals court rejected the FCC's position is that the FCC was using a legal argument that placed "common carrier" requirements on a service the that Supreme Court ruled in Brand X is not subject to those requirements.
Throughout the 20th century this concept was applied to telecommunications services to ensure that phone companies, which use public rights of way to string wire and cable, service all customers.
Early in the last decade, there was a debate in communications policy circles about how broadband should be regulated. Should it be a telecommunications service subject to "common carrier" regulation like the traditional telephone network? Or should it be classified as an information service, which would exempt it from these "common carrier" requirements?
In 2005, the US Supreme Court ruled in its Brand X decision that broadband services should not be classified as telecommunications services. Therefore, because broadband is not a telecommunications service, broadband providers' infrastructure is not considered a public right of way and should not be regulated under the common carrier concept.
It's this decision that forms the basis of Tuesday's appeals court ruling. The reason the appeals court rejected the FCC's position is that the FCC was using a legal argument that placed "common carrier" requirements on a service the that Supreme Court ruled in Brand X is not subject to those requirements.
No comments:
Post a Comment