Getting straight about common carriers and Title II

David Weinberger • October 11, 2017

Open Access is a section of the Ting blog dedicated to discussions about the open Internet, net neutrality and other important online topics. If you’re already convinced that Internet access should be classified under Title II, Tumblr has a great grassroots campaign on the go. Read on for all the gory details on Title II, common carriage and how we got to the sorry state Internet access is now in.

Common carriers, Title II and Net Neutrality explained

If you care about an Internet that is open to every idea and every startup, you need to know about common carriers and understand what’s at stake as Internet advocates call on the FCC to reclassify the Internet under Title II.

It’s complex. So, I asked Barbara Cherry to help explain it all.

Cherry knows about this from three decades in the field, including in the telecommunications field for almost twenty years–ten of them at AT&T, five at Ameritech, and almost five at the FCC. Now she is a professor of telecommunications who trained as a lawyer and has a Ph.D. in communications studies.

Cherry explains that the idea of common carriage goes back to the Middle Ages. “If your business is to carry things for others, you have certain legal obligations,” she says. Whether you’re a postal service delivering letters or a ferry delivering people, the basic obligation is “to serve upon reasonable request without unreasonable discrimination at a just and reasonable price and with adequate care.”

There are some big ideas in that legalistic formulation.

First, you’re a common carrier not because you say you are, but because of what you do.

Second, common carriers have to serve everyone who wants to use the service. The post office can’t deny service to people sending letters it disagrees with, and the phone company can’t refuse service to people based on their religious views. Everyone has the same right to pay to use the service.

Third, common carriers have to charge everyone the same price for the same service–although, for example, a railroad could charge more to transport volatile chemicals that need special handling.

Equal access

Why shouldn’t a railroad, a postal service or an Internet access provider be free to charge whatever it wants, and to charge different people differently for the same service? It’s because they provide a service that we want all to have equal access to. Taxi cabs are common carriers because we don’t want them to be able to ignore non-whites looking to pay for a ride. For the same reason, wireless phone companies can’t charge Muslims more. It’s just a better place when anyone can get a cab for the same fair price, and anyone who wants a mobile phone can buy one.

Common carriage was codified as a federal statute in the US in 1887, originally with the railroads in mind. In 1910, the act was modified to include telephone and telegraph companies. In 1934, the FCC was established to enforce these laws.

Then, in 2002, the story starts to gets complicated. The take-away is that when cable TV companies started providing Internet access, the FCC broke from what had been its practice, and decided not to treat the broadband they delivered as a type of common carriage.

The groundwork

To understand what happened in 2002, we have to take a step back in time. Before the Internet but after computers became common in business.

At that time, the telephone system started providing services that connected people to computers and computers to computers. For example, you could dial a for-pay 900 number and get a report from a computer at the other end about, say, the stock market or sports scores. Those “enhanced services,” as the FCC called them, didn’t meet the criteria of common carriers.

So, as the result of an 1980 study, says Cherry, “the FCC constructed a framework that distinguishes transmission services from services that deliver this new kind of service.” At this time it was the telephone network that provided the transmission services that moved computer data around. That’s common carriage. But the FCC decided not to regulate the enhanced services that use those transmission services. That makes sense since when you call up to get a sports score, you’re not asking that 900 service to transport any of your goods.

The FCC’s way of distinguishing such cases is to put them into the set of categories Congress has put at its disposal. Title II is for common carriers, so the FCC put transmission services into that category. The enhanced services appropriately were put under Title I.

Note that even if the phone company itself offered enhanced services, the split into two Titles still held. The phone company was required to transmit data under common carrier rules equally for everyone, including for enhanced services that might compete with the phone company’s own enhanced services. This is the origin of the policy of Net Neutrality.

In 1996, Congress passed a major Telecommunications Act that, says Cherry, “basically approved the distinctions between transmission and enhanced services that the FCC had had to make up on its own,” although the Act relabeled “enhanced services” as “information services.”

The FCC maintained these distinctions as the Internet arose. Back when DSL was the best way for customers to connect to the Net–sending signals over the telephone companies’ wires–the FCC counted your DSL connection as a regulated transmission service (Title II), and the applications running over your DSL connection as unregulated enhanced services (Title I). This was perfectly in accord with how it handled the telephone network.

Then came the change

In 2002, the agency had to decide how to classify broadband Internet access provided by a new player: Cable TV companies. With Republicans now in the majority, the FCC took the opportunity to undo the very framework it had established. Now the FCC declared that cable broadband access would come under Title I, along with the “information services” provided over the network. Cable companies would not be required to live up to the demands of common carriage even for the transmission service they provided.

The cable companies rejoiced. If they were common carriers under Title II, the FCC could decide if they’d be permitted to sell “fast lanes,” they’d need FCC approval to block data they don’t want to carry and they’d have to provide delivery at prices that the FCC determined are “just and reasonable.”

Keep in mind that “common carrier” is not a label that’s slapped on an industry willy-nilly. You are a common carrier if (basically) you are moving other people’s stuff from A to B for them. Cable-based broadband is as clear a case of common carriage as you’re going to find.

Cherry joined the FCC just as it made this decision about broadband. She says that the lawyers and engineers she talked to there were dead set against it. But the chairman, Michael Powell, insisted on it. “The mantra at the time was ‘Deregulation.'”

The U.S. Supreme Court upheld the FCC 2002 Order. In 2005 the FCC then applied its treatment of cable companies to DSL, eliminating the Title II classification for DSL transmission service.

The issue arose again in 2008. The FCC, now under Chairman Kevin Martin, a Republican, had fined Comcast for blocking peer-to-peer traffic that used BitTorrent, a popular way of sharing large files. Comcast sued the FCC, arguing that since the FCC had put broadband under Title I, it was exempt from the obligations of common carriage. In 2010, the DC Court of Appeals agreed.

In another case, in 2014 the DC Circuit Court again told the FCC that it didn’t have authority to impose common carriage obligations on a service that the FCC itself had classified under Title I.

Now under Democratic majority control, the FCC would like to require broadband access providers to live up to a set of Net Neutrality policies that apply the rules of common carriage to the Internet at the transmission level. But twice the courts have said the FCC doesn’t have the authority to apply those rules to services it classified under Title I. If the FCC wants to treat Internet broadband transmission as a type of common carriage, says the Court, it should have classified it under Title II.

Reclassifying Internet access

So, if the FCC wants to support Net Neutrality, it can try in the courts a third time. Or it can reclassify broadband transmission services under the Title that gives it clear authority to apply common carrier obligations.

That’s why there’s now a clamor for reclassification.

And that’s why when opponents claim that reclassification would be a “radical step,” we should remember that reclassifying broadband access under Title II would, in fact, restore the prior and accepted understanding of common carriage, a concept with hundreds of years of thought and law behind it.

Note: originally published on Feb 4, 2015. Updated on Oct, 11, 2017.