The FCC is planning new net neutrality rules. And they could enshrine pay-for-play. - The Washington Post

Mon Apr 28 17:44:42 UTC 2014

Barry Shein wrote:
> On April 27, 2014 at 21:56 LarrySheldon at cox.net (Larry Sheldon) wrote:
>   > On 4/27/2014 8:59 PM, goemon at anime.net wrote:
>   > > If the carriers now get to play packet favoritism and pay-for-play, they
>   > > should lose common carrier protections.
>   >
>   > I didn't think the Internet providers were common carriers.
>
> Here we go again!
>
> There is more than one commonly used meaning for "common carriers".
>
> There is a Communications Common Carrier as defined in the US
> Communications Act of 1934 regulated under the FCC and as subsequently
> amended by...blah blah blah.
>
> And there is the much older common law usage which can apply to
> trains, planes, taxis, delivery services, stagecoaches, etc which
> basically recognizes that in general many services engaged in "COMMON
> CARRIAGE".

Common AND civil law, and the context within which the 1934 act defines 
telecommunications carriers.

> Another requirement of a common law common carrier is that they
> provide their service to the public without discrimination other than
> ability to pay and whatever reasonable rules apply to everyone --
> e.g., package can't be dripping liquid or weigh more than someone's
> "before" picture in a nutrisystem ad.  The details of that of course
> have been beaten to a fine powder in court cases and subsequent law
> and regulation.
>
> SOOOOO...an ISP (et al) can be considered a common law Common Carrier
> without being a Common Carrier as defined in the Comm Act 1934 (and
> subsequent, Telecom Act 1996, etc.)

And that is the key to all this bunkum about "network neutrality" - it's 
an issue only because the FCC has made the choice not to treat ISPs (or 
more precisely IP transport providers) as common carriers, but as 
"information service providers."

The recent Supreme Court decisions seems to have implied that the FCC 
has the power to, under current law, to define IP carriers as common 
carriers, and impose the obligations of common carriage on them.  (Note 
that this does NOT immediately imply that the FCC would have to apply 
all the regulations and procedures typically associates with, say, 
telephone carriers.)

All the FCC really has to do is promulgate a rule saying "IP transport 
is common carriage" - and network neutrality would become a non-issue.

Miles Fidelman

-- 
In theory, there is no difference between theory and practice.
In practice, there is.   .... Yogi Berra