The Network Neutrality Battle Is About Common Carriage Functionality

Why is it important whether broadband internet access service (BIAS) is considered a common carriage service or not? Because if BIAS is a common carriage service, then BIAS providers bear the fundamental obligations of common carriers.  These common carriage obligations are:

• To provide service upon reasonable request (i.e. the carrier may not selectively refuse to serve),
• Without unreasonable discrimination (i.e. similarly situated customers must be treated similarly),
• At just and reasonable rates, and
• With adequate care.

If BIAS is deemed an information service, then the above-described common carriage obligations do not apply — and the FCC does not have the authority to impose them.  Furthermore, the scope of permissible regulatory authority over information services is unclear as a legal matter, and resultant efforts to test that scope can fluctuate over time as the political party (Democrat or Republican) maintaining a majority of Federal Communications Commission commissioners shifts back and forth. Thus, the differential impact of legal classification on BIAS’s providers’ regulatory obligations is the key to understanding what is really at stake.  In essence, the legal classification battle leads us to a fork in the road – one traversed by classification as a telecommunications service, and the other traversed by classification as in information service.  

[Barbara A. Cherry is a Professor in the Media School at Indiana University]