Ohio Lawsuit to Declare Google a Common Carrier Not Obviously Stupid – But No Sure Deal Either.

The Ohio Attorney General asked an Ohio state court to declare Google a common carrier and/or public utility under the laws of Ohio and Ohio common law. The complaint is novel -- and not obviously stupid. But it has some real obstacles to overcome.  As Feld has written at length before, the history of common carrier regulation goes back 500 years in the common law. All states, therefore, have their own versions of this doctrine and regulate businesses as “common carriers.” As University of Indiana Professor Barbara Cherry has written about in a number of articles and Federal Communications Commission filings, both “common carriage” and “public utility” are categories that traditionally apply based on what you do and how you behave. A state or federal statute can override the common law, of course, just as a federal or state statute can alter the common law of negligence or anything else. But absent a conflicting statute (we’ll deal with possible conflicting Ohio and federal statutes later), a state can apply its common law or statutory definition of common carrier or public utility definition to whatever business meets that definition. This includes interstate services. Traditionally, common carriers have the following qualities: they do business with the general public and treat all members of the public “indiscriminately” or “indifferently.” That means that they don’t engage in individualized contract negotiations when providing a service or limit themselves to some group like commercial customers.