An uncommon decision on common carriage

[Commentary] For the past two years, internet policy types have debated the wisdom of reclassification — the decision by the Federal Communications Commission (FCC) to saddle broadband providers with arcane statutory common carriage restrictions originally developed to discipline 19th century railroads. Just when we thought we had covered every possible angle of that debate, the Ninth Circuit Court of Appeals added a new wrinkle.

In FTC v. AT&T Mobility, the court broadly exempted common carriers from a key antitrust law designed to promote fair competition. The ruling could have far-reaching implications for the future of internet regulation. A status-based common carrier exemption made sense in the early 1900s, when Congress relied on other mechanisms such as tariffs to discipline common carrier monopolies. It is more problematic today, where competitive markets require antitrust oversight to police against abuses. The FCC may aggrandize power to itself to fill the gap, but as it has shown in the privacy proceeding, it does not always view issues through a competition law perspective. Overall, the Ninth Circuit has shown yet another unintended consequence of the FCC’s hasty decision to resurrect common carriage as a vehicle for its paid prioritization ban — and I fear this will not be the last.
[Lyons is an associate professor at Boston College Law School]