Common Carrier

Author: Chris Marsden

‘Common carriage’ is defined by the duties imposed on public networks in exchange for their right to use public property as a right of way and other privileges.

Common carriers and public carriers are under duty to carry goods lawfully delivered to them for carriage. The duty to carry does not prevent carriers from refusing to transport goods that they do not purport to carry generally. Carriers may restrict the commodities that they will carry. Carriers may refuse to carry dangerous goods, improperly packed goods, and goods that they are unable to carry due to size, legal prohibition, or lack of facilities (Longley, 1967¹; Ridley, Jasper, Whitehead, 1982²; Encyclopædia Britannica, 2009³).

This definition offers several reasons not to common carry that can be extended to Internet Access Providers – spam and viruses, for instance, may be refused. In common law countries such as the United Kingdom and the United States, carriers are liable for damage or loss of the goods that are in their possession as carriers, unless they prove that the damage or loss is attributable to certain excepted causes (“acts of God, acts of enemies of the Crown, fault of the shipper, inherent vices of the goods, and fraud of the shipper, perils of the sea and particularly jettison”). In the wonderfully descriptive language of the English common law (Longley, 1967) ⁴,

Fault of the shipper as an excepted cause is any negligent act or omission that has caused damage or loss— for example, faulty packing. Inherent vice is some default or defects latent in the thing itself, which, by its development, tends to the injury or destruction of the thing carried. Fraud of the shipper is an untrue statement as to the nature or value of the goods. And jettison in maritime transport is an intentional sacrifice of goods to preserve the safety of the ship and cargo.

That provides several more reasons for loss – one thinks of the loss of undersea cables or Denial of Service (DoS) attacks. It even might be suggested that streaming video streams can be ‘jettisoned’ in order to allow other traffic to progress during peak time congestion.

It is worth stating what common carriage is not. It is not a flat rate for all packets. It is also not necessarily a flat rate for all packets of a certain size. It is, however, a medieval non-discrimination bargain between the government and transport networks or facilities, in which an exchange is made: for the privileges of classification as a common carrier, private actors are granted the rights and benefits that an ordinary private carrier would not. Barbara Cherry⁵ explained that common carriers are not a solution to a competition problem, they far predate competition law. They prevent discrimination between the same traffic type – if I offer you transport of your High-Definition video stream of a certain protocol, then the next customer could demand the same subject to capacity, where the Internet to be subject to the common carriage.

The United Kingdom Carriers Act of 1830 was the first legislation for the carriage of goods, codifying the common law. The Act applied to all common carriers by land (‘more effectual Protection of Mail Contractors, Stage Coach Proprietors, and other Common Carriers’: UK Carriers Act 1830 Chapter 68)⁶, including road and railway carriage, then in its infancy for passengers but well-established for coal and other commodities. The United Kingdom Railways Act 1844 includes provisions for common carriage and ‘Parliamentary trains’ (low-cost trains that stopped at all stations, later known as ‘milk trains’ because they collected milk from all stations pre-dawn to avoid inconveniencing more expensive trains at peak hours). Common carriers in medieval times included farriers and public houses: every horse to be shoed and person to be allowed shelter without discrimination between travellers (Lane v. Cotton, 1701)⁷:

If a man takes upon him a public employment, he is bound to serve the public as far as the employment extends; and for refusal an action lies, as against a farrier refusing to shoe a horse…Against an innkeeper refusing a guest when he has room…Against a carrier refusing to carry goods when he has convenience, his wagon not being full.

Common carriage should not be confused with charging tolls for higher speed networks, though the Turnpike Riots of 18th Century England were associated with turning the King’s Highway into a private road, and UK opposition to road charging continues to this day.

Telecoms networks were established to be common carriers as they achieved maturity, following telegraphs, railways, canals, and other networks. Noam explained, in 1994⁸, the practice:

Common carriage, after all, is of substantial social value. It extends free speech principles to privately-owned carriers. It is an arrangement that promotes interconnection, encourages competition, assists universal service, and reduces transaction costs. Ironically, it is not the failure of common carriage but rather its very success that undermines the institution. By making communications ubiquitous and essential, it spawned new types of carriers and delivery systems. 

The pressure on common carriers comes from two other directions: private NGNs offered by systems integrators; and broadband services offered by cable television operators. Neither operates as a common carrier nor is it likely to. Noam (1994, p. 435)⁹ explains that 

When historically they [infrastructure services] were provided in the past by private firms, English common law courts often imposed some quasi-public obligations, one of which one was common carriage. It mandated the provision of service to willing customers, bringing common carriage close to a service obligation to all once it was offered to some.

He thus forewarned that net neutrality would have to be the argument employed by those arguing for non-discriminatory access, as well as accurately predicting the death of common carriage ten years later. Note under common carriage, discrimination is quite possible, but not between customers, only between identical loads. See National Association of Regulatory Utility Commissioners v. FCC (1976)¹⁰.

In the United States, it was finally established that a public telegraph company (and more especially the largest) has a duty of non-discrimination towards the public. See Western Union Telegraph Co. v. Call Publishing Co. (1901)¹¹. The loss of common carriage is an epoch-breaking move towards deregulation, which means that attempts to ensure universal access to an unfettered Internet may require new regulation.

References

1. Longley, H. N. (1967). Common Carriage of Cargo. Matthew Bender & Co.: New York.
2. Ridley, Jasper and Geoffrey Whitehead. (1982). The Law of the Carriage of Goods by Land, Sea and Air, 6th ed., Shaw: Crayford, Kent.
3. Encyclopædia Britannica. Common Carrier. Available at: http://www.britannica.com/EBchecked/topic/128177/common-carrier.
4. Longley, H. N. (1967). Common Carriage of Cargo. Matthew Bender & Co.: New York.
5. Cherry, Barbara. (2008). Back to the Future: How Transportation Deregulatory Policies Foreshadow Evolution of Communications Policies. The Information Society. Volume 24 Issue 5 pp 273–291 https://doi.org/10.1080/01972240802356059.
6. UK. (1830). Carriers Act. Chapter 68. Available at: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1830/cukpga_18300068_en_1.
7. Lane v. Cotton (1701) 1Ld.Raym. 646, 654 per C.J. Holt
8. Noam, Eli M. (1994). Beyond liberalization II: the impending doom of common carriage. Telecommunications Policy. 435-452.
9. Noam, Eli M. (1994). Beyond liberalization II: the impending doom of common carriage. Telecommunications Policy. 435-452.
10. Nat. Ass’n of Reg. Utility Com’rs v. F.C.C., 525 F.2d 630 (D.C. Cir. 1976).
11. Western Union Tel. Co. v. Call Pub. Co., 181 U.S. 92, 21 S. Ct. 561, (1901).