COMMON CARRIER ESSENTIALISM AND THE EMERGING COMMON LAW OF INTERNET REGULATION

Today, whether the Federal Communications Commission (FCC) may regulate a provider of Internet-based services depends in large part on whether the regulation in question treats the provider similarly to an eighteenth century innkeeper or ferryman. That surprising proposition is the result of two recent decisions by the US Court of Appeals for the DC Circuit. Those decisions have provided FCC with a malleable and potentially broad jurisdiction over Internet Protocol-based networks and services. They also hold, however, that the Commission may not treat providers of such services as "common carriers." Here, Deacon asserts that common carrier essentialism provides a fundamentally unstable framework for the Commission to develop Internet policy. The lack of clear guidance regarding whether a given rule treats providers as common carriers will cause difficulty for the courts, resulting in significant legal uncertainty surrounding any regime relying primarily on prescriptive regulation. He also argues that the FCC will largely turn away from prescriptive regulation of Internet-based services, at least with regard to access-type rules.