Common Carrier Essentialism and the Emerging Common Law of Internet Regulation

Posted by Social Science Research Network

Common Carrier Essentialism and the Emerging Common Law of Internet Regulation Daniel Deacon (Harvard)

Abstract: This essay examines a new basis for the FCC’s jurisdiction over Internet-based networks and services — namely section 706 of the Telecommunications Act of 1996. The essay argues that, as interpreted by the courts, section 706 gives the Commission a potentially expansive jurisdiction over services traditionally falling outside its core jurisdiction over “common carriers.” At the same time, the use of section 706 as a basis of jurisdiction requires that the FCC regulate using a standards-based system involving the ex post enforcement of vaguely worded prohibitions. Thus, the emergence of section 706 as a standalone basis for jurisdiction may push the FCC toward a more common-law, antitrust-like system of regulation than the command-and-control-style system with which it is historically most familiar. Drawing on the rules versus standards literature, the essay outlines the pluses and minuses of such a system as applied to Internet-based networks and services. In particular, it argues that a standards-based system under section 706 provides the Commission with much-needed flexibility to deal with emerging communications technologies, but that it will require the FCC to develop more robust mechanisms for enforcement and adjudication than it has traditionally had.

Although the FCC recently reclassified broadband Internet access providers as common carriers under Title II of the Communications Act — thus giving the Commission jurisdiction over those carriers that is independent of section 706 — the potential scope of section 706 is much wider than the scope of the reclassification. Thus, section 706 is still likely to provide an important arrow in the FCC’s quiver going forward.