Speaker 1: Welcome to tech Stuff, a production from I Heart Radio.
Speaker 1: Hey there, and welcome to tech Stuff. I'm your host,
Speaker 1: Jonathan Strickland. I'm an executive producer with iHeart Radio and
Speaker 1: a love of all things tech. It's time for a
Speaker 1: text Stuff classic episode. This episode originally published on February nine,
Speaker 1: two thousand fifteen. It is titled what is a Common Carrier.
Speaker 1: When we did this episode, it was when there were
Speaker 1: discussions among politicians and the Federal Communications Commission in the
Speaker 1: United States the FCC, about classifying internet service as a
Speaker 1: common carrier, and so we made this episode in order
Speaker 1: to kind of talk about what that means and what
Speaker 1: would imply should internet service be classified that way. Things
Speaker 1: changed dramatically in the following presidential administration after and now
Speaker 1: we're seeing them change again. So still relevant. So let's
Speaker 1: listen to this classic episode What is a Common Carrier?
Speaker 1: So I thought I would explain what common carriers are
Speaker 1: in general, how have they apply to the Internet or
Speaker 1: don't apply up till now anyway, and how this might
Speaker 1: change things in the future, and also just to clear
Speaker 1: up some misconceptions about the whole thing. So first, in
Speaker 1: the United States, the term common carrier is a legal
Speaker 1: definition that means an individual, a company, or a public
Speaker 1: utility like municipal buses, which is in the regular business
Speaker 1: of transporting people and or freight. And that's distinguished from
Speaker 1: a private carrier, which only transports occasionally or as a
Speaker 1: one time only event. So it originally referred to a
Speaker 1: physical conveyance of carrying people or cargo from one place
Speaker 1: to another. In fact, in the United States, this was
Speaker 1: first put into law in the Inner State Commerce Act
Speaker 1: of eight seven, which regulated the railroads. Other countries have
Speaker 1: had similar policies dating back hundreds of years. Some of
Speaker 1: them are formally put down into law, some are just
Speaker 1: simple traditions that have held over over the course of time.
Speaker 1: But over time the definition here in the United States
Speaker 1: has expended to cover services that carry more than uh
Speaker 1: these physical things. They can carry intangible things like voice communication.
Speaker 1: Now one of the most important facets of common carriers
Speaker 1: is that they are not allowed to discriminate against passengers
Speaker 1: or cargo. They're legally bound to carry all of them
Speaker 1: as long as there's enough capacity. Uh. They also have
Speaker 1: to have the fee to carry the passenger or freight
Speaker 1: to be paid. I mean that that has to happen too,
Speaker 1: so they don't do it for free. Uh and as
Speaker 1: long as there are no reasonable grounds to deny entry.
Speaker 1: So in other words, let's have an example. Let's say
Speaker 1: there's a city bus with plenty of seats available. That
Speaker 1: bus would not be allowed under common carriage laws to
Speaker 1: refuse service to a person who has bus fair unless
Speaker 1: the bus driver had reasonable grounds to deny entry. So
Speaker 1: let's say that the person who wants to get on
Speaker 1: the bus is waving around a huge club and singing
Speaker 1: Beach Boys songs at the top of his lungs. That
Speaker 1: you probably wouldn't think that guy is safe to let
Speaker 1: onto your bus. You might be able to argue those
Speaker 1: are reasonable grounds to deny entry. However, assuming that that
Speaker 1: person waiting for the bus has shows no reason why
Speaker 1: you would deny him or her entry, you have to
Speaker 1: let that person on by the rules of common carriage.
Speaker 1: Another important element is that common carriers are expected to
Speaker 1: charge what is called a reasonable price, sometimes a just
Speaker 1: and reasonable price for their services. So this really means
Speaker 1: a common carrier can't charge one person more than another
Speaker 1: person for no good reason. Now, there aren't good reasons
Speaker 1: to charge different amounts in specific examples. So let's say
Speaker 1: you are a freight company, for example, and you're hired
Speaker 1: to transport hazardous materials. That could justify a higher transportation
Speaker 1: fee for that particular job because it comes with greater
Speaker 1: risk than what it would normally be for you know,
Speaker 1: regular cargo. So there are exceptions. But otherwise you couldn't
Speaker 1: say I'm going to charge everyone in this town one
Speaker 1: price to ride on my train, but everyone in this
Speaker 1: other town has to pay this other price only because
Speaker 1: I hate that town, so that town has everyone there
Speaker 1: has to pay me more as I don't want them
Speaker 1: on my train. Otherwise that would not be allowed, so
Speaker 1: let's move ahead. In nineteen ten, seven Act was modified
Speaker 1: so that it also covered telegraph and the burgeoning telephone companies.
Speaker 1: One of the issues customers faced in those early days
Speaker 1: was a lack of assurance that their telegraph messages would
Speaker 1: actually get through to their intended destinations. So some companies
Speaker 1: were charging extra fees to in sure that the message
Speaker 1: would be repeated all the way down to the end
Speaker 1: of the line. Now courts decided that that was an
Speaker 1: unfair practice. That a customer has a reasonable expectation that
Speaker 1: a service provider will actually provide the service that was
Speaker 1: paid for and should the customers shouldn't be charged extra
Speaker 1: just to be certain of it. Moreover, it should be
Speaker 1: on service providers to prove they are doing their job,
Speaker 1: rather than the burden being on customers to prove that
Speaker 1: the providers are falling short. Because the providers are privy
Speaker 1: to all the information, so they should be the ones
Speaker 1: who had the responsibility to prove that they're doing what
Speaker 1: they say they're doing. And another issue was the fact
Speaker 1: that the telephone system in the United States was effectively
Speaker 1: a monopoly. Bell Telephone, which became a T and T
Speaker 1: in eight five, got a headstart on other companies and
Speaker 1: laid on infrastructure that only worked with the phones made
Speaker 1: by Western Electric. So you have this partnership between Bell
Speaker 1: Telephone and Western Electric, which effectively meant they were the
Speaker 1: only players in town. If you were an independent uh
Speaker 1: telephone service company, your phones would not work on the
Speaker 1: Bell Telephone infrastructure, so that edged out competitors, and in
Speaker 1: nineteen thirteen, Bell Telephone in the US Justice Department worked
Speaker 1: out a deal to limit Bell from scooping up independent
Speaker 1: competing companies and from preventing other competitors from using Bell's
Speaker 1: long distance lines they were allowed to use Bells network.
Speaker 1: This was in response to an antitrust lawsuit that was
Speaker 1: being brought against Bell Telephone, and in order to head
Speaker 1: it off, Bell Telephone said, you know what, we're going
Speaker 1: to change these policies we've had so that you don't
Speaker 1: sue us. And it worked and the value of the
Speaker 1: service was considered to be too important to allow unregulated
Speaker 1: control of it. So that's where we started seeing some
Speaker 1: regulation enter into the telephone industry. Now, there's a series
Speaker 1: of tech Stuff podcasts about the history of A T
Speaker 1: and T in which Lauren Voege, Obama and I explored
Speaker 1: how A T and T came about and how it
Speaker 1: was split up more than once due to concerns like these.
Speaker 1: If you are interested in that, you should go check
Speaker 1: out those episodes. Now, getting back to the telephone industry
Speaker 1: as a whole, in nineteen thirty four, Congress pass the
Speaker 1: Communications Act, which created the Federal Communications Commission, which oversaw
Speaker 1: radio transmissions as well as telecommunications. So this is what
Speaker 1: established the Title two that the FCC refers to today
Speaker 1: when it comes to I s p s. They talked
Speaker 1: about reclassifying I s p s under Title two. This
Speaker 1: is the Act that classified telephone systems as common carriers.
Speaker 1: It's been amended several times over the following decades, including
Speaker 1: extensive alterations that were made during the Telecommunications Act of
Speaker 1: nineteen nine six. So let's move on to transmitting computer
Speaker 1: data over networks. In nineteen seventies and nineteen eighties, before
Speaker 1: most people knew about a network of networks. You know,
Speaker 1: our bonnet was a thing. Internet was becoming a thing,
Speaker 1: but most people didn't know about it. The common way
Speaker 1: to connect to a computer was to use a modem
Speaker 1: for direct machine to machine connection over the telephone system.
Speaker 1: So you would have a dial up modem and you
Speaker 1: would use it to dial a phone number. The computer
Speaker 1: on the other end would essentially answer the phone, and
Speaker 1: then you would have computer to computer communication. But it
Speaker 1: wasn't an Internet, right, It wasn't a network of networks.
Speaker 1: It was the machine to machine communication. Regular computer data
Speaker 1: was considered a transmission service and fell under titled two,
Speaker 1: which meant that any any transmission service cannot be prioritized,
Speaker 1: it can't be discriminated against. It all has to be
Speaker 1: treated equally. But there were specific services companies provided in
Speaker 1: which you could connect to a computer to get a
Speaker 1: get particular information like a weather report or stock information
Speaker 1: or sports scores, things like that. These were considered to
Speaker 1: be enhanced services, so this was classified under Title one
Speaker 1: of the Communications Act, which is unregulated. So the transmission
Speaker 1: was regulated, but these specific services were unregulated. The enhanced
Speaker 1: services didn't fall under common carriage terms. Companies could charge
Speaker 1: a fee for customers to use them that would be
Speaker 1: on top of any phone bill for use of the
Speaker 1: transmission lines themselves. Okay, so let's say a phone company
Speaker 1: offers up its own enhanced service and some other company
Speaker 1: offers a competing enhanced service. The transmission of data falls
Speaker 1: under common carriage, which means that phone company could not
Speaker 1: prevent customers from accessing the competitors enhanced service. That would
Speaker 1: be unfair. So this is the beginning of the concept
Speaker 1: of net neutrality. The Telecommunications Act redefined enhanced services as
Speaker 1: information services and also ratify the differences between transmission services
Speaker 1: information services, putting into policy what the FCC had sort
Speaker 1: of made up as it went along, so the transmission
Speaker 1: of services met the terms of common carriage. The telephone
Speaker 1: company treated all dial up services the same, all had
Speaker 1: equal access under the system, the actual services, the apps
Speaker 1: that people were accessing, those were enhanced or information services.
Speaker 1: We'll be back with more about common carriers after these
Speaker 1: brief messages. That's not confusing enough, Let's move into the
Speaker 1: early era of broadband. This is when we start seeing
Speaker 1: dial up modems fade away and DSL began to arrive. Now,
Speaker 1: the FCC continued to apply that distinctions made during the
Speaker 1: telephone era. The phone companies would have to carry DSL
Speaker 1: signals as common carriage. They couldn't discriminate against them. The
Speaker 1: apps are services running on the DSL connections were unregulated
Speaker 1: information services. And then we get to two thousand two. Now,
Speaker 1: this is when cable TV companies began offering transmission services
Speaker 1: of Internet data at high speeds, at least relative to
Speaker 1: dial up speeds at any rate. And this is where
Speaker 1: things get muddy. See the FCC classified cable broadband service
Speaker 1: under Title one, not titled two. That means both the
Speaker 1: transmission of data over cable and the information services provided
Speaker 1: would be unregulated. There will be no reason for regulation
Speaker 1: there because it's all under Title one. So why not
Speaker 1: treat cable transmission of data the same way as the
Speaker 1: telephone system largely comes down to politics. At this time,
Speaker 1: Republicans had a majority in government and they favored deregulation.
Speaker 1: And the reasons for favoring deregulation was that they thought
Speaker 1: it was going to promote risk taking and competition and innovation.
Speaker 1: The in reality, that's not necessarily the case. I mean,
Speaker 1: if you look at the Bell telephone system story, that
Speaker 1: kind of shows what happens with deregulation, and it required
Speaker 1: the government to actually come in and intervene in order
Speaker 1: to avoid a monopoly that could completely take advantage of customers. Well,
Speaker 1: in two thousand five, the f c C said that
Speaker 1: DSL would also be reclassified under Title one, So this
Speaker 1: makes the the whole situation even more complicated. Telephone systems
Speaker 1: are still titled too, but DSL and cable are now
Speaker 1: Title one and are unregulated. Now this meant that cable
Speaker 1: and DSL companies wouldn't have to ask permission to incorporate
Speaker 1: fast lanes for the Internet, so they could give preferential
Speaker 1: treatment to some customers over others for a fee. And
Speaker 1: because Title one is unregulated, there also was no fear
Speaker 1: of the FCC butting in should a cable or DSL
Speaker 1: company block data they didn't want to carry, such as
Speaker 1: data from a competitor or from torrent sites. So, you know,
Speaker 1: we talked earlier about the common carriers. You know, one
Speaker 1: of the defining factors is that they cannot refuse service
Speaker 1: as long as a person is able to pay the fee.
Speaker 1: If it's a Title one, it's not a common carrier,
Speaker 1: and so it can deny service. So if you own
Speaker 1: the transmission lines and you have a content provider like YouTube,
Speaker 1: and you think, I've got my own content provider program
Speaker 1: where people users can upload video, and I don't want to.
Speaker 1: I don't want to compete against YouTube because YouTube is
Speaker 1: gonna is gonna make my tool obsolete. I'm just not
Speaker 1: gonna allow YouTube to go across my transmission lines. Technically,
Speaker 1: you could do that under Title one, because there's no
Speaker 1: you're not a common carrier. You're not You're not obligated
Speaker 1: to carry all legal information. Beyond that, there was no
Speaker 1: requirement for cable companies to provide services for a quote
Speaker 1: just and reasonable fee end quote. They could charge whatever
Speaker 1: they wanted. So in two thousand and eight things came
Speaker 1: to a head. The FCC find Comcast because Comcast had
Speaker 1: blocked peer to peer traffic through bit torrent. Now, first
Speaker 1: we have to keep in mind there's nothing inherently illegal
Speaker 1: or immoral or unethical about bit torrent. There's nothing wrong
Speaker 1: with the technology. It's a method of data transmission that
Speaker 1: works well for large files. Peer to peer is great
Speaker 1: if you're trying to move a huge amount of information
Speaker 1: in a relatively short amount of time. Now, some of
Speaker 1: those files were pired in material. They were illegal files,
Speaker 1: and there were plenty of huge files that were legal.
Speaker 1: They should have been able to transmit freely. But because
Speaker 1: bit torrent was being seen as the pirate tool, Comcast
Speaker 1: blocked it. So the FCC gets involved, and the FEC
Speaker 1: says to Comcast, hey, you can't do that. You can't
Speaker 1: just block this stuff just because you don't like some
Speaker 1: of the activity that's going on over there. And Comcast
Speaker 1: responds with I'm sure we can. We're not common carriers
Speaker 1: were classified under Title one, not Title two. And the
Speaker 1: FCC says uh, And it goes to court and the
Speaker 1: courts end up agreeing ultimately with Comcast. The FCC doesn't
Speaker 1: have the authority to regulate cable companies because they're classified
Speaker 1: as Title one not Titled two. So that's why there's
Speaker 1: now this move to reclass VI I s p s
Speaker 1: under Title two instead of Title one. So the argument
Speaker 1: for reclassification is that it will require I sps to
Speaker 1: play fairly with content providers and with customers. The companies
Speaker 1: will have to adhere to the rules of Title two
Speaker 1: and will come under the regulation of the f c C.
Speaker 1: So a company like Comcast, which isn't just a transmission
Speaker 1: service provider but is also a content provider, can't favor
Speaker 1: its own services at the expense of others. However, even
Speaker 1: in this proposal, FCC Chairman Wheeler has suggested that the
Speaker 1: FCC would forbear or waive certain elements of Title Too
Speaker 1: not directly associated with net neutrality, which includes the requirement
Speaker 1: to share networks and on rate regulations. So while cable
Speaker 1: companies wouldn't be able to block legal content or prioritize
Speaker 1: traffic for sites for a price, they could totally continue
Speaker 1: to charge customers whatever they like for their services. So
Speaker 1: some people object to reclassifying I s p s as
Speaker 1: Titled too. Like the cable companies, they really object to
Speaker 1: it now. They say that if the cable companies are
Speaker 1: real or I s p s or reclassified as title
Speaker 1: to the Internet, will become heavily regulated uh and innovation
Speaker 1: will be stifled. But the flip side of this is
Speaker 1: that it will be a fair playing ground. So if
Speaker 1: we had access to lots of competitors in the I
Speaker 1: s P space for service, I wouldn't be really concerned
Speaker 1: about deregulation because we could always switch providers if we
Speaker 1: didn't like the service, if we felt they were being unfair,
Speaker 1: we could look to a competitor, and in fact, that
Speaker 1: competition could drive everyone to being as fair as possible
Speaker 1: so that they didn't run off their customers. But the
Speaker 1: truth of the matter is that many people, including myself,
Speaker 1: have very limited choices when it comes to I s
Speaker 1: p s. In some cases, there's no choice at all.
Speaker 1: You have one option. You either go with this company
Speaker 1: or you don't have internet. That's a problem with dealing
Speaker 1: with an effective and pie. The consumer loses out. And
Speaker 1: the cable industry claims that this regulation is going to
Speaker 1: discourage those companies from investing in infrastructure because it will
Speaker 1: hurt revenue to have regulation. They said that if the
Speaker 1: government determines how much money we're able to make, then
Speaker 1: there's no reason for us to try and innovate and
Speaker 1: build out our infrastructures. On the other hand, it encourages
Speaker 1: new players in the space like Google Fiber, which is
Speaker 1: investing huge amounts to bring broadband speeds to households in
Speaker 1: certain markets. So if the cable companies wish to keep
Speaker 1: their customers, they'll have to compete with the newcomers, which
Speaker 1: means that it does encourage investment in infrastructure, it just
Speaker 1: means lower profits. That's really what these big companies are
Speaker 1: afraid of. So they either continue to compete by building
Speaker 1: out this infrastructure or they get out of the game entirely,
Speaker 1: which I don't think is a likely outcome now. As
Speaker 1: for excessive regulation, I don't diticipate that being a huge problem.
Speaker 1: I think we're more likely to see the FCC watching
Speaker 1: to make sure cable companies follow the rules under title
Speaker 1: two should that reclassification actually happen. That wraps up that
Speaker 1: classic episode about common carriers. Hope you found that informative
Speaker 1: and interesting. If you have suggestions for topics that we
Speaker 1: should cover on future episodes of Tech Stuff, please reach
Speaker 1: out to me on Twitter. The handle for the show
Speaker 1: is tech Stuff hs W and I'll talk to you
Speaker 1: again really soon. Text Stuff is an I heart Radio production.
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