History of the term “common carrier”
Title II of the Communications Act of 1934 works to regulate common carriers. However, it provides no definition of the phrase. Today, the term “common carrier” is used in a variety of ways and can be defined as people or organizations that transport people or goods for the general public and who are responsible for any potential loss of the goods during transport. In the United States, “common carriers” include things such as railroad companies, shipping companies, utility companies, and telecommunication companies, but that has not always been the case. The term “common carrier” has developed throughout history due in part to technological innovation. The phrase dates back to the 1600’s and has since then evolved into what we think of today.
In 1670, Lord Chief Justice Hale wrote about three types of rights concerning the ports of England including, jus regium (the rights of the King), jus privatum (proprietary rights), and jus publicum (common interest). He claimed that in many ways jus privatum and jus publicum conflicted with each other and argued that the public right outweighs private interest. In The Analysis of Law, Lord Hale wrote about an implied contract between the public and people undertaking a common trust, which included “common hosts, common “farriers,” and common carriers”<ref name="redefining_common_carrier" />.
A working definition was developed by 1710 and by the mid 1800s a standard definition of the term “common carrier” had materialized. In 1857, Thompson Chitty and Leofric Temple wrote that:
"To render the master and owners of a ship liable as common carriers, it must appear that the ship is a general ship, or employed for the carriage of goods for all persons indiscriminately, who offer goods for carriage to the place of destination, such as vessels employed in the coasting trade or in a foreign trade"<ref name="chitty"/>.
At that time, English and American laws imposed regulations on these “common carriers” and applied the rules to the dominant form of transportation at the time—railroads. The Interstate Commerce Act of 1887 created the Interstate Commerce Commission (ICC) in an effort to enforce these regulations and to protect fair rates and eradicate rate discrimination. In 1910 the Mann-Elkins Act expanded the ICC to include regulation of telegraph and telephone companies, as Congress found that “that the carriage of electronic intelligence should be regulated in the same manner as the carriage of goods and passengers”<ref name="speta" />.
The Radio Act of 1912 (later replaced by the Radio Act of 1927) regulated radio communication as the “public interest, convenience, or necessity” required. The Radio Act of 1927 transferred this responsibility from the United States Department of Congress to the newly formed Federal Radio Commission (FRC).
Communications Act of 1934
ICC and FRC authority was later transferred to the Federal Communications Commission (FCC) when the Communications Act of 1934 was passed (see FCC Actions Regarding Common Carriers for more information on regulation). The Act provides a circular definition of the term “common carrier”:
"The term common carrier or carrier means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Act; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier"<ref name="communications_act" />.
This definition of the term leaves some room for some interpretation. Therefore the previously mentioned working definitions of the term “common carrier” form a standard, and that standard is what is regulated by the Communications Act of 1934. An important precedent that affects the interpretation of this circular definition is that the provider cannot discriminate or refuse service. The Communications Act was later amended by the Telecommunications Act of 1996. The Telecommunications Act was the “first significant overhaul of United States telecommunications law in more than sixty years”. Most significantly, the Telecommunications Act offered a definition of Internet Service Providers (ISP’s) and classified them as not being common carriers, exempting them from Title II.
<references> <ref name="redefining_common_carrier">Redefining "Common Carrier": The FCC's Attempt at Deregulation by Redefinition </ref> <ref name="chitty">A Practical Treatise on the Law of Carriers of Goods and Passengers </ref> <ref name="speta">A Common Carrier Approach to Internet Interconnection </ref> <ref name="communications_act">Communications Act of 1934 </ref> </references>