Common Carrier Question

Mailman List Mirror (Read Only)
1

Folks,

I'm working on a graduate policy paper regarding Internet filtering by
blocking ASN's or IP prefixes. It is a variation of Net Neutrality, just
by a different name.

Is anyone in the IANAL field aware of any cases where :

a. an ISP successfully defended a common carrier position
b. an ISP unsuccessfully defended a common carrier position
c. an ISP was treated as a common carrier, even if didn't want to be.
d. an ISP was not treated as a common carrier, even if they wanted to.

It seems to be way back in the 90's, Compuserve may have been involved in
one variation of the above, but the cobwebs are too thick.

Replies off list and I will summarize if there is interest.

Eric

2

I'm working on a graduate policy paper regarding Internet filtering by
blocking ASN's or IP prefixes. It is a variation of Net Neutrality, just
by a different name.

Except Network Neutrality is about QoS, not filtering.

Is anyone in the IANAL field aware of any cases where :

a. an ISP successfully defended a common carrier position
b. an ISP unsuccessfully defended a common carrier position

ISPs are _not_ common carriers, and have never been (in the US at least). "Common Carrier" is a legal term, and carries lots of responsibilities as well as benefits. ISPs have essentially neither.

However, assuming you meant a more general definition, I might have a case on point:

Back in the early 90s, Prodigy & Compuserve (I think, maybe AOL instead of one of those) were involved in a slander case or something like that. Someone had posted "bad" stuff about company using these ISPs.

One lost and one won. The reason was that Prodigy monitored its content for things like foul language, Compuserve did not. As a result, most ISPs after that would very, very intentionally not look at what their customers were doing so they could not be accused of monitoring or filtering or whatever.

c. an ISP was treated as a common carrier, even if didn't want to be.
d. an ISP was not treated as a common carrier, even if they wanted to.

I can't think of a reason an ISP would not want to be a common carrier, unless you are talking about the federal legal definition and they're avoiding the responsibilities it carries. But then no ISP has ever been treated like that (unless they were _also_ a telco), so it never comes up.

As for D, that happens all the time. For instance, there are plenty of times ISPs have had equipment seized, either as "evidence" or because they were being prosecuted directly, for things their customers did. Again, this assumes you are not talking about the legal definition.

3

Except when an ISP blocks Vonage completely, then they aren't neutral and it
is QoS (unless the QoS == 0 for VoIP)

4

Eric Germann wrote:

Except when an ISP blocks Vonage completely, then they aren't neutral and it
is QoS (unless the QoS == 0 for VoIP)

    We (or its just me) might be curious about which ISP did that.

    Offlist if you want.

    Thanks.

5

As always you should consult competent advisors licensed to give legal
advice in your jurisdicition.

Someone writing a research paper on the topic should review the
Cybertelecom web site. Robert Cannon has done a very nice job explaining
the difference types of common carriage and common carriers, with
citations and references.

http://www.cybertelecom.org/notes/common_carrier.htm

In the USA, Congress essentially pre-empted Stratton Oakmont v. Prodigy
when it passed the good samaritan provisions in the Communications Decency
Act (47 USC 230).

http://www.cybertelecom.org/cda/samaritan.htm

Not only did ISPs receive broad immunity for carrying third party content,
they also received broad immunity for actions voluntarily taken in good
faith to restrict objectionable, etc content. This may include not just
things such as ISP supplied parental control software, but may also
include when an ISP takes a good faith action to stop a DDOS attack and
drops some "good traffic" too.

"Good faith" is not carte blanche to do anything. Nor will it stop
someone filing a lawsuit, which can get very expensive even if you
ultimately win.

6

Madison River, a regional cable provider in North Carolina, did it last March and got fined by the FCC for its trouble:

http://www.networkingpipeline.com/60405195

-C

7

From reading that, though, it looks like the ISP in question also has its own telephone product (after all, the quote in the article is that they are a "North Carolina service provider that calls itself the '17th largest phone company' in the US"

In which case, the fine may stem from the anti-competitive nature of blocking their competitor rather than simply because they were blocking some sort random service.

In other words, what juice would the FCC have against MomNPopISP.com who decided to block VoIP?

D

8

They do. I dealt with them as a customer once. (had a server hanging off one of their business dsl packages...the dsl was down for 4 weeks...)

They do phone service in a lot of the coastal areas from Brunswick, GA up into NC, mostly in the areas that bellsouth isn't in. They have a lot of different names, all part of the Madison River conglomerate. They have cable companies, ISPs, and telcos.

Warning if you ever have to deal with them: Level 1 tech support knows jack, and has no way to get ahold of Level 2, or anyone else. "All we can do is send an email through our ticket system..."

I wound up calling home phone numbers for various company officials leaving voicemail. And what do you know, less than 24 hours later the circuit was back up...

9

Vonage has claimed in testimony to the US Senate and other places that at
least one cable company and at least wireless ISP company is blocking VOIP
and it was "useless" to complain to the FCC about it.

Remember the "myth" that the Internet isn't regulated.

On the other hand, Jeff Pulver has proposed that "Most actual cases of
port blocking have been human error," Pulver said. Engineers often block
the virtual network "ports" commonly used for VOIP without knowing what
they're doing -- and there are ways around it, such as assigning calls to
a different port, Pulver said.

Even AT&T has had problems with its CallVantage VOIP service being blocked
on some networks because some ISPs had blocked TFTP which was being used
by some network worms, and is also used by some VOIP phones to download
its configuration files.

10

There have also been some non-US cases. See, for example,
http://www.interesting-people.org/archives/interesting-people/200211/msg00030.html
There was also the Canadian telco/ISP which blocked subscriber access to a
pro-union web site critical of the company during a labor dispute.