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The debate over how internet platforms moderate content has reached a fever pitch. To get around First Amendment concerns, some proponents of content moderation regulation argue that internet platforms should be regulated as \"common carriers\"--that is, internet platforms should be legally obligated to serve all comers without discrimination. As these proponents regularly point to communications law as an analytical template, it appears that the term \"common carrier\" has become a euphemism for full-blown public utility regulation complete with a dedicated regulator. However, proponents of common carrier regulation provide no details about how this regime would work. Viewing the question through a regulatory--as opposed to a First Amendment--lens, the purpose of this paper is to offer a few insights on how to fill that analytical gap, and to ask if we will be happy with the inevitable consequences (intended and unintended) if we proceed down that road. To provide context, this paper begins with a brief overview of the legal origins of the \"internet platforms are common carriers\" argument as a strategy to overcome First Amendment concerns. Next, this paper reviews the prominent academic literature arguing for internet platforms to be treated as common carriers, which draws upon direct analogies to the communications industry. However, if communications regulation is to provide the analytical template for internet platform regulation, then a more accurate understanding of communications law is required. Following this discussion, this paper reviews Justice Clarence Thomas's concurrence in Biden v. Knight Foundation, along with the two cases--one from the Eleventh Circuit and one from the Fifth Circuit--in which, at the time of this writing, the Supreme Court has just granted certiorari and where the question of whether internet platforms may be treated as common carriers is at the heart of the dispute. The penultimate section of this paper outlines some of the important--yet unaddressed--legal questions that will arise should the Supreme Court ultimately rule that internet platforms are common carriers that could eventually be subject to some sort of public utility regulation. Concluding thoughts are at the end.

If one were to believe the politicians and pundits in the trade press, the world is in midst of a “telecoms revolution,” resulting from (the) deregulation and new competitive opportunities represented by the 1997 World Trade Organisation Agreement on Basic Telecommunications Services. This may be true. Unfortunately, however, the actions of many regulators and industry participants more accurately reveal not a telecoms “revolution” but instead a growing telecoms trade war that is dangerously close to spiralling out of hand. In this book, Naftel and Spiwak review U.S. and European competition and regulatory initiatives post-WTO and provide both a useful roadmap to today’s U.S., EU and WTO telecoms regulation and an examination of various case studies to illustrate their points. In so doing, the authors discover unfortunately the sad reality that, despite the political rhetoric, regulators on both sides of the Atlantic have eschewed innovative and indeed productive solutions to create a market structure conducive to long-term competitive rivalry. Instead, the authors demonstrate that current policies reveal a growing cynicism towards the maximisation of consumer welfare that will be difficult – if not outright impossible-to remove.

This article presents a model of optimal copyright policy which incorporates several realistic features which have hitherto been largely ignored. First, although copyright is understood as a means of encouraging the creation of new works, the optimal number of such works is generally not considered. Second, copyright infringement encompasses two different activities subsumed under the same legal umbrella: One might either \"pirate\" (i.e., illegally copy) a work or one might create a \"new\" work which is a close imitation of an existing one. The mutual recognition of these two features leads to some surprising conclusions relevant to current debate over copyright reform. In particular, while strong piracy protection encourages overproduction of intellectual property, enhanced protection against imitation can mitigate the associated inefficiencies, benefitting society.

Recent decades have seen a fundamental shift in the nature of economic regulation in the United States. Unauthorized by congress, and largely unnoted in legal and academic circles, regulatory agencies such as the Federal Communications Commission have changed the regulatory process by linking otherwise unrelated regulatory issues. Examples include tying merger approval to firm commitments to engage in conceptually unrelated build-outs and other projects of political importance. This linking of issues has several effects, the most prominent being (a) tying regulatory issues changes the outcomes obtained, plausibly in predictable ways; (b) tying in some circumstances allows regulators to extend their authority to issues for which they have little or no legal authority; and (c) tied regulatory bargaining fails to produce valid legal precedent for firm decision making. We provide an analysis of these conclusions by examining the increasing use of consent decrees, voluntary merger commitments, and merger conditions by the Federal Communications Commission, referencing our discussion with a simple model of joint bargaining applicable to regulatory practice.

Spiwak discusses the regulatory implications of turning internet platforms into common carriers. The debate over how Internet platforms moderate content has reached a fever pitch. Congress is conducting oversight on so-called \"Big Tech censorship,\" and states such as Texas and Florida have enacted laws designed to prevent Internet platforms from \"silencing opposing voices.\" But while such legislative efforts are popular among certain political constituencies, the constitutional and practical implications of regulating Internet platforms' content moderation practices are less than clear.

The Federal Communications Commission is coming under intense political pressure to reclassify broadband Internet access as a common carrier telecommunications service under Title II of the Communications Act. Yet, almost no attention has been directed at the fine details of how reclassification will be implemented. Relying on the plain terms of the FCC's governing statute, current case law, and the Commission's own precedent, we examine such details in this Article and conclude the following: First, reclassification would turn edge providers into \"customers\" of Broadband Service Providers (\"BSPs\"), and this new \"carrier-to-customer\" relationship (as opposed to a \"carrier-to-carrier\" relationship) would require all BSPs to create, and then tariff, a termination service for Internet content under Section 203 of the Communications Act. Because a tariffed rate cannot be set arbitrarily, and since a service cannot be generally tariffed at a price of zero, reclassification would require all edge providers (not their carriers) -- as customers of the BSP -- to make direct payments to the BSPs for termination services. Second, as competition is the basis for Section 10 forbearance, the Commission is precluded from setting aside tariffing because it has labeled all Broadband Service Providers as \"terminating monopolists.\" As such, the agency has boxed itself in for mandatory tariffing under Title II.

In 2015, the Federal Communications Commission made the controversial decision to reclassify broadband Internet access as a common carrier \"telecommunications\" service under Title II of the Communications Act. While much of the debate has focused on the legality of reclassification, little attention has been paid to actual implementation. As detailed in this article, a proper implementation of Title II precluded the Commission's approach in the 2015 Open Internet Order, forcing the Commission to ignore the \"vast majority of rules adopted under Title II\" and \"tailor[] [Title II] for the 21st Century.\" The D.C. Circuit found in United States Telecom Association v. FCC that the Commission had wide latitude to interpret the Communications Act and upheld not only the Commission's decision to reclassify but also, surprisingly and indirectly, its gross distortion of Title II. In so doing, the D.C. Circuit has extended Chevron deference beyond any reasonable limit, greatly expanding the Commission's authority well beyond its statutory mandate. This Article first presents several examples of how the 2015 Open Internet Order ignores both the plain language of Title II and the extensive case law to achieve select political objectives and then discusses the D.C. Circuit's acceptance of such legal perversions. To provide an example of the troubling precedent set by USTelecom, this Article then demonstrates how former FCC Chairman Tom Wheeler attempted (but, due to the clock running out by the Presidential election in 2016, ultimately did not succeed) to use the same theory of the case found in USTelecom to regulate the prices of Business Data Services. Conclusions and policy recommendations are at the end.