Too many of us take for granted that we cannot be denied passage on an airplane, bus, train, or taxi. We know that our political views will not be considered when we hop on. One cannot be turned away by any of these transportation services, nor by the post office, UPS or Fedex, even if — gasp! — you voted for Trump. Or even if you still believe that Trump won the 2020 election. Heck, you can’t be turned away even if you are a rotten person and even if you fully confess your character to the ticketing or package clerk. We know, accept, and take for granted that all of these things are irrelevant, but we don’t always think about the reason why they cannot be considered. But those reasons are important.
We cannot be turned away by these providers because they are classified as common carriers; and a common carrier may not treat you differently than anyone else, regardless of your views, beliefs, or deplorability level (unless you are actually committing an illegal act).
Common carriers provide services that transport people, packages, messages, and items along public routes and space. They are deemed unique and important public services and not only are they prohibited from turning people away, they are not even permitted to provide better, inferior, or any differing level of service to one customer as compared to any other customer assuming, of course, that the same level of service was purchased between those customers.
Test it out! Walk up to an Amtrak, UPS, or Greyhound window in a state Bluer than the sky and emphatically say, “I voted for Trump, I have “stop the steal” signs all over my lawn, I cheated on my spouse, and I rarely pay child support or see my daughter.” They’ll still take your package. Still board you onto the bus. And, as long as you can pay for that last available, first class cabin, you’re good to go, at absolutely no risk for denial. That’s true even if the guy behind you in line is wearing a Biden/Harris button, won Vermont’s dad-of-the-year award, and is more woke than a newborn parent during the first week that the baby is at home (note to non-parents: that’s very woke).
These equal-treatment protections exist in large part because common carriers typically exert almost complete and total control over travel, communication, and navigational access to public and government lands, roads, and other spaces. Common carriers retain special privileges to access these spaces — because they typically do not own them. They are therefore granted these special privileges and, in return, are expected not to block others’ ability to navigate and access those spaces and the extremely crucial services provided by the common carriers that are connected to them.
But transportation and package delivery services are not the only common carriers with special access to public space and the corresponding sacred duty to treat all users equivalently. Title II of the Communications Act gives the FCC the authority to regulate communications common carriers, which includes the ability to determine what type of wire communications services constitute common carriers. Traditionally, and most famously, telephone companies were covered in this category.
More recently, the debate has turned to whether internet services should be covered, too. Similar to the requirements imposed on traditional common carriers, Section 202(a) of Title II provides that “[i]t shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.”
Title II clearly allows the FCC to impose common carrier status on internet services. In fact, in 2015, the Obama FCC declared Internet Service Providers (“ISPs”) such as Verizon Fios, Comcast, and Cox to be common carriers. In 2018, the Trump FCC correctly reversed this decision. In issuing the FCC’s Restoring Internet Freedom opinion, then FCC-chair, Ajit Pai, stated that the 2015 decision was erroneous because “there was no problem to solve… [t]he Internet wasn’t broken…[and] [w]e weren’t living in a digital dystopia.” Significantly, the FCC acknowledged that internet services could be classified by the Commission as common carriers, they merely indicate that ISPs were the wrong internet service, at the wrong time.
Chair Pai explained why ISPs, specifically, were the wrong internet service to target. His opinion distinguished “enhanced ”and multifaceted services such as those provided by ISPs from typical common carrier services which offer the mere transmission of information. We argue here that this would be something more akin to Twitter and other social media companies. The Commission explained in its opinion that the former, enhanced service, has traditionally been regulated very lightly while the latter, information transmission service, has been regulated more heavily.
The timing of Chair Pai’s opinion is crucially important. When he spoke of a lack of a digital dystopia, he was, at that time, entirely right. But internet services, and the balance of power online, have evolved dramatically since Chair Pai issued this opinion in 2018. ISPs, once thought to hold all the power online, have instead been model citizens and exemplars of how the free markets should work. They have been nearly-ideal and neutral providers, concerned not with content, but instead with continually upgrading and improving their technological offerings in an increasingly competitive field.
Contrast that mandate and approach with the social media companies who, since the 2018 FCC opinion, have taken full control of access to the open and free exchange of ideas and information on the internet. They have blocked certain customers while promoting others, they have excluded, moderated, altered, or blocked information of which they do not approve from progressing through the internet wires, while allowing other controversial information to march through; and they have often done all of this in inconsistent, antithetical and hypocritical ways.
It is likely that even former Chair Pai (who stepped down from his post yesterday and will be replaced with Democratic acting chair), would today agree that since the NY Post was censored and blocked for posting nothing more than investigative journalism in October 2020, that we have indeed been “living in a digital dystopia” where certain kinds of social media end users are serviced less favorably than others and where certain kinds of commercial social media companies, like Parler, are treated less favorably than others.
This can all be solved — easily — by simply designating social media companies as what they truly are — common carriers.
In 2014, the influential D.C. Circuit Court of Appeals noted that the FCC has a “long history of subjecting to common carrier regulation the entities that controlled the last-mile facilities over which end users accessed the Internet.” This opinion was consistent with long-held FCC position, first asserted in its Second Computer Inquiry. In this opinion, the FCC explained that ISP-type services are complicated and numerous, and not focused mainly on end users. They were therefore not considered appropriate candidates for common carrier status. At the same time, the FCC’s language strongly implied, as is supported in a number of federal court opinions, that social media companies would indeed satisfy common carrier designation because those companies do meet the FCC definition of a provider that offers one main service — information and data transmission — and services primarily end users.
The FCC would be well-advised to turn its attention away from ISPs and focus on the real threat: social media companies, and the fact that they have evaded common carrier status by cleverly remaining under the radar while quietly ramping up abuses of this status leading up to the 2020 election, in the hopes that Democrats will protect them moving forward. But this should be a bipartisan issue and concern. Social media companies have indeed created a digital dystopia and present a grave and profoundly discriminatory threat to the free exchange of ideas and information on the ultimate public space — the internet. Social media companies meet the definition of common carrier wire services under Article II, FCC guidelines, and under federal case law. Their main function is end user information transmission through public space; and it is thus appropriate to subject them to Article II common carrier regulation. This would prevent these companies from imposing disparate treatment on customers based on opinions the companies dislike; and the FCC would be accomplishing a transcendent public service by preventing the few corporate guardians of nearly all public exchange of ideas and information on the internet from discriminating against those who wish to share their ideas with others without scrutiny of their underlying views and opinions.
If the FCC chooses not to act, then the time has come for sites like Parler and end users like you and me to take matters into our own hands and sue to have these companies designated as what they are — common carriers, who shouldn’t be treating you differently than your nicer, friendlier, or Biden-supporting neighbor.
Jeffrey Lax is an attorney, professor and department chair at the City University of New York. He has hosted talk radio programs on 770 WABC and 970 WNYM in New York and appears on Newsmax TV as a legal analyst.
The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.