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are usenet providers common carriers

Postby pham » Tue Aug 07, 2007 6:51 pm

are usenet providers common carriers? i was told no but some people in a forum say otherwise.
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Re: are usenet providers common carriers

Postby megabitz » Wed Aug 08, 2007 12:13 am

pham wrote:are usenet providers common carriers? i was told no but some people in a forum say otherwise.


No. People in a forum say lots of things, but that doesn't make them right.

We've previously answered this question on Slyck, at

http://www.slyck.com/forums/viewtopic.p ... 7&p=401560

So maybe it's time to dispel this myth a little more forcefully. The remainder of this message is US-centric. Those of you elsewhere ... move along, nothing to see here.

"Common carrier" is a specific legal term that is typically applied to telecommunications companies (we won't get into general transportation). Back in 1934, Congress passed the Communications Act, which created the Federal Communications Commission ("FCC"), which was given broad and sweeping regulatory powers. The Act spells out a variety of regulatory cruft. One of the big things it does is that it provides certain protections to communications service providers (such as "your telephone company"), requiring in turn that the providers agree to certain regulatory encumbrances, such as providing service in a nondiscriminatory manner.

Many years later, along comes the Internet. In the early years, a lot of sites were rather uneasy about the legal status of the Internet. If an ISP hosted a customer's web site, and the web site turned out to be something bad, what legal exposure did the ISP have? Since the Internet is built on top of telecommunications circuits, which could be argued as being covered under the CA1934, many people suggested extending the existing "common carrier" concept. However, even under the most tortured interpretations, the CA1934 definition of "common carrier" was not considered to be a good fit for ISP's. However, providers still desperately longed for legal protection against nuisance lawsuits.

To resolve this, the Telecommunications Act of 1996, the Communications Decency Act, and the Digital Millenium Copyright Act have all been passed. The Communications Decency Act established immunity from liability for third party content on grounds of slander or libel. The DMCA established immunity for the copyright violations of third parties on a provider's network. Several lesser issues were resolved. Once this was done, the basic fears that had driven some ISP's to claim that they held common carrier status vanished.

In order to actually hold common carrier status, an entity must actually conform with the CA1934, Title II. To date, we're not aware of any ISP that has prevailed in claiming common carrier status in a court, and with the TA1996/CDA/DMCA providing the desired protections of "common carrier" status without also imposing the duties of common carrier status, it would probably be crazy for any ISP to try to argue for it.

Now, we realize there's a lot of confusion regarding this. The common one seems to be "but I get DSL from AT&T, and AT&T is a common carrier." Yes, AT&T the *phone* company is a common carrier. However, that does not mean that their Internet services are automatically regulated. The law spells out what is regulated. It doesn't say "Internet." If it did say "Internet," then former AT&T CEO Ed Whitacre wouldn't have been making statements about the use of "my pipes," because such behavior is exactly one of the things that common carrier status would forbid.

In any case, the FCC and Supreme Court have been busy reclassifying DSL and cable Internet service as "information services" rather than "telecommunications services",

http://caselaw.lp.findlaw.com/scripts/g ... vol=04-277
http://hraunfoss.fcc.gov/edocs_public/a ... 0435A1.pdf

so it is very clear that Internet services (and therefore Internet Service Providers) are not going to enjoy the ability to claim "common carrier" status if they're not even telecommunications services.

However, your question was Usenet Service Providers. We share some of the same qualities as ISP's, however, we do not directly provide telecommunications circuits to customers, and trying to stretch a definition of "common carrier" which doesn't even apply to actual ISP's, well, that just doesn't work.

We enjoy the same sorts of protections offered to ISP's under the TA1996/CDA/DMCA, which offer service providers immunity from various things that we'd like to be immune from, such as liability for when a user posts slander. We are NOT common carriers, period, no debate.

Note also that this discussion is about "common carrier": it seems exceedingly likely that certain other portions of the CA1934, such as Title I, would apply to Internet providers.

No real service provider has seriously argued that they should be a common carrier for over ten years now, but it's like an old urban legend that just won't go away. If you see someone claiming that an Internet company (whether ISP or USP) is a common carrier, then you can rest assured that the person in question has no clue. Ask them to show you the statute that provides common carrier status to an ISP, or any legal decision which supports such a position. They'll still tell you you're wrong, because by George they *know* they're right, but now you know the real story.

Thank you!

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