Contamination of the common carrier concept in telecommunications

This article will examine telecommunications common carriage with an eye toward determining whether and how the concept can continue to provide a basis for law and regulation. The article identifies instances where courts and regulatory agencies have so finetuned the concept of common carriage that the traditional model can no longer apply even when deemed desirable, eg for video programming transport. The article also examines instances where results-oriented decision making has refined or eliminated basic elements of common carriage: allowing telephone companies to refuse carriage of certain types of traffic based on 'business judgement' and maximizing spectrum auction revenues by summarily reclassifying some mobile radio private carriers as commercial mobile radio common carriers. The article concludes that structural and semantic efforts to foster competition and accommodate technological innovations has contaminated the common carrier model, rendering it unworkable.