Common carriers and public utilities in the digital ecosystem: Unravelling the taxonomy on a quest for better regulation

• Published in: Information & communications technology law Vol. 31; no. 1; pp. 35 - 80
• Main Author: Tremolada, Riccardo
• Format: Journal Article
• Language: English
• Published: Abingdon Routledge 02.01.2022; Taylor & Francis Ltd
• Subjects: Broadband; Broadband communication systems; Classification; common carrier; Computer platforms; digital platforms; Internet; Internet regulation; Monopolies; network neutrality; public forum; Public utilities; Public utility; Regulation; Taxonomy
• ISSN: 1360-0834; 1469-8404
• DOI: 10.1080/13600834.2021.1928888

Calls for "public utility-style" regulation (and "common carriage," as the two terms are - erroneously - often used interchangeably) are increasingly expanding into policy debates concerning all layers of the Internet. These calls rely on various rationales, ranging from traditional economic concerns to more nebulous ones, such as reputational harm and privacy, "social utility," and "social commons". This increases the opacity of the debate. Despite the divergence in rationale, these calls all raise the same underlying question: whether digital platforms amount to "informational monopolies" and should be subject to corresponding regulatory frameworks, possibly imposing neutrality upon these players. This article explores the conflation between the notions of common carriage and public utility. It shows how, in the digital ecosystem, the quest for terminological clarity is a substantive issue and serves as a point of departure for investigating whether the notion of public utility accurately describes broadband access and digital platforms. Emphasizing the content removal episodes, this article also sets the stage for a taxonomic re-classification, exploring (i) the applicability of the "public forum" doctrine to privately-owned entities providing services where users gather to discuss online; and (ii) the applicability of common carrier/nondiscrimination/due process obligations to services offering support for speech and commerce.