Introduction
As a technological artifact the PSTN is past its sell-by date. But while technology is the core of the PSTN, it is bound up with business, regulatory, and social components. Certain regulatory requirements (such as interconnection) or social obligations (such as affordable, reliable service) are not tied to any particular technology. Whether to keep, modify, or discard any particular obligation that currently attaches to telephone providers in a packet-based, broadband future should be the result of explicit, informed debate among policymakers, technologists, and businesspeople. While non-technological considerations should not keep carriers from upgrading their networks, neither should progress in communications technology be taken, intentionally or not, as a reason to abandon long-standing public policies on the proper structure and functions of communications in society. In particular, as common carriers, telephone systems have long acted to promote the public good as well as the private good of their owners. As private companies they are for-profit enterprises, but they are held to standards of service quality that go beyond what is expected of ordinary businesses. As private companies they are expected to compete with each other, but also to exchange traffic and interconnect with each other in predictable, fair ways. The remainder of this chapter will briefly review the history of common carriage and suggest ways that the public interest principles it is intended to promote can be carried forward into the future.
History
The traditional basis for the imposition of duties on certain lines of business was their status as "public callings." Originally quite broad, the class of public callings was gradually reduced to common carriers--those employments involved in carrying (or caring for) goods, messages, or people. In the days before modern electric communication and transportation methods, carrying goods, people, and messages were all fairly similar activities. Today, while different on the surface, these undertakings have a common characteristic--they all take control of something belonging to their customers, and while they have control of it, the customer must trust that the carrier will carry out its job well, that the carrier will not intercept messages or examine goods for its own benefit, and that the carrier will not raise its prices once it takes control of the customer's goods or messages. In general, all common carriers must provide their services upon reasonable demand and in a non-discriminatory way, and they are held to a heightened standard of care in performing their services.
It is important to emphasize that common carrier regulation is not merely a peculiar kind of competition law. Antitrust and trade law developed in the late 19th and early 20th centuries and are largely statutory; common carriage is an organic, common law body of law (which is in places codified by statute). It is important to emphasize this because of the modern tendency to assert that duties of common carriage are only appropriate in instances of "market failure"--a competitive market will not necessarily bring about the same outcomes that common carriage is intended to provide. Neither is common carriage a type of public utility regulation--a common carrier can, but does not necessarily, control physical facilities or networks that are subject to natural monopoly forces. It is, of course, *relevant* whether a common carrier is operating in a competitive or non-competitive market, and whether it has monopoly control of last-mile communications facilities. These factors will affect the scope of its obligations and the necessity of prophylactic regulation designed to ensure that these are carried out. But the bare existence of those duties persists regardless of the particular competitive situation.
A voice carrier does not stop being a common carrier just because it no longer controls end-to-end infrastructure (that is, it is offering an over-the-top VoIP service): it is still carrying its customers messages from one place to another. (Footnote: It is not necessary to analyze whether such a VoIP provider itself "carries" the messages to its customer's premises or not; every voice provider has facilities, owned or leased, of some sort, so that even literal readings of the word "carry" apply.) The scope of its obligations may be different--for example, it may not be able to guarantee quality-of-service if a customer's ISP is engaging in discriminatory traffic practices or in unfavorable network conditions. But there is still a basic question: How do you distinguish between a common carrier and a private carrier? The traditional formulation is that a common carrier "holds itself out to the public," while a private carrier does not. One would look to see the practices of a carrier--its advertising and rate schedule, for instance--to determine whether a carrier is "public." But with voice carriers there is an easier test--whether or not a voice carrier provides access to "the PSTN"--a network-of-networks that uses the global system of unique addressees called "telephone numbers." A voice carrier that provides "telephone" service can be fairly said to hold itself out to the public, while a large, private voice network does not. Thus, voice communication over an instant messaging network is not common carriage, while any voice service that provides its customers with a telephone number is.
Traditional Obligations of Common Carriage Telephone Service Providers
[* Carrier of last resort
* Interconnection
* Reliability
* Non-discrimination
* Emergency services
* Affordability
* Provide service on "reasonable request"]
The Future of Public Interest Obligations
It is hard to say what is necessary in the future as the future of telecommunications is still open. But it seems fair to base this section on the following analysis: That in the future there will be carriers that provide broadband connectivity through physical infrastructure, and that there will be carriers that continue to offer voice services that provide users with "phone numbers." The same provider may very well provide these two services, and the obligations of that provider would merge. For analytic purposes, however, it helps to maintain the division.
Telephony providers--even to the extent that they are purely roaming, over-the-top services--are not like your typical Internet application. The "phone network" is a globally interconnected network with a unified, coordinated addressing scheme (in short, phone numbers). It connects wireless phones and wired. It has a special place both socially and historically. It is not email and it is not IM.
Any voice carrier, like Skype, is free to start its own private network. No voice carrier is required to provide telephone service. But there should be a quid pro quo for participating in the telephone network--a set of principles that ensures that phone calls work as people expect them to, regardless of the technological infrastructure. By following these principles, telephone carriers will ensure that telephony remains a central part of communications.
* One of the advantages of telephony as opposed to a private voice network like Skype, is that users can use different providers. Like the Internet, the telephone system is a network of networks, and different providers work together while, at the same time, competing. While network effects and economies of scale can drive telecommunications companies towards greater size and markets toward greater concentration, these forces do not necessarily benefit users, who benefit from a choice of providers. Telecommunications policy, therefore, should permit the emergence of a variety of competitors that cater to every user and keep prices low and service quality high. This implies an interrelated series of policies that prevent larger firms from disadvantaging smaller ones--fair rates of interconnection, for instance.
* Call rates should be kept within reasonable bounds. (Depending on market conditions the fees charged to users by a voice carrier can probably be left unregulated so long as special consideration is given to low-income/marginalized communities. But carrier-to-carrier rates must be reasonable as well, to prevent excessively high interconnection fees from being passed on the consumers.)
* Phone service ought to be reliable--a baseline of quality of service ought to be guaranteed. (Regulation of broadband providers may be necessary to assure that unaffiliated OTT voice carriers are not unfairly discriminated against)
* Non-discrimination. Voice carriers connect calls regardless of source or destination or content.
* Users should not be tied to particular hardware or software platforms. This implies some sort of open standard that allows a user to use a given voice service with a variety of equipment.
* Emergency service.
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