Professor Hamburger’s Amicus Brief in Netchoice v. Paxton explains communications common carriage law as well as or better than any book or article that I have read.

The FCC does not define a service to be a common carriage service. The common law definition of common carriage determines whether a service is common carriage. The litigation in trial court never reached the presentation of facts that would enable the Trial Court to rule whether a social medium platform is by law a common carrier of messages.

The FCC decides whether a communications-related common carriage service is a telecommunications service that the FCC should regulate. When the FCC makes a determination of its regulatory authority, it applies the following definitions: § 153 (11) Common carrier, § 153 (24) Information service, § 153 (50) Telecommunications, § 153 (51) Telecommunications carrier, § 153 (52) Telecommunications equipment, and § 153 (53) Telecommunications service. When the definitions are applied together, they state that:

1. § 153 (11) Common carrier defines a communications common carrier,
2. § 153 (51) Telecommunications carrier defines a telecommunications carrier, and
3. if a telecommunications carrier is a common carrier, it is a communications common carrier, but
4. not every communications common carrier is a telecommunications carrier.

Every social medium platform provides a service of common carriage of messages. For that service, the backend server is like a letter satchel of a letter carrier. A message in the backend server of a social medium platform is bailment of the social medium platform not speech of the social medium platform just as a letter in the satchel is bailment of the USPS not speech of the USPS. The USPS only has limited legal ability to deny common carriage of a letter. A social medium platform should have only limited legal ability to deny common carriage of a user’s message.

A social medium platform must obey the following statute.

47 U.S. Code § 202 – Discriminations and preferences

(a) Charges, services, etc.

It 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.

(b) Charges or services included

Charges or services, whenever referred to in this chapter, include charges for, or services in connection with, the use of common carrier lines of communication, whether derived from wire or radio facilities, in chain broadcasting or incidental to radio communication of any kind.

(c) Penalty

Any carrier who knowingly violates the provisions of this section shall forfeit to the United States the sum of $6,000 for each such offense and $300 for each and every day of the continuance of such offense.

47 U.S. Code § 202 forbids discrimination by locality, and no party to the oral hearing seemed to realize that the US Internet belongs mostly to the government and to the public.

A social medium platform is highly subsidized by the public and by the government.

I’ll let you decide if he’s one of the professors who has offered an awful take in these cases.

Professor Volokh’s article was mentioned at least twice in the arguments today.

I don’t know. Some lawprofs filed some truly awful takes in this case.