AS DESCRIBED IN PREVIOUS CHAPTERS, FROM THE EARLY YEARS of our nation, the state has imposed affirmative obligations on certain private entities engaged in transportation, communications, and other important public service functions to facilitate the free flow of information and commerce, free of censorship or discrimination. Through the common carriage doctrine, the state has bridged the gap between public and private entities and imposed affirmative duties on entities that provide important communication and transportation functions for the benefit of the public. Rather than granting private conduits of communication the discretion to regulate speech however they see fit, the common carriage doctrine countenances affirmative government intervention in this market for communication by imposing the obligation that such conduits not discriminate among communications and requiring that they carry all legal content on the same terms and conditions. This doctrine assures members of the public the right of nondiscriminatory access to communications providers.
The common carriage doctrine has played a critical role in regulating communications providers over the past several decades. The FCC's recent rejection of common carriage obligations for broadband providers has led to a state of affairs in which broadband providers will continue to enjoy the power to restrict Internet communications however they see fit.
The FCC made a fundamental misjudgment in removing common carriage nondiscrimination obligations from broadband providers. Until 2005, telephone companies providing Internet access via narrowband and via DSL were subject to common carriage obligations, while the common carriage