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Common Carrier Question

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ekgermann at cctec

Apr 13, 2006, 2:57 PM

Post #1 of 12 (1555 views)
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Common Carrier Question

Folks,

I'm working on a graduate policy paper regarding Internet filtering by
blocking ASN's or IP prefixes. It is a variation of Net Neutrality, just
by a different name.

Is anyone in the IANAL field aware of any cases where :

a. an ISP successfully defended a common carrier position
b. an ISP unsuccessfully defended a common carrier position
c. an ISP was treated as a common carrier, even if didn't want to be.
d. an ISP was not treated as a common carrier, even if they wanted to.

It seems to be way back in the 90's, Compuserve may have been involved in
one variation of the above, but the cobwebs are too thick.

Replies off list and I will summarize if there is interest.

Eric

patrick at ianai

Apr 13, 2006, 3:07 PM

Post #2 of 12 (1502 views)
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Re: Common Carrier Question [In reply to]

On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:

> I'm working on a graduate policy paper regarding Internet filtering by
> blocking ASN's or IP prefixes. It is a variation of Net
> Neutrality, just
> by a different name.

Except Network Neutrality is about QoS, not filtering.

> Is anyone in the IANAL field aware of any cases where :
>
> a. an ISP successfully defended a common carrier position
> b. an ISP unsuccessfully defended a common carrier position

ISPs are _not_ common carriers, and have never been (in the US at
least). "Common Carrier" is a legal term, and carries lots of
responsibilities as well as benefits. ISPs have essentially neither.

However, assuming you meant a more general definition, I might have a
case on point:

Back in the early 90s, Prodigy & Compuserve (I think, maybe AOL
instead of one of those) were involved in a slander case or something
like that. Someone had posted "bad" stuff about company using these
ISPs.

One lost and one won. The reason was that Prodigy monitored its
content for things like foul language, Compuserve did not. As a
result, most ISPs after that would very, very intentionally not look
at what their customers were doing so they could not be accused of
monitoring or filtering or whatever.

> c. an ISP was treated as a common carrier, even if didn't want to be.
> d. an ISP was not treated as a common carrier, even if they wanted
> to.

I can't think of a reason an ISP would not want to be a common
carrier, unless you are talking about the federal legal definition
and they're avoiding the responsibilities it carries. But then no
ISP has ever been treated like that (unless they were _also_ a
telco), so it never comes up.

As for D, that happens all the time. For instance, there are plenty
of times ISPs have had equipment seized, either as "evidence" or
because they were being prosecuted directly, for things their
customers did. Again, this assumes you are not talking about the
legal definition.

--
TTFN,
patrick

fergdawg at netzero

Apr 13, 2006, 3:12 PM

Post #3 of 12 (1510 views)
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Re: Common Carrier Question [In reply to]

That is _such_ a red herring. Semantics. ;-)

Let's just call it Network Inequity. ;-)

- ferg

-- "Patrick W. Gilmore" <patrick [at] ianai> wrote:

On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:

> I'm working on a graduate policy paper regarding Internet filtering by
> blocking ASN's or IP prefixes. It is a variation of Net
> Neutrality, just
> by a different name.

Except Network Neutrality is about QoS, not filtering.

[snip]

--
"Fergie", a.k.a. Paul Ferguson
Engineering Architecture for the Internet
fergdawg [at] netzero or fergdawg [at] sbcglobal
ferg's tech blog: http://fergdawg.blogspot.com/

ekgermann at cctec

Apr 13, 2006, 6:10 PM

Post #4 of 12 (1504 views)
Permalink

RE: Common Carrier Question [In reply to]

Except when an ISP blocks Vonage completely, then they aren't neutral and it
is QoS (unless the QoS == 0 for VoIP)

-----Original Message-----
From: owner-nanog [at] merit [mailto:owner-nanog [at] merit] On Behalf Of
Patrick W. Gilmore
Sent: Thursday, April 13, 2006 6:07 PM
To: NANOG list
Cc: Patrick W. Gilmore
Subject: Re: Common Carrier Question

On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:

> I'm working on a graduate policy paper regarding Internet filtering by
> blocking ASN's or IP prefixes. It is a variation of Net Neutrality,
> just by a different name.

Except Network Neutrality is about QoS, not filtering.

[snip]

ahebert at pubnix

Apr 13, 2006, 6:16 PM

Post #5 of 12 (1504 views)
Permalink

Re: Common Carrier Question [In reply to]

Eric Germann wrote:

>Except when an ISP blocks Vonage completely, then they aren't neutral and it
>is QoS (unless the QoS == 0 for VoIP)
>
>
We (or its just me) might be curious about which ISP did that.

Offlist if you want.

Thanks.

>-----Original Message-----
>From: owner-nanog [at] merit [mailto:owner-nanog [at] merit] On Behalf Of
>Patrick W. Gilmore
>Sent: Thursday, April 13, 2006 6:07 PM
>To: NANOG list
>Cc: Patrick W. Gilmore
>Subject: Re: Common Carrier Question
>
>
>On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:
>
>
>
>>I'm working on a graduate policy paper regarding Internet filtering by
>>blocking ASN's or IP prefixes. It is a variation of Net Neutrality,
>>just by a different name.
>>
>>
>
>Except Network Neutrality is about QoS, not filtering.
>
>
>[snip]
>
>
>
>

--
Alain Hebert ahebert [at] pubnix
PubNIX Inc.
P.O. Box 175 Beaconsfield, Quebec H9W 5T7
tel 514-990-5911 http://www.pubnix.net fax 514-990-9443

fergdawg at netzero

Apr 13, 2006, 6:36 PM

Post #6 of 12 (1500 views)
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Re: Common Carrier Question [In reply to]

Google it.

And you're naive to you think its just VoIP anymore.

The whole, nasty, underlying issue with 'network inequity' is
that it is a bubble in its truest sense -- some infrastructure
simply will not support tens of thousands, etc. unicast streams,
AND also support traditional 'best effort' traffic.

It's the old 'ten pounds of shite in a five pound bag' dilemma.

Somethings gotta give ($) or something's gotta go ($) -- or be
degraded somehow.

Warnings on this were sounded ten (or more) years ago. :-)

- ferg

ps. Funny that -- the complexities of things these days vs.
traditional recurring telco revenue streams. ;-)

-- Alain Hebert <ahebert [at] pubnix> wrote:

Eric Germann wrote:

>Except when an ISP blocks Vonage completely, then they aren't neutral and it
>is QoS (unless the QoS == 0 for VoIP)
>
>
We (or its just me) might be curious about which ISP did that.

[snip]

--
"Fergie", a.k.a. Paul Ferguson
Engineering Architecture for the Internet
fergdawg [at] netzero or fergdawg [at] sbcglobal
ferg's tech blog: http://fergdawg.blogspot.com/

sean at donelan

Apr 13, 2006, 8:47 PM

Post #7 of 12 (1504 views)
Permalink

Re: Common Carrier Question [In reply to]

On Thu, 13 Apr 2006, Patrick W. Gilmore wrote:
> One lost and one won. The reason was that Prodigy monitored its
> content for things like foul language, Compuserve did not. As a
> result, most ISPs after that would very, very intentionally not look
> at what their customers were doing so they could not be accused of
> monitoring or filtering or whatever.

As always you should consult competent advisors licensed to give legal
advice in your jurisdicition.

Someone writing a research paper on the topic should review the
Cybertelecom web site. Robert Cannon has done a very nice job explaining
the difference types of common carriage and common carriers, with
citations and references.

http://www.cybertelecom.org/notes/common_carrier.htm

In the USA, Congress essentially pre-empted Stratton Oakmont v. Prodigy
when it passed the good samaritan provisions in the Communications Decency
Act (47 USC 230).

http://www.cybertelecom.org/cda/samaritan.htm

Not only did ISPs receive broad immunity for carrying third party content,
they also received broad immunity for actions voluntarily taken in good
faith to restrict objectionable, etc content. This may include not just
things such as ISP supplied parental control software, but may also
include when an ISP takes a good faith action to stop a DDOS attack and
drops some "good traffic" too.

"Good faith" is not carte blanche to do anything. Nor will it stop
someone filing a lawsuit, which can get very expensive even if you
ultimately win.

rekoil at semihuman

Apr 14, 2006, 8:24 AM

Post #8 of 12 (1502 views)
Permalink

Re: Common Carrier Question [In reply to]

Madison River, a regional cable provider in North Carolina, did it
last March and got fined by the FCC for its trouble:

http://www.networkingpipeline.com/60405195

-C

On Apr 13, 2006, at 9:16 PM, Alain Hebert wrote:

>
> Eric Germann wrote:
>
>> Except when an ISP blocks Vonage completely, then they aren't
>> neutral and it
>> is QoS (unless the QoS == 0 for VoIP)
> We (or its just me) might be curious about which ISP did that.
>
> Offlist if you want.
>
> Thanks.
>
>> -----Original Message-----
>> From: owner-nanog [at] merit [mailto:owner-nanog [at] merit] On
>> Behalf Of
>> Patrick W. Gilmore
>> Sent: Thursday, April 13, 2006 6:07 PM
>> To: NANOG list
>> Cc: Patrick W. Gilmore
>> Subject: Re: Common Carrier Question
>>
>>
>> On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:
>>
>>
>>> I'm working on a graduate policy paper regarding Internet
>>> filtering by blocking ASN's or IP prefixes. It is a variation of
>>> Net Neutrality, just by a different name.
>>>
>>
>> Except Network Neutrality is about QoS, not filtering.
>>
>>
>> [snip]
>>
>>
>>
>
> --
> Alain Hebert ahebert [at] pubnix
> PubNIX Inc. P.O. Box 175 Beaconsfield, Quebec H9W
> 5T7
> tel 514-990-5911 http://www.pubnix.net fax 514-990-9443
>

deballing at vassar

Apr 14, 2006, 8:40 AM

Post #9 of 12 (1504 views)
Permalink

Re: Common Carrier Question [In reply to]

From reading that, though, it looks like the ISP in question also
has its own telephone product (after all, the quote in the article is
that they are a "North Carolina service provider that calls itself
the '17th largest phone company' in the US"

In which case, the fine may stem from the anti-competitive nature of
blocking their competitor rather than simply because they were
blocking some sort random service.

In other words, what juice would the FCC have against MomNPopISP.com
who decided to block VoIP?

D

On Apr 14, 2006, at 11:24 AM, Chris Woodfield wrote:

>
> Madison River, a regional cable provider in North Carolina, did it
> last March and got fined by the FCC for its trouble:
>
> http://www.networkingpipeline.com/60405195
>
> -C
>
> On Apr 13, 2006, at 9:16 PM, Alain Hebert wrote:
>
>>
>> Eric Germann wrote:
>>
>>> Except when an ISP blocks Vonage completely, then they aren't
>>> neutral and it
>>> is QoS (unless the QoS == 0 for VoIP)
>> We (or its just me) might be curious about which ISP did that.
>>
>> Offlist if you want.
>>
>> Thanks.
>>
>>> -----Original Message-----
>>> From: owner-nanog [at] merit [mailto:owner-nanog [at] merit] On
>>> Behalf Of
>>> Patrick W. Gilmore
>>> Sent: Thursday, April 13, 2006 6:07 PM
>>> To: NANOG list
>>> Cc: Patrick W. Gilmore
>>> Subject: Re: Common Carrier Question
>>>
>>>
>>> On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:
>>>
>>>
>>>> I'm working on a graduate policy paper regarding Internet
>>>> filtering by blocking ASN's or IP prefixes. It is a variation
>>>> of Net Neutrality, just by a different name.
>>>>
>>>
>>> Except Network Neutrality is about QoS, not filtering.
>>>
>>>
>>> [snip]
>>>
>>>
>>>
>>
>> --
>> Alain Hebert ahebert [at] pubnix
>> PubNIX Inc. P.O. Box 175 Beaconsfield, Quebec H9W
>> 5T7
>> tel 514-990-5911 http://www.pubnix.net fax 514-990-9443
>>

--

Derek J. Balling
Systems Administrator
Vassar College
124 Raymond Ave
Box 13 - Computer Center 221
Poughkeepsie, NY 12604
(845) 437-7231

Attachments:

smime.p7s (2.37 KB)

drais at atlasta

Apr 14, 2006, 8:58 AM

Post #10 of 12 (1501 views)
Permalink

Re: Common Carrier Question [In reply to]

On Fri, 14 Apr 2006, Derek J. Balling wrote:

> From reading that, though, it looks like the ISP in question also has its own
> telephone product (after all, the quote in the article is that they are a
> "North Carolina service provider that calls itself the '17th largest phone
> company' in the US"

They do. I dealt with them as a customer once. (had a server hanging off
one of their business dsl packages...the dsl was down for 4 weeks...)

They do phone service in a lot of the coastal areas from Brunswick, GA up
into NC, mostly in the areas that bellsouth isn't in. They have a lot of
different names, all part of the Madison River conglomerate. They have
cable companies, ISPs, and telcos.

Warning if you ever have to deal with them: Level 1 tech support knows
jack, and has no way to get ahold of Level 2, or anyone else. "All we can
do is send an email through our ticket system..."

I wound up calling home phone numbers for various company officials
leaving voicemail. And what do you know, less than 24 hours later the
circuit was back up...

---
david raistrick http://www.netmeister.org/news/learn2quote.html
drais [at] atlasta http://www.expita.com/nomime.html

sean at donelan

Apr 14, 2006, 9:23 AM

Post #11 of 12 (1500 views)
Permalink

Re: Common Carrier Question [In reply to]

On Fri, 14 Apr 2006, Derek J. Balling wrote:
> In other words, what juice would the FCC have against MomNPopISP.com
> who decided to block VoIP?

Vonage has claimed in testimony to the US Senate and other places that at
least one cable company and at least wireless ISP company is blocking VOIP
and it was "useless" to complain to the FCC about it.

Remember the "myth" that the Internet isn't regulated.

On the other hand, Jeff Pulver has proposed that "Most actual cases of
port blocking have been human error," Pulver said. Engineers often block
the virtual network "ports" commonly used for VOIP without knowing what
they're doing -- and there are ways around it, such as assigning calls to
a different port, Pulver said.

Even AT&T has had problems with its CallVantage VOIP service being blocked
on some networks because some ISPs had blocked TFTP which was being used
by some network worms, and is also used by some VOIP phones to download
its configuration files.

smb at cs

Apr 14, 2006, 10:10 AM

Post #12 of 12 (1495 views)
Permalink

Re: Common Carrier Question [In reply to]

There have also been some non-US cases. See, for example,
http://www.interesting-people.org/archives/interesting-people/200211/msg00030.html
There was also the Canadian telco/ISP which blocked subscriber access to a
pro-union web site critical of the company during a labor dispute.

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