Cybertelecom
Cybertelecom
Federal Internet Law & Policy
An Educational Project
Common Carriers: Liability Dont be a FOOL; The Law is Not DIY
- Common Carrier
- History
- Theory
- -Bailment
- - Market Power / Essential
- Duties
- - Non discrimination
- - Refusal to carry
- -Interconnection
-Liability
- Benefits
-Examples
-Telecom Carriers
-Telegraph
-Reference
- Telephone
- - AT&T
- ICC
- FCC

Richman Bros. Records v. FCC, 124 F.3d 1302 (D.C. Cir. 1997) (In exchange for common carrier obligations, CC's are protected from certain types of liability)

Liability for Harm to Content

In return for reduced discretion, a carrier  obtained certain benefits, including limited liability for the consequences of its own actions. Some types of common carriers have been given, by statute, powers of eminent domain, use of public rights-of-way, and protection against competition.  -- Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435, Sec. II (1994).

It would be impractical and inefficient to require a carrier to accept any shipment or message while being exposed to huge potential liability of unknowable consequential damages. Thus, the extent of liability by a common carrier is usually limited to the price paid for the communication or transportation, unless otherwise agreed. Incidental liability lies on the sender as the party which has the best information about the value of the message.  -- Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435, Sec. III.5. (1994).

Jeremias v. Western Union Tel. Co., 78 Ga. App. 142, 144-45, 50 S.E.2d 797, 798-99 (1948) (liability for delay in delivery of message)

In re Edwards Indus., Inc., 74 F.C.C.2d 322, 328 (1979) (liability for discrimination in service)

In re Richard Johnson, 18 F.C.C.2d 679, 681 (1969) (punitive damages)

Telegraph

"telegraph companies offered the first two, and sometimes all three of the following levels of liability for the same underlying service: unrepeated messages available at the lowest rate with the lowest level of limited liability imposed on the telegraph company; repeated messages available at a higher rate and with a higher level of limited liability imposed on the telegraph company; and special valued rates where the customer could insure the message for a declared value, with the rate to be charged based on such valuation, and for which full liability would be imposed on the telegraph company." [Cherry p 17]

Liability can be limited by contract

Government Reports

Caselaw

"The act of 1910 introduced a new principle into the legal relations of the telegraph companies with their patrons which dominated and modified the principles previously governing them. Before the act the companies had a common law liability from which they might or might not extricate themselves according to views of policy prevailing in the several states. Thereafter, for all messages sent in interstate or foreign commerce, the outstanding consideration became that of uniformity and equality of rates. Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not as before a matter of contract by which a legal liability could be modified, but a matter of law by which a uniform liability was imposed. Assent to the terms of the rate was rendered immaterial, because when the rate is used, dissent is without effect." - Western Union v Esteve Bros 256 U.S. 566, 572 (1921) (declining to review the applicability of Union Pacific RR Co v Burke that in order for a limited liability rate to be valid, there must be an unlimited liability rate available). - Primrose v Western Union, 154 US 1 (1894)

Union Pacific RR Co v Burke, 255 U.S. 317, 323 (1921) (limitation of liability valid only where rate benefit is given - where there is no choice of rates, no rate that includes full liability coverage, then the limitation on liability is against the public interest and will not be enforced):

"Thus this valuation rule, where choice is given to and accepted  by a shipper, is, in effect, an exception to the common-law rule of liability of common carriers, and the latter rule remains in full effect as to all cases not falling within the scope of such exception. Having but one applicable published rate east of San Francisco, the petitioner did not give, and could not lawfully have given, the shipper a choice of rates, and therefore the stipulation of value in the Yokohama bill of lading, even if treated as imported into the uniform bill of lading, cannot bring the case within the valuation exception, and the carrier's liability must be determined by the rules of the common law. To allow the contention of the petitioner would permit carriers to contract for partial exemption from the results of their own negligence without giving to shippers any compensating privilege. Obviously such agreements could be made only with the ignorant, the unwary, or with persons deliberately deceived."

Compare Santa Fe, Prescott & Phoenix Railway Company v. Grant Brothers Construction Company, 228 U.S. 177 (1913) Court noted “the established doctrine . . . that common carriers cannot secure immunity from liability for their negligence by any sort of stipulation”

Bailment

Once having undertaken public service, at common law a carrier was obligated to perform fully, and was held strictly liable for failure which resulted in any damage to goods. Thus a customer of a common carrier can expect that the carrier will transport/transmit that which is tendered without loss or unreasonable delay to the requested destination. For today's telecom, this duty may translate to assurances of transmission to the connection at satisfactory sound or error levels, without unreasonable losses or down-time, and timely network access and transmission. --[NY p. 56]

See James Kent, Commentaries on American Law, Lecture 40: of Bailment.

OW Holmes, The Common Law: The Bailee at Common Law (1881).

A common carrier is liable for goods which are stolen from him, or otherwise lost from his charge except by the act of God or the public enemy. Two notions have been entertained with regard to the source of this rule: one, that it was borrowed from the Roman law; /2/ the other, that it was introduced by custom, as an exception to the general law of bailment, in the reigns of Elizabeth and James I. /3/

I shall try to show that both these notions are wrong, that this strict responsibility is a fragmentary survival from the general law of bailment which I have just explained; [181] the modifications which the old law has undergone were due in part to a confusion of ideas which came the displacement of detinue by the action on the case, in part to conceptions of public policy which were read into the precedents by Lord Holt, and in part to still later conceptions of policy which have been read into the reasonings of Lord Holt by later judges

...

But there was another way besides this by which the defendant could be charged with a duty and made liable [184] in case, and which, although less familiar to lawyers, has a special bearing on the law of carriers in later times. If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier. /l / The latter principle was also wholly independent of bailment. It expressed the general obligation of those exercising a public or "common" business to practise their art on demand, and show skill in it. "For," as Fitzherbert says, "it is the duty of every artificer to exercise his art rightly and truly as he ought." /2/

When it had thus been established that case would lie for damage when occasioned by the omission, as well as when caused by the act, of the defendant, there was no reason for denying it, even if the negligent custody had resulted in the destruction of the property. /3/ From this it was but a step to extend the same form of action to all cases of loss by a bailee, and so avoid the defendant's right to wage his law. Detinue, the primitive remedy, retained that mark of primitive procedure. The last extension was made about the time of Southcote's Case. /4/ But when the [185] same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty.

In truth, there were two sets of duties,--one not peculiar to bailees, arising from the assumpsit or public calling of the defendant, as just explained; the other, the ancient obligation, peculiar to them as such, of which Southcote's Case was an example. But any obligation of a bailee might be conceived of as part of a contract of bailment, after assumpsit had become appropriated to contract, the doctrine of consideration had been developed, (both of which had happened in Lord Coke's time,) it seemed unnecessary to distinguish nicely between the two sets of duties just mentioned, provided a consideration and special promise could be alleged. Furthermore, as formerly the defendant's public calling had the same effect as an assumpsit for the purpose of charging him in tort, it seems now to have been thought an equally good substitute for a special promise, in order to charge him in assumpsit. In Rogers v. Head, /1/ the argument was, that to charge one in assumpsit you must show either his public calling at the time of the delivery, or a special promise on sufficient consideration. This argument assumes that a bailee who received goods in the course of a public employment, [186] for instance as a common carrier, could be charged in this form of action for a breach of either of the above sets of duties, by alleging either his public calling or his reward and a special promise. It seems to have been admitted, as was repeatedly decided before and since that case, that one who was not a common carrier could have been charged for non-delivery in a special action; that is, in case as distinguished from assumpsit.

...

Accordingly, although that decision was the main authority relied on for the hundred years between it and Coggs v. Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, /2/ or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of. At first, however, there were only some slight signs of confusion in the language of one or two cases, and if the duty was conceived to fall within the principle of Southcote's Case, pleaders did not always allege the common or public calling which was held unnecessary. /3/ But they also adopted other devices from the precedents in case, or to strengthen an obligation which they did not well understand. Chief Justice Popham had sanctioned a distinction between paid and unpaid bailees, hence it was deemed prudent to lay a reward. Negligence was of course averred; and finally it became frequent to allege an obligation by the law and custom of the realm. This last deserves a little further attention.

There is no writ in the Register alleging any special obligation of common carriers by the custom of the realm. But the writ against innkeepers did lay a duly "by the [188] law and custom of England," and it was easy to adopt the phrase. The allegation did not so much imply the existence of a special principle, as state a proposition of law in the form which was then usual. There are other writs of trespass which allege a common-law duty in the same way, and others again setting forth a statutory obligation. /1/ So "the judges were sworn to execute justice according to law and the custom of England." /2/

The duties of a common carrier, so far as the earlier evidence goes, were simply those of bailees in general, coupled with the liabilities generally attached to the exercise of a public calling. The word "common" addressed itself only to the latter point, as has been shown above. This is further illustrated by the fact that, when the duty was thus set forth, it was not alleged as an obligation peculiar to common carriers as such, but was laid as the custom of law of common hoymen, or lightermen, &c., according to the business of the party concerned. It will be noticed that Chief Justice Holt in Coggs v. Bernard states the liability as applicable to all bailees for reward, exercising a public employment, and mentions common hoymen and masters of ships alongside of, not as embraced under, common carriers. It will also be noticed in the cases before that time, that there is no settled formula for the obligation in question, but that it is set forth in each case that the defendant was answerable for what he was said to have done or omitted in the particular instance. /3/

Coggs v. Bernard 2 Ld. Raym. 909, 918, 92 Eng. Rep. 107, 112 (1703)

And this is the case of the common carrier, common hoymen, master of a ship, etc. . . . The law charges this person thus intrusted to carry goods, against all events but acts of god, and of the enemies of the King. For though the force be never so great as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politick establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they any be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc. and yet doing it in such a clandestine manner, as would not be possible to be discovered. And this is the reason the law is founded upon in that point. The second sort are bailees, factors and such life. And though a bailee is to have a reward for his management, yet he is only to do the best he can. Ant if he be robb'd etc., It is a good account . . .

Liability for Harm Content Causes

Carrier Liability: The lack of clear-cut liability rules for certain carriers (e.g., resellers and Internet Service Providers) in Japan creates significant market uncertainty if such carriers are held responsible for illegal activity by users (e.g. copyright violations). In the United States and the EU, telecommunications and Internet Service Providers enjoy explicit limitations on liability for the actions of users on their networks. Without such liability protections, carriers could be subject to broad-based legal attacks for the actions of users over which they have no knowledge or control. This would make the business unacceptably risky. The United States dealt with this issue in the copyright context in the Digital Millennium Copyright Act, which explicitly provided protection from infringement liability to Internet Service Providers. The United States is pleased that Japan is considering legislation to address the issue of carrier liability and has encouraged Japan to continue to consult with the U.S. on this matter.  --  USG Fact Sheet: Information-Technology Expert-Level Meeting Under the Enhanced Initiative on Deregulation and Competition Policy Tokyo, Japan, page 2 (March 2, 2001)

Compare ISP lack of liability for content: Good Samaritan Provision for defamation, DMCA, SPAM,

For example, common carriers are exempt from liability for transmission of copyrighted works (Copyright Act of 1976, 17 USC 110(a) (1977); or the qualified immunity from liability for the transmission of a defamatory message. OBrien v. Western Union, 113 F2d 529, 540-43 (1st Cir. 1940). --[NY p. 57]

Historically, the rights and responsibilities vested in common carriers tempered their market power in exchange for reduced liability or insulation from commercial and personal damages caused by the content carried  Providers of neutral and transparent conduits did not have to monitor the content carried, nor could they typically refuse access to their bottleneck facilities on the basis of content... non-common carriers did not operate essential facilities and did not serve as gatekeepers who could affect the price and availability of content.  Having chosen to select and monitor content, they had to assume the greater risk of liability for the content carried, published or distributed... Private carriers eagerly seek the immunity from civil and criminal liability historically accorded common carriers, but wish to avoid the accompanying regulatory oversight and duties to provide universal and non discriminatory service.  -- Rob Frieden, Schizophrenia Among Carriers: How Common and Private Carriers Trade Places, 3 Mich. Telecomm. Tech. L. Rev. 19 (1997).

John Thorne, Peter W. Huber, Michael K. Kellogg, Federal Broadband Law 289 (1995) (chapter on common carriage) P. 290: “Common carriage has its benefits. A newspaper publisher must answer for libel and copyright infringement anywhere on its pages, in both newscopy and the advertising alongside. A telephone company is almost never liable for comparable misuse of its medium.”  

Defamation

See RESTATEMENT (SECOND) OF TORTS S 621 cmt. g (1977) ( "Since it is the user of the telephone rather than the telephone company who is treated as transmitting a telephone message . . . the company is not subject to liability for a defamatory statement communicated by a customer."); Anderson v. N.Y. Tel. Co., 42 A.D.2d 151, 163, 345 N.Y.S.2d 740, 752 (App. Div. 4th Dep‘t 1973) , aff’d , 35 N.Y. 746, 320 N.E.2d 647, 361 N.Y.S.2d 913 (1974)

Lunney is an early New York case, which, in applying the Communications Decency Act, found that Internet service providers fall squarely in the precedent of telecommunications carriers.

E-mail is the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail. As one commentator explained, "[t]o transmit a message, one must have access to an on-line service's e-mail system and must know the recipient's personal e-mail address" (see, Luftman, Note, Defamation Liability for On-Line Services: The Sky is Not Falling, 65 Geo Wash L Rev 1071, 1081 [1997]). Once this is accomplished, a person may communicate by composing a message in the e-mail computer system and dispatching it telephonically (or through some other dedicated electronic line) to one or more recipients' electronic mailboxes. A recipient may forward the message or reply in like manner. Commercial on-line services, such as Prodigy, transmit the private e-mail messages but do not exercise any editorial control over them (see, Luftman, op. cit.).

Because Lunney's defamation action is grounded in New York common law, we evaluate it in accordance with our 249*249 established tort principles (see, Foster v Churchill, 87 NY2d 744, 751-752; Liberman v Gelstein, 80 NY2d 429, 434). Although they were fashioned long before the advent of e-mail, these settled doctrines accommodate the technology comfortably, and with apt analogies (see generally, Miranda, Defamation in Cyberspace: Stratton Oakmont, Inc. v Prodigy Services Co., 5 Alb L J Sci & Tech 229, 237 [1996]).

In Anderson v New York Tel. Co., this Court was asked to determine whether a telephone company could be held liable as a publisher of a scurrilous message that a third party recorded and made available to the public by inviting anyone interested to dial in and listen (35 NY2d 746, supra). The Court adopted the opinion of Justice Witmer in his dissent at the Appellate Division, concluding that the telephone company could not be considered a publisher, because in "no sense has * * * [it] participated in preparing the message, exercised any discretion or control over its communication, or in any way assumed responsibility" (42 AD2d 151, 163). Anderson also holds that even if the telephone company could be counted as a publisher, it would be entitled to a qualified privilege subject to the common-law exception for malice or bad faith (42 AD2d, at 163-164).

Anderson emphasized the distinction between a telegraph company (in which publication may be said to have occurred through the direct participation of agents) and a telephone company, which, as far as content is concerned, plays only a passive role. The Anderson doctrine parallels the case before us. Prodigy's role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers' conversations. In this respect, an ISP, like a telephone company, is merely a conduit. Thus, we conclude that under the decisional law of this State, Prodigy was not a publisher of the e-mail transmitted through its system by a third party.

Moreover, we are unwilling to deny Prodigy the common-law qualified privilege accorded to telephone and telegraph companies. The public would not be well served by compelling an ISP to examine and screen millions of e-mail communications, on pain of liability for defamation. Considering that in the case before us there is no basis upon which to defeat the qualified privilege, it should and does apply here.

Lunney, p. 249, NY Court of Appeals 1999

Intellectual Property

In addition, carriers are granted an exemption from copyright liability as passive carriers making a secondary transmission. However, this exemption only covers the performance and display rights. See 17 U.S.C. §111(a)(3) (1994). As a general matter, common carriers are not considered liable for most forms of third-party content.  Matt Jackson, One Step Forward, Two Steps Back: An Historical Analysis of Copyright Liability, 20 CDZAELJ 367, n 47 (2002).

(a) Certain Secondary Transmissions Exempted. - The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if -
        (3) the secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: Provided, That the provisions of this clause extend only to the activities of said carrier with respect to secondary transmissions and do not exempt from liability the activities of others with respect to their own primary or secondary transmissions;
17 U.S.C. §111(a)(3)

Carriers. The general exemption under section 111 [this section] extends to secondary transmitters that act solely as passive carriers. Under clause (3), a carrier is exempt if it "has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission." For this purpose its activities must "consist solely of providing wires, cables, or other communications channels for the use of others." -- 1976 Acts. Notes of Committee on the Judiciary, House Report No.  94-1476

N.F.L. v. Insight Telecommunications Corp.,  158 F.Supp.2d 124 (D.Mass.2001) (telecommunications service used to retransmit NFL broadcast fell under passive carrier exemption)

Compare Infinity Broadcasting Corp. v. Kirkwood, 63 F.Supp.2d 420, 52 U.S.P.Q.2d 1281 (S.D.N.Y.1999) (operator of "Media Dial Up" service which permitted customers to dial up radio stations in other cities, did not fall under passive carrier exception).

But see Telstra Corporation Limited v Australasian Performing Right Association Ltd (Australia) holding that telecom carrier was liable for intellectual property infringement for the music it played while customers are on hold. 1997. See also Fiona Macmillan and Michael Blakeney, The Copyright Liability of Communications Carriers, Journal of Information, Law and Technology (31 October 1997) WORD

But see "DSC Communications Corp. v. Pulse Communications, Inc., 170 F.3d 1354 (Fed. Cir.), cert. denied, 528 U.S. 923 (1999).
Federal Circuit reversed the District Court and held that Section 117 of the Copyright Act did not immunize licensees from liability for copying software in the utilization of a software program or provide a defense against plaintiff's claim of direct and contributory infringement."

CIX, A Brief Analysis of the Role of Internet Access Providers in the Copyright Law Revisions October 1995

Matt Jackson, One Step Forward, Two Steps Back: An Historical Analysis of Copyright Liability, 20 Cardozo Arts & Ent. L.J. 367, 378 (2002) ("The telegraph and telephone networks, primarily concerned with point-to-point, two- way communication (conversation), are largely considered to be immune from copyright liability. This immunity never posed a problem since these networks previously were ill-adapted to the distribution of copyrighted works. ")

Offensive Content

63 Historically, common carriers have operated as neutral and transparent conduits, neither knowledgeable of the content they carry, nor legally responsible for what they carry. The Telecommunications Act of 1996 also provides legal protection for the "[G]ood [S]amaritan" blocking and screening of offensive material defined as "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." 47 U.S.C. § 230(c) (Supp. IV 1998).
-- Rob Frieden, REGULATORY OPPORTUNISM IN TELECOMMUNICATIONS: THE UNLEVEL COMPETITIVE PLAYING FIELD, 10 CommLaw Conspectus 81 (2001)