Federal Internet Law & Policy
Prof. William Jones: The Common Carrier Concept as Applied to Telecommunications: A Historical Perspective
The Communications Act of 1934, in Title II pertaining to common carrier, confers extensive authority on the FCC to regulate the rates and business practices of communications entities classified as common carrier. The Act defines a "common carrier" as "any person engaged as a common carrier for hire, in interstate or foreign communications by wire or radio or in interstate or foreign radio transmission of energy… "  The only legislative history bearing directly on this definition asserts that it was not intended to include "any person if not a common carrier in the ordinary sense of the term."  Thus, both the language and the legislative history of the 1934 enactment make necessary an inquiry into the antecedent understanding of the scope of the common carrier concept as applied to telecommunications.
This inquiry is more sharply focused by another aspect of the 1934 legislation. In its common carrier provisions the statute was in large measure a reenactment of earlier federal legislation regulation telecommunications common carrier – the Mann-Elkins Act of 1910.  In the [Jones A-8] absence of Congressional intent to expand the general scope of common carrier regulation in 1934, it is particularly pertinent to consider the understanding of the common carrier concept as it had developed prior to 1910.
Recent telecommunications decisions have defined a common carrier as one that holds itself out to serve members of the public indiscriminately.  In the context of telecommunications, this approach does not adequately identify important aspects of the common carrier concept. A review of the common law precedents, and of the extensive state and federal legislation that antedated the Mann-Elkins Act of 1910 and the Communications Act of 1934, reveals that another factor was of controlling significance. The basis for regulating telecommunications entities as common carrier was their possession of special franchises or monopoly positions. There is no basis for extending the common carrier concept to encompass communications entities that do not possess special franchise or monopoly power. [Jones A-9]
Common law doctrines applicable to common carrier have two distinct sources. The first is an aspect of the law of bailments and is concerned with the responsibilities of carriers for goods in their possession. The second is an aspect of the law of franchises and is concerned with government control of enterprises exercising exclusive privileges. There are some features in common, but the underlying policy considerations are quite different. In determining the responsibility of a carrier for goods in its possession, the critical question is the nature of the carrier's undertaking: did it hold itself out as a general carrier of such goods? In determining the proper scope of government regulation of a carrier, the important question is whether the carrier is in a position to control the flow of traffic because of special privileges or monopoly power. [Jones A-10]
A. COMMON CARRIER AND THE LAW OF BAILMENTS
Beginning at least as early as the decision in Morse v. Slue, the English courts imposed upon common carrier distinctive responsibilities for goods in their possession. They were held to be insurers, responsible for the safe delivery of goods entrusted to them, absent intervention by act of God or the King's enemies. The doctrine was designed to protect shippers against breaches of trust on the part of carriers. As stated in the leading case of Coggs v. Bernard, the rule is
It also was asserted that the rule of strict liability had a tendency to make carriers more careful.
These peculiar responsibilities of common carrier appear not to be related to any concept of monopoly. Neither the facts nor the reasoning of the leading cases suggest that common carrier generally, or the particular carriers before the courts, possessed monopoly power. Indeed, there is a strong indication to the contrary, for as early as Morese v. Slue,  and consistently thereafter,  the English courts permitted common carriers to revise the terms of their responsibilities by special contracts with shippers. If monopoly were the basis of the carrier's special responsibilities, it would be inconsistent with the policy of the law to allow the carrier to avoid its responsibilities in this manner, at least in the absence of close scrutiny.
Furthermore, this branch of the law of common carrier was concerned almost exclusively with bailments (the custody of goods). While there is dicta concerning the common carrier's duty to serve, and to charge a reasonable price, these almost invariably were steps in judicial reasoning designed to establish a consideration for the carrier's responsibility (the chipper's duty to pay)  or a justification for contracts providing exemptions from strict liability (the shipper's right to obtain service free of the contractual exemption on demand).  The reported cases disclose no instances of litigation concerned with the reasonableness of a carrier's rates, and only one instance of a suit for refusal to serve.  Writing in 1879 on common carrier and the Common Law, Oliver Wendell Holmes considered the sole issue to be the responsibilities of carriers for the safe deliver of goods in their possession.  [Jones A-13]
B. COMMON CARRIER AND THE LAW OF FRANCHISES
The second source of the law of common carrier originates in the writings of
The position of Lord Hale found support in ancient common law doctrines recognizing the special status responsibilities of ferriers, and was applied by the English courts in two cases involving port facilities. In Bolt v. Stennet (1800),  the licensed owner of a crane in a port sued defendant for using the crane without permission. Defendant's justification -- that the crane was necessary to land goods and that he had a right to use it on payment of reasonable compensation -- was accepted as proper. In Allnut v. Inglis (1810), defendant had the only warehouse in London in which plaintiff's wine could be stored free of duty. Plaintiff refused to pay defendant's storage fee and, as a consequence, was compelled to pay duty. In a suit to recover damages, plaintiff prevailed when defendant declined to contest plaintiff's claim that it had tended reasonable compensation for the storage requested. Because defendant had a monopoly, it was limited to a reasonable rate: [Jones A-15]
That there were two separate sources of common carrier responsibilities is supported by the separate attention given to each by the leading treatise writers of the 19th century. James Kent, in his Commentaries on American Law (1848),  discussed separately the rights and obligations of holders of franchises  and the responsibilities of common carrier for goods in their possession.  The source of subsequent confusion is suggested by Kent's Commentaries, for the railroads -- the most important business enterprises of the 19th century - were discussed under both headings. [Jones A-16]
Principles of telecommunications regulation were first expressed in state statutes passed in response to invention of the telegraph. The structure and timing of the early statutes leave little doubt that they were premised on the franchise theory of regulation articulated by Lord Hale.
To function effectively, telegraph companies needed legislative authorization to use public thoroughfares. In many instances the right to traverse private property also was important. Finally, the power to proceed as a corporation was of value to facilitating the aggregation of necessary capital. The early state legislation granted one or more of these privileges and, in recognition of the favored position conferred, exacted obligations in return. Even when the statutes were silent on the responsibilities of telegraph companies, the courts often implied obligations on the basis of the special privileges conferred. State legislation also was influenced by the patent monopoly granted to Morse. The most general pattern was the grant of special privileges (use of public roads,
A. NEW YORK
Three years later, in 1948, New York adopted the first comprehensive telegraph legislation: "An act to provide for the incorporation and regulation of telegraph companies." The first three sections of the act were concerned with the prerequisites for incorporation, requiring among other things a description of the "general routs of the line of telegraph, designating the points to be connected." Section 4 conferred the normal legal powers on the corporation, including the power to "make such prudential rules, regulations [Jones A-18] and by-laws, as may be necessary in the transaction of their business, not inconsistent with the laws of this state or of the United States."
Section 5 permitted construction of the telegraph line "along and upon any of the public roads and highways, or across any of the waters within the limits of this state, by the erection of the necessary fixtures . . . provided the same shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters..." Section 6 prescribed procedures by which landowners would be compensated for the use of their lands by the telegraph company, implicitly conferring the equivalent of the power of
The regulatory provisions of the statute were included in sections 11 and 12. They required service to all customers, including other telegraph companies, on a nondiscriminatory basis:
An 1850 statute added the provision:
In 1847, Virginia provided that any person, satisfying the board of public works of its right to use the invention, could construct telegraph lines along public roads with the consent of local authorities. A penalty was imposed on any telegraph agent "who may, from corrupt or improper motives, withhold or delay the transmission of messages or intelligence, for which the customary charges have been paid or tendered."  An 1849 codification of prior legislation referred to the power of telegraph companies to "make reasonable charges on [telegraph] messages."  A more [Jones-A31] comprehensive statute, similar to that of New York, was enacted in 1852.  The reference to reasonable charges was carried forward in subsequent codifications. 
Michigan in 1847 authorized persons and companies to construct telegraph lines on public roads, but permitted intrusions on private lands only with the consent of the property owner. It was further provided that at each telegraph office "communications received … shall have precedence in the order in which they are received, and may be communicated accordingly.  In 1851, a comprehensive telegraph statute was enacted, authorizing the incorporation of telegraph companies, the use of public thoroughfares for telegraph lines, and the use of private lands for the same purpose on payment of compensation to the owners. The regulatory features of the New York legislation of 1848 and 1850 were included. 
Connecticut in 1848 enacted legislation almost identical to the New York statute of the same year.  Illinois adopted similar legislation in 1849,  California in 1850,  and Maryland in 1852. . Missouri adopted substantially similar legislation in 1851, but did not provide for the general incorporation of telegraph companies.
In 1847, Kentucky authorized persons possessing the necessary patent rights to construct telegraph lines on public highways; the next year construction was authorized across private lands upon payment of compensation to the owners.  The legislature expressly reserved the right to regulate telegraph rates in the future, and stipulated that all messages shall be sent in the regular order in which they are presented to the office or agent." An 1852 statute imposed a penalty if a telegraph agent, "from corrupt or improper motives or willful negligence, shall withhold the transmission of messages … for which the customary charges have been paid." 
Louisiana in 1848 authorized persons to construct telegraph lines on public roads, and over private lands upon payment of compensation;  a separate enactment made it unlawful for telegraph personnel to:
Legislation in 1853 and 1855 continued the authorization to use public and private lands and required telegraph companies "to transmit all communications, which are not immoral or contrary to law or public policy… in the order in which" they are presented. 
In 1848 the Wisconsin Territory authorized persons with the necessary patent rights to construct telegraph lines along public roads and private lands with the consent of the owners. Transmissions were to "have precedence in the order in which they are received."  The territorial legislation was retained when Wisconsin became a state, and in 1851 incorporation of telegraph companies under general legislation was authorized. 
Massachusetts in 1949 authorized telegraph companies to use public roads subject to local regulation and payment of damages to owners of adjacent properties. It also adopted a provisional patterned of section 11 of the 1949 New York legislation, requiring telegraph companies to transmit messages faithfully and impartially," upon payment of their usual charges, from and for both individuals and other telegraph lines. 
The same year Pennsylvania required telegraph companies "to forward and receive over their own lines, all messages that may be offered for transmission, by individuals or incorporated companies," upon tender of the usual fee.  Other regulatory provisions were included in specific legislation incorporating particular telegraph companies, which, in addition, conferred authorizations to use public and private lands. 
Iowa in 1851 authorized telegraph operations on public and private lands and imposed the obligation to receive dispatches from other telegraph lines and "transmit same with fidelity and without unreasonable delay." In addition, erroneous transmissions were made actionable and telegraph entities were made liable "for all damages resulting from failure to perform any other duties required by law." 
New Jersey in 1853 authorized the general incorporation of telegraph companies and the use of public roads with local consent. The statute included provisions requiring the free transmission of messages for public officials, at least one for every 40 miles of line; and the transmission of messages of private persons at or below rates stipulated in the statute.  This was the only early statute of general applicability explicitly regulating telegraph rates.
A number of states passed legislation intended to facilitate telegraph construction without currently imposing responsibilities of a regulatory nature. Georgia in 1847 authorized telegraph companies to use public roads.  Florida granted similar authorization in 1849 provided that the companies answer in damages to affected landowners.  In the decades that followed, Alabama authorized use of public roads by telegraph companies (1855), Mississippi provided for general incorporation, use of public roads and compensation to private land owners (1957),  Kansas Territory provided for general incorporation and use of public roads (1859),  Minnesota authorized use of public roads (1860),  Wyoming Territory provided for general incorporation,
In several additional states, regulatory legislation was delayed but regulator provisions were enacted during this early period. Ohio in 1847 authorized use of public roads and provided for damages to adversely affected landowners; the next year incorporation of telegraph companies under a general statute was authorized.  In 1865, Ohio enacted detailed regulatory provisions requiring telegraph companies to transmit messages from and for individuals and other telegraph companies; to forward telegrams on other lines when requested to do so; to inform customers of any delays in transmission; to transmit and deliver messages in the order of receipt; and to make deliveries of telegrams within the zones prescribed by the regulations of the company. 
Tennessee provided in 1848 that lawful owners of any system of telegraphing had the right to us public roads and private lands provided that the system did not conflict with any private right secured by patent; and the board of internal improvement was authorized to license a right-of-way if satisfied that there was no patent infringement.  In 1858, Tennessee imposed a duty on telegraph companies to transmit all "messages, including those from other telegraph companies, … in the order of their delivery, correctly, and without unreasonable delay…" 
Vermont in 1847 accorded telegraph companies the right to use public roads subject to local regulation, and in [UNDECIFERABLE] established procedures for assessing damages sustained by private landowners.  In 1863, Vermont passed an "Act to Provide Against Extortion by Telegraph … Commission," requiring that the companies post schedules of rates in their offices and abide by such published rates. 
Colorado, while still a territory, authorized telegraph companies to incorporate under a general statute, to use public roads, and to exercise the power of
West Virginia conferred the power of
In a few states, the order was reversed, with initial emphasis placed on the regulation of telegraph companies. Indiana in 1852 imposed a duty on telegraph companies to receive dispatches from individuals and other telegraph companies and, on payment or tender of the usual charge, to "transmit the same with impartiality and good faith, and in the order of time in which they were received." In addition, telegraph companies were to be liable for special damages for failure or negligence in operations and were required to deliver messages to any person within the town in which the station was located or within one mile of the station.  Legislation in 1853 legalized defects in previously organized corporations,  and in 1867 provision was made for the incorporation or telegraph companies and for their exercise of the power of
In 1852, Maine enacted legislation narrowly restricting the liability of telegraph companies, but requiring a refund of charge if a dispatch was improperly or unnecessarily delayed.  Early specific incorporation laws provided for the use of public roads and required the transmission of messages from and for individuals and other telegraph lines "with impartiality and good faith."  In 1867, provision was made for compensation to private landowners,  and in 1868 telegraph companies were required "to transmit all dispatches in the order in which they are received." 
Washington territory in 1866 required that telegraph messages be transmitted in the order received, and imposed penalties for "unreasonably and willfully" refusing or neglecting to transmit or deliver telegraph messages or for postponing them out of turn.  General legislation explicitly authorizing
In 1877, the Civil Code of Dakota Territory set forth comprehensive provisions governing common carrier of messages, specifying a duty to serve, a prohibition on preferential treatment, a general standard of reasonable compensation, and restrictions on contracts limiting liability. As to telegraph companies in particular, the statute required the use of "utmost diligence" and the transmission of messages immediately if practicable, and otherwise generally in the order received.  General laws granting the right to use public roads and to exercise the power of
Toward the end of this early period, additional states enacted comprehensive legislation patterned after the early franchise models. Arkansas in 1861 authorized telegraph companies to use public roads, required that communications be transmitted in the order received, and required that telegraph companies with offices in the same locality transmit message for one another in the order received.  Oregon in 1862 authorized construction of telegraph lines on public roads and private property, established a general duty to transmit dispatches in the order received.  Utah Territory in 1863 imposed a penalty for unreasonable and willful refusal or neglect to send or deliver any telegraph messages or for postponing it out of order; transmission in the order received was required.  The following year provision was made for the general incorporation of telegraph companies, use of public roads and intrusions on private property.  In 1866, Nevada provided for incorporation of telegraph companies, use of public roads and exercise of the power of
As might be anticipated, there was significant diversity in matters of detail in the early state legislation applicable to the telegraph industry. There were, however, a number of common features. Most of the statues were interested in facilitating development of the new means of communication, and took affirmative measures to enable telegraph companies to use public streets, to condemn private property, and to adopt the corporate mode of doing business. At or about the same time, most states imposed obligations on telegraph companies to deal with customers and with other telegraph companies in a reasonable and nondiscriminatory manner. Such measures were appropriate as a means of preventing telegraph companies from improperly exploiting monopoly positions, derived in part from patent rights and in part from use of the special privileges obtained under state legislation.
There were a few states – such as Indiana – that imposed obligations without concurrently providing special privileges. There were others – somewhat more numerous – that conferred special privileges without concurrently imposing obligations. These aberrations are more apparent than real. In many cases, complementary legislation was passed within a few years or complementary provisions were included in special legislation – ie., the power of
In a series of enactments, Congress sought to facilitate the development of the telegraph industry, while at the same time curbing abuses of monopoly position. The legislation responses were two-pronged. First, there was an effort to achieve greater competition in the telegraph industry by encouraging additional lines. Second, in view of existing monopoly conditions, Congress imposed on telegraph companies obligations to provide access on reasonable and nondiscriminatory terms. The two efforts were complementary in part, since one of the means by which telegraph monopoly was extended was by denying independent telegraph companies, operating over competitive segments, access to monopoly segments.
In 1860, Congress authorized the submission of bids to construct to telegraph line from Missouri to the Pacific. The successful bidder was to receive a ten-year contract providing for an annual monetary stipend, a grant of public lands, and right-of-way over other public lands. The Government was to receive a priority in the use of the line, but the interests of the general public also were recognized. It was provided: 
The legislation further provided that it was not to confer "any exclusive right to construct a telegraph to the Pacific, or debar the government of the United States from granting, from time to time, similar franchise and privileges to other parties." The legislation debates preceding enactment manifested Congressional concern about the monopoly achieved by
Similar concerns were manifested by Congress in subsequent legislation. In the Pacific Railroad Act of 1862, provision was made for the construction of telegraph as well as railroad lines to the Pacific, again with provision for government support and government priority. There was a further provision authorizing a Congressionally directed rate reduction if realized earnings of railroad and telegraph operations exceeded ten percent of cost.  The legislation was influenced in part by the monopoly characteristics of the telegraph industry. 
In 1864, this legislation was amended to provide:
The Telegraph Lines Act of 1866 provided that any telegraph companies
Provision was made for priority for government transmissions and the Postmaster-General was empowered to fix the rates on such messages.  Again the Congress was motivated by hostility toward the monopoly position of
Finally, in the Telegraph Lines Act of 1888, all telegraph and railroad companies that had received any form of government support, and were required in their enabling legislation to construct, maintain or operate telegraph lines, were directed to maintain and operate, through their own personnel, telegraph lines "for railroad, Governmental, commercial, and all other purposes, … and exercise by themselves along all the telegraph franchises conferred upon them and obligations assumed by them under the acts making the [Jones A-41] grants as aforesaid." Provision also was made for the interconnection of telegraph lines
The enactment of state legislation continued unabated after the introduction of the telephone in 1878. There were a number of different patterns. In virtually all states, existing telegraph legislation was made applicable to telephone companies, either by statutory revision or judicial interpretation. Thus telephone companies generally were able to incorporate under a general statute, to use public thoroughfares, and to exercise the power of
A spate of new legislation emerged to make applicable to telephone companies regulations analogous to those in effect for telegraph companies. In some instances the new legislation imposed duties on telegraph and telephone alike. The telegraph industry also attracted additional legislation attention wholly apart from the telephone. In some instances the legislation simply imported old statutory formulations into new states. In others, new statutory approaches were adopted. Finally, there were a number of state constitutional provisions adopted pertaining to the telecommunications industry.
The legislation and constitutional developments during this period placed great emphasis on regulation, but the general pattern was unchanged. The legislation continued to be concerned about abuses of monopoly position and imposed the obligation of non-discriminatory access as the principal remedy.
In 1881, New Hampshire made its existing telegraph legislation applicable to telephone and added the requirement that telephone and telegraph systems "shall open and maintain, at some convenient point or points, offices or places where users may communicate to all points reached by such line or its connections, on payment of a reasonable fee for such use."  The 1891 codification provided for offices at points [unreadable] will reasonably accommodate users"; empowered the judiciary to require the opening of offices "if the public convenience requires it"; and required telephone and telegraph companies to reasonably accommodate [users] without discrimination and at reasonable rates." 
In 1882, Wisconsin enacted a comprehensive prohibition against discrimination by telephone companies. They were required
The prevention of discrimination was the dominant theme of similar legislation enacted in Michigan (1883),  Arkansas (1885),  Indiana (1885),  Maine (1885),  Massachusetts (1885),  Tennessee (1885),  Vermont (1888),  Washington (1890),  Maryland (1892),  Iowa (1897),  Texas (1907),  and Oklahoma (1908).  Discrimination against connecting lines was prohibited in Connecticut (1889),  Kentucky (1891),  and New York.  Undue discrimination among cities of different size was prohibited in South Carolina (1898)  and Wisconsin (1905). 
Telephone rates were limited by statute in Arkansas (1885),  Indiana (1885),  Maryland (1892),  and the District of Columbia (1898).  The authority to regulate telephone rates were delegated to municipalities in Nebraska (1887),  Iowa (1888),  Kansas (1903),  and Missouri (1907),  and to the courts in Texas (1905). 
Limitations on the establishment of competitive telephone service were enacted in Rhode Island (1891),  Maine (1895),  and Connecticut (1899).  These foreshadowed subsequent legislation that would establish monopoly as the de jure as well as the de facto bases for telephone and telegraph service. 
In 1883, Nebraska enacted a comprehensive statute prohibiting discrimination by telegraph companies (and also by press associations). In addition to the usual provisions requiring equal treatment for those similarly situated, the statute prohibited greater charges for short distances than for long distances.  Florida in 1885 enacted a statutory ceiling on telegraph and cable charges, the limit varying with the number of words, distance, and other factors.  Also in [Jones A-50] 1885, Minnesota adopted a statute regulating telegraph lines, declaring them "to be common carrier, and as such [required to] serve the public without discrimination or preference, at reasonable rates of compensation." Exemptions from liability were declared void; deliver of telegrams within city limits was mandated; and transmission of messages was required to be in the order received and within a reasonable time. 
Mississippi in 1886 imposed a penalty on a telegraph company if it should "neglect, fail or refuse to transmit and deliver, within a reasonable time, without good and sufficient excuse," and telegraph message.  In 1887, Georgia imposed on telegraph companies, "telegraphing for the public," a duty to transmit and deliver messages "with impartiality and good faith, and with due diligence," and to make deliveries to persons within one mail of the station."  The same year Idaho, while still a territory, enacted a conventional telegraph law, authorizing incorporation and use of public and private [Jones A-51] lands and imposing a penalty for willful refusal or neglect to transmit or deliver telegrams and for willful postponement of telegram messages. 
North Carolina in 1889 made it unlawful for telegraph operations to refuse or neglect "duly to transmit or deliver" telegraph messages.  In 1893, the Oklahoma Territory enacted a statute governing common carrier of messages, with some provisions directed to telegraph companies in particular, pattered after the legislation of the Dakota Territory.  Montana in 1895 enacted comprehensive legislation applicable to telephone and telegraph. The terms of the legislation were principally relevant to telephone operations, concerning deliveries, order of transmission, errors, and relations among connecting lines. 
The same year South Dakota provided for incorporation of telegraph companies, their use of public roads and their exercise of the power of
Virginia in 1904 enacted substantial new legislation, applicable to telephone and telegraph, that largely followed earlier patters but dealt with problems of discrimination and service in greater detail and in a manner bearing principally in telegraph operations.  In 1907, Maine required telegraph [Jones A-53] companies to observe office hours in towns over 12,000 population and required free delivery of telegrams within one mile of the office.  The same year North Dakota required that telegraph companies have sufficient equipment to give prompt service; that they deliver message promptly; and that they transmit message within 30 minutes barring injury to the line. 
At about the same time, a number of states adopted constitutional provisions bearing on telecommunications. Washington's Constitution of 1889 provided that telephone and telegraph companies had the right to construct and maintain lines in the state, "and said companies shall receive and transmit each other's message without delay or discrimination, and all such companies are hereby declared to be common carrier and subject to legislative control." Telephone and telegraph [Jones A-54] companies were accorded the right of
Wyoming's Constitution of 1890 declared telephone and telegraph corporations to be common carrier. Telegraph companies were given the right to construct and maintain lines in the state and to connect with other lines; they were directed "to extend the same equality and impartiality to all who use them."  The Mississippi Constitution of 1890 declared telegraph and telephone companies to be "common carrier in their respective lines of business, and subject to liability as such." The legislation was directed to pass laws to prevent "abuses, unjust discrimination and extortion in all charges" of telegraph and telephone companies. 
Kentucky's Constitution on 1891 provided that telegraph companies had the right to maintain lines in the state and to connect with other lines, "and said companies shall receive and transmit each other's messages without unreasonable delay or discrimination, and all such companies [Jones A-55] are hereby declared to be common carrier and subject to legislation control." Telephone companies also were directed to "receive and transmit each other's messages without unreasonable delay or discrimination." Mergers of competing telegraph and telephone companies were prohibited.  The South Carolina Constitution of 1895 declared that "all telegraph and other corporations engaged in the business of transmitting intelligence for hire are common carrier in their respective lines of business, and are subject to liability . . . as such." Discrimination in charges or facilities for the transmission of intelligence were prohibited. Consolidations of competing lines were barred.  Louisiana's Constitution of 1898 prohibited rebates and various forms of discrimination by telegraph and telephone companies. 
The Oklahoma Constitution of 1907 provided that telephone and telegraph lines shall receive and transmit each other's messages without delay or discrimination, and make physical connections with each other's lines. Mergers of competing companies required legislation approval. Various types of discrimination were prohibited.  The Arizona [Jones A-56] Constitution of 1912 declared telegraph and telephone companies"to be common carrier and subject to the control by law." Interconnection and interchange of messages were required, and discrimination of various types were prohibited.  The New Mexico Constitution of the same year prohibited certain types of discrimination,  and the California Constitution, as amended in 1911, declared telephone and telegraph to be public
The constitutions of six additional states contained a provision authorizing telegraph companies to construct line in the state and to connect them with other lines, while prohibiting the merger of competing lines: Pennsylvania (1874),  Nebraska (1875),  Alabama (1875),  Colorado (1876),  Montana (1889),  and South Dakota (1889).  [Jones A-57]
As will be considered hereafter, the Constitutions of Arizona, California, Louisiana, New Mexico, Oklahoma, and South Carolina established regulatory Commissions with authority over telecommunications.
Beginning in the 1870s, at about the time of the introduction of the telephone, there was a shift in emphasis in state legislation. The necessary facilitating legislation – authorizing use of roads,
But the franchise element was not excluded. The state constitutions on the whole were concerned with enabling [Jones A-58] telephone and telegraph construction as well as with issues of control. And, as will be seen in the sect section, the application of controls was premised largely on the monopoly-franchise theory of common carrier status first espoused by Lord Hale.
The adjudication of telecommunications issues in the courts, prior to the establishment of regulatory Commissions, was strongly influenced by the monopoly-franchise theory of Lord Hale. The theory was brought to bear principally in two ways. First, many cases were decided in the context of statutory provisions that, expressly or by implication, embodied the monopoly-franchise approach. Second, the leading constitutional precedent on the scope of state regulatory authority – Munn v. Illinois  – relied on the writing of Lord Hale.
In Munn, the United States Supreme Court sustained as constitutional state regulation of the rates of Chicago warehouses. The Court commented on the importance of the warehouses in the shipment of grain from the Midwest to the East and quoted from Lord Hale on the common law applicable to [Jones A-59] businesses "affected with a public interested." It then observed that the warehouse owners jointly fixed their rates for storage of grain:
While Munn subsequently generated significant controversy as a decision delimiting the scope of state regulatory power under the Constitution, there was no dispute, during the period under consideration, as to the soundness of Munn in its application to telecommunications. Telephone and telegraph consistently were held to be "public" businesses, subject to government regulation and subject to common law limitations in the absence of statutory controls.
In the period prior to Commission regulation of telecommunications, two classes of cases were particularly prominent: (1) those involving claims of discriminatory or exclusionary treatments, and (2) those seeking damages for failures, errors or delays in the transmission of telegraph messages. In the discrimination and exclusion cases, the courts consistently imposed a duty of impartial treatment, relying either on common law principles or statutory standards. By contract, the results in the damage liability cases were conflicting and inconsistent, reflecting no clear consensus. Underlying these disparate patterns were the two sources of common carrier status. The franchise-monopoly theory of Lord Hale provided a firm basis for resolving the discrimination and exclusion cases. But the custodial theory of common law liability, having its roots in the law of bailments, tended to confuse rather than clarify the responsibility of telegraph companies for failures, errors and delays. Indeed, the resolution of many cases in this second category ultimately turned on abandonment of the custodial theory in favor of the franchise-monopoly theory.
The earliest discrimination cases concerned the refusal of telegraph companies to forward the messages of other telegraph companies. The New York statute requiring such [Jones A-61] forwarding was intended "to enable new companies to compete with established lines, thus preventing the evils of monopolies and of combinations of companies.  The duty to transmit for all without discrimination was said to "arise from the nature of their business even if there were not statute on the subject."  Absent such a requirement, control over a monopoly line would lead to control over the business of connecting lines seeking to have their messages forwarded over the monopoly lines. 
Similar considerations led to invalidation of contracts between Western Union and the railroads excluding other telegraph companies from the railroads' right-of-ways. The contracts were held to be contrary to both statutory and common law principles because they tended to create and maintain a monopoly.  [Jones A-62]
Perhaps the most dramatic series of cases were those in which the courts compelled telephone companies to provide impartial service to telegraph companies even though the patent licenses under which the telephone companies were operating restricted such service to
Discriminations also were held unlawful where the applicants or customers were not other communications companies. In some cases, enforcement of telegraph anti discrimination statutes was involved, the courts commenting on the essentiality of the service and the special privileges grated telegraph companies.  In others, state statutes were considered to be inapplicable and decisions were based on common law principles. Particularly significant was
The leading case prohibiting discrimination by telephone companies was State ex rel Webster v. Nebraska Telephone Co.  The telephone companies was required to provide service to Webster notwithstanding a dispute as to prior indebtedness:
The court cited the English decision in Allnut v. Inglis  for the proposition that "where private property is, by consent [Jones A-65] of the owner, invested with public interest or privilege for the benefit of the public, the owner can no longer deal with it as private property only, but must hold it subject to the rights of the public, in the exercise of that public interest conferred for their benefit." 
The franchise – monopoly theory of Lord Hale received further recognition in the later decision in Gardner v. Providence Telephone Co.,  where the court upheld a company ban on customer attachments to the telephone system, but required that the company's regulations be reasonable:
Apart from prohibitions against discrimination government regulation of telecommunications charges were infrequent in the pre – Commission era. But where such regulation was attempted, it was sustained because of the public character of the business and its importance and indispensability.  It was held in one case that the thrust [Jones A-67] of such legislation could not be avoided by a company's refusal to "hold out" to serve the public generally and its adoption of a program to convert its telephone system to one providing public toll booths exclusively. The legislature had limited telephone rental charges to three dollars and the intention was
That the company sought to withdraw from any such offering was held to be without effect
The status of telegraph companies as common carrier also was litigated in cases in which the companies sought to avoid liability for errors, delays, and omissions by relying on contractual limitations on liability. An early California case rejected the defense on the ground that the telegraph companies, as a common carrier, could not limit its liability, at least where there was a finding of gross neglect. "There is no difference in the general nature of the legal obligation of the [Jones A-68] contract between carrying a message along a wire and carrying goods or a package along a route." 
To other courts, however, the difference was obvious. A carrier in physical possession of merchandise was held to high standards because control accompanied possession and the shipper, having parted with possession, was in no position to protect his interests. By contrast, the transmission of a telegraph message conferred no custody over property and was subject to interference by forces beyond the control of the telegraph company. To these courts a limitation on liability appeared to be appropriate. In Primrose v. Western Union Tel. Co.,  the Supreme Court upheld a limitation on liability with these observations:
The validity of telegraph limitations on liability remain a subject of continuing uncertainty as long as the courts attempted to resolve the issue by reference to the common law of bailments.  A more satisfactory basis for decision was reached when the courts shifted the focus of inquiry to the [Jones A-70] question of whether the telegraph company was misusing its power as a firm enjoying the advantages of special franchise and a monopoly position.  Implicit in this shift in emphasis was a recognition that the proper basis for telegraph company regulation was not the law governing common carrier custody of goods, but rather the law governing business enterprises in possession of franchise monopolies. In one such case, the court reasoned:
After the passage of the
Statutory and judicial remedies proved to be inadequate in dealing with the burgeoning telephone and telegraph industries. Near the end of the 19th century the states began to turn to specialized regulatory commissions to control telecommunications enterprises exercising monopoly power. The transition began in the South. Near the end of the 19th century several railroad commissions were vested with authority over telecommunications.
Georgia in 1891 subjected telegraph companies to railroad commission control, at least with respect to rates and discrimination practices.  Subsequent legislation extended the commission jurisdiction to telephone companies and broadened the scope of its powers.  North Carolina subjected telegraph operations to railroad commission control in 1891 and telephone operations to like control in 1893.  In 1892, Mississippi provided for commission regulation of telephone and telegraph, requiring filed tariffs and applying provisions against extortion and discrimination.  South Carolina placed telegraph operations under commission control in 1898, and extended commission authority to telephone operations in 1904.  The Louisiana Constitution of 1898 created a commission with authority over all public
In the Midwest, Nebraska provided for commission control telephone and telegraph in 1897.  Thereafter, between 1900 and 1920, commission control over telecommunications was vested in regulatory commissions in every remaining state except Delaware, Iowa, and Texas.  [Jones A-74]
This deluge reflected a widely held consensus that competition was impracticable in the rendition of telephone and telegraph [Jones A-75] service, and that the interests of firms and users would best be served by a regime of regulated monopoly. This [Jones A-76] consideration – as were being implemented contemporaneously in the states. In each case, the primary emphasis was on the monopoly characteristics of the telecommunications industries.
The Telephone Companies Consolidation Act of 1921 permitted the merger of telephone companies following
Finally, the common carrier provisions of the Communications Act of 1934, making applicable to telephone and telegraph many of the substantive provisions of the Interstate Commerce Act,  reflected continuing Congressional concern with monopoly conditions in the telecommunications industries and a desire for more effective regulation.  [Jones A-79]
The principal source of information for the Congress was a series of reports by Walter MW Splawn, Special Counsel to the House Committee on Interstate and Foreign Commerce. These showed that, for the year 1932, Bell Accounted for 94.3% of the operating revenues of all substantial telephone companies; that competition with Bell in long distance services was virtually non existent; and that competition among telephone companies at the local level was very limited and in the process of being eliminated entirely.  See also Hearings before Sen. Comm. On Interstate Commerce on Commission on Communications, 71st Cong., 2d Sess., pp. 1086-88, 1582-83, 2116-37 (1930); Hearings before Sen. Comm. On Interstate Commerce on Federal Communications Commission, 73rd Cong., 2d Sess, p. 100, 137-38 (1934); Hearings before House Comm. On Interstate and Foreign Commerce on Federal Communications Commission, 73d Cong., 2d Sess, p. 10 (1934). It also showed [Jones A-81] that Bell possessed a monopoly in international telephone services.  In the case of telegraph including international cable,
In sum, with respect to common carrier regulation, the attention of Congress was focused on the monopolized segments of the industry and the primary objective of Congress was to achieve effective regulation on monopoly telecommunications enterprises.
The Communications Act of 1934 was the culmination of regulatory developments stretching back almost ninety years. The policies it articulated had their roots in a pattern of legislative and judicial responses to telephone and telegraph monopoly. The scope of the legislation should be construed in the light of the historical development of which it was a part.
In the case of carriers of goods, common law doctrines of common carriage were concerned primarily with establishing the fiduciary responsibilities of carriers. For this purpose it was not critical that the carriers posses monopoly power or special franchise. Prior to the railroads, it was not usual for such carriers to require or possess any special franchises from the state, and monopoly conditions, if present at all, were not stressed by the courts or the commentators. [Jones A-83]
 See NARUC v FCC, 535 F2d 630, 641 (DC Cir), cert denied 425 US 992 (1976); NARUC v FCC, 533 F2d 601, 608 (DC Cir 1976); AT&T v FCC, 572 F2d 17, 24 (2d Cir), cert denied 439 US 875 (1978). See also FCC v Midwest Video Corp, 440 US 689 (1979).
 Morse v. Slue, 1 Vent 190, 238, 86 Eng. Rep. 129, 159 (24 and 25 Car. II 1672) . There are earlier decisions supporting the concept of special responsibility, but they do not provide so unambiguous an articulation. See eg, Rich v Kneeland, Cro. Jac. 330, 79 Eng Rep 282 (11 Jac 1, 1613)
 The court noted that "if the [carrier] would, he might have made a caution for himself, which he omitting and taking in the goods generally, he shall answer for what happens." Morse v. Slue, 1 Vent 190, 238, 86 Eng. Rep. 129, 159 (24 and 25 Car. II 1672) .
 OW Holmes, common carrier and the Common Law, 13 Am L Rev 40 (1879). Substantially the same discussion is included in OW Holmes, The Common Law 180-205 (1881). See also Burdick, The Origin of the Peculiar Duties of Public Service Corporations, 11 Colum L Rev 515, 616, 743 (1911).
 Act of April 22, 1851, NY Laws c. 98, p. 178. Other amendments were made by Act of June 29, 1853, NY Laws, c. 471, p. 931 (various aspects, including
 Act of Mar. 20, 1847, Va. Laws, 1846, c. 92, p. 79 ss 3, 4. The act authorized telegraph operations by specific companies, specifying "reasonable charges" on messages transmitted. ss 1, 2. Other acts of specific incorporation include Act of Mar. 6, 1847, Va. Laws, 1846, c. 99, p. 85 (no rate standard); Act of Mar. 17, 1849, Va. Laws, 1849, c. 197, p. 138 (specified rate standard); Act of Mar. 12, 1849, Va. Laws, 1848-49, c. 200, p. 142 (referenced to reasonable rates). See Also the Act of Mar. 31, 1848, Va. Laws, 1847-48, c. 123, p. 1677, requiring telegraph companies to make annual reports to the board of public works, giving financial data and "regulations adopted to ensure the faithful discharge of the duties undertaken..."
 Act of May 26, 1852, Va. Laws, c. 149, p. 121, amended in minor respects, Va. Laws, 1853-54, c. 45, p 32. The Act of Feb 21, 1866, Va Laws, 1865-66, c 43, p 218, reiterated the duty to transmit and to deliver with emphasis on promptness.
 Act of Mar. 26, 1851, Mich Laws, No 59, p. 61, supplemented by Act of Feb 12, 1853, No 68, p. 112. Subsequent amendments or limited significance: Act of Mar 20, 1863, Mich Laws, No 240, p. 421, Act of Feb 23, 1873, Mich LAws, No 13, p. 11; Act of Reb 20, 1873, Mich LAws, No 14, p. 12; Act of Mar 14, 1873, Mich Laws, No 28, 0. 27; Act of Apr. 27, 1875, Mich Laws, No 129, p. 157, Act of Apr. 28, 1875, Mich Laws, No 149, p. 180.
[Endnotes 34-90 have been omitted. If you desire a particular endnote, met me know and I will add it.]
 See State, Trenton & NB Turnpike Co. v. American & European Com. News. Co., 43 NJL 381 (1881), and authorities cited. See also notes 170-84, infra and H Schreiber, "The Road to Munn;
 Act of Aug 9, 1881, NH Laws, c. 54, p. 472. The prior law consisted of a limitation on certain aspects of telegraph pole construction, Act of July 18, 1877, NH Laws, c. 50, p. 37, and a requirement that telegraph companies maintain offices at railroad passenger stations in towns of 1500 or more population, Act of July 18, 1879, NH Laws, c. 40, p. 356. The 1881 legislation provided for use of public streets, subject to local regulation, and damages to adversely affected property owners.
 NH Public Stat. c. 81 (1891). The provisions were amended in minor respects in NH Laws, 1897, c. 16, p. 17; c. 81, p. 78; c. 92, p. 88. An enactment in 1909 established standards for seasonal telephone rates. Act of Apr. 9, 1909, NH Laws, C 141, p. 511.
 Iowa Code s 2161 (1897).
 Act of May 27, 1889, Conn. Laws, c. 160, p. 57 (telephone discrimination against telegraph companies prohibited).
 This was one effected of the Transportation Corporation Laws, Act of June 9, 1980, NY Laws, c. 566, p. 1136, which required telephone and telegraph companies to "receive dispatches from and for other telephone or telegraph lines" as well as from and for individuals.
 Act of Apr. 7, 1892, Md. Laws, c. 387, p. 535, as amended by Act of Apr. 2, 1896, c. 139, p. 229. A limited rate restriction was imposed by Delaware in 1913. Act of Mar. 26, 1913, 27 Del. Laws, c. 289, p. 826. Use of public roads by telephone and telegraph was authorized by Act of May 10, 1899, 21 De. Laws, c. 273, p. 487, and the power of
 Act of Apr. 10, 1888, Iowa Laws, c. 16, p. 19.
 Act of Apr. 17, 1905, Texas Laws, c. 145, p. 348. See also Act of Apr. 7, 1913, c. 147, p. 307 (municipal regulation of telephone rates authorized in home rule cities).
 Act of Oct 22, 1887, Ga Laws, No 365, p 111, amended in minor respects, Act of Dec 20, 1892, Ga Laws, No 93, p 96, repealed, Act of Dec 17, 1894, Ga Laws, No 96, p. 79. A more comprehensive statute, following conventional lines, was enacted as Act of Nov 12, 1889, Ga LAws, No 672, p. 175.
 Idaho Ter Stat s 2580, 2582, 2700, 7205 (1887) (also conferring right of use public roads and power of
 Act of Mar. 16, 1897, Ark Laws, No. 53, p. 72. See also Ark. Laws, 1911, No. 332, p. 965, and No. 384, p. 1064, requiring
 Act of Jan 6, 1899, Kans. Laws, 1898, c. 38, p. 117. The legislation provided for a court of visitation to further regulate telegraph service and may be viewed as a precursor to commission regulation of telecommunications. See also Act of Mar. 13, 1893, Kans. Laws, c. 152, p. 236, and Act of Mar. 2, 1903, c. 514, p. 759, regulating telegraph office availability and hours.
 Act of Jan. 18, 1904, Va. Laws, 1902-04, c. 609, p. 968, ch. VIII, amended, Act of Mar. 17, 1906, c. 310, p. 545. The 1904 legislation was related to creation of state corporation commission in 1903, but conferred no substantive regulatory authority on the Commission. See also Act of Mar. 6, 1900, Va Laws, c. 898, p 996.
 Act of Mar. 13, 1907, ND Laws, c 246, p 385. A subsequent statute required that telegraph message traversing different routes be transferred at the point affording the lowest combined rate. Act of Mar. 13, 1913, ND Laws, c. 282, p. 441.
 94 US 113 (1877). See E Kitch and C Bowler, the Facts of Munn v. Illinois, 1978 Sup Ct Rev 313 (1979).
 Id. at 131-32. That monopoly was not considered to be the sole basis for legislation regulation of rates is indicated by the Court's references to regulations affecting common carriers, millers, ferrymen, innkeepers, wharfingers, bakers, cartmen, hackney-coachmen, chimney sweeps, and auctioneers. Id. at 125, 131-32. But monopoly was the basis emphasized in the opinion and the one relevant here.
 Derutte v. New York, Albany & Buffalo electric Magnetic Telegraph co., 1 Daly 547, 553 (NY 1866).
 United States Tel. Co. v.
 State ex rel American Union Tel. Co. v. Bell Tel Co., 22 Alb LJ 363, 10 Cent LJ 438, 11 Cent. LJ 359 (Mo 1880); State ex rel American Union Tel Co. v Bell Tel Co., 36 Ohio St. 296 (1880) (Ohio statute); State ex rel Baltimore & Ohio Tel. Co. v. Bell Tel. Co., 23 Fed. 539 (ED Mo. 1885) appeal dismissed, 127 US 780 (1888); Bell Tel. co. v. Commonwealth 3 Atl 825 (Pa 1886) ( Pennsylvania statute); Chesapeake & Potomac Tel co v Baltimore & Ohio Tel Co, 66 Md 399, 7 Atl 809 (1887) ( Maryland statute); Commercial Union Tel. Co. v. New England Tel & Tel Co., 61 Vt 241 (1888); State ex rel Postal Tel Co v. Delaware & Atlantic Tel & Tel. Co., 47 Fed 633 (D Del 1891) affirmed, 50 Fed 677 (3d Cir. 1892). Accord, People ex rel Postal Cable Tel Co v Hudson Rover Tel Co., 19 Abb NC 466 (NY 1887); Postal Cable Tel Co v Cumberland Tel & Tel Co., 177 Fed 726 (Md Tenn 1910) Contra American Rapid Tel Co v. Connecticut Tel Co., 49 Conn 352 (1881). The results in these cases were reflected in a number of telephone anti discrimination statutes adopted in the 1880s.
 Louisville Transfer co. v American Dist Tel Co., 24 AlbLJ (Ky 1881); State ex rel Payne v. Kinloch Tel Co., 93 Mo App 349, 67 SW 687 (1902); cf Central New York Tel & Tel Co v Averill, 199 NY 128 (1910) (emphasis on franchise). See also Williams v. Maysville Tel. Co, 119 Ky 33, 82 SW 995 (1904); Huffman v. Marcy Mut Tel Co, 143 Iowa 590, 121 NW 1033 (1909); New York Tel Co v Siegel-Cooper Co, 202 NY 502, 96 NE 109 (1911); Southern Bell Tel & Tel Co v Beach, 8 Ga App 720 (1911).
 Central Union Tel. Co. v. Fehring, 45 NE 64 ( Ind 1896); State ex rel Gwynn v Citizens Tel Co., 61 SC 83, 39 SE 257 (1901); Gwynn v. Citizens Tel Co., 69 SC 434, 48 SE 460 (1904); Yancey v Batesville Tel Co, 81 Ark 486 (1907); Brandford v Citizens Tel Co., 161 Mich 385, 126 NW 444 (1910); Mooreland Rural Tel. Co. v. Mouch, 48 Ind App 521, 96 NE 193 (1911). Statutory violations were rejected in some cases, but not because of any disagreement in principle. See Cumberland Tel & Tel Co. v Kelly, 160 Fed 316 (6 th cir 1908); Vaught v East Tenn Tel Co., 123 Tenn 318, 130 SW 1050 (1910); Younts v Southwestern Tel & Tel Co, 192 Fed 200 (ED Ark 1911); Montgomery v Southwestern Ark Tel Co., 110 Ark 480, 161 SW 1060 (1913).
 Hockett v State, 105 Ind 205, 5 NE 178 (1886), appeal dismissed, 131 US 438 (1889); Central Union Tel Co v. Bradbury, 106 Ind 1, 5 NE 721 (1886); Central Union Tel Co v State, 188 Ind 194 (1889); Central Union Tel Co v Manufacturers Assn, 106 Ill app 54 (1902); People ex rel City of Chicago v Chicago Tel co, 220 Ill 238, 77 NE 245 (1906); Charles Simons Sons Co v Maryland tel & Tel co, 99 Md 141, 57 Atl 193 (1904). See also Chesapeake & Potomac Tel Co v Manning, 186 US 238 (1902); Nebraska Tel Co v State, 55 Neb 627, 76 NW 171 (1898).
 Parks v Alta California Tel Co, 13 Cal 422, 424 (1859).
 Breese v. US Tel. Co., 48 NY 132 (1871) (compare majority and concurring opinions); Dorgan v Telegraph Co., 7 Fed Cas No 4004 (SD Ala 1874);
 Postal Telegraph Cable Co v. Warren-Godwin Lumber Co., 251 US 27 (1919);
 Act of Mar 5, 1891, NC Laws, c. 320, p. 275; Act of Mar 6, 1893, NC Laws, c 512, p. 468. See also Act of Mar. 6, 1899, NC Laws, c 164, p 291; Act of Mar 11, 1907, NC Laws, c 469, p 675, and c. 966, p. 1372.
 Alabama: Act of Sept 15, 1915, Ala Laws, No 501, p 567; Act of Sept 25, 1915, Ala Laws, No 746, p 865. Limited authority was conferred by the Act of Aug 9, 1907, Ala Laws, No 741, p. 716.
 Senate Rep No 781, 73d Cong., 2d Sess, 2-3 (1934); House Rep No 1850, 73d Cong 2d Sess 2-3 (1934); 78 Cong Rec 4139, 8822-24, 8853, 10312-17, 10322-23 (1934). See also Hearings before Sen Comm on Interstate Commerce on Commission on Communications, 71 st Cong, 1 st and 2 nd Sess, 1085-88, 1250, 1582-85, 2115-31, 2137 (1929-1930); Study of Communications by an Interdepartmental Committee, Print of Sen Comm on Interstate Commerce, 73d Cong, 2d Sess 1-2, 7-9 (1934); Preliminary Report on Communication Companies, House Rep No 1273, Part I, pp V-Vi, XII, XIV, XVI, XXX-XXXI, 1, 39-43, 75-76, 89-93 (1934); Report on Communications Companies, Part III, pp IX-XII, 841, 845-47, 854, 856-62, 901-02, 929, 961-63 (1934); Hearing before Sen Comm on Interstate Commerce on Federal Communications Commission, 73d Cong., 2d Sess 74-75, 78, 87, 100, 132-38 (1934); Hearings before House Comm on Interstate and Foreign Commerce on Federal Communications Commission, 73d Cong, 2d Sess. 5-6, 10-12 (1934); House Conf. Rep No 1918, 73d Cong., 2d Sess 46 (1934).
 Report on Communications Companies, House Rep. No. 1273, 73d Cong., 2d Sess., Part III, No. 1, p. 961-63 (1934). See also Hearings before Sen. Comm. On Interstate Commerce on Commission on Communications, 71 st Cong., 2d Sess, pp 1086-88 (1930); Hearings Before Sen Common Interstate Commerce on Federal Communications Commission, 73d Cong., 2d Sess pp 132-33 (1934).