Prof. Susan Crawford recommends the oral argument transcript for the "Brand X" case regarding classification of cable modem service by the FCC, which wanted to exempt cable modems from the common carrier obligations telephony DSL providers had to meet (Brand X Argument). As she notes, it is a bit of a slog, but amusing at times if you like that sort of thing. Read the 55-page (double-spaced) transcript here: Brand X v. National Cable and Telecommunication Association - Oral Argument [PDF].

Crawford provides her vision for a solution to the problem raised by Brand X, which stems from the poorly drafted Telecommunications Act of 1996. Whatever the Supreme Court does (and I'm betting they uphold the ruling against the FCC's rules), real reform is going to take congressional action. Crawford's brief comments:

So now that we know that everyone in the chain is potentially a common carrier, the thing to do is to take a Netcom-like approach to this issue. Rather than make everyone liable for the traditional regulatory burdens of common-carrier-dom, let's dismantle the whole edifice. As in Netcom, let's say that direct, physical access to the consumer/business (in the Netcom context, direct infringement) is the thing we'll regulate. We'll turn it into a public utility. And we'll leave everything above that alone. We did this with energy -- we can do it with online access. Sure, there will be a few takings cases -- but that will be entertaining (and lucrative) for everyone.

Can the transportation mechanisms be public utilities? Sure, but not necessarily so. There are many ways for bits to travel. Some might be public utilities (community WiFi), while others would not (satellite broadband). That doesn't mean that common carrier regulations should not apply to both. Cities have government-funded transportation (buses) as well as private transportation (taxis), both of which can be common carriers.

Me, I'm a big fan of common carriage and separating transport and content.