Defining Common Carriers

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The first railroad chartered in the United States was the Baltimore and Ohio. Charles Carroll, the last surviving signer of the Declaration of Independence, turned the first spadeful of earth on July 4, 1828. On May 10, 1869, the last golden spike was driven into the newly completed transcontinental railroad built by the Central Pacific and the Union Pacific.

During this period, on May 24, 1844, Alfred Vail was stationed at the Mount Clare railroad depot in Baltimore, Maryland. He decoded the famous telegraph message “What hath God Wrought?” It was sent by Samuel Morse from the Supreme Court chamber of the United States Capitol in Washington, D.C.

During the Civil War, telegraphy played a strategic role giving Commanders the ability to communicate with their troops almost instantly. After the war, telegraph wires were strung across our vast continent along the same lines used by the railroads. When congress declared railroad companies to be common carriers in the Interstate Commerce Act of 1887, telegraph lines were an integral part of railroad operations. As other telecommunications services evolved, their infrastructure was effectively grandfathered into the rights of way used by the railroads.

A common carrier had been previously defined as any business entity whose main commercial activity is transporting things on behalf of people. For example one requirement has been that common carriers, in the shipping industry, would charge the same price to transport one pound of gold, one pound of fertilizer, or one pound of printed material. Moving different products that weighed the same, and packaged in the same size container, would cost the same amount of money to ship.

In accordance with the General Railroad Right-of-Way Act of 1875, the federal government granted railroad companies rights of way across the United States. By connecting the coasts over thousands of miles, rights of way served to promote the country’s economic development and westward expansion. A right of way is a type of easement granted or reserved over the land for transportation purposes, such as a highway, public footpath, rail transport, canal, oil and gas pipelines, electrical transmission lines, and message communications lines.

Rights-of-Way, commonly referred to as ROWs, are granted to serve the public good and the overall competitiveness of our country’s enterprises. In the case of the ROWs granted to the railroads, when the line is further developed or abandoned, two questions that loom large involve ancillary uses of any Right-of-Way held by the railroads.

The railroads, as common carriers, have routinely sold access to their ROWs and retained those proceeds rather than pass them to either the land owner or to the public treasury. This gives rise to certain controversies the courts must resolve, especially in light of the fact that a select few Internet Services Providers (ISPs) have fought long and hard to the effect that they are no longer classified as common carriers.

On March 10, 2014, the Supreme Court, in Marvin M. Brandt Revocable Trust et al. v. United States, held in an 8-1 decision that the right of way for an abandoned rail line goes to the party that owns the land underneath. This decision, concerning just one type of change in circumstances, may have applications or implications with respect to others, such as when a Right-of-Way user is no longer classified as a common carrier. Here are two possibilities:

• First, a conversion whereby the railroad sells access to the ROW, without compensation to the land owner, may expose the railroad or the government to a takings claim under the Fifth Amendment. This would be more likely in the case of non-common carriers due to their implicitly diminished public benefit value. Should this thinking prove meritorious, any use of the ROW, not specifically related to the control of the railroad itself, should inure to the benefit of the original property owner or, in the alternative, the public treasury.

• Second, when the communications companies are no longer common carriers, they no longer merit special access to any of the ROWs and easements that are set aside for a public benefit. Placing this question before federal, state, and local governments could and should expose the ISPs to an endless array of challenges to both their natural monopoly and their public utility status. If they are not common carriers, how does this affect their eligibility for pole attachments or other access to utility Rights of Way. And, with so many ISPs in competition for that business, why should a few large incumbents enjoy superior rights over those of any startup.

In the second example, the ISPs would undoubtably argue that the public does receive a benefit from their commercial operations. Any competent advocate for the public might stipulate there is a public benefit now ancillary to the ISPs newly defined commercial operations. To be sure, there is a public benefit for most commercial operations, such as when the pocket-picking organ grinder’s monkey brings a smile to the faces of children.

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