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Susan P. Crawford, Transporting Communications, 89 B.U. L. Rev. 871 (2009).

Abstract: The Comcast Situation, the latest development in a story of increasing private control over access to basic communications functions, has brought national attention to the way in which this country conducts its communications policy. In this Article, Professor Crawford suggests that Comcast's blocking activities, and the FCC's ad hoc treatment of Comcast, reveal the fundamental incoherence of current communications law. After tracing the history of the non-discrimination principle in U.S. treatment of telegraphy and telephony, Professor Crawford suggests that regulatory gymnastics and credulous courts have caused us to forget that private discriminatory control over basic communications networks has never been acceptable. At the same time, public uproar over growing private domination of this basic service is rising to the level that caused the U.S. to create its communications legal structure in the first place. Professor Crawford calls for reforms that will restore the role of basic non-discriminatory transport that the framers of U.S. communications law had in mind.