공익산업규제의 기원, 체계 및 그 변용 — 디지털플랫폼에 대한 미국의 공익산업규제 논의를 중심으로 —

Through Social media (SNS), we can stay informed about the latest events, access employment information, and express and listen to opinions. Various forms of knowledge and information can also be distributed, acquired, and created through other digital platforms such as search engines or generative AI services. These digital platforms can even be called “information infrastructure”. There is an ongoing debate about the regulation of these digital platforms. Recently, in the United States, traditional laws regulating railroads and telecommunications companies – namely, public utility regulatory principles or common carrier regulatory theories – have gained attention in the context of state laws in Florida and Texas and the related series of lawsuits. This paper re-examines the origins and framework of public utility regulation and explores whether these principles can be adapted and applied as regulatory theories for digital platforms. The origins and framework of public utility regulation in the United States derive from the common law principles governing essential public businesses, which were in the late 19th century to regulate private power. The core demand was to address problems arising from the control of essential services and goods by private entities. To this end, public utility regulation required measures such as equal access regulation, non-discriminatory pricing, and prohibitions on service interruptions. Although there is no clearly defined legal doctrine for the requirements of public utility regulation, and some confusion exists, this regulatory framework is evaluated as having the potential to generate new ideas and approaches to address emerging challenges. The concept of public utility regulation is not limited in its application and can be broadly adapted. In this context, the states of Florida and Texas in the United States utilized public utility regulatory principles to implement regulations prohibiting SNS content management. Federal appellate courts and the U.S. Supreme Court have ruled on these cases, analysing the legitimacy of public utility regulatory principles in the process. Meanwhile, in Ohio, there has been an argument that Google should be treated as a common carrier and its search services classified as a public utility. While the legal disputes remain unresolved, there is still room to adopt the content and framework of public utility regulation for areas not directly related to expression, such as consumer protection, data, privacy, competition, advertising, and other transparency-related regulations. Throughout US history, there have been attempts to adopt public utility regulation. The “fairness doctrine” for TV and radio, the “must-carry rules” for cable broadcasting, and the “network neutrality” principle for ISPs are all results of the extention of public utility regulatory principles. Today, of course, telecommunications operators are consindered as common carriers, but the original concept of common carriers did not specifically include telecommunications operators. Initially, common carrier doctrine focused solely on the transportation of physical goods, and it took some time to figure out how to apply the common carrier doctrine to telecommunications services. It is not desirable to rigidly and meticulously establish the requirements for public utility regulation or to test the applicability of its principles in such a narrow manner. Instead, the applicability of the principles of public utility regulation should be assessed on the basis of whether digital platforms have “public relevance” – particularly whether their services are essential – and whether they are willing to provide “non-discriminatory services” to multiple users. Additionally, considerations can include whether the platform acts as a connecting infrastructure and whether there is a tendency towards monopoly. Furthermore, the scope of adapting public utility regulation should be determined comprehensively by assessing whether there is a need for core regulatory elements such as equal access regulation, non-discriminatory pricing, prohibitions on unjustified service interruptions, and user protection. Even the necessity of one of these key regulatory elements is sufficient to justify regulation.