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interstate communication by wire or radio. See 47 U.S.C. sec.
225(a)(1); see also 47 U.S.C. sec. 153(10).
It has long been held that “‘a common carrier is such by
virtue of his occupation,’ that is by the actual activities he
carries on”. Natl. Association of Regulatory Util. Commrs. v.
FCC, 533 F.2d 601, 608 (D.C. Cir. 1976) (quoting Washington ex
rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211-212
(1927)); see also United States v. California, 297 U.S. 175, 181
(1936). Furthermore, under common law principles, the “primary
sine qua non of common carrier status is a quasi-public
character, which arises out of the undertaking ‘to carry for all
people indifferently’”. Natl. Association of Regulatory Util.
Commrs. v. FCC, supra at 608 (quoting Semon v. Royal Indem. Co.,
279 F.2d 737, 739 (5th Cir. 1960)). Accordingly, a person is not
a common carrier unless the person is actively engaged in the
provision of services to others. Because petitioner did not own
the pay phones in which he invested and had no involvement in
their operation, petitioner was not actively engaged in the
provision of services to anyone as a result of his investment in
the pay phones. Therefore, petitioner was under no obligation to
comply with the requirements set forth in ADA title IV during
2001.
Because petitioner’s pay phone activities did not obligate
him to comply with the requirements set forth in either ADA
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