The first time the FCC considered a policy for the Internet was 1966.  Yes, 1966.  Three years before the first packets were sent on the ARPANET and six years before Vint Cerf and Bob Kahn introduced their paper on the Internet Protocol.

Okay, this is a bit of an embellishment designed to get your attention.  On the other hand, it really isn’t.  In 1966, the FCC initiated the Computer Inquiries.  Computers were relatively new phenomena in telecommunications networks.  Some computers facilitated the operations of the telecommunications networks; other computers were interacted with over the network.  What was the FCC to make of these computers? What jurisdiction did the FCC have?

The Computer Inquiries consisted of three major proceedings: Computer I (1966); Computer II (1976); and Computer III (1985).  Throughout all of these proceedings, FCC policy remained consistent while the agency revisited and revised the implementation in order to more effectively achieve its goals.

The FCC consistently distinguished between the computers that ran the telecommunications networks and computers that were used over the telecommunications networks.  The FCC concluded that there was no public interest in regulating computers used over the telecommunications network:

[T]here is ample evidence that data processing services of all kinds are becoming available in larger volume and that there are no natural or economic barriers to free entry into the market for these services. The number of data processing bureaus, time sharing systems, and specialized information services is steadily increasing and there are no indications that any of these markets are threatened with monopolization.
Computer I Tentative Agreement ¶ 20.

The FCC recognized that computer services promised great economic opportunity and innovation for the country, and that these services were 100% dependent on the underlying telecommunications networks.  The FCC wanted to ensure that carriers were offering the telecommunications services necessary in order for computer services to thrive and that the telecommunications networks could not use their market power to engage in anti-competitive behavior:

There is virtually unanimous agreement by all who have commented in response to our Inquiry, as well as by all those who have contributed to the rapidly expanding professional literature in the field, that the data processing industry has become a major force in the American economy, and that its importance to the economy will increase in both absolute and relative terms in the years ahead. There is similar agreement that there is a close and intimate relationship between data processing and communications services and that this interdependence will continue to increase. In fact, it is clear that data processing cannot survive, much less develop further, except through reliance upon and use of communication facilities and services.
Computer I, Final Order, ¶ 7 (1971).

In Computer II, the FCC came up with the Enhanced Services (aka “information services”) / Basic Services dichotomy.  Basic services were the telecommunications services (the network infrastructure) that moved voice, information, and data – without processing, altering, or changing that data.  Safeguards were imposed on basic services in order to ensure that telecommunications networks were open to any computer service.

Information services were the services that did not have market power and were not subject to FCC safeguards.  They were the services provided over the telecommunications network that offered some level of interactivity, processing, or alteration.  While the Computer Inquiries did not regulate information services, the Computer Inquiries were designed to directly benefit information services.

The Computer Inquiries contained safeguards which included structural separation, accounting rules, information sharing rules, disclosure rules, and bundling rules.  These were specific rules that ensured that Internet networks and computer networks could be built.  They were designed to open up the telecommunications networks for use by the computer networks, while safeguarding the computer networks from anticompetitive behavior by the telecommunication networks.  The Computer Inquiries have been described as “wildly successful.” Prof. Jonathan Weinberg p. 40; Robert Cannon, The Legacy of the FCC’s Computer Inquiries, 55 FCLJ 167 (2003).

What lessons can be taken from the Computer Inquires?  What do they say about the FCC’s approach to the Internet and open networks?  The Computer Inquiries assumed that Internet networks would have underlying common carrier infrastructure over which they could be built; what are the implications where the Internet has been transformed from a service provided over the common carrier infrastructure, to the network infrastructure itself with no underlying common carriage?  How has the Internet service market changed since the time of the Computer Inquiries?