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Federal Internet Law & Policy
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Computer Inquiries :: Internet over Telecom

Dont be a FOOL; The Law is Not DIY


"The regulatory issues spawned by the technical confluence of regulated communications services and unregulated [computer networks] have been among the most important matters this Commission has dealt with over the past 20 years. Indeed, during this period, we have addressed these issues, in one proceeding or another, on a virtually continuous basis, as we have sought to revise and refine our regulatory approach in light of rapidly changing technological and marketplace developments." [CIII R&O ¶ 9 1986]

Regulatory Status of Internet over...


Optical
Internet
Not Declared
Not Declared
Physical Net
 

In proceedings that date back to 1966, the FCC has been concerned with the difference between computers that facilitate communications and computers with which we communicate or interact with.  The FCC concluded that Computers that facilitate telecommunications are a basic service.  Anything more than that, anything that involves a change in format, a change in message, data processing, or protocol conversion is an enhanced service.  Basic service is regulated under Title II as common carriers; Enhanced Services are unregulated (meaning that Enhanced Service Providers are not regulated like telephone companies).  ISPs fall within the Enhanced Services category.

The FCC viewed the Enhanced Services market as highly competitive and innovative.  The FCC was also aware that Enhanced Services were dependent upon telecommunications and that telephone monopolies presented potential bottlenecks to advancement of the computer and data processing market.  In order to ensure that the telecommunication system was an open platform promoting advancement of enhanced services, and in order to protect against potential anticompetitive behavior by telephone companies against enhanced service, the FCC developed a series of separation rules.  These separation rules sought to protect against such things as improper cross subsidization (using funds from regulated services to support unregulated services), improper discrimination in favor of affiliated services as opposed to unaffiliated companies, and other anticompetitive behavior.

In Computer I (see full article), the FCC established its policy objectives but failed to implement an efficient regulatory structure; the FCC was almost immediately overwhelm with petitions seeking rulings while the computer industry experienced dramatic growth and transformation.

In Computer II (see full article), the FCC affirmed is policy objectives while establishing the basic versus enhanced service dichotomy which divided the regulatory spheres along "service to the consumer" lines, as opposed to other metaphysical theologies of the difference between one mode of computing power versus another. In Computer II, the FCC established seminal safeguard rules that established separation between regulated telecommunications offerings and unregulated enhanced offerings:

Robert Cannon, The Legacy of the FCC's Computer Inquiries, 55 FCLJ 167 (2003)

Where ISPs and Telephone Companies Compete:  A Guide to the Computer Inquiries, Enhanced Service Providers and Information Service Providers (March 2001) | Word | Published in Commlaw Conspectus and TPRC Proceedings 2000. (please note that this is now out of date)
The BOCs complained that the obligation to establish a separate subsidiary was onerous. Therefore, in Computer III (see full article) (which took place during the Reagan years) the FCC affirmed its policy objectives but once again altered its implementation. The FCC eliminated the separate subsidiary requirement, but implemented a more progressive unbundling requirement in the form of Open Network Architecture (ONA) - thing of breaking the telephone network down into lego blocks (lines, switches, call forwarding, call waiting, accounting, billing...) that could be selectively purchased by enhanced service providers and reassembled into new and innovative services. There was a transition time from Computer II to ONA, and during this transition time, a BOC which had an enhanced service provider would have to release a comparatively efficient interconnection (CEI) plan, explaining how, whatever the BOC provided to its affiliated enhanced service provider, it would provide to all other independent enhanced service providers on the same terms and conditions.

The FCC got stuck in the implementation of Computer III. Court challenges to the ONA implementation were successful, and remanded the ONA policy back to the FCC for reworking. In the mean time, the industry would proceed forward with the transition policy of releasing CEI plans any time they established an enhanced service provider. The FCC never completed the ONA work and therefore the transition policy became the permanent policy.

In the mean time, broadband happened. The Internet went from being a logical (aka virtual) network that was provisioned over an underlying physical network (the telephone network), to being the underlying physical network (in the form of DSL, Cable Modem Service, fiber and others). The Computer Inquiry policy evolved into the Open Access policy and then into the Network Neutrality debate.

Legacy

The history of the FCC and the Internet is now over forty years old. To say that the FCC did not regulate the Internet is to miss the lessons of this history. While it is true that computer networks were unregulated, computer networks were very much a part of the Commission’s policy goals. They were the intended direct beneficiaries of the Computer Inquiries. Safeguards were imposed on common carriers for the benefit of computer networks. Furthermore, this is not a technologically biased policy, segregating one computer from another based on the technology employed. Rather, this is a market policy, segregating competitive markets from noncompetitive markets.

The Computer III Final Order was released in 1986. The first commercial ISP was established in 1989. The Commercial Internet eXchange was set up in 1991 as the first exchange point for traffic between commercial Internet backbones (such traffic was not permitted on the NSFNET). The World Wide Web was unleashed in 1991. Al Gore sponsored the High Performance Computing Act in 1991. The White House came online in 1993 and Congress was placed online in 1994. The mid-1990s saw the explosive growth of Internet users. In 1998, Boardwatch magazine reported, at its peak, that there were more than 7,000 ISPs in North America.

Was the success of the Internet attributable to the actions of the Commission? Did the Commission "invent the Internet?" The success of the Internet was clearly the result of the confluence of forces. For the Commission's part, it established the policy of the Computer Inquiries, deregulated the Customer Premise Equipment market (i.e., modems), and promoted ubiquitous and affordable flat-rate telephone lines (i.e., universal service). All of these were necessary preconditions for the success of the Internet.

There is also little new under the sun. The problem that the Commission described itself as facing in 1966 was "convergence." The problems were ones of substitutability, asymmetric regulation between functionally equivalent services, the restricted supply of communications infrastructure services to a highly competitive enhanced services market, and the desire of the communications services dominant players who wanted to enter the highly competitive enhanced services market. The Commission faces similar issues today.

The Computer Inquiries have been referred to by some as “wildly successful.” [Weinberg ¶ 222] From the beginning, the Computer Inquiries had the policy objective of establishing an open telecommunications platform for the benefit of computers and computer networks. The FCC implemented this goal by separating and restraining the market power of the telecommunications infrastructure service providers. The Commission also avoided imposing legacy regulation on new services. The result was open communications platforms where innovation could flourish, independent of dominant communications players.

Safeguards

Generally all carriers were required to comply with the following additional safeguards:

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