A group of small Internet service providers yesterday urged Federal Communications Commission Chairman Ajit Pai to preserve the FCC's net neutrality rules and the related classification of ISPs as common carriers.

"We have encountered no new additional barriers to investment or deployment as a result of the 2015 decision to reclassify broadband as a telecommunications service and have long supported network neutrality as a core principle for the deployment of networks for the American public to access the Internet," the ISPs said in a letter to Pai that was organized by the Electronic Frontier Foundation (EFF).

The current rules are necessary "to address the anticompetitive practices of the largest players in the market," but "the FCC’s current course threatens the viability of competitive entry and competitive viability," the companies wrote.

"As direct competitors to the biggest cable and telephone companies, we have reservations about any plan at the FCC that seeks to enhance their market power without any meaningful restraints on their ability to monopolize large swaths of the Internet," the companies said. Finally, the letter criticized the recent decision by Congress and President Trump to repeal the FCC's online privacy rules. The privacy repeal was supported by Pai.

"We implore the FCC to examine the ramifications of the Congressional Review Act repeal of broadband privacy and provide guidance," the companies wrote. The repeal "has resulted in great uncertainty in the market that the FCC could help provide clarity."

The letter was signed by 41 companies, of which about 30 are Internet service providers that have to follow the net neutrality rules. The rest provide network-related services such as VPNs, VoIP, or colocation. The list includes relatively well-known ISPs such as Sonic, among a mix of wired, fixed wireless, and mobile providers, including a coffee shop that runs a wireless home Internet service from a tower on top of its coffee house. You can see the full list of ISPs in the letter.

Title II goes beyond net neutrality

Pai has touted opposition to the net neutrality rules from small ISPs, including 19 nonprofit municipal broadband providers. The EFF said that today's letter to Pai shows that numerous small ISPs want the rules to remain in place.

The core net neutrality rules prohibit paid prioritization and prohibit ISPs from blocking or throttling lawful Internet traffic. But the related classification of ISPs as common carriers under Title II of the Communications Act goes beyond those core rules, EFF Legislative Counsel Ernesto Falcon wrote. Title II is important for the FCC's ability to regulate network interconnection and pole attachment rights, he wrote.

"Title II isn't just about net neutrality," he wrote. "It is also meant to curtail the anti-competitive conduct from incumbent monopolists like Comcast, AT&T, and Verizon. In essence, as common carriers, they are not able to use their power to control the Internet experience, and they are not able to directly harm their competitors in the broadband market. That's why these small ISPs are worried."

The FCC's net neutrality order enforced the provisions of Title II's Section 224, which governs pole attachments. More generally, Title II also requires ISPs' rates and practices to be "just and reasonable" and allows consumers and competitors to file complaints about unjust or unreasonable rates and practices.

Google Fiber had trouble deploying service because incumbent ISPs stalled in providing access to utility poles, Falcon noted. (The Google Fiber deployment problems started before the 2015 Title II reclassification.)

"If a company the size of Google could be stifled without the law supporting them, what hope does a smaller ISP have in entering into a market where the incumbent broadband provider owns the poles that are a necessary component to deploying the network?" Falcon wrote. "The FCC chairman's plan fundamentally ignores this problem and offers no clear solution to competitors. An incumbent broadband provider that owns a lot of the poles is going to have no federal legal obligation to share that access at fair market rates if broadband is no longer a common carrier service."