Almost two dozen smaller ISPs have told FCC chairman Ajit Pai that the FCC's 2015 Open Internet order reclassifying ISPs as Title II common carrier telecom services "hangs like a black cloud," a cloud they are urging him to dispel ASAP.
Pai, also no fan of Title II, has been talking with telecoms and edge providers about how to proceed with protecting net neutrality without the regs he has argued are heavy handed and counterproductive to investment and innovation.
The ISPs, members of the American Cable Association, told Pai in a letter that he should at least revisit the Title II classification, and revise or repeal the rules it undergirded.
Pai could circulate a proposal for how to proceed as early as this week for a vote at the May meeting or in a month for the June meeting, but he has definitely signaled he is looking for a way forward on protecting an open internet without Title II.
The ISPs pledged to continue to protect an open internet because it was not in their interests to block, throttle or degrade traffic, and that rather than being the gatekeepers (which they were branded by FCC chairman Tom Wheeler in justifying Title II), it is the "Frightful Five" edge providers—Amazon, Apple, Facebook, Microsoft and Google—that have the scale and ability to dominate other sectors.
Wheeler argued that ISPs were uniquely in a gatekeeper position vis-à-vis the edge and that the FCC didn't have the power to regulate the latter in any event.
They said even the smaller edge providers have no fear of smaller ISPs leveraging them, since those ISPs are a minuscule part of their user base.
The current Open Internet rules include a "general conduct standard" that allows the FCC to look, on a case-by-case basis, at practices that don't violate the brightline rules but could adversely impact the internet's openness and take action if they do.
"The General Conduct rule represents perhaps the worst of government regulation, the ISPs said. "It is so vague and open-ended that we are concerned that the Commission would invoke it to sanction conduct for which we have no advance warning. Moreover, the mere threat that the Commission may use the General Conduct rule to impose rate regulation affects our ability to obtain financing."
They are preaching to the choir given that Pai has also been highly critical of the general conduct standard, but they are concerned about getting it off the books so it is not a tool for a different administration that might view it differently, like the Democratic Wheeler FCC that voted to impose it—Pai and his Republican colleague, Michael O'Rielly, voted against it.
