The 2015 Order famously outlined clear net neutrality rules. But those rules only passed muster because the Order also explicitly classified broadband service as a “common carrier” service, regulated by Title II of the Communications Act, rather than an “information service” regulated by Title I of the same Act. And that classification has several corollary effects, because Title II isn’t just about net neutrality. 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.
Google Fiber’s deployment ran into snags in Austin, Texas when those poles were owned by AT&T, because the surest way to prevent competition is to just physically prevent their entry into your market. 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? 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.