Today’s oral arguments before the DC Circuit Court of Appeals on the challenge to the FCC’s Restoring Internet Freedom Order (RIFO) were pretty disheartening. I say this because the quality of the arguments was poor and not because of any intuition about the outcome.

The arguments suggest that the outcome will be fundamentally random because the discussion was all over the place. The colloquy on paid prioritization between Judge Patricia Millett and FCC General Counsel Tom Johnson was especially disappointing.

Explaining Paid Prioritization

It started with Millett asking for an explanation of paid prioritization. It was odd of her to put this question to the FCC rather than to the attorneys who want it. The RIF order did not, after all, create any paid prioritization regulations.

It was up to Jon Neuchterlein, attorney for the ISP intervenors, to volunteer a definition and a criticism of the idea on his time. He explained, quite correctly, that there’s no paid prioritization on the public Internet today.

Calling PP a “theoretical construct”, he explained that enterprise Internet Protocol services do provide elements that may fit its definition. The correct engineering term for these agreements is Quality of Service guarantees.

Confusion Reigns Supreme

“Paid prioritization” is an advocacy term that lacks a coherent definition. According to lead plaintiffs’ attorney Pantelis Michalopoulos, interconnection agreements between between such firms as Netflix and various ISPs are paid prioritization even when they don’t specify a service level.

Congress held a hearing on Internet prioritization on April 17 of last year, at which I testified. Members weren’t equipped to write treatises on the subject, but all seemed to possess a better understanding of the issue than did Michalopoulos or Millett.

Paying for a specified Quality of Service is reasonable and consistent with common commercial practices for private and semi-private Internet Protocol data networks. You’ve never been able to purchase such an option from any consumer-oriented ISP in the US apart from micro-ISPs using Wi-Fi or something similar.

Public Safety Networks Need Quality of Service

As I explained in my Congressional testimony (pages 27-9) QoS is important to public safety networks because they have to function in conditions of degraded performance in disaster conditions. Hence, public safety research has done a lot of work on it, even ensuring that QoS is built into FirstNet.

Public safety was exempt from restrictions on paid prioritization in the FCC’s Title II order in 2015 (footnote 284.) Despite the fact that services sold to public safety have never been “protected” by a QoS ban, Danielle Goldstein, attorney for Santa Clara County, California, argued that RIFO harmed first responders by lifting this non-existent ban.

Santa Clara must be on the case for public relations reasons; the county’s fire department has claimed it was adversely affected by one of its wireless carriers delivering the service it paid for while fighting forest fires in another county. SCCFD bought a mobile data plan that came with a data cap.

The fire department was unhappy when the carrier did what it said it would do when they exceeded the allotment. SCCFD bought this plan when the Title II regulations we in place, actually.

Twitter Stream Overflowed the Bank of False Claims

The Twitter stream for hashtag #NetNeutrality was even worse than the courtroom discussion. Advocates of the Title II regulations insisted, as they often do, that net neutrality is necessary (and in some cases, sufficient) for the protection of free expression on the Internet.

This claim was understandable around 2000 when net neutrality advocates knowingly dealt with potential harms rather than real ones. But to make these claims 20 years later – when we’ve actually seen content-based filtering on the part of unregulated social platforms but never from ISPs – is to torture reality.

Even political commenters understand that the Internet’s real gatekeepers are platforms rather than network services. Apple, Facebook, Google, and Amazon are all called out in an Axios article by Scott Rosenberg today.

Twitter could be on that list as well, even without its policy shop flooding the stream with false claims about harms to public safety brought about by the lifting of the non-existent (for them) prioritization ban.

Public Concern is Waning

I should note that there was very little traffic on the hashtag today apart from drive-by comments from the general public and persistent ones from paid advocates for Silicon Valley’s interests. While neither the judges (apart from Stephen Williams) nor the attorneys (apart from Jon Neuchterlein) displayed a deep grasp of the issues, public concern is clearly waning.

I expect the public has moved on because the prophecies of doom have failed to materialize. Internet speeds are up 40% year over year since RIFO was passed and the public has more serious issues with real platform practices than with imaginary horribles by ISPs.

Where We Go From Here

Net neutrality was promoted by Silicon Valley to take policy makers’ eyes off the massive dossiers of personal data its major players assembled from their platforms and their tentacles. Now that the public is aware of this behavior, the claims of possible harms to consumers from a lack of net neutrality regulations are much less compelling.

I suspect that it’s going to take the court some time to come up with a ruling; it was painfully obvious that two of the judges are unprepared to parse the vital information around this case.

However they rule, the case won’t be over for a long time. If plaintiffs win, the FCC will be ordered to fix some details and release a new order. At that point they can appeal to the Supreme Court – which will surely uphold the FCC order – or simply revise two or three paragraphs. If plaintiffs lose, they’ll appeal.

The only way this ends is with Congress stepping up to the plate and taking its whacks. That would be the best of all possible outcomes. It’s also inevitable, but that doesn’t mean Congress is eager to settle the issue until it stops reaping benefits.