Rumor has it that the DC Circuit is just about ready to release its decision on Silicon Valley’s challenge to the FCC’s Restoring Internet Freedom order. Speculating about the order is even less fruitful than speculating about its release date because there are so many issues in play:

• Did the FCC dot all the i’s and cross all the t’s demanded by the Administrative Procedure Act?
• Is the intent of the 1996 Telecom Act with respect to the status of ISPs really ambiguous?
• Are today’s ISPs all that different from the ISPs of 2005, when the Brand X case was decided by the Supreme Court?
• Do Silicon Valley’s dominant firms – the money behind the challenge – have a genuine beef with ISPs or is net neutrality simply a strategic misdirection?

OK, nobody’s going to talk about that last point. They should, since it’s the key to understanding the controversy over net neutrality, but it’s not very interesting. The one certainty is that the court decision isn’t going to resolve the debate.

Next Steps Are Perfectly Predictable

Most likely, both sides will win on some issues and lose on others. It’s entirely possible that both will declare victory and that one or both will appeal.

Silicon Valley would likely appeal to the Supreme Court because a loss at the panel level – where two judges are expected to be sympathetic to its concerns – signals a full court appeal isn’t going anywhere. The FCC will do better with a more balanced panel of judges, so the full circuit is a realistic option prior to an appeal to the Supreme Court should it draw the short straw.

Congress will declare the issue settled, which it certainly won’t be. Until Congress resolves the regulatory status of ISPs, the issue will remain alive, with the FCC revising the regulations each time the White House changes hands between the parties.

Congress has Bigger Fish to Fry

Whether you believe net neutrality is misdirection or not, it should be clear that there’s been a major shift in the public’s attitudes toward Silicon Valley in the decade since net neutrality was a fresh idea. While we once viewed Google, Amazon, et al. as the good guys, their halos are now tarnished.

While we once heard a drumbeat of stories about the raw deal US broadband consumers got compared to the rest of the world, we’re more likely to be outraged by fake news, privacy violations, and political bias on the part of social media platforms than about broadband in Germany (where it’s frankly not very good.) In fact, the US does quite well.

In fact, the wisdom of American policy emphasizing “facilities-based competition” (where ISPs compete more on the basis of quality than price) is evident. While broadband service in nations with heavy broadband regulations continues to be cheap, quality is largely stagnant overseas while it’s improving here.

Broadband Doesn’t Cry Out for More Regulation

We’re building out 5G and spreading gigabit broadband across the nation. The ISPs are installing fiber optic lines at a record rate, both for fixed-line services and for mobile.

The cable companies are making gigabit service available across their entire footprints thanks to DOCSIS 3.1. Traditional telcos are replacing copper lines with fiber in the most unlikely areas: my mountainside neighborhood in the Denver suburbs is getting fiber from CenturyLink and we already have gigabit from Comcast.

The 5G buildout still faces problems: cities that want to overcharge for pole access, an over-abundance of mid-band spectrum in government hands, and questions about the compatibility of high-band spectrum with government systems. But these are all solvable problems given the will.

The Section 230 Controversy is the Headline Grabber

Anyone who pays even the slightest attention to Internet policy is aware of the movement to revise Section 230 of the Communications Decency Act, especially the 26 words that made the Internet. Senators Hawley and Cruz in particular want to gut the law altogether in the name of correcting what they see as bias against conservative views.

Others are worried that the law permits too much anti-social behavior, such as hate speech, crime, and generally coarse behavior. Recently departed Senator Al Franken proposed to extend net neutrality to social media in order to protect the public from its many ills, to the great consternation of Silicon Valley. There’s a bit of contradiction between demanding more moderation of hate speech and lower standards for political speech, of course; this is the dilemma of neutrality.

The one thing that should be clear is that Internet policy has paid more attention to ISPs than it needed to while paying less attention to the Internet’s dominant firms – the FAANG – than it should have. This partially a consequence of legal traditions and innovation: we already had a body of law that could be applied to ISPs in the 1990s, but lawmakers had little tradition to fall back on that was relevant to the issues raised by social media.

Deferred Maintenance for the Internet

It’s unclear that Congress can walk and chew gum at the same time, but that’s what we need it to do today. Net neutrality needs to be resolved by a durable act of Congress or we’re going to keep playing ping-pong.

Social media needs a regulatory framework that addresses privacy expectations and practices, the responsibilities of social media platforms with respect to criminal conduct, the dissemination of false news, and the radicalization of fringe population groups.

Some of this has to come from Congress, but most of it will have to come from evolving consumer expectations and community norms. The spirit of Section 230 is largely correct: social media platforms should be free to develop their own standards for moderation and should moderate actively. Dominant platforms raise additional issues that will need to be addressed by a carve-out of some sort.

The general norms should be loosely consistent with the public’s ideas of fairness and decency; if they’re not, it’s going to be bad for business. Section 230 was correctly revised in response to sex trafficking, but there’s more work to be done.

Why Neutrality Is Misdirection

More than anything, sound policy sets directions and articulates goals. Net neutrality is a failed precept because it has never done this.

Net neutrality is simply a laundry list of prohibitions. Its creators believed that simply preventing particular forms of misbehavior on the part of particular firms would be sufficient to guarantee a flourishing Internet, abundant with innovation and sensitive to human needs.

While we certainly have seen an outpouring of innovation, it’s been a bucketful of mixed blessings. Everyone can listen to music everywhere, but musicians are starving. Everyone can express an opinion, but there are so many fake facts in circulation that measles has made a comeback.

Back to Basics

We can find information from the entire Internet, but much of it is unreliable. We can shop to our heart’s content, but well-established marketplaces often traffic in fakes and counterfeits. We can develop loose social ties easily, but doing so often makes us sad.

Rather than obsessing over network regulations that appear to be simple while proving to be fiendishly complex in their application, Congress should focus on truth in advertising.

There are often very few consequences from misleading, mistreating, or abusing the public as long as one does so over the Internet. This is a legacy of the original policy goal of speeding up Internet development and adoption without much regard for consequences.

Goal Setting

It’s understandable that lawmakers were naïve about the Internet’s consequences in the ’90s and early ’00s because nobody really knew how it was going to develop. Hence, we don’t have to worry too much about the original intent of net neutrality or the 26 words in Section 230.

The expectation that neutrality alone would make good things happen is only half true: it also makes bad things happen in equal or greater measure.

Consequently, we need to recalibrate our expectations for both ISPs and Internet platforms. We want ISPs to continually improve the caliber of their services. We should leave them alone when they do this, and intervene only when they don’t.

Accountability for All

Similarly, we want platforms to do more good than bad. We want them to limit the spread of ideas so bad they endanger public health and the financial health of creators. We want them to spread provably good ideas that make demonstrable improvements in quality of life.

We want free speech on the Internet, but not all speech is equal. We don’t want more mass shootings, harassment of innocent people, and angry mobs.

None of the proposals for ISP regulation or platform regulation currently in the mix are very good. If the Internet is good for anything, it’s a great disruptor. Is is too much to ask it to disrupt its own policy frameworks toward the goal of producing more of the good and less of the bad?

I hope not.