ISP should be limited to purchasing more bandwidth and using anti-bufferbloat AQMs, but no throttling or QoS.
QoS may be hard. But it's necessary, because streaming and TCP don't play well together.
Streaming requires low latency, low jitter, low packet loss, and has a moderate and limited (in absence of compression, typically constant) bandwidth. TCP, when being used for things like large file transfers, increases speed to consume ALL available bandwidth at the tightest choke point, and divide it fairly among all TCP connections using the choke point. It discovers the size of the choke point by expanding until packets are dropped, and signals other TCP connections by making their packets drop. The result that TCP forces poor QoS onto streams unless the infrastructure is massively oversized.
This can be fixed by a number of traffic management schemes. But they all have this in common:
- They treat different packets differently.
- The infrastructure can be misused for competitive advantage and other unfair business practices.
The PROBLEM is not the differing treatment of different packages (which can help consumers), but the misuse of the capability (to hurt consumers).
So IMHO an "appropriate legal remedy", under current legal theories, is not to try to force ISPs to treat all packets the same (and break QoS), but to limit the ISPs ability and incentives to misuse the capability.
So the appropriate regulation is not communications technical regulation, but consumer protection and antitrust law:
- Consumer fraud law should already cover misbehavior that penalizes certain traffic flows improperly. (What is "internet service" if it doesn't handle whatever end-to-end traffic is thrown at it, just for starters) Ditto charging extra for better packet treatment rather than just fatter pipes, charging anyone other than their base customers for the service, or heavily penalizing packets of customers (or the customers themselves) whose usage is problematic for the ISP but within the advertised service. If current law needs a tweak, the enforcement infrastructure is already there should Congress choose to commit the tweak and use it.
- Penalizing packets of competitors for its own services, or giving appropriate handling to its own packets of a type and not to that of others, is anticompetitive behavior. Indeed, having such services in the same company AT ALL, let alone forming conglomerates that include both "content" creation and Internet service distributing it, is a glaring conflict-of-interest, of the sort that led to the historic breakups of AT&T and Standard Oil. Antitrust law is up to the problem: Just use it.
(I put quotes around "appropriate legal remedy" above, because I think that a free market solution would be even better. Unfortunately, we don't have a free market in ISP services, due to massive, government-created or government-ignored barriers to entry. And we aren't likely to see one in the near future - or EVER, unless the government power-wielders get it through their skulls that "competition" and its free-market betnefits don't kick in until there are at least three, and usually until there are four or more, competitors for each customer. (This "Two-is-competition, Hey! Where's the market benefits?" error has been built into communication law ever since the allocation of bandwidth for the early, analog, AMPS cellphone service.) With only two "competitors", market forces drive them to cartel-like behavior and all-the-market-will-bear pricing, without any collusion at all.)