contract-law internet consumer-protection
Do Net Neutrality&#39;s &quot;Reasonable network management&quot; and &quot;No paid prioritization&quot; allow for tiered services?
<p>In CA's recently passed <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB822" rel="nofollow noreferrer">SB822</a>, "<em>Paid Prioritization</em>" is not allowed, but "<em>Reasonable Network Management</em>" is allowed.</p>

<p><strong>MUST NOT</strong></p>

<blockquote>
  <p>“<em>Paid prioritization</em>” means the management of an Internet service
  provider’s network to directly or indirectly favor some traffic over
  other traffic, including, but not limited to, through the use of
  techniques such as traffic shaping, prioritization, resource
  reservation, or other forms of preferential traffic management, either
  (1) in exchange for consideration, monetary or otherwise, from a third
  party, or (2) to benefit an affiliated entity.</p>
</blockquote>

<p><strong>MAY</strong></p>

<blockquote>
  <p>“<em>Reasonable network management</em>” means a network management practice
  that is reasonable. A network management practice is a practice that
  has a primarily technical network management justification, but does
  not include other business practices. A network management practice is
  reasonable if it is primarily used for, and tailored to, achieving a
  legitimate network management purpose, taking into account the
  particular network architecture and technology of the broadband
  Internet access service, and is as application-agnostic as possible.</p>
</blockquote>

<p>According to <a href="https://www.eff.org/deeplinks/2018/04/busting-two-myths-about-paid-prioritization" rel="nofollow noreferrer">EFF</a>:</p>

<blockquote>
  <p>Reasonable network management means that ISPs can slow things down,
  speed things up, and even block things in the interests of making sure
  a service like remote surgery works as intended.</p>
</blockquote>

<p>Suppose an hypothetical ISP wishes to provide a two tier service for end users:</p>

<ul>
<li>Real time (user), always close to 100 Mpbs</li>
<li>Economy (user) , minimum average 10 Mpbs, max 100 Mpbs traffic permitting</li>
</ul>

<p>and another two tier service for providers:   </p>

<ul>
<li><p>Real time (prov), always 100 Mpbs to customer (*) </p></li>
<li><p>Economy  (prov), minimum average 10 Mpbs, max 100 Mpbs to customer (*)</p></li>
</ul>

<p>(* provided the intervening third party networks allow that bandwith)</p>

<p>(1) <strong>Is it correct that <em>SB822</em> allows for for such a business model, provided that the same services are offered to all users and providers without discrimination?</strong></p>

<p>(2) <strong>Why have the ISPs never attempted to institute non-discriminatory tiered services?</strong></p>

<p><em>The example account types are not meant to be realistic - this question is meant to query the legal principle.</em>  </p>

<p><em>There is no "net-neutrality" topic, so I chose "internet", "contract-law" and "consumer-protection" instead as a rough stab to satisfy the topic requirement.</em></p>

<p>I will answer 1) since 2) </p>

<ul>
<li><p>Is unclear.</p></li>
<li><p>Does not seem to be on-topic, because it seems to be more about network and business management.</p></li>
</ul>

<p>The crucial part is </p>

<blockquote>
  <p>(1) in exchange for consideration, monetary or otherwise, from a third party, or (2) to benefit an affiliated entity.</p>
</blockquote>

<p>What it is forbidden is the ISP getting paid by Youtube so users accessing it get faster access than Netflix, or, if your ISP is Google, doing that for free.</p>

<p>Giving a different level of service to different customers (whatever they are consumers or providers, if that distinction is even meaningful) because of different commercial plan, or even technical limitations (e.g. quality of the wiring) is acceptable. Your customers are not "third parties".</p>

<p>In fact, it is even acceptable to give a different level of service to Youtube than Netflix as long as none of the two restrictions apply. Of course, such a practice could lead to some questioning and maybe some angry customers, but that would legal.</p>

<p>A more reasonable example of network management would be <strong>trying</strong> to ensure that access to Youtube is fast enough to support streaming at a given resolution, and lowering the priority of traffic that is not affected if some parts arrive later (like bittorrent).</p>
