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In CA's recently passed SB822, "Paid Prioritization" is not allowed, but "Reasonable Network Management" is allowed.

MUST NOT

Paid prioritization” 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.

MAY

Reasonable network management” 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.

According to EFF:

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.

Suppose an hypothetical ISP wishes to provide a two tier service for end users:

  • Real time (user), always close to 100 Mpbs
  • Economy (user) , minimum average 10 Mpbs, max 100 Mpbs traffic permitting

and another two tier service for providers:

  • Real time (prov), always 100 Mpbs to customer (*)

  • Economy (prov), minimum average 10 Mpbs, max 100 Mpbs to customer (*)

(* provided the intervening third party networks allow that bandwith)

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

(2) Why have the ISPs never attempted to institute non-discriminatory tiered services?

The example account types are not meant to be realistic - this question is meant to query the legal principle.

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.

1

I will answer 1) since 2)

  • Is unclear.

  • Does not seem to be on-topic, because it seems to be more about network and business management.

The crucial part is

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

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.

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".

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.

A more reasonable example of network management would be trying 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).

  • Thanks for the detailed answer. Are you aware of ISPs actually indentifying and ensuring real time video (e.g. You Tube) packets are prioritized to ensure smooth viewing? – Craig Hicks Aug 31 '18 at 8:16
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    It was an old practice when I was at the university. You can check en.wikipedia.org/wiki/Bandwidth_throttling#United_States, or Google "isp throttling". Warning: Many of the sites are avoiding the part about throttling being needed to manage the network and try to sell you VPNs to "avoid throttling". I doubt very much that a VPN will get a better treatment by the ISPs than traffic known to be streaming. – SJuan76 Aug 31 '18 at 8:33
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    Also howtogeek.com/165481/… – SJuan76 Aug 31 '18 at 8:40

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