Lessig on tiered internet . . .

I think Larry blew it in his senate commerce committee testimony on tiered internet services. First, he makes a bizarre distinction - which I'm still having trouble coming to terms with - between the "consumer" end of a communication and the "content" end. Surely L.L. (I still have this image of Larry listening to "mamma said knock you out" before arguing Eldred - is it just me?) knows that this is a distinction that loses more credibility on the net by the day. Sure, in a world of dynamically assigned IP's on low asymmetric-bandwidth connections the ability for Joe User to be a "content" provider is slim, but as bandwidth becomes cheaper, IPv6 rolls out (is this actually going to happen?), etc. I think it's clear that the line between "content" and "consumer" will blur . . . big time. But L.L. makes this distinction pivotal in his testimony, arguing that it's okay to offer tiered access to the "consumer" but not okay to offer it to the "content" provider. Though he makes this argument on the grounds of competition, it's merely befudling in the context of end-to-end network neutrality.

Privileging one end of the end-to-end network is not the biggest error in Larry's testimony however. L.L. makes a far more dangerous and egregious claim near the end of his testimony:

At a minimum, Congress could simply restrict access-tiering by
network providers. That would leave network providers free to offer
consumer-tiered service. But such tiering should not be allowed to
turn upon the particular provider of network content. Instead, such
tiering should be limited to either bandwidth guarantees (e.g.,
guaranteeing at least 10 Mbps) or service guarantees (e.g.,
guaranteeing fast ‘video service’ without specifying a particular
provider).

There's a huge difference between limiting by "bandwidth" and limiting by "service." The latter effectively requires some form of packet inspection, to enable the network provider to distinguish between video, email, file transfer or whathaveyou - a QoS or ToS header is ultimately nothing more than a way of peering up ISO layers - and that alone violates the principle of network neutrality. To make a really gross analogy, it's effectively the difference between allowing the post-office (FedEx, take your pick) to open up your mail and ship it based on what's inside the package on the one hand, and forcing them to ship the package without opening it - based on the level of service you've bought - on the other. Network neutrality is founded on the principle that you don't open packages (packets). Larry's proposal breaks that principle (whether it's on the "consumer" end or the "content" end is ultimately irrelevant).

This approach is would be like mana from heaven for those that would like to see fixed-line services become spectrum-like channelized services. What's L.L. thinking? Surely he's thought about this issue more than I have . . . so, what am I missing here?