the existence of capable hardware and the default behavior of tcp/ip.

bandwidth is bandwidth. if the hardware exists in its default state you can shove anything into the pipe as fast as the pipe can handle it, and it will flow as fast as possible.

to put speed limits on particular kinds of traffic going down the same pipe requires artificial limitations of some sort: you can't program something to go faster than the hardware is capable, but you can program it to go slower.

to extend the metaphor in the article: if you're going to add a new lane to a highway, it takes an arbitrary designation, legal penalties, and some extra paint to make it an HOV lane. HOV lanes exist to discourage and punish particular kinds of traffic on the rest of the highway, namely single-occupant vehicles.

in the case of the article it's less like HOV lanes and more like a bypass around a congested area. to put a toll on the bypass is useless rent-seeking behavior. maybe you could justify it as profit under capitalism, but from the traffic's point of view it's detrimental. the toll discourages people from taking the bypass, making it less effective overall than if traffic were able to route freely.

anyway, do you really expect ISPs to add new capability? they're already sitting on fat margins and spend nothing on the infrastructure which they say is bursting at the seams as justification for these new rules. they will just wall off a couple lanes of the already-existing crumbling highway and install tollbooths.