Earlier quoted context omitted.
"It's trivially easy to detect this kind of TOS abuse, even if the traffic is encrypted." It is? How? How could you possibly differentiate traffic coming from a single household with high bandwidth usage and a single person sharing their connection if it's all tunnelled over a VPN?
I won't go into detail here, but consider how de-anonymization of TOR network users is done with multiple layers of onion routing and encryption. All that needs to happen is that you correlate the injection of traffic to a particular node and then watch the actual traffic from a cable modem. You don't need to see the decrypted packets, you just need to know that when I inject N packets into a particular node, I get N…
For the VPN, choose a fixed packet size, and maximum bandwidth in packets per second (evenly spaced "ticks"). Every tick, if there is a packet waiting to transmit, send it with padding to the max size. Otherwise, send a dummy packet that is discarded by the remote.
That's right telcos - we can reinvent circuit switching too!