""Let's say you develop a graduated response that has got 95 steps. So you've now asked somebody 95 times very nicely and very politely can you please stop doing that and 95 times they've refused to," he said. "What do you do?""
But your industry isn't asking 95 times, you are _demanding_ just three times -- which doesn't give much room for errors -- and your industry doesn't have a habit of asking 'very nicely' and 'very politely' now, does it?
And for that matter "Acting like judge and jury" by getting the ISP to shut the user off without due process of law" wouldn't be a valid "What do you do" even if you had asked 999,95 times.
(Sighs) Jumping to absurd extremes to belittle the opposition's position is a fallacious attack, not a valid argument. We could more validly suggest that three strikes is just as ridiculous in the 'too few' direction, given the errors that can be made.