HOUSE DOCKET, NO. 4491        FILED ON: 1/19/2018

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4222

The Commonwealth of Massachusetts

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PRESENTED BY:

David M. Rogers and Andres X. Vargas

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to providing for net neutrality and consumer protection.

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PETITION OF:

HOUSE DOCKET, NO. 4491        FILED ON: 1/19/2018

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4222

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to providing for net neutrality and consumer protection.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. The General Laws are hereby amended by inserting after chapter 93K the following chapter:-

CHAPTER 93L

NET NEUTRALITY

Section 1. This chapter shall be known and may be cited as the “Net Neutrality and Consumer Protection Act.”

Section 2. The General Court hereby finds and declares that:

(a) It is the public policy of Massachusetts to ensure that all commonwealth customers of Internet service providers have access to an open and neutral Internet.

(b) The prioritization of lawful Internet network traffic, except for reasonable Internet network management, may impede competition in the Internet marketplace by permitting Internet service providers to exert undue influence and potentially usurp the customer's privilege to dictate success in the marketplace.

(c) The prioritization of lawful Internet network traffic, except for reasonable Internet network management, may stifle innovation by providing large and established companies enhanced access to customers and, in turn, degrading the access of small businesses, entrepreneurs and start-up companies to customers.

(d) The prioritization of lawful Internet network traffic, except for reasonable Internet network management, may lead to increased costs for customers as content providers are likely to pass along to their customers any increase in operating costs caused by any fee that allows for that prioritization.

(e) The prioritization of lawful Internet network traffic, except for Internet reasonable network management, may inhibit the free exchange of ideas on the Internet by allowing Internet service providers to give selected content providers enhanced access to the Internet user community.

Section 3. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

"Content provider", any person, business or organization that owns or operates a website or creates, develops, promotes or owns any content, including, but not limited to video, audio and text, that is available via the Internet.

“Department”, the department of telecommunications and cable within the office of consumer affairs and business regulation established in section 1 of chapter 25C.

"Director", the director of the office of consumer affairs and business regulation in the executive office of housing and economic development established in section 1 of chapter 24A.

"Internet", the international computer network of both federal and non-federal interoperable packet switched data networks.

"Internet service provider", any person, business, or organization qualified to do business in the commonwealth that provides individuals, corporations, or other entities with the ability to connect to the Internet through equipment that is located in the commonwealth.

"Office", office of consumer affairs and business regulation in the executive office of housing and economic development.

"Reasonable Internet network management", an Internet network management practice that is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the Internet access service, or that is for emergency communication, law enforcement, public safety or national security purposes.

Section 4. Except where deemed necessary for reasonable Internet network management, an Internet service provider shall provide all customers:-

(i)access to any lawful Internet content of their choice;

(ii)the ability to attach or connect any lawful device to the network on the customer's end connection, provided that the device does not harm the network;

(iii)the ability to run any lawful application and use any lawful service of their choice; and

(iv)access to an open and neutral Internet, free of any attempt by any Internet service provider to privilege, degrade, prioritize or block any data transmitted across its network based upon the type, content, source, ownership or destination of the data.

Section 5. An Internet service provider shall provide all customers:-

(i)full disclosure, at the time they become customers of that provider, of the Internet service provider's policies relating to, or any action taken by the Internet service provider having the effect of, the privileging, degrading, prioritizing or blocking of any Internet traffic;

(ii)prior written notification at least 30 days before the implementation of, or any change in, any of their Internet service provider's policies or actions after they become customers of that provider that will result in the privileging, degrading, prioritizing or blocking of any Internet traffic except where necessary for reasonable Internet network management;

(iii)disclosure of all agreements made by the Internet service provider and a content provider that provide the content provider's Internet traffic with any form of preferential treatment over any other lawful Internet traffic; and

(iv)a comprehensive list, within their monthly or other periodic billing statement, of any and all fees charged by the Internet service provider, separately itemized for each fee and, if applicable, for each instance in which that fee is charged, including, but not limited to, all fees charged by the Internet service provider for accessing a particular website, with each occurrence of such access for which the customer has incurred a charge listed separately, together with the time and date of access.

Section 6. (a) Notwithstanding any provision of chapter 25C or any other general or special law to the contrary, the department shall have jurisdiction, general supervision, regulation and control over an Internet service provider’s compliance with sections 4 and 5.

(b) Any person may file a formal complaint alleging a violation of sections 4 or 5.

(c) The department shall have the right to institute, or to intervene as a party in, any action in any court of competent jurisdiction seeking injunctive or other relief to compel compliance with any provision of sections 4 or 5 or any rule, regulation or order adopted thereunder, or to restrain or otherwise prevent or prohibit any illegal or unauthorized conduct in connection therewith.

(d) The department or its employees may visit the places of business and other premises and examine the records and facilities of all internet service providers to ascertain if all rules and regulations and orders of the department have been complied with. The department shall also have the power to issue subpoenas to compel the attendance of witnesses and the production of documents, papers, books, records, and other evidence before it in any matter over which it has jurisdiction, control or supervision. The department shall have the power to administer oaths and affirmations to persons whose testimony is required.

(e) Subject to section 4 of chapter 25C, the commissioner of the department shall have all the powers and duties under this chapter including, but not limited to: presiding at hearings; maintaining or intervening in an action; hearing appeals and issuing enforcement orders; enforcement powers; and all other authority to carry out the duties and responsibilities of sections 4 and 5. Appeals taken from the orders of the department shall be taken in the same manner and according to the same procedure for the department of public utilities established in section 5 of chapter 25.

(f) Nothing in this section shall be construed to affect or modify the authority of the attorney general to apply and enforce chapter 93A and other consumer protection laws of general applicability;

Section 7. (a) There is established in the office the "Massachusetts Internet Service Provider Registry" for the purpose of making Internet service quality and pricing information readily available to customers within the commonwealth.

(b) The office shall promulgate regulations that require all Internet service providers, with customers in the commonwealth, to affirmatively disclose the following information to the office:

(i)the material terms of any agreement with any content provider that will result in the privileging or prioritization of a content provider's Internet traffic. Disclosure of this information shall occur before the Internet service provider takes any action which would result in the privileging or prioritization of the content provider's Internet traffic;

(ii)all of the Internet service provider's policies relating to, or any action taken by the Internet service provider that will result in, the privileging, degrading, prioritizing or blocking of any Internet traffic. Disclosure of this information shall occur before the Internet service provider takes any actions which would result in the privileging, degrading, prioritizing or blocking of any Internet traffic, except that the disclosure may occur within seven calendar days after any action is taken if the action is necessary for reasonable Internet network management; and

(iii)the material terms of all basic agreements entered into with all of its customers for Internet service, including a full accounting of any and all fees charged by the Internet service provider to its customers and any promises or assertions made regarding the connectivity speed of the Internet service.

(c) The office shall conduct verification tests, on its own or through a third-party, to determine the average connectivity speed experienced by actual users for each Internet service provider within the Commonwealth.

(d) The office shall compile the information disclosed by all of the Internet service providers within the commonwealth pursuant to this chapter and from the office's own verification tests, conducted pursuant to this section, into an "Internet Service Provider Registry." The director shall organize the registry in a format that is conducive to review and comparison by customers and prospective customers of Internet service.

At a minimum, the registry shall include for each Internet service provider:-

(i)all fees charged by the Internet service provider;

(ii)the connectivity speed that the Internet service provider promises or claims to provide to its customers;

(iii)the average connectivity speed found during the office's verification tests;

(iv)a full list of any content providers that have entered into an agreement with each Internet service provider for the privileging or prioritizing of the content provider's Internet traffic; and

(v)a simple explanation of the Internet service provider's policies relating to privileging, degrading, prioritizing or blocking of any Internet traffic, and any impact those policies may have on the Internet service provider's customers.

(e) The office shall make available electronically on its Internet website in English and Spanish the information contained in the registry, and shall provide the information to customers and prospective customers upon request by means of a toll-free telephone service operated by the office.

The information available on the Internet website shall:-

(i)be organized to meet the requirements of subsection d. of this section and be designed so that the customer or prospective customer may download and print the displayed information;

(ii)include a statement drafted by the director which explains the potential negative impact that non-neutral treatment of Internet traffic can have upon customers of Internet service and, more generally, on the Internet marketplace, competition, innovation and the free exchange of ideas, which shall be prominently displayed at the top of each of the website's pages;

(iii)include the full text of section 4 and the disclosures required pursuant to section 5;

(iv)include Internet web links to other governmental resources that provide information relating to Internet network neutrality, the regulation of the Internet, how a complaint may be filed with the Federal Communications Commission for a violation of any of its open Internet regulations including, but not limited to, regulations under Part 8 of Title 47 of the Code of Federal Regulations, and how a complaint may be filed with the office for a violation of this chapter; and

(v)contain clear language that is designed to assist customers and prospective customers in understanding the content of, and how to access, the information made available on the website.

(f) The office may contract with a public or private entity for the purpose of developing, administering, and maintaining the registry established pursuant to this section. The contract shall specify the duties and responsibilities of the entity with respect to the development, administration, and maintenance of the registry. The office shall monitor the work of the entity to ensure that the registry is developed, administered, and maintained pursuant to the requirements of this chapter.

Section 8. (a) An Internet service provider that conducts business in the commonwealth and that privileges, degrades, prioritizes or blocks any Internet traffic, except where necessary for reasonable Internet network management, shall provide to all customers in the commonwealth, upon entering into an agreement for service and annually thereafter, a document containing the following information:-

(i)the full text of section 4 and the disclosures required pursuant to section 5, set forth by the office as the "Massachusetts Net Neutrality Act"

(ii)a statement detailing any of the Internet service provider's policies that may result in the privileging, degrading, prioritizing, or blocking of any Internet traffic;

(iii)a statement describing any actions regularly taken by the Internet service provider that result in the privileging, degrading, prioritizing or blocking of any Internet traffic;

(iv)a full list of content providers that have entered into an agreement with the Internet service provider for the privileging or prioritizing of its Internet traffic; and

(v)the network traffic prioritization notification statement, which shall read as follows, "The Internet service you receive has been prioritized by name of Internet service provider and therefore, discriminates against non-prioritized content. It is possible that a particular website or content that you wish to view may load more slowly or fail to properly load on your computer or Internet access device as a result of network prioritization." The Internet service provider shall insert, in place of the name designated by bracketed text above, the name of the company that is contracted to provide Internet service to the customer receiving the notification.

(b) An Internet service provider offering services to a Massachusetts customer that privileges, degrades, prioritizes or blocks any Internet traffic, except where necessary for reasonable Internet network management, shall include, in a prominent location and in 12-point boldface type, the network traffic prioritization notification statement, as required pursuant to subsection (a), in every bill or statement sent to each customer receiving Internet services within Massachusetts.

Section 9. It shall be an unfair or deceptive act or practice and a violation of chapter 93A to violate any provision of this chapter and the attorney general of the commonwealth or any other person may bring an action pursuant to chapter 93A.

SECTION 2. This act shall take effect on January 1, 2019, but the director of the office of consumer affairs and business regulation and the commissioner of the department of telecommunications and cable may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.