SENATE DOCKET, NO. 2428        FILED ON: 12/19/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2336

The Commonwealth of Massachusetts

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PRESENTED BY:

Barbara A. L'Italien

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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 protecting consumers by prohibiting blocking, throttling, or paid prioritization in the provision of internet service.

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PETITION OF:

SENATE DOCKET, NO. 2428        FILED ON: 12/19/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2336

The Commonwealth of Massachusetts

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

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An Act protecting consumers by prohibiting blocking, throttling, or paid prioritization in the provision of internet service.

Whereas, The deferred operation of this act would tend to defeat its purposes, which are to preserve forthwith and uphold the open foundation of the internet by adhering to certain principles, including: free flow of information over the internet; free access to all lawful websites; no unreasonable discrimination of lawful network traffic; no paid prioritization; and clear commitment to transparency, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
 

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. Chapter 25C of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by adding the following section:—

Section 9. Protecting consumers from blocking, throttling, or paid prioritization in the provision of internet service

(a)The following words as used in this section shall have the following meanings, unless the context clearly requires otherwise:

"Broadband internet access service" a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service. or any service that the federal communications commission finds to be providing a functional equivalent thereof  that is used to evade the protections set forth in this section.

“Massachusetts Antitrust Act” Sections one to fourteen A, inclusive, of Chapter 93 of the General Laws.

"Paid prioritization" the management of a broadband provider's network to favor, either directly or indirectly, certain traffic over other traffic.  Paid prioritization may include the use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either:

(1)In exchange for consideration (monetary or otherwise) from a third party; or

(2) to benefit an affiliated entity.

“Reasonable network management" a practice that has a primarily technical network management justification but does not include other business practices. A network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband internet access service.

(b) A person or entity engaged in the provision of broadband internet access service in Commonwealth of Massachusetts shall not:

                (1) Block lawful content, applications, services, or nonharmful devices, subject to reasonable network management;

                (2) Impair or degrade lawful internet traffic on the basis of internet content, application, or service, or use of a nonharmful device, subject to reasonable network management; or

                (3) Engage in paid prioritization.

(c) The Department of Telecommunications and Cable may waive the prohibition on paid prioritization in subsection (a)(c) of this section only if the petitioner demonstrates that the practice would serve a legitimate and significant public interest and would not harm the open nature of the internet in the Commonwealth.

(d) For the purpose of application and enforcement of the Massachusetts Antitrust Act violations of this Section shall be considered matters that:

(1) vitally affect the public interest;

(2) are not reasonable in relation to the development and preservation of business; and

(3) are unfair or deceptive acts in trade or commerce and an unfair method of competition.

(4) shall be enforced by the Attorney General

SECTION 3. Chapter 10 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by adding the following section:

Section 78: Internet Consumer Access Account

                (a) There shall be established and set up on the books of the commonwealth an Internet Consumer Access Fund to be administered by the Treasurer.  The fund shall consist of monies received and recovered by the office of the attorney general from lawsuits related to the Massachusetts Antitrust Act under the provisions of this chapter, or funds otherwise designated to this account. 

(b)The Treasurer shall make distributions from the Internet Consumer Access Account for purposes consistent with ensuring equal access to free flow of information over the internet.

(c)Subject to appropriation, expenditures from the account may be used for costs incurred by the office of the attorney general in the administration and enforcement of this chapter.