SENATE DOCKET, NO. 1871        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1960

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

James B. Eldridge

_________________

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 to ensure a free and open internet in the commonwealth.

_______________

PETITION OF:

SENATE DOCKET, NO. 1871        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1960

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 2389 OF 2017-2018.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

An Act to ensure a free and open internet in the commonwealth.

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. This act shall be known and may be cited as the “Internet Freedom Act.”

SECTION 2. Section 6A of chapter 25C of the General Laws is hereby repealed.

SECTION 3. Chapter 25C of the General Laws 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) For the purposes of this section, the following words 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; any service that the department finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the obligations set forth in this section.

"Paid prioritization", the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through 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.

“Throttle”, intentional manipulation including, but not limited to, selectively slowing, speeding, altering, degrading, interfering with, enhancing, or privileging of internet service by a broadband internet access service provider.

“Consumer”, any individual or entity that uses a broadband internet access service in the commonwealth.

“Zero-rating”, exempting some internet traffic from a consumer’s data limitation.

“ISP traffic exchange”, the exchange of internet traffic destined for, or originating from, an internet service provider’s end users between the internet service provider’s network and another person or entity, including, but not limited to, an edge provider, content delivery network, or other network operator.

(b) A person engaged in the provision of broadband internet access service in the commonwealth, or a telecommunications or internet service provider that has entered into a franchise agreement, right-of-way agreement, or other contract with the commonwealth or a political subdivision thereof, under section 25A of chapter 166, section 21 of chapter 81, or section 3 of chapter 4A, or that uses facilities that are subject to such agreements, even if it is not a party to the agreement:

(1) shall not block lawful content, applications, or services, subject to reasonable network management;

(2) shall not prohibit the use of non-harmful devices, subject to reasonable network management;

(3) shall not throttle lawful traffic based on source, application or services, destination, content, ownership or type, subject to reasonable network management;

(4) shall not engage in paid prioritization;

(5) shall not engage in practices with respect to, related to, or in connection with, ISP traffic exchange that have the purpose or effect of circumventing or undermining the effectiveness of this section;

(6) shall publicly disclose accurate and relevant information in plain language regarding the network management practices, performance, and commercial terms of its broadband internet access services sufficient for consumers to make informed choices regarding the use of such services and for content, application, service, and device providers to develop, market, and maintain internet offerings, except that a provider is not required to publicly disclose competitively sensitive information or information that could compromise network security or undermine the efficacy of reasonable network management practices;

(7) shall not engage in zero-rating practices, including, but not limited to, zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category; and

(8) shall not engage in zero-rating practices in exchange for consideration, monetary or otherwise.

(c) The department shall establish a process for broadband internet access service providers to certify that they will not engage in practices inconsistent with this subsection (b), limit state-conferred benefits to broadband internet access service providers, limit applicability of pole attachment rules to broadband internet access service providers that adhere to subsection (b), and review state-conferred benefits such as easements and taxes.

(d) The attorney general shall enforce this section through adjudication of complaints alleging such violations in accordance with sections one to fourteen A, inclusive, of chapter 93.

(e) Nothing in this section supersedes any obligation or authorization a provider of broadband internet access service may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits a provider’s ability to do so, or prohibits reasonable efforts by a provider of broadband internet access service to address copyright infringement or other unlawful activities.

(f) Nothing in this section shall be construed to limit a consumer’s choice of service plan or a consumer’s control over a chosen broadband internet access service.

SECTION 4. Chapter 30B of the General Laws is hereby amended by adding the following section:-

Section 24. Net Neutrality and Internet Service Providers Entering into State Contracts

(a) A person that submits a bid or proposal to, or otherwise proposes to enter into or renew, a contract with a governmental body with respect to the provision of internet service shall provide the contracting authority with copies of all disclosures required in Section 10 of chapter 25C.

(b) A governmental body shall consult with the department about the network management practices of each internet service provider under consideration for the award of a contract. The internet service provider’s network management practices shall be a factor in the government body’s decision about awarding the broadband internet service contract.

SECTION 5. Chapter 10 of the General Laws is hereby amended by adding the following section:-

Section 78. (a) There is hereby 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 sections one to fourteen A, inclusive, of chapter 93, 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 the 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.

SECTION 6. Within 60 days after the effective date of this act, the department shall adopt formal complaint procedures to address alleged violations of section 9 of chapter 25C of the General Laws.