Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S28 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 2028 FILED ON: 1/20/2023
3	3	SENATE . . . . . . . . . . . . . . No. 28
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	James B. Eldridge
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to ensure a free and open internet in the commonwealth.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :James B. EldridgeMiddlesex and Worcester 1 of 11
16	16	SENATE DOCKET, NO. 2028 FILED ON: 1/20/2023
17	17	SENATE . . . . . . . . . . . . . . No. 28
18	18	By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 28) of James B. Eldridge for
19	19	legislation to ensure a free and open internet in the commonwealth. Advanced Information
20	20	Technology, the Internet and Cybersecurity.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE SENATE, NO. 48 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to ensure a free and open internet in the commonwealth.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. This act shall be known and may be cited as the “Internet Freedom Act.”
32	32	2 SECTION 2. Section 6A of chapter 25C of the General Laws is hereby repealed.
33	33	3 SECTION 3. Chapter 25C of the General Laws is hereby amended by inserting after
34	34	4section 8 the following 2 sections:-
35	35	5 Section 9. Protecting consumers from blocking, throttling, or paid prioritization in the
36	36	6provision of internet service.
37	37	7 (a) For the purposes of this section, the following words shall have the following
38	38	8meanings, unless the context clearly requires otherwise. 2 of 11
39	39	9 “Application-agnostic”, not differentiating on the basis of source, destination, Internet
40	40	10content, application, service or device or class of Internet content, application, service or device.
41	41	11 “Broadband internet access service”, a mass market retail service by wire or radio
42	42	12provided to customers in the commonwealth that provides the capability to transmit data to and
43	43	13receive data from all or substantially all internet endpoints, including any capabilities that are
44	44	14incidental to and enable the operation of the communications service, but excluding dial-up
45	45	15internet access; any service provided to customers in the commonwealth that the department
46	46	16finds to be providing a functional equivalent of the service described in the previous sentence, or
47	47	17that is used to evade the obligations set forth in this section.
48	48	18 “Class of content, application, service or device”, Internet content or a group of Internet
49	49	19applications, services or devices, sharing a common characteristic, including, but not limited to,
50	50	20sharing the same source or destination, belonging to the same type of content, application,
51	51	21service or device, using the same application- or transport-layer protocol or having similar
52	52	22technical characteristics, including, but not limited to, the size, sequencing or timing of packets,
53	53	23or sensitivity to delay.
54	54	24 “Consumer” or “end user”, an individual or entity that uses a broadband internet access
55	55	25service.
56	56	26 “Content, applications, or services”, all Internet traffic transmitted to or from end users
57	57	27of a broadband Internet access service, including, but not limited to, traffic that may not fit
58	58	28clearly into any of these categories. 3 of 11
59	59	29 “Edge provider”, an individual or entity that provides content, application, or service
60	60	30over the Internet, and an individual or entity that provides a device used for accessing content,
61	61	31application or service over the Internet.
62	62	32 “Enterprise service”, an offering to larger organizations through customized or
63	63	33individually negotiated arrangements or special access services.
64	64	34 “Fixed broadband Internet access service”, a broadband Internet access service that
65	65	35serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband
66	66	36Internet access service includes, but is not limited to, fixed wireless services including, but not
67	67	37limited to, fixed unlicensed wireless services, and fixed satellite services.
68	68	38 “Fixed Internet service provider” means a business that provides fixed broadband Internet
69	69	39access service to an individual, corporation, government or other customer in the
70	70	40Commonwealth.
71	71	41 “Impairing or degrading lawful Internet traffic on the basis of Internet content,
72	72	42application or service, or use of a nonharmful device”, impairing or degrading any of the
73	73	43following: (1) particular content, applications or services; (2) particular classes of content,
74	74	44applications or services; (3) lawful Internet traffic to particular nonharmful devices; or (4) lawful
75	75	45Internet traffic to particular classes of nonharmful devices. The term includes, without limitation,
76	76	46differentiating, positively or negatively, between any of the following: (1) particular content,
77	77	47applications or services; (2) particular classes of content, applications or services; (3) lawful
78	78	48Internet traffic to particular nonharmful devices; or (4) lawful Internet traffic to particular classes
79	79	49of nonharmful devices. 4 of 11
80	80	50 “Internet service provider” or “ISP”, a business that provides broadband Internet access
81	81	51service to an individual, corporation, government or other customer in the commonwealth.
82	82	52 “ISP traffic exchange agreement”, an agreement between an Internet service provider and
83	83	53another individual or entity, including, but not limited to an edge provider, content delivery
84	84	54network or other network operator, to exchange Internet traffic destined for, or originating from,
85	85	55an Internet service provider’s end users between the Internet service provider’s network and the
86	86	56other individual or entity.
87	87	57 “ISP traffic exchange”, the exchange of internet traffic destined for or originating from an
88	88	58Internet service provider’s end users between the internet service provider’s network and another
89	89	59person or entity, including, but not limited to, an edge provider, content delivery network or
90	90	60other network operator.
91	91	61 “Mass market”, a service that sells large quantities of goods on a standardized basis to
92	92	62residential customers, small businesses, and other customers, including, but not limited to,
93	93	63schools, institutions of higher learning, and libraries. “Mass market” services also include
94	94	64broadband Internet access services purchased with support of the E-rate and Rural Health Care
95	95	65programs and similar programs at the federal and state level, regardless of whether they are
96	96	66customized or individually negotiated, as well as any broadband Internet access service offered
97	97	67using networks supported by the Connect America Fund or similar programs at the federal and
98	98	68state level. “Mass market” service does not include enterprise service.
99	99	69 “Mobile broadband Internet access service”, a broadband Internet access service that
100	100	70serves end users primarily using mobile stations. Mobile broadband Internet access service
101	101	71includes, but is not limited to, broadband Internet access services that use smartphones or 5 of 11
102	102	72mobile-network-enabled tablets as the primary endpoints for connection to the Internet, as well
103	103	73as mobile satellite broadband services.
104	104	74 “Mobile Internet service provider”, a business that provides mobile broadband Internet
105	105	75access service to an individual, corporation, government or other customer in the
106	106	76Commonwealth.
107	107	77 “Mobile station”, a radio communication station capable of being moved and which
108	108	78ordinarily does move.
109	109	79 "Paid prioritization", the management of a broadband provider’s network to directly or
110	110	80indirectly favor some traffic over other traffic, including through use of techniques such as traffic
111	111	81shaping, prioritization, resource reservation, or other forms of preferential traffic management,
112	112	82either: in exchange for consideration, monetary or otherwise, from a third party; or to benefit an
113	113	83affiliated entity.
114	114	84 “Reasonable network management”, a network management practice that is reasonable.
115	115	85A network management practice is a practice that has a primarily technical network management
116	116	86justification, but does not include other business practices. A network management practice is
117	117	87reasonable if it is primarily used for and tailored to achieving a legitimate network management
118	118	88purpose, taking into account the particular network architecture and technology of the broadband
119	119	89internet access service, and is as application-agnostic as possible.
120	120	90 “Zero-rating”, exempting some internet traffic from a consumer’s data usage allowance.
121	121	91 (b) It shall be unlawful for a fixed Internet service provider, insofar as the provider is
122	122	92engaged in providing fixed broadband Internet access service, and it shall be unlawful for a 6 of 11
123	123	93mobile Internet service provider, insofar as the provider is engaged in providing mobile
124	124	94broadband Internet access service, to engage in these activities:
125	125	95 (1) block lawful content, applications, or services, or nonharmful devices subject to
126	126	96reasonable network management;
127	127	97 (2) impair or degrade lawful traffic based on content, application or service, or use of a
128	128	98nonharmful device, subject to reasonable network management;
129	129	99 (3) require consideration, monetary or otherwise, from an edge provider, including, but
130	130	100not limited to, in exchange for any of the following:
131	131	101 (i) delivering Internet traffic to, and carrying Internet traffic from, the Internet service
132	132	102provider’s end users.
133	133	103 (ii) avoiding having the edge provider’s content, application, service, or nonharmful
134	134	104device blocked from reaching the Internet service provider’s end users.
135	135	105 (iii) avoiding having the edge provider’s content, application, service, or nonharmful
136	136	106device impaired or degraded.
137	137	107 (4) engage in paid prioritization;
138	138	108 (5) engage in practices with respect to, related to, or in connection with, ISP traffic
139	139	109exchange, including but not limited to agreements, that have the purpose or effect of
140	140	110circumventing or undermining the effectiveness of this section;
141	141	111 (6) engage in zero-rating in exchange for consideration, monetary or otherwise from a
142	142	112third party. 7 of 11
143	143	113 (7) zero-rate some Internet content, applications, services or devices in a category of
144	144	114Internet content, applications, services or devices, but not the entire category.
145	145	115 (c) A fixed Internet service provider, insofar as the provider is engaged in providing fixed
146	146	116broadband Internet access service, and a mobile Internet service provider, insofar as the provider
147	147	117is engaged in providing mobile broadband Internet access service, shall not unreasonably
148	148	118interfere with or unreasonably disadvantage (1) end users’ ability to select, access, and use
149	149	119broadband Internet access service or the lawful Internet content, applications, services, or
150	150	120devices of their choice, or (2) edge providers’ ability to make lawful content, applications,
151	151	121services, or devices available to end users. Reasonable network management shall not be
152	152	122considered a violation of this subsection. Zero-rating Internet traffic in application-agnostic ways
153	153	123shall not be a violation of this subsection provided that no consideration, monetary or otherwise,
154	154	124is provided by any third party in exchange for the Internet service provider’s decision whether to
155	155	125zero-rate traffic.
156	156	126 (d) A fixed Internet service provider, insofar as the provider is engaged in providing fixed
157	157	127broadband Internet access service, and a mobile Internet service provider, insofar as the provider
158	158	128is engaged in providing mobile broadband Internet access service, shall publicly disclose
159	159	129accurate and relevant information in plain language regarding the network management
160	160	130practices, performance, and commercial terms of its broadband internet access services sufficient
161	161	131for consumers to make informed choices regarding the use of such services and for content,
162	162	132application, service, and device providers to develop, market, and maintain internet offerings,
163	163	133except that a provider is not required to publicly disclose competitively sensitive information or
164	164	134information that could compromise network security or undermine the efficacy of reasonable
165	165	135network management practices; 8 of 11
166	166	136 (e) It shall be unlawful for a fixed Internet service provider, and it shall be unlawful for a
167	167	137mobile Internet service provider, to offer or provide services other than broadband Internet
168	168	138access service that are delivered over the same last-mile connection as the broadband Internet
169	169	139access service, if those services satisfy either of the following conditions:
170	170	140 (1) They have the purpose or effect of evading the prohibitions in this section.
171	171	141 (2) They negatively affect the performance of broadband Internet access service.
172	172	142 (f) The department shall establish a process for broadband internet access service
173	173	143providers to certify that they will not engage in practices inconsistent with subsections (b)
174	174	144through (e), limit state-conferred benefits to broadband internet access service providers that
175	175	145adhere to subsections (b) through (e), limit applicability of pole attachment rules to broadband
176	176	146internet access service providers that adhere to subsections (b) through (e), and review state-
177	177	147conferred benefits such as easements and taxes.
178	178	148 (g) The attorney general shall enforce this section through adjudication of complaints
179	179	149alleging such violations in accordance with sections 1 to 14A, inclusive, of chapter 93.
180	180	150 (h) Nothing in this section supersedes any obligation or authorization a provider of
181	181	151broadband internet access service may have to address the needs of emergency communications
182	182	152or law enforcement, public safety, or national security authorities, consistent with or as permitted
183	183	153by applicable law, or limits a provider’s ability to do so, or prohibits reasonable efforts by a
184	184	154provider of broadband internet access service to address copyright infringement or other
185	185	155unlawful activities.
186	186	156 Section 10. Prohibition on Certain Data Usage Caps. 9 of 11
187	187	157 (a) For the purposes of this section, the following words shall have the following
188	188	158meanings, unless the context clearly requires otherwise
189	189	159 “Broadband Internet Access Service”, a mass market retail service by wire or radio
190	190	160provided to customers in the commonwealth that provides the capability to transmit data to and
191	191	161receive data from all or substantially all internet endpoints, including any capabilities that are
192	192	162incidental to and enable the operation of the communications service, but excluding dial-up
193	193	163internet access; any service provided to customers in the commonwealth that the department
194	194	164finds to be providing a functional equivalent of the service described in the previous sentence, or
195	195	165that is used to evade the obligations set forth in this section.
196	196	166 “COVID-19 emergency”, also known as COVID-19, means the state of emergency
197	197	167concerning the novel coronavirus disease outbreak declared by the governor on March 10, 2020.
198	198	168 “Internet service provider”, a business that provides broadband Internet access service to
199	199	169anindividual, corporation, government, or other customer in the commonwealth.
200	200	170 “Consumer” or “end user”, an individual or entity that uses a broadband internet access
201	201	171service.
202	202	172 (b) Notwithstanding any general or special law to the contrary, for the duration of the
203	203	173COVID-19 emergency and 60 days thereafter, an Internet service provider shall not:
204	204	174 (1) increase the cost of any Broadband Internet Access Services for a consumer
205	205	175 (2) levy a new fee or charge related to Broadband Internet Access Services upon a
206	206	176consumer;
207	207	177 (3) impose new data caps or allowances on a consumer; or 10 of 11
208	208	178 (4) shut off Broadband Internet Access Service or services for a consumer that is unable
209	209	179to pay an overdue bill due to financial hardship caused by the COVID-19 emergency.
210	210	180 (c) Internet service providers shall not impose a data cap or allowance below 5 terabytes
211	211	181per month. SECTION 4. Chapter 30B of the General Laws is hereby amended by inserting after
212	212	182section 23 the following section:-
213	213	183 Section 24. Net Neutrality and Internet Service Providers Entering into State Contracts
214	214	184 (a) A person that submits a bid or proposal to, or otherwise proposes to enter into or
215	215	185renew, a contract with a governmental body with respect to the provision of internet service shall
216	216	186provide the contracting authority with copies of all disclosures required in section 9 of chapter
217	217	18725C.
218	218	188 (b) A governmental body shall consult with the department about the network
219	219	189management practices of each internet service provider under consideration for the award of a
220	220	190contract. The internet service provider’s network management practices shall be a factor in the
221	221	191government body’s decision about awarding the broadband internet service contract.
222	222	192 SECTION 5. Chapter 10 of the General Laws is hereby amended by inserting after
223	223	193section 78 the following section:-
224	224	194 Section 79. (a) There is hereby established and set up on the books of the commonwealth
225	225	195an internet consumer access fund to be administered by the treasurer. The fund shall consist of
226	226	196monies received and recovered by the office of the attorney general from lawsuits related to
227	227	197sections 1 to 14A, inclusive, of chapter 93, or funds otherwise designated to this account. 11 of 11
228	228	198 (b) The treasurer shall make distributions from the internet consumer access fund for
229	229	199purposes consistent with ensuring equal access to the free flow of information over the internet.
230	230	200 (c) Subject to appropriation, expenditures from the account may be used for costs
231	231	201incurred by the office of the attorney general in the administration and enforcement of this
232	232	202chapter.
233	233	203 SECTION 6. Within 60 days of the effective date of this act, the department shall adopt
234	234	204formal complaint procedures to address alleged violations of section 9 of chapter 25C.