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 Section 6A of chapter 25C of the General Laws is hereby repealed.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