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SB-822 Communications: broadband Internet access service.(2017-2018)

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Date Published: 08/07/2018 09:00 PM
SB822:v93#DOCUMENT

Amended  IN  Assembly  August 07, 2018
Amended  IN  Assembly  June 25, 2018
Amended  IN  Assembly  June 11, 2018
Amended  IN  Senate  May 01, 2018
Amended  IN  Senate  April 19, 2018
Amended  IN  Senate  March 13, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 822


Introduced by Senator Senators Wiener and De León
(Principal coauthors: Senators Allen, Dodd, Hill, McGuire, Monning, and Skinner)
(Principal coauthors: Assembly Members Santiago, Bloom, Bonta, Chiu, Friedman, Kalra, and Mullin)
(Coauthor: Senator Leyva)
(Coauthor: Assembly Member Ting)(Coauthors: Assembly Members Cervantes, Limón, McCarty, Mark Stone, and Ting)

January 03, 2018


An act to add Chapter 3.5 (commencing with Section 1775) to Title 1.5 of Title 15 (commencing with Section 3100) to Part 4 of Division 3 of the Civil Code, and to add Article 2 (commencing with Section 3020) to Chapter 3 of Part 1 of Division 2 of the Public Contract Code, relating to communications.


LEGISLATIVE COUNSEL'S DIGEST


SB 822, as amended, Wiener. Communications: broadband Internet access service.
Existing law imposes certain obligations in the context of particular transactions, and provides mechanisms to enforce those obligations.
This bill would enact the California Internet Consumer Protection and Net Neutrality Act of 2018. This act would prohibit fixed and mobile Internet service providers, as defined, that provide broadband Internet access service, as defined, from engaging in specified actions concerning the treatment of Internet traffic. The act would prohibit, among other things, blocking lawful content, applications, services, or nonharmful devices, impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, and specified practices relating to zero-rating, as defined. It would also prohibit fixed and mobile Internet service providers from offering or providing services other than broadband Internet access service that are delivered over the same last-mile connection as the broadband Internet access service, if those services have the purpose or effect of evading the above-described prohibitions or negatively affect the performance of broadband Internet access service.
The bill would make its operation contingent on the enactment of Senate Bill 460 of the 2017–18 Regular Session.

(1)Existing law, the Consumers Legal Remedies Act, makes unlawful certain unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer. Existing law authorizes any consumer who suffers damages as a result of the use or employment by any person of a method, act, or practice declared to be unlawful, as described above, to bring an action against that person to recover or obtain damages, restitution, an order enjoining the methods, acts, or practice, or any other relief the court deems proper.

This bill would revise the act to prohibit specified actions by an Internet service provider, as defined, that provides broadband Internet access service, as defined, and make a violation of those prohibitions subject to the remedies available pursuant to the act.

(2)Existing law generally governs the state procurement of materials, supplies, equipment, and services, and the acquisition of electronic data-processing and telecommunications goods and services.

This bill would prohibit a state agency from contracting with an Internet service provider for the provision of broadband Internet access service unless that provider certifies under penalty of perjury that it is in full compliance with the requirements that this bill adds to the Consumers Legal Remedies Act. Because the bill would expand the crime of perjury, the bill would impose a state-mandated local program.

(3)This bill would include legislative findings and declarations and be known as the California Internet Consumer Protection and Net Neutrality Act of 2018.

(4)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: YESNO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) This bill act is adopted pursuant to the police power inherent in the State of California to protect and promote the safety, life, public health, public convenience, general prosperity, and well-being of society, and the welfare of the state’s population and economy, that are increasingly dependent on an open and neutral Internet.
(2) Almost every sector of California’s economy, democracy, and society is dependent on the open and neutral Internet that supports vital functions regulated under the police power of the state, including, but not limited to, each of the following:
(A) Police and emergency services.
(B) Health and safety services and infrastructure.
(C) Utility services and infrastructure.
(D) Transportation infrastructure and services, and the expansion of zero- and low-emission transportation options.
(E) Government services, voting, and democratic decisionmaking processes.
(F) Education.
(G) Business and economic activity.
(H) Environmental monitoring and protection, and achievement of state environmental goals.
(I) Land use regulation.

(3)The Federal Communications Commission has repealed net neutrality rules intended to protect consumers and to ensure fair and reasonable access to the Internet.

(b)It is the intent of this act to ensure that corporations do not impede competition or engage in deceptive consumer practices, and that they offer service to residential broadband Internet customers on a nondiscriminatory basis.

(c)It is the intent of this act to protect and promote the Internet as an open platform enabling consumers choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission, and thereby to encourage the deployment of advanced telecommunications capability and remove barriers to infrastructure investment.

(d)

(b) This act shall be known, and may be cited, as the California Internet Consumer Protection and Net Neutrality Act of 2018.
SEC. 2.Chapter 3.5 (commencing with Section 1775) is added to Title 1.5 of Part 4 of Division 3 of the Civil Code, to read:
3.5.Internet Neutrality

SEC. 2.

 Title 15 (commencing with Section 3100) is added to Part 4 of Division 3 of the Civil Code, to read:

TITLE 15. Internet Neutrality

1775.3100.
 For purposes of this chapter, title, the following definitions apply:
(a) “Application-agnostic” means not differentiating on the basis of source, destination, Internet content, application, service, or device, or class of Internet content, application, service, or device.

(a)

(b) “Broadband Internet access service” means a mass-market retail service by wire or radio provided to customers in California that provides the capability to transmit data to, and receive data from, all or substantially all Internet endpoints, including including, but not limited to, any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. “Broadband Internet access service” also encompasses any service provided to customers in California that provides a functional equivalent of that service or that is used to evade the protections set forth in this chapter. title.
(c) “Class of Internet content, application, service, or device” means Internet content, or a group of Internet applications, services, or devices, sharing a common characteristic, including, but not limited to, sharing the same source or destination, belonging to the same type of content, application, service, or device, using the same application- or transport-layer protocol, or having similar technical characteristics, including, but not limited to, the size, sequencing, or timing of packets, or sensitivity to delay.
(d) “Content, applications, or services” means all Internet traffic transmitted to or from end users of a broadband Internet access service, including, but not limited to, traffic that may not fit clearly into any of these categories.

(b)

(e) “Edge provider” means any individual or entity that provides any content, application, or service over the Internet, and any individual or entity that provides a device used for accessing any content, application, or service over the Internet.

(c)

(f) “End user” means any individual or entity that uses a broadband Internet access service.
(g) “End-user customer” means any individual or entity that is a customer of an Internet service provider.
(h) “Enterprise service offering” means an offering to larger organizations through customized or individually negotiated arrangements or special access services.
(i) “Fixed broadband Internet access service” means a broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes, but is not limited to, fixed wireless services including, but not limited to, fixed unlicensed wireless services, and fixed satellite services.
(j) “Fixed Internet service provider” means a business that provides fixed broadband Internet access service to an individual, corporation, government, or other customer in California.
(k) “Impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device” means impairing or degrading particular content, applications, or services, or particular classes of content, applications, or services, or impairing or degrading lawful Internet traffic to particular nonharmful devices or classes of nonharmful devices. The term includes, without limitation, differentiating, positively or negatively, between particular content, applications, or services, or particular classes of content, applications, or services, or differentiating, positively or negatively, between lawful Internet traffic to particular nonharmful devices or classes of nonharmful devices.

(d)

(l) “Internet service provider” means a business that provides broadband Internet access service to an individual, corporation, government, or other customer in California.
(m) “ISP traffic exchange” means 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 individual or entity, including, but not limited to, an edge provider, content delivery network, or other network operator.
(n) “ISP traffic exchange agreement” means an agreement between an Internet service provider and another individual or entity, including, but not limited to, an edge provider, content delivery network, or other network operator, to exchange Internet traffic destined for, or originating from, an Internet service provider’s end users between the Internet service provider’s network and the other individual or entity.
(o) “Mass market” service means a service marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers, including, but not limited to, schools, institutions of higher learning, and libraries. “Mass market” services also include broadband Internet access services purchased with support of the E-rate and Rural Health Care programs and similar programs at the federal and state level, regardless of whether they are customized or individually negotiated, as well as any broadband Internet access service offered using networks supported by the Connect America Fund or similar programs at the federal and state level. “Mass market” service does not include enterprise service offerings.
(p) “Mobile broadband Internet access service” means a broadband Internet access service that serves end users primarily using mobile stations. Mobile broadband Internet access service includes, but is not limited to, broadband Internet access services that use smartphones or mobile-network-enabled tablets as the primary endpoints for connection to the Internet, as well as mobile satellite broadband services.
(q) “Mobile Internet service provider” means a business that provides mobile broadband Internet access service to an individual, corporation, government, or other customer in California.
(r) “Mobile station” means a radio communication station capable of being moved and which ordinarily does move.

(e)

(s) “Paid prioritization” means the management of an Internet service provider’s network to directly or indirectly favor some traffic over other traffic, including including, but not limited to, through 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.

(f)

(t) “Reasonable network management” means a network management practice that primarily is reasonable. A network management practice is 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. service, and is as application-agnostic as possible.
(u) “Zero-rating” means exempting some Internet traffic from a customer’s data limitation.

1776.3101.
 (a) It shall be unlawful for an a fixed Internet service provider, insofar as the provider is engaged in providing fixed broadband Internet access service, to engage in any of the following activities:
(1) Blocking lawful content, applications, services, or nonharmful devices, subject to reasonable network management practices. management.
(2) Impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, subject to reasonable network management practices. management.
(3) Requiring consideration, monetary or otherwise, from edge providers, including, but not limited to, in exchange for any of the following:
(A) Delivering Internet traffic to, and carrying Internet traffic from, the Internet service provider’s end users.
(B) Avoiding having the edge providers’ content, application, service, or nonharmful device blocked from reaching the Internet service provider’s end users.
(C) Avoiding having the edge providers’ content, application, service, or nonharmful device impaired or degraded.

(3)

(4) Engaging in paid prioritization.
(5) Engaging in zero-rating in exchange for consideration, monetary or otherwise, by third parties.
(6) Zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category.

(4)

(7) (A) Unreasonably interfering with, or unreasonably disadvantaging, either an end user’s ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of the end user’s choice, or an edge provider’s ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be a violation of this paragraph.
(B) Zero-rating Internet traffic in application-agnostic ways shall not be a violation of subparagraph (A) provided that no consideration, monetary or otherwise, is provided by any third party in exchange for the Internet service provider’s decision whether to zero-rate traffic.

(5)

(8) Failing to publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of those services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

(b)(1)Nothing

(9) Engaging in practices, including, but not limited to, agreements, with respect to, related to, or in connection with, ISP traffic exchange that have the purpose or effect of evading the prohibitions contained in this section and Section 3102. Nothing in this paragraph shall be construed to prohibit Internet service providers from entering into ISP traffic exchange agreements that do not evade the prohibitions contained in this section and Section 3102.
(b) It shall be unlawful for a mobile Internet service provider, insofar as the provider is engaged in providing mobile broadband Internet access service, to engage in any of the activities described in paragraphs (1), (2), (3), (4), (5), (6), (7), (8), and (9) of subdivision (a).

3102.
 (a) It shall be unlawful for a fixed Internet service provider to offer or provide services other than broadband Internet access service that are delivered over the same last-mile connection as the broadband Internet access service, if those services satisfy either of the following conditions:
(1) They have the purpose or effect of evading the prohibitions in Section 3101.
(2) They negatively affect the performance of broadband Internet access service.
(b) It shall be unlawful for a mobile Internet service provider to offer or provide services other than broadband Internet access service that are delivered over the same last-mile connection as the broadband Internet access service, if those services satisfy either of the conditions specified in paragraphs (1) and (2) of subdivision (a).
(c) Nothing in this section shall be construed to prohibit a fixed or mobile Internet service provider from offering or providing services other than broadband Internet access service that are delivered over the same last-mile connection as the broadband Internet access service and do not violate this section.

3103.
 (a) Nothing in this section title supersedes any obligation or authorization a provider of broadband fixed or mobile Internet Access service provider 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 the provider’s ability to do so.

(2)

(b) Nothing in this section title prohibits reasonable efforts by an a fixed or mobile Internet service provider of broadband Internet access service to address copyright infringement or other unlawful activity.

1777.

A violation of this chapter shall be subject to the remedies and procedures established pursuant to Chapter 4 (commencing with Section 1780).

3104.
 Notwithstanding Section 3268 or any other law, any waiver of the provisions of this title is contrary to public policy and shall be unenforceable and void.

SEC. 3.Article 2 (commencing with Section 3020) is added to Chapter 3 of Part 1 of Division 2 of the Public Contract Code, to read:
2.Internet Neutrality
3020.

For purposes of this article, “broadband Internet access service” and “Internet service provider” have the same meanings as defined in Section 1775 of the Civil Code.

3021.

No state agency may contract with an Internet service provider for the provision of broadband Internet access service unless that provider certifies, under penalty of perjury, that it is in full compliance with Section 1776 of the Civil Code.

SEC. 4.SEC. 3.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 4.

 This act shall become operative only if Senate Bill 460 of the 2017–18 Regular Session is enacted and takes effect on or before January 1, 2019.