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AB-2239 Digital discrimination of access: prohibition.(2023-2024)

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Date Published: 07/03/2024 09:00 PM
AB2239:v93#DOCUMENT

Amended  IN  Senate  July 03, 2024
Amended  IN  Assembly  April 29, 2024
Amended  IN  Assembly  April 24, 2024
Amended  IN  Assembly  April 15, 2024
Amended  IN  Assembly  April 01, 2024
Amended  IN  Assembly  March 18, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2239

Introduced by Assembly Member Bonta

February 08, 2024

An act to add Title 15.6 (commencing with Section 3130) to Part 4 of Division 3 of the Civil Code, and to add Section 281.3 to the Public Utilities Code, relating to communications.


LEGISLATIVE COUNSEL'S DIGEST


AB 2239, as amended, Bonta. Digital discrimination of access: prohibition.
Existing law prohibits 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.
This bill would define “digital discrimination of access” as policies or practices, practices not justified by a legitimate business impediment, including genuine issues of technical or economic feasibility, that differentially impact consumers’ access to broadband internet access service based on their race, ethnicity, color, religion, or national origin, or that are intended to have a differential impact. The bill would prohibit entities that provide, facilitate, and affect consumer access to broadband internet access service, including internet service providers, as defined, from engaging in digital discrimination of access. access, as specified. The bill would authorize certain public attorneys only the Attorney General to bring a civil action against an internet service provider those entities for violating that prohibition, as provided.

Existing law vests the Public Utilities Commission with regulatory authority over public utilities, including telephone corporations. Existing law requires the commission to develop, implement, and administer the California Advanced Services Fund to encourage deployment of high-quality advanced communications services to all Californians that will promote economic growth, job creation, and the substantial social benefits of advanced information and communications technologies, as specified.

This bill would require the commission to ensure that rules for California Advanced Services Fund grant programs prohibit digital discrimination of access, and would require the commission to take specified actions to ensure all grant applicants and grant recipients comply with the prohibition.

Under existing law, a violation of the Public Utilities Act or any order, decision, rule, direction, demand, or requirement of the commission is a crime.

Because certain of the above provisions would be part of the act and a violation of a commission action implementing this bill’s requirements would be a crime, the bill would impose a state-mandated local program.

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: YES   Local Program: YESNO  

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


SECTION 1.

 Title 15.6 (commencing with Section 3130) is added to Part 4 of Division 3 of the Civil Code, to read:

TITLE 15.6. Digital Discrimination of Access

3130.
 For purposes of this title, all of the following definitions apply:
(a) “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, 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 title.
(b) “Covered entity” means an entity that provides, facilitates, and affects consumer access to broadband internet access service. Covered entities include, but are not limited to, internet service providers, contractors retained by, or entities working through partnership agreements or other business arrangements with, broadband internet access service providers, entities facilitating or involved in the provision of broadband internet access service, entities maintaining and upgrading network infrastructure, and entities that otherwise affect consumer access to broadband internet access service.

(b)

(c) “Differential impact” or “disparate impact,” in relation to digital discrimination of access, means policies or practices that meet all of the following criteria:
(1) The policy or practice causes a disparate impact on a prohibited basis.
(2) The policy or practice is not justified by a legitimate business impediment, including genuine issues of technical or economic feasibility.
(3) There are other reasonably achievable and less discriminatory alternatives.

(c)

(d) “Digital discrimination of access” means policies or practices, practices not justified by a legitimate business impediment, including genuine issues of technical or economic feasibility, that differentially impact consumers’ access to broadband internet access service based on their race, ethnicity, color, religion, or national origin, or that are intended to have a differential impact.

(d)

(e) “Economic feasibility” means reasonably achievable and not subject to any substantial, legitimate business impediment, as evidenced by prior success by covered entities under similar circumstances or demonstrated new economic conditions clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and used.

(e)

(f) “Internet service provider” means any entity that provides broadband internet access service to an individual, corporation, government, or other customer in California.

(f)

(g) “Technical feasibility” means reasonably achievable and not subject to any substantial, legitimate business impediment, as evidenced by prior success by covered entities under similar circumstances or demonstrated technological advances clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and used.

3131.
 (a) An internet service provider A covered entity shall not engage in digital discrimination of access.
(b) (1) Any of the following public attorneys Only the Attorney General in the name of the people of the State of California may bring a civil action against an internet service provider a covered entity for a violation of this section: section.

(A)The Attorney General in the name of the people of the State of California.

(B)A district attorney, county counsel, or city attorney for the jurisdiction in which the violation occurred.

(C)A city prosecutor in any city having a full-time city prosecutor, with the consent of the district attorney.

(2) In an action brought pursuant to this subdivision, a court may award both of the following:
(A) Injunctive relief.
(B) Reasonable attorney’s fees and litigation costs.

SEC. 2.Section 281.3 is added to the Public Utilities Code, to read:
281.3.

(a)The commission shall ensure that rules for California Advanced Services Fund grant programs, including the Broadband Adoption Account, Broadband Infrastructure Grant Account, Broadband Public Housing Account, Rural and Urban Regional Broadband Consortia Grant Account, line extension pilot program, and the tribal technical assistance grant program, prohibit digital discrimination of access.

(b)To ensure all grant applicants and grant recipients comply with subdivision (a), the commission shall do all of the following:

(1)Require an attestation by all grant applicants and grant recipients that they will not engage in digital discrimination of access.

(2)Integrate a consideration of projects that may help remedy instances of digital discrimination of access into the application scoring procedures and criteria.

(3)Adjust ongoing reporting requirements.

(c)For purposes of this section, “digital discrimination of access” has the same meaning as defined in Section 3130 of the Civil Code.

SEC. 3.

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.