California Dems Introduce Tough New Net Neutrality Bill

Would prohibit paid prioritization, zero rating plans, apply rules to interconnections
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A California Democratic state legislator is proposing revising consumer protection laws as a way to reinstate tough new network neutrality rules being rolled back by the FCC.

Sen. Scott Weiner Tuesday (March 13) introduced a tough new version of a net neutrality bill that would add various online practices to the Consumers Legal Remedies Act's definition of "certain unfair methods of competition and unfair or deceptive acts or practices" in the provision of goods and services in the state.

Those unfair methods would now include blocking, throttling, paid prioritization, and specifically paid zero rating plans, among other things (see below).

ISPs can zero rate in application-agnostic ways, but can't do so in exchange for being paid by a third party. Zero rating plans are ones in which third parties subsidize an ISP's exclusion of accessing their site--say streaming a bandwidth-heavy video--from a users' bandwidth allowance. It is both a way for the edge provider to drive traffic to their site and for the ISP to differentiate service.

The bill would also tie access to the state's Universal Service Fund broadband subsidies to adhering to the new net neutrality rules and apply net neutrality to interconnections, which the FCC did in the 2015 Open Internet order and the current FCC reversed.

Related: Washington Governor Signs Net Neutrality Bill

Evan Greer, deputy director for Fight for the Future, which supports strong net neutrality rules wherever it can get them, was understandably pleased with the new bill.

“It’s amazing to see more and more states join the fight for net neutrality, and help fill the massive hole left by the FCC’s reckless repeal," she said. "Today’s news from California shows that constituents in the country’s most populous state are deeply concerned about the loss of real net neutrality protections. The fact that state lawmakers have drafted such comprehensive net neutrality protections should send a strong signal to members of Congress who will soon vote on a Congressional Review Act (CRA) resolution to block the FCC’s December repeal."

The FCC's Republican majority voted Dec. 14 to eliminate the rules against blocking, throttling and paid prioritization, as well as a general conduct rule that allowed the FCC to regulate, on a case-by-case basis-practices that did not fall under the rules but that it concluded would impair a neutral net. Since then, there have been various state efforts to install their own network neutrality protections, either via new legislation, adjustments to current law, or executive orders on contracts for state broadband services.

The FCC’s rule rollback preempted state efforts to restore the rules, so a court fight is likely in the offing.

The California bill has more than a dozen co-authors including both Senators and Assembly members.

Here is what the ISPs are prevented from according to the legislation, which is a tougher version of a previous bill:

(a) "Blocking lawful content, applications, services, or nonharmful devices, subject to reasonable network management practices.

(b) "Speeding up, slowing down, altering, restricting, interfering with, or otherwise directly or indirectly favoring, disadvantaging, or discriminating between lawful Internet traffic on the basis of source, destination, Internet content, application, or service, or use of a nonharmful device, or of class of Internet content, application, service, or nonharmful device, subject to reasonable network management practices.

(c) "Requiring consideration from edge providers, monetary or otherwise, in exchange for access to the Internet service provider’s end users, including, but not limited to, requiring consideration for either of the following:

(1) "Transmitting Internet traffic to and from the Internet service provider’s end users.

(2) "Refraining from the activities prohibited in subdivisions (a) and (b).

(d) "Engaging in third-party paid prioritization.

(e) "Engaging in application-specific differential pricing or zero-rating in exchange for consideration, monetary or otherwise, by third parties.

(f) "Zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category.

(g) "Engaging in application-specific differential pricing.

(h) "Unreasonably interfering with, or unreasonably disadvantaging, either an end user’s ability to select, access, and use broadband Internet access service or 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 an end user, subject to reasonable network management practices.

(i) "Engaging 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.

(j) "Engaging in deceptive or misleading marketing practices that misrepresent the treatment of Internet traffic, content, applications, services, or devices by the Internet service provider, or that misrepresent the performance characteristics or commercial terms of the broadband Internet access service to its customers.

(k) "Advertising, offering for sale, or selling broadband Internet access service without prominently disclosing with specificity all aspects of the service advertised, offered for sale, or sold.

(l) "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.

(m) 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 satisfy any of the following conditions:

(1) They are marketed, provide, or can be used as a functional equivalent of broadband Internet access service.

(2) They have the purpose or effect of circumventing or undermining the effectiveness of this section.

(3) They negatively affect the performance of broadband Internet access service."

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