STATE OF NEW YORK ________________________________________________________________________ 46 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sens. HOYLMAN, BAILEY, BIAGGI, BRESLIN, COMRIE, JACKSON, KENNEDY, KRUEGER, LIU, MAY, MAYER, MYRIE, PERSAUD, SALAZAR, SEPULVEDA, SERRANO -- read twice and ordered printed, and when printed to be committed to the Committee on Energy and Telecommunications AN ACT to amend the public service law, in relation to Internet neutral- ity; and to amend the state finance law, the general municipal law, the public authorities law and the economic development law, in relation to requiring that procurement contracts require compliance with Internet neutrality requirements The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The legislature finds and declares the 2 following: 3 (a) This act is adopted pursuant to the police power inherent in the 4 state of New York to protect and promote the safety, life, public 5 health, public convenience, general prosperity, and well-being of socie- 6 ty, and the welfare of the state's population and economy, that are 7 increasingly dependent on an open and neutral Internet. 8 (b) Almost every sector of New York's economy, democracy, and society 9 is dependent on the open and neutral Internet that supports vital func- 10 tions regulated under the police power of the state, including, but not 11 limited to, each of the following: 12 (1) police and emergency services; 13 (2) health and safety services and infrastructure; 14 (3) utility services and infrastructure; 15 (4) transportation infrastructure and services, and the expansion of 16 zero- and low-emission transportation options; 17 (5) government services, voting, and democratic decision making proc- 18 esses; 19 (6) education; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03147-01-1S. 46 2 1 (7) business and economic activity; 2 (8) environmental monitoring and protection, and achievement of state 3 environmental goals; and 4 (9) land use regulation. 5 § 2. The public service law is amended by adding a new article 12 to 6 read as follows: 7 ARTICLE 12 8 PROVISIONS RELATING TO INTERNET SERVICE PROVIDERS 9 Section 250. Definitions. 10 251. Internet neutrality. 11 252. Broadband Internet access evaluation. 12 253. Infrastructure awards. 13 254. Enforcement. 14 255. Application. 15 § 250. Definitions. For purposes of this article, the following defi- 16 nitions apply: 17 1. "Application-agnostic" means not differentiating on the basis of 18 source, destination, Internet content, application, service, or device, 19 or class of Internet content, application, service, or device. 20 2. "Application-specific differential pricing" means charging differ- 21 ent prices for Internet traffic to customers on the basis of Internet 22 content, application, service, or device, or class of Internet content, 23 application, service, or device, but does not include zero-rating. 24 3. "Broadband Internet access service" means a mass-market retail 25 service by wire or radio provided to customers in New York that provides 26 the capability to transmit data to, and receive data from, all or 27 substantially all Internet endpoints, including any capabilities that 28 are incidental to and enable the operation of the communications 29 service, but excluding dial-up Internet access service. "Broadband 30 Internet access service" also encompasses any service provided to 31 customers in New York that provides a functional equivalent of that 32 service or that is used to evade the protections set forth in this chap- 33 ter. 34 4. "Class of Internet content, application, service, or device" means 35 Internet content, or a group of Internet applications, services, or 36 devices, sharing a common characteristic, including, but not limited to, 37 sharing the same source or destination, belonging to the same type of 38 content, application, service, or device, using the same application- or 39 transport-layer protocol, or having similar technical characteristics, 40 including, but not limited to, the size, sequencing, or timing of pack- 41 ets, or sensitivity to delay. 42 5. "Content, applications, or services" means all Internet traffic 43 transmitted to or from end users of a broadband Internet access service, 44 including traffic that may not fit clearly into any of these categories. 45 6. "Edge provider" means any individual or entity that provides any 46 content, application, or service over the Internet, and any individual 47 or entity that provides a device used for accessing any content, appli- 48 cation, or service over the Internet. 49 7. "End user" means any individual or entity that uses a broadband 50 Internet access service. 51 8. "Internet service provider" or "ISP" means a business that provides 52 broadband Internet access service to an individual, corporation, govern- 53 ment, or other customer in New York. 54 9. "ISP traffic exchange" means the exchange of Internet traffic 55 destined for, or originating from, an Internet service provider's end 56 users between the Internet service provider's network and another indi-S. 46 3 1 vidual or entity, including, but not limited to, an edge provider, 2 content delivery network, or other network operator. 3 10. "Mass market" means a service marketed and sold on a standardized 4 basis to residential customers, small businesses, and other end-use 5 customers, including, but not limited to, schools, institutions of high- 6 er learning, and libraries. The term also includes broadband Internet 7 access services purchased with support of the E-rate and Rural Health 8 program and similar programs at the federal and state level, regardless 9 of whether they are customized or individually negotiated, as well as 10 any broadband Internet access service offered using networks supported 11 by the Connect America Fund or similar programs at the federal and state 12 level. 13 11. "Network management practice" means a practice that has a primari- 14 ly technical network management justification, but does not include 15 other business practices. 16 12. "Reasonable network management practice" means a network manage- 17 ment practice that is primarily used for, and tailored to, achieving a 18 legitimate network management purpose, taking into account the partic- 19 ular network architecture and technology of the broadband Internet 20 access service, and that is as application-agnostic as possible. 21 13. "Third-party paid prioritization" means the management of an 22 Internet service provider's network to directly or indirectly favor some 23 traffic over other traffic, including through the use of techniques such 24 as traffic shaping, prioritization, resource reservation, or other forms 25 of preferential traffic management, either: (a) in exchange for consid- 26 eration, monetary or otherwise, from a third party; or (b) to benefit an 27 affiliated entity. 28 14. "Zero-rating" means exempting some Internet traffic from a custom- 29 er's data limitation. 30 § 251. Internet neutrality. 1. It shall be unlawful for an Internet 31 service provider, insofar as the provider is engaged in providing broad- 32 band Internet access service, to engage in any of the following activ- 33 ities: 34 (a) Blocking lawful content, applications, services, or non-harmful 35 devices, subject to reasonable network management practices. 36 (b) Speeding up, slowing down, altering, restricting, interfering 37 with, or otherwise directly or indirectly favoring, disadvantaging, or 38 discriminating between lawful Internet traffic on the basis of source, 39 destination, Internet content, application, or service, or use of a 40 non-harmful device, or of class of Internet content, application, 41 service, or non-harmful device, subject to reasonable network management 42 practices. 43 (c) Requiring consideration from edge providers, monetary or other- 44 wise, in exchange for access to the Internet service provider's end 45 users, including, but not limited to, requiring consideration for either 46 of the following: 47 (i) transmitting Internet traffic to and from the Internet service 48 provider's end users. 49 (ii) refraining from the activities prohibited in paragraphs (a) and 50 (b) of this subdivision. 51 (d) Engaging in third-party paid prioritization. 52 (e) Engaging in application-specific differential pricing or zero-rat- 53 ing in exchange for consideration, monetary or otherwise, by third 54 parties.S. 46 4 1 (f) Zero-rating some Internet content, applications, services, or 2 devices in a category of Internet content, applications, services, or 3 devices, but not the entire category. 4 (g) Engaging in application-specific differential pricing. 5 (h) Unreasonably interfering with, or unreasonably disadvantaging, 6 either an end user's ability to select, access, and use broadband Inter- 7 net access service or lawful Internet content, applications, services, 8 or devices of the end user's choice, or an edge provider's ability to 9 make lawful content, applications, services, or devices available to an 10 end user, subject to reasonable network management practices. 11 (i) Engaging in practices with respect to, related to, or in 12 connection with, ISP traffic exchange that have the purpose or effect of 13 circumventing or undermining the effectiveness of this section. 14 (j) Engaging in deceptive or misleading marketing practices that 15 misrepresent the treatment of Internet traffic, content, applications, 16 services, or devices by the Internet service provider, or that misrepre- 17 sent the performance characteristics or commercial terms of the broad- 18 band Internet access service to its customers. 19 (k) Advertising, offering for sale, or selling broadband Internet 20 access service without prominently disclosing with specificity all 21 aspects of the service advertised, offered for sale, or sold. 22 (l) Failing to publicly disclose accurate information regarding the 23 network management practices, performance, and commercial terms of its 24 broadband Internet access services sufficient for consumers to make 25 informed choices regarding use of those services and for content, appli- 26 cation, service, and device providers to develop, market, and maintain 27 Internet offerings. 28 (m) Offering or providing services other than broadband Internet 29 access service that are delivered over the same last-mile connection as 30 the broadband Internet access service, if those services satisfy any of 31 the following conditions: 32 (i) they are marketed, provide, or can be used as a functional equiv- 33 alent of broadband Internet access service. 34 (ii) they have the purpose or effect of circumventing or undermining 35 the effectiveness of this section. 36 (iii) they negatively affect the performance of broadband Internet 37 access service. 38 2. (a) An Internet service provider may offer different types of tech- 39 nical treatment to end users as part of its broadband Internet access 40 service, without violating the provisions of subdivision one of this 41 section, if all of the following conditions exist: 42 (i) The different types of technical treatment are equally available 43 to all Internet content, applications, services, and devices, and all 44 classes of Internet content, applications, services, and devices, and 45 the Internet service provider does not discriminate in the provision of 46 the different types of technical treatment on the basis of Internet 47 content, application, service, or device, or class of Internet content, 48 application, service, or device. 49 (ii) The Internet service provider's end users are able to choose 50 whether, when, and for which Internet content, applications, services, 51 or devices, or classes of Internet content, applications, services, or 52 devices, to use each type of technical treatment. 53 (iii) The Internet service provider charges only its own broadband 54 Internet access service customers for the use of the different types of 55 technical treatment.S. 46 5 1 (b) Any Internet service provider offering different types of techni- 2 cal treatment pursuant to this subdivision shall notify the commission 3 and provide the commission with a specimen of any service contract that 4 it offers to customers in New York. 5 (c) If an Internet service provider offers different types of techni- 6 cal treatment pursuant to this subdivision, the commission shall monitor 7 the quality of the basic default service and establish minimum quality 8 requirements if the offering of the different types of technical treat- 9 ment degrades the quality of the basic default service. 10 3. An Internet service provider may zero-rate Internet traffic in 11 application-agnostic ways, without violating the provisions of subdivi- 12 sion one of this section, provided that no consideration, monetary or 13 otherwise, is provided by any third party in exchange for the provider's 14 decision to zero-rate or to not zero-rate traffic. 15 § 252. Broadband Internet access evaluation. The commission, in 16 consultation with the power authority of the state of New York, the NYS 17 Broadband Program Office and electrical corporations, shall evaluate the 18 role broadband Internet access and tools, especially as they relate to 19 private consumers, will play in the future operation of the state's 20 power grid. The evaluation should consider at least the following: 21 1. the reliance of electrical corporations on consumer broadband 22 services to manage energy resources; 23 2. the impact that paid prioritization, throttling, and blocking in 24 consumer broadband Internet service would have on resource management 25 and grid reliability; and 26 3. the future cost to the state and agencies if state agencies need to 27 enter into long-term paid prioritization contracts if net neutrality 28 principles are no longer in place. 29 § 253. Infrastructure awards. 1. An award of moneys by the NYS Broad- 30 band Program Office for the building of infrastructure for broadband 31 communications shall require the awardee to prevent any Internet service 32 provider that provides broadband Internet access service utilizing that 33 infrastructure from violating the provisions of section two hundred 34 fifty-one of this article. 35 2. An award of moneys by the NYS Broadband Program Office for access 36 to the Internet shall prohibit any Internet service provider that 37 receives those moneys from violating the provisions of section two 38 hundred fifty-one of this article. 39 § 254. Enforcement. In addition to the authority granted to the 40 commission pursuant to this chapter, the attorney general may enforce 41 the provisions of this article to the extent permitted under section 42 sixty-three of the executive law. 43 § 255. Application. Nothing in this article supersedes or limits any 44 obligation, authorization, or ability of an Internet service provider to 45 address the needs of emergency communications or law enforcement, public 46 safety, or national security authorities. 47 § 3. Section 219 of the public service law is amended by adding a new 48 subdivision 4 to read as follows: 49 4. (a) For purposes of this section, "application-agnostic," "applica- 50 tion-specific differential pricing," "broadband Internet access 51 service," "class of Internet content, application, service, or device," 52 "content, applications, or services," "edge provider," "end user," 53 "Internet service provider," "ISP," "ISP traffic exchange," "mass 54 market," "network management practice," "reasonable network management 55 practice," "third-party paid prioritization," and "zero-rating" have the 56 same meanings as defined in section two hundred fifty of this chapter.S. 46 6 1 (b) A cable operator or video service provider that has been granted a 2 franchise, and any affiliate, insofar as the provider is engaged in 3 providing broadband Internet access service, shall not engage in any of 4 the following activities: 5 (i) Blocking lawful content, applications, services, or non-harmful 6 devices, subject to reasonable network management practices. 7 (ii) Speeding up, slowing down, altering, restricting, interfering 8 with, or otherwise directly or indirectly favoring, disadvantaging, or 9 discriminating between lawful Internet traffic on the basis of source, 10 destination, Internet content, application, or service, or use of a 11 non-harmful device, or of class of Internet content, application, 12 service, or non-harmful device, subject to reasonable network management 13 practices. 14 (iii) Requiring consideration from edge providers, monetary or other- 15 wise, in exchange for access to the Internet service provider's end 16 users, including, but not limited to, requiring consideration for either 17 of the following: 18 (A) transmitting Internet traffic to and from the Internet service 19 provider's end users; and 20 (B) refraining from the activities prohibited in subparagraphs (i) and 21 (ii) of this paragraph. 22 (iv) Engaging in third-party paid prioritization. 23 (v) Engaging in application-specific differential pricing or zero-rat- 24 ing in exchange for consideration, monetary or otherwise, by third 25 parties. 26 (vi) Zero-rating some Internet content, applications, services, or 27 devices in a category of Internet content, applications, services, or 28 devices, but not the entire category. 29 (vii) Engaging in application-specific differential pricing. 30 (viii) Unreasonably interfering with, or unreasonably disadvantaging, 31 either an end user's ability to select, access, and use broadband Inter- 32 net access service or lawful Internet content, applications, services, 33 or devices of the end user's choice, or an edge provider's ability to 34 make lawful content, applications, services, or devices available to an 35 end user, subject to reasonable network management practices. 36 (ix) Engaging in practices with respect to, related to, or in 37 connection with, ISP traffic exchange that have the purpose or effect of 38 circumventing or undermining the effectiveness of this subdivision. 39 (x) Engaging in deceptive or misleading marketing practices that 40 misrepresent the treatment of Internet traffic, content, applications, 41 services, or devices by the Internet service provider, or that misrepre- 42 sent the performance characteristics or commercial terms of the broad- 43 band Internet access service to its customers. 44 (xi) Advertising, offering for sale, or selling broadband Internet 45 access service without prominently disclosing with specificity all 46 aspects of the service advertised, offered for sale, or sold. 47 (xii) Failing to publicly disclose accurate information regarding the 48 network management practices, performance, and commercial terms of its 49 broadband Internet access services sufficient for consumers to make 50 informed choices regarding use of those services and for content, appli- 51 cation, service, and device providers to develop, market, and maintain 52 Internet offerings. 53 (xiii) Offering or providing services other than broadband Internet 54 access services that are delivered over the same last-mile connection as 55 the broadband Internet access service, if those services satisfy any of 56 the following conditions:S. 46 7 1 (A) they are marketed, provide, or can be used as a functional equiv- 2 alent of broadband Internet access service; or 3 (B) they have the purpose or effect of circumventing or undermining 4 the effectiveness of this section; or 5 (C) they negatively affect the performance of broadband Internet 6 access service. 7 (c) (i) An Internet service provider may offer different types of 8 technical treatment to end users as part of its broadband Internet 9 access service if it meets the conditions specified in paragraph (a) of 10 subdivision two of section two hundred fifty-one of this chapter. 11 (ii) An Internet service provider may zero-rate Internet traffic in 12 application-agnostic ways, provided that no consideration, monetary or 13 otherwise, is provided by any third party in exchange for the provider's 14 decision to zero-rate or to not zero-rate traffic. 15 (d) In addition to the authority granted the commission pursuant to 16 this chapter, the attorney general may enforce the provisions of this 17 article to the extent permitted under section sixty-three of the execu- 18 tive law. 19 § 4. Section 119-a of the public service law, as added by chapter 703 20 of the laws of 1978, is amended to read as follows: 21 § 119-a. Attachments to utility poles; use of utility ducts, trenches 22 and conduits. 1. The commission shall prescribe just and reasonable 23 rates, terms and conditions for attachments to utility poles and the use 24 of utility ducts, trenches and conduits. A just and reasonable rate 25 shall assure the utility of the recovery of not less than the additional 26 cost of providing a pole attachment or of using a trench, duct or 27 conduit nor more than the actual operating expenses and return on capi- 28 tal of the utility attributed to that portion of the pole, duct, trench 29 or conduit used. With respect to cable television or internet service 30 attachments and use, such portion shall be the percentage of total 31 usable space on a pole or the total capacity of the duct or conduit that 32 is occupied by the facilities of the user. Usable space shall be the 33 space on a utility pole above the minimum grade level which can be used 34 for the attachment of wires and cables. 35 2. No permission shall be granted to a cable television or Internet 36 service provider for attachments on utility poles as provided in this 37 section unless such Internet service provider is in compliance with the 38 provisions of section two hundred fifty-one of this chapter. 39 § 5. Section 165 of the state finance law is amended by adding a new 40 subdivision 9 to read as follows: 41 9. Internet neutrality. a. For purposes of this subdivision: 42 (i) "broadband Internet access service," "Internet service provider," 43 "network management practice," and "reasonable network management prac- 44 tice" shall have the same meanings as defined in section two hundred 45 fifty of the public service law; and 46 (ii) "the state" includes the state and any governmental agency or 47 political subdivision or public benefit corporation of the state. 48 b. (i) The state shall not purchase any fixed or mobile broadband 49 Internet access services from an Internet service provider that is in 50 violation of the provisions of section two hundred fifty-one of the 51 public service law. 52 (ii) The state shall not provide funding for the purchase of any fixed 53 or mobile broadband Internet access services from an Internet service 54 provider that is in violation of the provisions of section two hundred 55 fifty-one of the public service law.S. 46 8 1 c. (i) Every contract between the state and an Internet service 2 provider for broadband Internet access service shall require that the 3 service be rendered consistent with the requirements of section two 4 hundred fifty-one of the public service law. 5 (ii) If, after execution of a contract for broadband Internet access 6 service the state determines that the Internet service provider has 7 violated the provisions of section two hundred fifty-one of the public 8 service law in providing service to the state, the state may declare the 9 contract void from the time it was entered into and require repayment of 10 any payments made to the Internet service provider pursuant to the 11 contract. The remedies available pursuant to this section are in addi- 12 tion to any remedy available pursuant to article twenty-two-A of the 13 general business law. 14 d. It shall not be a violation of this article for the state to 15 purchase or fund fixed or mobile broadband Internet access services in a 16 geographical area where Internet access services are only available from 17 a single broadband Internet access service provider. 18 e. An Internet service provider that provides fixed or mobile broad- 19 band Internet access service purchased or funded by the state shall 20 publicly disclose accurate information regarding the network management 21 practices, performance, and commercial terms of its broadband Internet 22 access service that is sufficient to enable end users of those purchased 23 or funded services, including the state, to fully and accurately ascer- 24 tain if the service is conducted in a lawful manner pursuant to the 25 provisions of section two hundred fifty-one of the public service law. 26 § 6. The general municipal law is amended by adding a new section 27 104-d to read as follows: 28 § 104-d. Internet neutrality. 1. For purposes of this section, "broad- 29 band Internet access service," "Internet service provider," "network 30 management practice," and "reasonable network management practice" shall 31 have the same meanings as defined in section two hundred fifty of the 32 public service law. 33 2. a. A municipal corporation shall not purchase any fixed or mobile 34 broadband Internet access services from an Internet service provider 35 that is in violation of the provisions of section two hundred fifty-one 36 of the public service law. 37 b. A municipal corporation shall not provide funding for the purchase 38 of any fixed or mobile broadband Internet access services from an Inter- 39 net service provider that is in violation of the provisions of section 40 two hundred fifty-one of the public service law. 41 3. a. Every contract between a municipal corporation and an Internet 42 service provider for broadband Internet access service shall require 43 that the service be rendered consistent with the requirements of section 44 two hundred fifty-one of the public service law. 45 b. If, after execution of a contract for broadband Internet access 46 service, a municipal corporation determines that the Internet service 47 provider has violated the provisions of section two hundred fifty-one of 48 the public service law in providing service to the municipal corpo- 49 ration, the municipal corporation may declare the contract void from the 50 time it was entered into and require repayment of any payments made to 51 the Internet service provider pursuant to the contract. The remedies 52 available pursuant to this section are in addition to any remedy avail- 53 able pursuant to article twenty-two-A of the general business law. 54 4. It shall not be a violation of this article for a municipal corpo- 55 ration to purchase or fund fixed or mobile broadband Internet accessS. 46 9 1 services in a geographical area where Internet access services are only 2 available from a single broadband Internet access service provider. 3 5. An Internet service provider that provides fixed or mobile broad- 4 band Internet access service purchased or funded by a municipal corpo- 5 ration shall publicly disclose accurate information regarding the 6 network management practices, performance, and commercial terms of its 7 broadband Internet access service that is sufficient to enable end users 8 of those purchased or funded services, including a municipal corpo- 9 ration, to fully and accurately ascertain if the service is conducted in 10 a lawful manner pursuant to the provisions of section two hundred 11 fifty-one of the public service law. 12 § 7. Subdivision 3 of section 2879 of the public authorities law is 13 amended by adding a new paragraph (n-1) to read as follows: 14 (n-1) Requirements to conduct procurements in a manner that complies 15 with the provisions of section two hundred fifty-one of the public 16 service law. 17 § 8. Section 143 of the economic development law is amended by adding 18 a new subdivision 6 to read as follows: 19 6. Each agency shall conduct procurements in a manner that complies 20 with the provisions of section two hundred fifty-one of the public 21 service law. 22 § 9. Severability. If any provision of this act, or the application 23 thereof to any person or circumstances, is held invalid or unconstitu- 24 tional, that invalidity or unconstitutionality shall not affect other 25 provisions or applications of this act that can be given effect without 26 the invalid or unconstitutional provision or application, and to this 27 end the provisions of this act are severable. 28 § 10. This act shall take effect on the sixtieth day after it shall 29 have become a law. Effective immediately, the addition, amendment 30 and/or repeal of any rule or regulation necessary for the implementation 31 of this act on its effective date are authorized to be made on or before 32 such effective date.