ASSEMBLY, No. 3877

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED MARCH 7, 2011

 


 

Sponsored by:

Assemblyman  ANGEL FUENTES

District 5 (Camden and Gloucester)

 

Co-Sponsored by:

Assemblyman Ramos

 

 

 

 

SYNOPSIS

     “Internet Service Provider Customer Bill of Rights.”

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning the rights of customers of Internet service providers in the State and supplementing chapter 8 of Title 56 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    This act shall be known and may be cited as the “Internet Service Provider Customer Bill of Rights.”

 

     2.    The Legislature finds and declares that:

     a.     It is the public policy of the State to ensure that all New Jersey customers of Internet service providers have access to an open and neutral Internet.

     b.    The prioritization of lawful network traffic, except that which is necessary for reasonable network management and emergency communication, law enforcement, public safety, or national security, may impede competition in the Internet marketplace by permitting Internet service providers to exert undue influence and potentially usurp the customer’s privilege to dictate success in the marketplace.

     c.     The prioritization of lawful network traffic, except that which is necessary for reasonable network management and emergency communication, law enforcement, public safety, or national security, may stifle innovation by providing large and established companies enhanced access to customers and, in turn, degrading the access of small businesses, entrepreneurs and start-up companies to customers. 

     d.    The prioritization of lawful network traffic, except that which is necessary for reasonable network management and emergency communication, law enforcement, public safety, or national security, may lead to increased costs for customers as content providers are likely to pass along to their customers any increase in operating costs caused by prioritization fees.

     e.     The prioritization of lawful network traffic, except that which is necessary for reasonable network management and emergency communication, law enforcement, public safety, or national security, may inhibit the free exchange of ideas on the Internet by allowing Internet service providers to give selected content providers enhanced access to the Internet user community.

 

     3.    As used in this act:

     “Content provider” means any person, business or organization that owns or operates a website or creates, develops, promotes, or owns any content, including, but not limited to video, audio and text, that is available via the Internet. 

     “Director” means the Director of the Division of Consumer Affairs.

     “Division” means the Division of Consumer Affairs in the Department of Law and Public Safety.

     “Internet” means the international computer network of both federal and non-federal interoperable packet switched data networks.

     “Internet service provider” means any person, business or organization qualified to do business in this State that provides individuals, corporations, or other entities with the ability to connect to the Internet through equipment that is located in this State.

     “Reasonable network management” means a network management practice that is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the Internet access service. 

 

     4.    Except where deemed necessary for reasonable network management or for emergency communication, law enforcement, public safety, or national security purposes, all New Jersey customers of any Internet service provider shall have the right to:

     a.     Access any lawful Internet content of their choice; 

     b.    Attach or connect any lawful device to the network on the user’s end connection, provided that the device does not harm the network;

     c.     Run any lawful application and use any lawful service of their choice; and

     d.    An open and neutral Internet, free of any attempt by any Internet service provider to privilege, degrade, prioritize, or block any packet transmitted across its network based upon that packet’s type, content, source, ownership or destination.

 

     5.    All New Jersey customers of any Internet service provider shall have the right to receive:

     a.     Full disclosure, at the time they become customers of that provider, of all of their Internet service provider’s policies relating to, or any action taken by the Internet service provider having the effect of, the privileging, degrading, prioritizing, or blocking of any Internet traffic.

     b.    Prior written notification at least 30 days before the implementation of, or any change in, any of their Internet service provider’s policies or actions after they become customers of that provider that will result in the privileging, degrading, prioritizing, or blocking of any Internet traffic except where necessary for emergency communication, law enforcement, public safety, or national security purposes.

     c.     Disclosure of all agreements made by the Internet service provider and a content provider that provide the content provider’s Internet traffic with any form of preferential treatment over any other lawful Internet traffic. 

     d.    A comprehensive list, within their monthly or other periodic billing statement, of any and all fees charged by the Internet service provider, separately itemized for each fee and, if applicable, for each instance in which that fee is charged, including, but not limited to, all fees charged by the Internet service provider for accessing a particular website, with each occurrence of such access for which the customer has incurred a charge listed separately, together with the time and date of access. 

 

     6.    a.  There is established in the Division of Consumer Affairs in the Department of Law and Public Safety the “New Jersey Internet Service Provider Registry” for the purpose of making Internet service quality and pricing information readily available to customers within the State.

     b.    The division shall promulgate regulations that require all Internet service providers with New Jersey customers to affirmatively disclose the following information to the division:

     (1)   the material terms of any agreement with any content provider that will result in the privileging or prioritization of a content provider’s Internet traffic.  Disclosure of this information shall occur before the Internet service provider takes any action which would result in the privileging or prioritization of the content provider’s Internet traffic;

     (2)   all of the Internet service provider’s policies relating to, or any action taken by the Internet service provider that will result in, the privileging, degrading, prioritizing, or blocking of any Internet traffic. Disclosure of this information shall occur before the Internet service provider takes any actions which would result in the privileging, degrading, prioritizing, or blocking of any Internet traffic, except that the disclosure may occur within one week after any action is taken if the action is necessary for emergency communication, law enforcement, public safety, or national security purposes; and

     (3)   the material terms of all basic agreements entered into with all of its customers for Internet service, including a full accounting of any and all fees charged by the Internet service provider to its customers and any promises or assertions made regarding the connectivity speed of the Internet service.

     c.     At varying times throughout the day, the division shall conduct its own verification tests to determine the average connectivity speed experienced by actual users for each Internet service provider within the State.

     d.    The division shall compile the information disclosed by all of the Internet service providers within the State pursuant to this act and from the division’s own verification tests, conducted pursuant to this section, into an “Internet Service Provider Registry.”  The director shall organize the registry in a format that is conducive to review and comparison by customers and prospective customers of Internet service.  At a minimum, the registry shall include for each Internet service provider:

     (1)   all fees charged by the Internet service provider;

     (2)   the connectivity speed that the Internet service provider promises or claims to provide to its customers;

     (3)   the average connectivity speed found during the division’s verification tests;

     (4)   a full list of any content providers that have entered into an agreement with each Internet service provider for the privileging or prioritizing of the content provider’s Internet traffic; and

     (5)   a simple explanation of the Internet service provider’s policies relating to privileging, degrading, prioritizing, or blocking of any Internet traffic, and any impact those policies may have on the Internet service provider’s customers.

     e.     The division shall make available electronically on its Internet website in English and Spanish the information contained in the registry, and shall provide the information to customers and prospective customers upon request by means of a toll-free telephone service operated by the division.

     The information available on the Internet website shall:

     (1)   be organized to meet the requirements of subsection d. of this section and be designed so that the customer or prospective customer may download and print the displayed information;

     (2)   include a statement drafted by the director which explains the potential negative impact that non-neutral treatment of Internet traffic can have upon customers of Internet service and, more generally, on the Internet marketplace, competition, innovation and the free exchange of ideas, which shall be prominently displayed at the top of each of the website’s pages;

     (3)   include the full text of the statement of rights set forth in section 4 of this act and the disclosures required pursuant to section 5 of this act, on the website in order to set forth the “Internet Service Provider Customer Bill of Rights;”

     (4)   include Internet web links to other governmental resources that provide information relating to network neutrality, the regulation of the Internet, how a complaint may be filed with the Federal Communications Commission for a violation of any of its open Internet regulations including, but not limited to, regulations under Part 8 of Title 47 of the Code of Federal Regulations, and how a complaint may be filed with the division for a violation of this act; and

     (5)   contain clear language that is designed to assist customers and prospective customers in understanding the content of, and how to access, the information made available on the website.

     f.     The division may contract with a public or private entity for the purpose of developing, administering, and maintaining the registry established pursuant to this section.  The contract shall specify the duties and responsibilities of the entity with respect to the development, administration, and maintenance of the registry.  The division shall monitor the work of the entity to ensure that the registry is developed, administered, and maintained pursuant to the requirements of this act.

 

     7.    a.  An Internet service provider that offers its services to a New Jersey customer and that privileges, degrades, prioritizes, or blocks any Internet traffic, except where necessary for emergency communication, law enforcement, public safety, or national security purposes, shall provide to all New Jersey customers, upon entering into an agreement for service and annually thereafter, a document containing the following information:

     (1)   the full text of the statement of rights set forth in section 4 and the disclosures required pursuant to section 5 of this act, set forth by the division as the “Internet Service Provider Customer Bill of Rights;”

     (2)   a statement detailing any of the Internet service provider’s policies that may result in the privileging, degrading, prioritizing, or blocking of any Internet traffic;

     (3)   a statement describing any actions regularly taken by the Internet service provider that result in the privileging, degrading, prioritizing, or blocking of any Internet traffic;

     (4)   a full list of content providers that have entered into an agreement with the Internet service provider for the privileging or prioritizing of its Internet traffic; and

     (5)   the network traffic prioritization notification statement, which shall read as follows, “The Internet service you receive has been prioritized by [name of Internet service provider] and therefore, discriminates against non-prioritized content.  It is possible that a particular website or content that you wish to view may load more slowly or fail to properly load on your computer or Internet access device as a result of network prioritization.”  The Internet service provider shall insert, in place of the name designated by bracketed text above, the name of the company that is contracted to provide Internet service to the customer receiving the notification. 

     b.    An Internet service provider offering services to a New Jersey customer that privileges, degrades, prioritizes, or blocks any Internet traffic, except where necessary for emergency communication, law enforcement, public safety, or national security purposes, shall include, in a prominent location and in bold lettering, the network traffic prioritization notification statement, as set forth in subsection a. of this section, in every bill or statement sent to each customer receiving Internet services within New Jersey. 


     8.    If the director finds, after notice and hearing, that an Internet service provider has a pattern and practice of failing to provide any of the information required by this act, the director may, after notice and hearing, order the payment of a penalty not to exceed $1,000 for each offense.  Each instance of failing to provide the required information to the division or to a customer shall be a separate offense and subject to assessment of a separate penalty.  Penalties assessed pursuant to this act shall be collected by the director pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

 

     9.    This act shall take effect on the first day of the third month next following the date of enactment, but the Director of the Division of Consumer Affairs may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.

 

 

STATEMENT

 

     The bill entitled the “Internet Service Provider Customer Bill of Rights,” establishes a system to ensure that all New Jersey customers of Internet Service Providers receive Internet service that is consistent with the Federal Communications Commission’s (“FCC”) regulations to preserve the open Internet and the principles of network neutrality.

     Section 4 of this bill establishes a set of customer rights, subject to exemptions for reasonable network management and emergency services, that are based upon those rights established by the FCC in Part 8 of Title 47 of the Federal Code of Regulations, to ensure that New Jersey customers will have the right to access any lawful Internet content of their choice, attach any lawful, non-harmful device to their end connection, run any lawful application or use any lawful service of their choice, and to an open, neutral and non-prioritized Internet. 

     Section 5 of this bill establishes a second set of rights to ensure that New Jersey customers of an Internet service provider are fully aware of their Internet service provider’s policies relating to network prioritization.  Customers are given the right to prior written notification of any change in their Internet service providers policies that will result in the prioritization of Internet traffic, except in circumstances involving emergency services.  Section 4 also provides customers with the right to disclosure of their Internet service providers prioritization policies generally, and of any agreement their Internet service provider has entered into with a content provider for the prioritization of the content provider’s Internet traffic.  Finally, customers are provided with the right to receive itemized bills from their Internet service provider, and if an Internet service provider charges for accessing particular websites, the bill shall list the time and date the customer accessed a website that results in a fee being assessed.

     Section 6 of this bill directs the Division of Consumer Affairs (the “division”) to establish the “New Jersey Internet Service Provider Registry,” and promulgate regulations requiring all Internet service providers to affirmatively disclose to the division any prioritization policies, agreements with content providers for prioritization, and the material terms for their agreements with their customers, including all fees to be charged and any promises or assertions regarding connectivity speed.  The division is also directed to test each Internet service provider’s connectivity speed at various times throughout the day.  The information mandated pursuant to section 6 is required to be posted online, in an understandable format, so that customers may compare the costs, prioritization policies, promised or asserted connectivity speeds, and actual connectivity speeds of the Internet service providers within the State.

     Section 7 of this bill requires all Internet service providers to provide their customers, upon entering into an agreement for Internet service and annually thereafter, a written copy of their prioritization policies, any agreements with content providers for prioritization, the state of rights and other disclosures required by sections 4 and 5 of this bill, a statement describing any actions regularly taken by the Internet service provider that result in prioritization, and the network traffic prioritization notification statement, which explains to customers, in simple terms, that their Internet service has been prioritized and some content may load more slowly or fail to load as a result.  Section seven also requires Internet service providers to include the network traffic prioritization notification statement in each monthly or periodic bill or statement sent to their customers.

     Finally, section 8 of this bill authorizes the director to fine Internet service providers who fail to comply with the division’s disclosure regulations or to notify their customers as required in this bill.