S 74

112th CONGRESS
1st Session

S. 74

To preserve the free and open nature of the Internet, expand the benefits of broadband, and promote universally available and affordable broadband service.

IN THE SENATE OF THE UNITED STATES

January 25 (legislative day, JANUARY 5), 2011

Ms. CANTWELL (for herself and Mr. FRANKEN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation


A BILL

To preserve the free and open nature of the Internet, expand the benefits of broadband, and promote universally available and affordable broadband service.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011'.

SEC. 2. FINDINGS.

    The Congress finds the following:

      (1) Two-way communications networks constitute basic infrastructure that is as essential to our national economy as roads and electricity.

      (2) The broadband Internet constitutes the most important two-way communications infrastructure of our time.

      (3) Access to the broadband Internet is critical for job creation, economic growth, and technological innovation.

      (4) Access to the broadband Internet creates opportunity for more direct civic engagement, increased educational attainment, and enables free speech.

      (5) The network design principles fostering the development of the broadband Internet to date, an end-to-end design, layered architecture, and open standards, promotes innovation at the edge of the network and gives end users choice and control of their online activities.

      (6) These network design principles have led to the network neutrality of the Internet, where there are no paid for premium fast lanes and best effort slow lanes.

      (7) According to the Federal Communications Commission in 2009, technologies now allow network operators to distinguish different classes of Internet traffic, to offer different qualities-of-service, and to charge different prices to each class of Internet traffic.

      (8) Broadband Internet access service providers have an economic interest to discriminate in favor of their own or affiliated services, content, and applications and against other providers of such services, content, and applications.

      (9) Broadband Internet access service providers have an economic interest in, and the ability to adopt, pay-for-priority schemes to the detriment of job creation, economic growth, innovation, and consumer protections.

      (10) The market for broadband today demonstrates substantial obstacles to effective competition, to the protection of users, and to the continued viability of a free and open Internet.

      (11) These obstacles impede the universal deployment and adoption of broadband, impede meeting the goals set forth in the National Broadband Plan, and perpetuate a digital divide.

      (12) The United States needs clear Federal policy that preserves the historically free and open nature of the Internet, expands the benefits of broadband, and promotes universally available and affordable broadband service that does not chill innovation or speech within the content, applications, and services available online.

      (13) The Federal policy to ensure that the Internet remains free and open must apply equally to all broadband Internet access services, regardless of whether those services use wire, radio, or some combination of those means to reach the end user.

SEC. 3. INTERNET FREEDOM.

    Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended by adding at the end the following:

`SEC. 280. INTERNET FREEDOM AND BROADBAND PROMOTION.

    `(a) Purposes- The purposes of this section are--

      `(1) to promote increased availability and adoption of broadband for all Americans;

      `(2) to promote consumer choice and competition among broadband Internet access service providers and among providers of lawful content, applications, and services; and

      `(3) to protect consumers, innovators and entrepreneurs from harmful, discriminatory, or anti-competitive behavior by providers of broadband Internet access service.

    `(b) Broadband Internet Access Service and Charges-

      `(1) It shall be the duty of every broadband Internet access service provider to furnish such broadband Internet access service to end users upon reasonable request.

      `(2) Broadband Internet access service providers shall not require end users to purchase voice grade telephone service, commercial mobile radio voice services, or multichannel-video programming distribution services or other specialized services as a condition on the purchase of any broadband Internet access service.

      `(3) All charges, practices, classifications, and regulations for and in connection with broadband Internet access service shall be just and reasonable.

      `(4) If a broadband Internet access service provider allows its end users to request quality-of-service assurances for the transmission of Internet protocol packets associated with its own applications, services, or content or that of its affiliates, then--

        `(A) the broadband Internet access service provider shall permit such assurances for all Internet Protocol packets chosen by the end user, without regard to the content, applications, or services involved; and

        `(B) any quality-of-service assurance shall not block, interfere with, or degrade, any other end user's access to the content, applications, and services of their choice.

    `(c) Ensuring Open Access to the Broadband Internet- A broadband Internet access service provider may not unjustly or unreasonably--

      `(1) block, interfere with, or degrade an end user's ability to access, use, send, post, receive, or offer lawful content (including fair use), applications, or services of the user's choice;

      `(2) block, interfere with, or degrade an end user's ability to connect and use the end user's choice of legal devices that do not harm the network;

      `(3) prevent or interfere with competition among network, applications, service or content providers;

      `(4) engage in discrimination against any lawful Internet content, application, service, or service provider with respect to network management practices, network performance characteristics, or commercial terms and conditions;

      `(5) give preference to affiliated content, applications, or services with respect to network management practices, network performance characteristics, or commercial terms and conditions;

      `(6) charge a content, application, or service provider for access to the broadband Internet access service providers' end users based on differing levels of quality of service or prioritized delivery of Internet protocol packets;

      `(7) prioritize among or between content, applications, and services, or among or between different types of content, applications, and services unless the end user requests to have such prioritization;

      `(8) install or utilize network features, functions, or capabilities that prevent or interfere with compliance with the requirements of this section; or

      `(9) refuse to interconnect on just and reasonable terms and conditions.

    `(d) Reasonable Network Management-

      `(1) In general- Nothing in this section shall prohibit a broadband Internet access service provider from engaging in reasonable network management.

      `(2) Reasonableness presumption- For purposes of this section, a network management practice is presumed to be reasonable for a broadband Internet access service provider only if it is--

        `(A) essential for a legitimate network management purpose assuring the operation of the network;

        `(B) appropriate for achieving the stated purpose;

        `(C) narrowly tailored; and

        `(D) among the least restrictive, least discriminatory, and least constricting of consumer choice available.

      `(3) Factors to be considered- In determining whether a network management practice is reasonable, the Commission shall take into account the particular network architecture and any technology and operational limitations of the broadband Internet access service provider.

      `(4) Limitation- A network management practice may not be considered to be a reasonable network management if the broadband Internet access service provider charges content, applications, or other online service providers for differing levels of quality of service or prioritized delivery of Internet Protocol packets.

    `(e) Other Regulated Services- This section shall not be construed to prevent broadband Internet access service providers from offering interconnected Voice over Internet Protocol (VoIP) services or multichannel-video programming distribution services regulated under title VI of this Act on transmission capacity also used by broadband Internet access services.

    `(f) Transparency-

      `(1) In general- A provider of broadband Internet access service--

        `(A) shall disclose publicly on its external Web site and at the point of sale accurate information regarding the network management practices, network performance, and commercial terms of its broadband Internet access service in plain language sufficient for end users to make informed choices regarding use of such services, and for content, application, service, and device providers to develop, market, and maintain Internet offerings; and

        `(B) shall disclose publicly on its external Web site and at the point of sale any other practices that affect communications between a user and a content, application, or service provider in the ordinary, routine use of such broadband service.

      `(2) Exemptions- The Commission may exempt certain kinds of information from disclosure on the grounds that it is competitively sensitive or could compromise network security. Within 90 days after the date of enactment of the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011, the Commission shall conclude a rulemaking proceeding to implement this subsection.

    `(g) Stand-Alone Internet Access Service-

      `(1) In general- Within 180 days after the date of enactment of the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011, the Commission shall promulgate rules to ensure that broadband Internet access providers do not require the purchase of voice grade telephone service, commercial mobile radio voice services, or multichannel-video programming distribution services as a condition of purchasing any broadband Internet access service, and that the rates, terms, and conditions for providing such service are just and reasonable.

      `(2) Report- In the report required by section 706 of the Telecommunications Act of 1996 (47 U.S.C. 1302), the Commission shall collect information on the availability, promotion, average speed, and average pricing of stand-alone broadband Internet access service offered by broadband Internet access providers.

      `(3) Eligibility to access any universal service fund for broadband- If the Commission establishes a universal service fund for broadband Internet services, only broadband Internet access service providers that offer stand-alone broadband service shall be eligible to participate in the fund.

    `(h) Enforcement, Liability, and Recovery of Damages-

      `(1) Expedited complaint process- Within 180 days after the date of enactment of the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011, the Commission shall prescribe rules to permit any aggrieved person to file a complaint with the Commission concerning a violation of subsections (b), (c), or (g) of this section, and establish enforcement and expedited adjudicatory review procedures including the resolution of complaints not later than 90 days after such complaint was filed, except for good cause shown.

      `(2) Liability of broadband Internet access service providers for damages- If a broadband Internet access service provider does, or causes or permits to be done, any act, matter, or thing that is prohibited under this section, or fails to do any act, matter, or thing required by this section to be done, the provider shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this section, together with a reasonable counsel or attorney's fee, as determined by the Commission.

      `(3) Venue- Any person claiming to be damaged by any broadband Internet access provider subject to the provisions of this section may either make a complaint to the Commission as provided for in paragraph (1), or may bring suit for the recovery of the damages in a district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code. A claimant may not bring an action in a Federal district court if the claimant has filed a complaint with the Commission under paragraph (1) with respect to the same violation.

    `(i) Enforcement by States-

      `(1) In general- The chief legal officer of a State, or any other State officer authorized by law to bring actions on behalf of the residents of a State, may bring a civil action, as parens patriae, on behalf of the residents of that State in an appropriate district court of the United States to enforce this section or to impose civil penalties for violation of this section, whenever the chief legal officer or other State officer has reason to believe that the interests of the residents of the State have been or are being threatened or adversely affected by a violation of this section.

      `(2) Notice- The chief legal officer or other State officer shall serve written notice on the Commission of any civil action under paragraph (1) prior to initiating such civil action. The notice shall include a copy of the complaint to be filed to initiate such civil action, except that if it is not feasible for the State to provide such prior notice, the State shall provide such notice immediately upon instituting such civil action.

      `(3) Authority to intervene- Upon receiving the notice required by paragraph (2), the Commission shall have the right--

        `(A) to intervene in the action;

        `(B) upon so intervening, to be heard on all matters arising therein; and

        `(C) to file petitions for appeal.

      `(4) Rule of construction- For purposes of bringing any civil action under paragraph (1), nothing in this subsection shall prevent the chief legal officer or other State officer from exercising the powers conferred on that officer by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.

      `(5) Venue; service of process-

        `(A) Venue- An action brought under paragraph (1) shall be brought in a district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code.

        `(B) Service of process- In an action brought under paragraph (1)--

          `(i) process may be served without regard to the territorial limits of the district or of the State in which the action is instituted; and

          `(ii) a person who participated in an alleged violation that is being litigated in the civil action may be joined in the civil action without regard to the residence of the person.

    `(j) Commission Authority- The Commission may perform any and all acts, make such rules and regulations and issue such orders, not inconsistent with this section, as may be necessary to implement the purposes of this section.

    `(k) Other Laws and Considerations-

      `(1) Nothing in this section supersedes any obligation or authorization a provider or broadband Internet access service 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) Nothing in this section authorizes a provider of broadband Internet access service to address copyright infringement or other unlawful activity of providers, subscribers, or users, beyond its obligations under the Digital Millennium Copyright Act (17 U.S.C. 101 note), the amendments made by that Act, and consistent other applicable laws.

    `(l) Studies- Within one year after the date of enactment of this Act the Government Accountability Office shall complete and submit reports to the Senate Committee on Commerce, Science, and Transportation, and the House Committee on Energy and Commerce, on the evolution of commercial and other arrangements by which broadband Internet access service providers interconnect to Internet backbone providers and intermediary networks, and assess whether, as the volume and mix of Internet Protocol traffic requested by and transported to and from the customers of broadband Internet access service providers has changed over time, there is a market failure with respect to the existing market mechanisms of transit contracts and non-settlement peering agreements.

    `(m) Definitions- In this section:

      `(1) Affiliated- The term `affiliated' includes--

        `(A) a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person; and

        `(B) a person that has a contract or other arrangement with a content, application, or service provider relating to access to or distribution of such content, application or services over the Internet.

      `(2) Broadband Internet access- The term `broadband Internet access'--

        `(A) means the ability for an end user to transmit and receive data to the Internet using Internet Protocol at peak download data transfer rates in excess of 200 kilobits per second, through an always-on connection; but

        `(B) does not include dial-up access requiring an end user to initiate a call across the public switched telephone network to establish a connection.

      `(3) Broadband Internet access service- The term `broadband Internet access service' means any communications service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public.

      `(4) Broadband Internet access service provider- The term `broadband Internet access service provider' means a person or entity that operates or resells and controls any facility used to provide an Internet access service directly to the public, whether provided for a fee or for free, and whether provided via wire or radio, except when such service is offered as an incidendal component of a noncommunications contractual relationship.

      `(5) End user- The term `end user' means any person who, by way of a broadband service, takes and utilizes Internet services, whether provided for a fee, in exchange for an explicit benefit, or for free.'.

      `(6) Internet- The term `Internet' means a system of interconnected networks that use the Internet Protocol for communications with resources or endpoints reachable, directly or through a proxy, via a globally unique Internet address assigned by the Internet Assigned Numbers Authority or any successor or designee; or any technology the Commission shall find to be functionally equivalent.

      `(7) Interconnected Voice over Internet Protocol (VoIP) service- The term `Interconnected VoIP service' means a service that enables real-time, two-way voice communications; requires a broadband connection from the user's location; requires Internet protocol compatible customer premises equipment; and permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network subject to section 9.3 of the Commission's regulations (47 C.F.R. 9.3).

END