To preserve the free and open nature of the Internet, expand
the benefits of broadband, and promote universally available and affordable
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
To preserve the free and open nature of the Internet, expand
the benefits of broadband, and promote universally available and affordable
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
(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,
(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
`(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
`(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
`(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
`(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.
`(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;
`(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
`(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;
`(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
`(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
`(B) does not include dial-up access requiring an end user to initiate
a call across the public switched telephone network to establish
`(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
`(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
`(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).