II 

109TH CONGRESS 

2D SESSION S. 2360 

To ensure and promote a free and open Internet for all Americans. 

IN THE SENATE OF THE UNITED STATES 

MARCH 2, 2006 

Mr. WYDEN introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To ensure and promote a free and open Internet for all 

Americans. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Internet Non-Discrimi5 nation Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Since passage of the Telecommunications 

9 Act of 1996, the Internet has grown robustly. 

10 Today, Americans are changing how they access the 

11 Internet, moving from dial-up to broadband for their 


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1 home connections. According to the Pew Internet 

2 and American Life Project, 72 percent of Americans 

3 use the Internet and 59 percent of Americans with 

4 home Internet have a high-speed Internet connec5 tion. 

6 (2) Americans use the Internet for many daily 

7 activities. Over 17 percent of Americans have sold 

8 something over the Internet. Everyday, approxi9 mately 60,000,000 Americans use search engines to 

10 get access to information. 80 percent of Americans 

11 have looked online for health care information. In 

12 growing numbers, Americans are using the Internet 

13 to place phone calls, watch their favorite televisions 

14 shows or movies, and play games. 

15 (3) The growth of the Internet and its success 

16 are due in large part to the freedom that has always 

17 existed on the content and applications layer of the 

18 Internet. Innovation has thrived on this layer, as 

19 anyone with a good idea has the ability to access 

20 consumers. The continuation of this freedom is es21 sential for future innovation. 

22 (4) Freedom on the content and applications 

23 layer has also led to robust competition for retail 

24 goods for consumers. Consumers can shop at thou25 sands upon thousands of retailers from their home 


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1 computers, including small businesses located miles 

2 away in other towns, States, and even countries. 

3 (5) Such freedom is leading to the development 

4 of important new entertainment offerings, on-de5 mand video and movie purchases, Internet Protocol 

6 television, and enhanced gaming options. The enter7 tainment options available in the future will only be 

8 limited by the bandwidth that can be used and the 

9 innovation of people all over the world. 

10 (6) Despite the growth of the Internet and in11 creased access to the Internet for Americans, there 

12 is very little choice in who provides them high-speed 

13 Internet access. According to an April 2005 White 

14 Paper by Harold Feld and Gregory Rose, et. al., en15 titled, ‘‘Connecting the Public: The Truth About 

16 Municipal Broadband’’ only 2 percent of Americans 

17 get high-speed Internet access from someone other 

18 than their local phone company or cable provider. 

19 According to the Federal Communications Commis20 sion, approximately 20 percent of Americans do not 

21 have a high-speed Internet access provider that of22 fers them service. 

23 (7) As more and more Americans get high24 speed access to the Internet without having much 

25 choice of who their provider will be, it is important 


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1 that Congress protect the freedom on the Internet to 

2 ensure its continued success. 

3 SEC. 3. DEFINITIONS. 

4 In this Act, the following definitions shall apply: 

5 (1) APPLICATION OR SERVICE.—The term ‘‘ap6 plication or service’’ means any information or serv7 ice— 

8 (A) by which an end-user through software 

9 or a device engages in an exchange of data or 

10 information; and 

11 (B) conveyed over communications. 

12 (2) BITS.—The term ‘‘bits’’ or ‘‘binary digits’’ 

13 means the smallest unit of information in which 

14 form data is transported on the Internet as a single 

15 digit number in base-2. 

16 (3) COMMISSION.—The term ‘‘Commission’’ 

17 means the Federal Communications Commission. 

18 (4) COMMUNICATIONS.—The term ‘‘communica19 tions’’— 

20 (A) means any voice, video, or data appli21 cation or service, regardless of the facilities or 

22 technology used, that— 

23 (i) is a transmission to subscribers by 

24 use of— 

25 (I) the public rights-of-way; 


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1 (II) spectrum; 

2 (III) numbering or addressing re3 sources; or 

4 (IV) other inputs licensed or 

5 managed by a unit of local govern6 ment, or a private entity working in 

7 concert with such unit of local govern8 ment, for the benefit of the public; 

9 (ii) is offered to the public, or as to 

10 such classes of subscribers as to be effec11 tively available directly to the public, with 

12 or without a fee; and 

13 (iii) enables an end user, as part of 

14 such service, to transmit content of their 

15 own design or choosing between or among 

16 points specified by such user; 

17 (B) includes interactive on-demand serv18 ices, as such term is defined in section 602(12) 

19 of the Communications Act of 1934 (47 U.S.C. 

20 522(12)); and 

21 (C) does not include cable service, as such 

22 term is defined in section 602(6) of the Com23 munications Act of 1934 (47 U.S.C. 522(6)). 

24 (5) CONTENT.—The term ‘‘content’’ means in25 formation— 


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1 (A) in the form of writing, signs, signals, 

2 pictures, and sounds of all kinds, including 

3 stored information requested by an end user; 

4 and 

5 (B) that is generated based on the input or 

6 request of such user. 

7 (6) PERSON.—The term ‘‘person’’ means any 

8 natural person, partnership, firm, association, cor9 poration, limited liability company, or other legal en10 tity. 

11 (7) NETWORK OPERATOR.— 

12 (A) IN GENERAL.—The term ‘‘network op13 erator’’ means any person who owns, operates, 

14 controls, or resells and controls any facility that 

15 provides communications directly to a sub16 scriber. 

17 (B) OBLIGATIONS.—Any obligation im18 posed on a network operator by the provisions 

19 of this Act shall apply only to the extent that 

20 such network operator is engaged in providing 

21 communications. 

22 (8) SUBSCRIBER.—The term ‘‘subscriber’’ 

23 means any person who— 

24 (A) is an end user of an application or 

25 service provided through communications; and 


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1 (B) consumes or provides goods provided 

2 through such application or service. 

3 (9) TRANSMISSION COMPONENT.—The term 

4 ‘‘transmission component’’ means the portion of 

5 communications which enables an end user to trans6 mit content of their own design and choosing be7 tween or among points specified by such user. 

8 SEC. 4. OBLIGATIONS OF NETWORK OPERATORS. 

9 (a) IN GENERAL.—A network operator shall— 

10 (1) not interfere with, block, degrade, alter, 

11 modify, impair, or change any bits, content, applica12 tion or service transmitted over the network of such 

13 operator; 

14 (2) not discriminate in favor of itself or any 

15 other person, including any affiliate or company with 

16 which such operator has a business relationship in— 

17 (A) allocating bandwidth; and 

18 (B) transmitting content or applications or 

19 services to or from a subscriber in the provision 

20 of a communications; 

21 (3) not assess a charge to any application or 

22 service provider not on the network of such operator 

23 for the delivery of traffic to any subscriber to the 

24 network of such operator; 


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1 (4) offer communications such that a subscriber 

2 can access, and a content provider can offer, unaf3 filiated content or applications or services in the 

4 same manner that content of the network operator 

5 is accessed and offered, without interference or sur6 charges; 

7 (5) allow the attachment of any device, if such 

8 device is in compliance with part 68 of title 47, Code 

9 of Federal Regulations, without restricting any ap10 plication or service that may be offered or provided 

11 using such a device; 

12 (6) treat all data traveling over or on commu13 nications in a non-discriminatory way; 

14 (7) offer just, reasonable, and non-discrimina15 tory rates, terms, and conditions on the offering or 

16 provision of any service by another person using the 

17 transmission component of communications; 

18 (8) provide non-discriminatory access and serv19 ice to each subscriber; and 

20 (9) post and make available for public inspec21 tion, in electronic form and in a manner that is 

22 transparent and easily understandable, all rates, 

23 terms, and conditions for the provision of any com24 munications. 


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1 (b) PRESERVED AUTHORITY OF NETWORK OPERA2 TORS.—Notwithstanding the requirements described in 

3 subsection (a), a network operator— 

4 (1) may— 

5 (A) take reasonable and non-discriminatory 

6 measures to protect subscribers from adware, 

7 spyware, malware, viruses, spam, pornography, 

8 content deemed inappropriate for minors, or 

9 any other similarly nefarious application or 

10 service that harms the Internet experience of 

11 subscribers, if such subscribers— 

12 (i) are informed of the application or 

13 service; and 

14 (ii) are given the opportunity to refuse 

15 or disable any such preventative applica16 tion or service; 

17 (B) support an application or service in18 tended to prevent adware, spyware, malware, vi19 ruses, spam, pornography, content deemed in20 appropriate for minors, or any other similarly 

21 nefarious application or service that harms the 

22 Internet experience of subscribers, if such sub23 scribers— 

24 (i) are informed of the application or 

25 service; and 


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1 (ii) are given the opportunity to refuse 

2 or disable any such preventative applica3 tion or service; and 

4 (C) take reasonable and non-discriminatory 

5 measures to protect the security of the network 

6 of such operator, if such operator faces serious 

7 and irreparable harm; and 

8 (2) shall— 

9 (A) give priority to an emergency commu10 nication; 

11 (B) comply with any court-ordered law en12 forcement directive; and 

13 (C) prevent any activity that is unlawful or 

14 illegal under any Federal, State, or local law. 

15 SEC. 5. COMPLAINTS REGARDING VIOLATIONS. 

16 (a) COMPLAINT.—Any aggrieved party may submit a 

17 written complaint to the Commission seeking a ruling that 

18 a network operator has violated a requirement described 

19 in section 4(a). 

20 (b) CONTENT OF COMPLAINT.—In any complaint 

21 submitted under subsection (a) an aggrieved party shall 

22 make a prima facie case that— 

23 (1) a network operator violated a requirement 

24 of section 4(a); 


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1 (2) such violation was not a preserved authority 

2 described in subparagraph (A) or (B) of section 

3 4(b)(1); and 

4 (3) such violation is harmful to such party. 

5 (c) 7-DAY ACCEPTANCE PERIOD.—Not later than 7 

6 days after the date of the submission of a complaint under 

7 subsection (a), the Commission shall issue a decision re8 garding its acceptance or denial of the prima facie case 

9 made by an aggrieved party. 

10 (d) CEASE AND DESIST.— 

11 (1) IN GENERAL.—If the Commission accepts 

12 the prima facie case of an aggrieved party under 

13 subsection (c), a network operator shall be required 

14 to cease and desist the action that is the underlying 

15 basis of the complaint for the duration of the pro16 ceeding on such complaint, until such time as the 

17 Commission may rule that a violation of a require18 ment of section 4(a) has not occurred. 

19 (2) AUTHORITY TO EXTEND CEASE AND DESIST

20 ORDER.—The Commission shall have the authority 

21 to extend any cease and desist order to any similarly 

22 situated person as the Commission determines nec23 essary and appropriate. 

24 (e) BURDEN OF PROOF.—If the Commission accepts 

25 the prima facie case of an aggrieved party under subVerDate Aug 31 2005 03:11 Mar 04, 2006 Jkt 049200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2360.IS S2360

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1 section (c), a network operator shall bear the burden of 

2 proving that— 

3 (1) no violation of section 4(a) occurred; or 

4 (2) such violation was a preserved authority de5 scribed in section 4(b). 

6 (f) FINAL DECISION.— 

7 (1) 90-DAY PERIOD.—Not later than 90 days 

8 after the date of the submission of a complaint 

9 under subsection (a), the Commission shall issue a 

10 final decision regarding the request for a ruling con11 tained in such complaint. 

12 (2) FAILURE TO ISSUE DECISION.—If the Com13 mission fails to issue a decision at the expiration of 

14 the 90-day period described in paragraph (1), a vio15 lation of a requirement of section 4(a) shall be 

16 deemed to have occurred. 

17 (g) RULES OF CONSTRUCTION.— 

18 (1) DELEGATION.— 

19 (A) IN GENERAL.—Nothing in this section 

20 shall be construed— 

21 (i) to prevent the Commission from 

22 delegating any authority granted to it 

23 under this section to a relevant office or 

24 bureau pursuant to the authority granted 

25 the Commission under section 5(c) of the 


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1 Communications Act of 1934 (47 U.S.C. 

2 155(c)); or 

3 (ii) to limit the Commission from 

4 adopting any appropriate procedures pur5 suant to any other provision of law. 

6 (B) LIMITATION.—The rule established 

7 under subparagraph (A) shall only apply if at 

8 the expiration of the 90-day period described in 

9 subsection (f)(1)— 

10 (i) the Commission issues a final deci11 sion that is ripe for judicial review; or 

12 (ii) a violation of a requirement of 

13 section 4(a) shall be deemed to have oc14 curred under subsection (f)(2). 

15 (2) PETITION FOR RECONSIDERATION.— 

16 (A) IN GENERAL.—Nothing in this section 

17 shall be construed to affect the ability of any el18 igible party to file a petition for reconsideration 

19 under section 405 of the Communications Act 

20 of 1934 (47 U.S.C. 405). 

21 (B) TIMING.— 

22 (i) 90-DAY PERIOD.—Not later than 

23 90 days after the date of the submission of 

24 a petition for reconsideration under section 

25 405 of the Communications Act of 1934 


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1 (47 U.S.C. 405), the Commission shall 

2 issue an order granting or denying such 

3 petition. 

4 (ii) FAILURE TO ISSUE AN ORDER.— 

5 If the Commission fails to issue a decision 

6 at the expiration of the 90-day period de7 scribed in clause (i), the previous decision 

8 of the Commission shall be considered af9 firmed and final for purposes of judicial 

10 review. 

11 (3) JUDICIAL REVIEW.—Notwithstanding sec12 tion 402(b) of the Communications Act of 1934 (47 

13 U.S.C. 402(b)) and any other provision of law, any 

14 appeal of a decision of the Commission under this 

15 section shall be made to United States district court 

16 for the district in which the principle place of busi17 ness of the aggrieved party is located. 

18 (4) INTERVENTION BY THIRD PARTIES.—Noth19 ing in this section shall be construed to prevent any 

20 interested person from intervening in any appeal of 

21 a decision of the Commission in accordance with sec22 tion 402(e) of the Communications Act of 1934 (47 

23 U.S.C. 402(e)). 


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1 SEC. 6. PENALTIES. 

2 (a) IN GENERAL.—If the Commission issues a ruling 

3 under section 5 that a network operator is in violation of 

4 a requirement of section 4(a), such network operator shall 

5 be subject to the penalties prescribed under section 501 

6 of the Communications Act of 1934 (47 U.S.C. 501). 

7 (b) SEPARATE VIOLATIONS.—Each violation of a re8 quirement of section 4(a) shall be treated as a separate 

9 incident for purposes of imposing penalties under sub10 section (a). 

Æ 


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