49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–541 

INTERNET FREEDOM AND NONDISCRIMINATION ACT OF 

2006 

JUNE 29, 2006.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 5417] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 5417) to amend the Clayton Act with respect to competitive 

and nondiscriminatory access to the Internet, having considered 

the same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Internet Freedom and Nondiscrimination Act of 

2006’’. 

SEC. 2. PURPOSES. 

The purposes of this Act are to promote competition, to facilitate trade, and to 

ensure competitive and nondiscriminatory access to the Internet. 

SEC. 3. AMENDMENTS TO THE CLAYTON ACT. 

The Clayton Act (15 U.S.C. 12 et seq.) is amended— 

(1) by redesignating section 28 as section 29, 

(2) by inserting after section 27 the following: 

‘‘DISCRIMINATION BY BROADBAND NETWORK PROVIDERS

‘‘SEC. 28. (a) It shall be unlawful for any broadband network provider— 

‘‘(1) to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that any person can offer or provide 

content, applications, or services to or over the network in a manner that is at 

least equal to the manner in which the provider or its affiliates offer content, 

applications, and services, free of any surcharge on the basis of the content, application, or service; 


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‘‘(2) to refuse to interconnect its facilities with the facilities of another provider of broadband network services on reasonable and nondiscriminatory terms 

or conditions; 

‘‘(3)(A) to block, to impair, to discriminate against, or to interfere with the 

ability of any person to use a broadband network service to access, to use, to 

send, to receive, or to offer lawful content, applications or services over the 

Internet; or 

‘‘(B) to impose an additional charge to avoid any conduct that is prohibited 

by this subsection; 

‘‘(4) to prohibit a user from attaching or using a device on the provider’s network that does not physically damage or materially degrade other users’ utilization of the network; or 

‘‘(5) to fail to clearly and conspicuously disclose to users, in plain language, 

accurate information concerning any terms, conditions, or limitations on the 

broadband network service. 

‘‘(b) If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service 

to all data of that type (regardless of the origin or ownership of such data) without 

imposing a surcharge or other consideration for such prioritization or enhanced 

quality of service. 

‘‘(c) Nothing in this section shall be construed to prevent a broadband network 

provider from taking reasonable and nondiscriminatory measures— 

‘‘(1) to manage the functioning of its network, on a systemwide basis, provided 

that any such management function does not result in discrimination between 

content, applications, or services offered by the provider and unaffiliated provider; 

‘‘(2) to give priority to emergency communications; 

‘‘(3) to prevent a violation of a Federal or State law, or to comply with an 

order of a court to enforce such law; 

‘‘(4) to offer consumer protection services (such as parental controls), provided 

that a user may refuse or disable such services; 

‘‘(5) to offer special promotional pricing or other marketing initiatives; or 

‘‘(6) to prioritize or offer enhanced quality of service to all data of a particular 

type (regardless of the origin or ownership of such data) without imposing a 

surcharge or other consideration for such prioritization or quality of service. 

‘‘(d) For purposes of this section— 

‘‘(1) the term ‘affiliate’ means— 

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

‘‘(B) a person that has a contract or other arrangement with a content 

or service provider concerning access to, or distribution of, such content or 

such service; 

‘‘(2) the term ‘broadband network provider’ means a person engaged in commerce that owns, controls, operates, or resells any facility used to provide 

broadband network service to the public, by whatever technology and without 

regard to whether provided for a fee, in exchange for an explicit benefit, or for 

free; 

‘‘(3) the term ‘broadband network service’ means a 2-way transmission service 

that connects to the Internet and transmits information at an average rate of 

at least 200 kilobits per second in at least one direction, irrespective of whether 

such transmission is provided separately or as a component of another service; 

and 

‘‘(4) the term ‘user’ means a person who takes and uses broadband network 

service, whether provided for a fee, in exchange for an explicit benefit, or for 

free.’’, and 

(3) by amending subsection (a) and the 1st sentence of subsection (b) of section 11 by striking ‘‘and 8’’ and inserting ‘‘8, and 28’’. 

PURPOSE AND SUMMARY

H.R. 5417, the ‘‘Internet Freedom and Nondiscrimination Act of 

2006,’’ preserves an antitrust remedy for anticompetitive and discriminatory practices by broadband service providers. As reported 

by the Committee on Energy and Commerce, H.R. 5252, the 

‘‘COPE’’ Act, vests ‘‘exclusive’’ authority in the Federal Communications Commission to adjudicate complaints alleging violations of 


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1See The Consent Decree Program of the Department of Justice; Hearings Before the Subcommittee on Antitrust of the House Committee on the Judiciary, 85th Cong. (1957 and 1958); 

Report of the Antitrust Subcommittee on the Consent Decree Program of the Department of Justice, 86th Cong. (1959). 2 15 U.S.C. § 1. 

3 15 U.S.C. § 2. 

network neutrality principles. This exclusive grant may be interpreted to displace the application of the antitrust laws to remedy 

anticompetitive and discriminatory misconduct by broadband network providers. 

H.R. 5417 reasserts an antitrust remedy for anticompetitive conduct in which the broadband network provider: (1) fails to provide 

network services on reasonable and nondiscriminatory terms; (2) 

refuses to interconnect with the facilities of other network providers on a reasonable and nondiscriminatory basis; (3) blocks, impairs or discriminates against a user’s ability to receive or offer 

lawful content; (4) prohibits a user from attaching a device to the 

network that does not damage or degrade the network; or (5) fails 

to disclose to users, in plain terms, the conditions of the broadband 

service. The legislation expressly permits a broadband network provider to take steps to manage the functioning and security of its 

network, to give priority to emergency communications, and to take 

steps to prevent violations of Federal and State law, or to comply 

with a court order. This legislation is not intended to diminish the 

ability of a broadband network provider to take any otherwise lawful actions to protect copyrighted works against infringement or to 

limit infringement on the provider’s broadband network. In addition, the legislation does not represent a ‘‘regulatory’’ imposition on 

broadband network providers. Rather, the legislation reaffirms an 

antitrust remedy for anticompetitive conduct by broadband network providers in order to ensure that the dominant market power 

of broadband network providers is not employed in a manner that 

assaults the pro-competitive, nondiscriminatory architecture that 

has been a defining feature of the Internet’s success. 

BACKGROUND AND NEED FOR THE LEGISLATION

JUDICIARY COMMITTEE ROLE IN TELECOM COMPETITION

Since 1957, the Committee on the Judiciary has played a central 

role in promoting competition in the telecom industry. The Judiciary Committee’s involvement in promoting competition in the telecommunications marketplace dates back nearly a half century 

when the Committee held oversight hearings to examine the monopoly power that AT&T wielded because of its control of the local 

exchange and the Department of Justice’s efforts to limit that 

power through antitrust enforcement.1

Section 1 of the Sherman Act of 1890 prohibits ‘‘every contract, 

combination . . . or conspiracy, in restraint of trade or commerce 

among the several States.’’ 2 Section 2 of the Sherman Act provides 

that it is a violation of the antitrust laws to ‘‘monopolize, or attempt to monopolize, or combine or conspire with any other person 

or persons, to monopolize any part of the trade or commerce among 

the several States, or with foreign nations.’’ 3 The principled application of the antitrust laws has served as the primary catalyst for 

the structural changes that have produced competitive gains and 

expanded consumer choice in the telecommunications field. The 


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4See Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Involuntary Dismissal 

Under Rule 41(b), United States v. AT&T Co., No. 74–1698 (D.D.C., filed Aug. 16, 1981). 5 Id. at 79. 

6 Id. 

7 Id. 

legal basis for the elimination of Ma Bell’s national telephone monopoly was predicated in the antitrust laws. While the former 

AT&T had operated in a highly-intensive Federal and State regulatory regime for decades, the government relied on the antitrust 

laws to provide the robust pro-competitive remedy that regulation 

could not and does not alone provide. Specifically, the Justice Department successfully alleged that AT&T unfairly limited competition through exclusionary conduct in violation of the Sherman Act. 

This anticompetitive conduct was manifested by ‘‘manipulation of 

the terms and conditions under which competitors are permitted to 

interconnect with AT&T’s existing services and facilities, including 

those of the local exchange operators.’’ 4 The Department also successfully alleged that AT&T ‘‘imposed a number of cumbersome 

and unnecessary technical and operational practices on its competitors which increased their costs and lowered the quality of their 

service, in marked contrast to the efficient interconnection arrangements made available to AT&T’s own . . . connections.’’ 5 In the 

early 1990s, the Committee conducted several legislative and oversight hearings concerning the market dominance exercised by the 

remnants of the former AT&T monopoly, and in 1995, the Committee conducted hearings to examine the Justice Department’s responsibility to aggressively monitor competition in this field. 

TELECOMMUNICATIONS ACT OF 1996—THE ROLE OF THE ANTITRUST

LAWS IN PROTECTING COMPETITION

The failure of the 1982 consent decree to produce robust competition lent impetus to congressional passage of legislation that was 

comprehensive and deregulatory in scope. The findings section of 

the 1996 Act states that its purpose is ‘‘to promote competition and 

reduce regulation in order to secure lower prices and higher quality 

services for American telecommunications consumers and encourage the rapid growth of telecommunications technologies.’’ The 

1996 Act further states that Congress intended ‘‘to provide for a 

pro-competitive . . . national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans 

by opening all telecommunications markets to competition.’’ 6

In order to reaffirm the centrality of the antitrust laws in the liberalized regulatory regime established by the 1996 Act, the Judiciary Committee and Congress preserved an explicit antitrust savings clause in the legislation. Specifically, the antitrust savings 

clause contained in § 601(c)(1) of the 1996 Act provided that: ‘‘ . . . 

Nothing in this Act or the amendments made by this Act shall be 

construed to modify, impair, or supersede the applicability of any 

of the antitrust laws. . . . This Act and the amendment made by 

this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such act or 

amendments.’’ 7

The legislative record surrounding consideration of the 1996 Act 

emphasizes the crucial role of the antitrust laws in promoting comVerDate Aug 31 2005 06:03 Jul 04, 2006 Jkt 049006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR541.XXX HR541

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8 Joint Explanatory Statement of the Committee of Conference, S. 652, H.R. Rep. No. 104– 

458, S. Rep. No. 104–230, at 201 (1996) (‘‘Conference Report’’). 9 142 Cong. Rec. S687–01 (daily ed. February 1, 1996) (statement of Sen. Thurmond). 

10 142 Cong. Rec. H1145–06 (daily ed. February 1, 1996) (statement of Rep. Conyers). 11 141 Cong. Rec. S18586–01 (daily ed. December 14, 1995) (statement of Sen. Leahy). 12First Report and Order, In re: Implementation of the Local Competition Provisions in the 

Telecommunications Act of 1996, 11 F.C.C.R. 15499, ¶124 (Aug. 8, 1996) (R2–7–A174). 13 Id. at ¶ 129 (R2–7–A175). 14Letter from Chairman Powell to House and Senate Appropriations Committees, May 4, 

2001, available at: http://www.fcc.gov/Bureaus/CommonlCarrier/NewslReleases/2001/nrcc 

0116.html. 15 H.R. Rep. No. 107–83, Part 2. 

petition and enhancing consumer welfare in the marketplace. The 

Joint Explanatory Statement of the Conference Committee stated 

that the antitrust savings clause: ‘‘prevents affected parties from 

asserting that the bill impliedly preempts other laws.’’ 8 Members 

of both bodies affirmed this principle. Senator Thurmond stated: 

‘‘[The 1996 Act contains an] unequivocal antitrust savings clause 

that explicitly maintains the full force of the antitrust laws in this 

vital industry. Application of the antitrust laws is the most reliable, time-tested means of ensuring that competition, and the innovation that it fosters, can flourish to benefit consumers and the 

economy.’’ 9 Ranking Member Conyers observed: ‘‘[t]he bill contains 

an all-important antitrust savings clause which ensures that any 

and all telecommunications mergers and anti-competitive activities 

. . . [b]y maintaining the role of the antitrust laws, the bill helps 

to ensure that the Bells cannot use their market power to impede 

competition and harm consumers.’’ 10 Senator Leahy stated: 

‘‘[r]elying on antitrust principles is vital to ensure that the free 

market will work to spur competition and reduce government involvement in the industry.’’ 11 In addition, the FCC formally acknowledged that its regulations did not provide the ‘‘exclusive remedy’’ for anti-competitive conduct.12 The FCC expressly concluded 

that: ‘‘parties have several options for seeking relief if they believe 

that a carrier has violated the standards under section 251 or 252 

. . . . [W]e clarify . . . that nothing in sections 251 and 252 or our 

implementing regulations is intended to limit the ability of persons 

to seek relief under the antitrust laws.’’ 13 Finally, former FCC 

Chairman Powell concluded that ‘‘[g]iven the vast resources of 

many of the nation’s ILECs,’’ the FCC’s current fining authority of 

$1.2 million per offense ‘‘is insufficient to punish and deter violations in many instances.’’ 14

RECENT COMMITTEE EFFORTS TO PRESERVE AND PROMOTE

COMPETITION IN THE TELECOMMUNICATIONS INDUSTRY

In recent years, the Committee has conducted a number of hearings and considered legislation relating to telecommunications competition. On May 22, 2001, the Committee conducted a legislative 

hearing examining H.R. 1698, the ‘‘American Broadband Competition Act of 2001,’’ and H.R. 1697, the ‘‘Broadband Competition and 

Incentives Act of 2001.’’ On June 5, 2001, the Committee conducted 

a legislative hearing on H.R. 1542, the ‘‘Internet Freedom and 

Broadband Deployment Act of 2001.’’ Because the legislation did 

not contain the safeguards necessary to preserve competition in the 

broadband industry, the Committee adversely reported it.15

On July 24, 2003, the Task Force on Antitrust conducted an 

oversight hearing entitled ‘‘Antitrust Enforcement Agencies: The 


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16 Remarks of Michael K. Powell, Chairman, Federal Communications Commission, at the Silicon Flatirons Symposium on ‘‘The Digital Broadband Migration: Toward a Regulatory Regime 

for the Internet Age,’’ University of Colorado School of Law, February 8, 2004. 

Antitrust Division of the Department of Justice and Bureau of 

Competition.’’ On November 19, 2003, the Committee conducted an 

oversight hearing entitled ‘‘Saving the Savings Clause: Congressional Intent, the Trinko Case and the Role of the Antitrust Law 

in Promoting Competition in the Telecom Sector.’’ On July 23, 

2004, the Committee conducted an oversight hearing on ‘‘Regulatory Aspects of Voice Over the Internet Protocol (VoIP).’’ In addition, on April 20, 2005, the Committee conducted an oversight 

hearing examining ‘‘Industry Competition and Consolidation: The 

Telecom Marketplace Nine Years After the Telecom Act.’’ Most recently, the Committee adopted a Resolution Establishing a Task 

Force on Telecom and Antitrust. This Task Force conducted an 

oversight hearing examining the antitrust implications of network 

neutrality titled: ‘‘Network Neutrality: Competition, Innovation, 

and Nondiscriminatory Access.’’ This hearing helped establish the 

legislative record demonstrating the need for H.R. 5417. 

THE ‘‘INTERNET REVOLUTION’’ AND MARKET FEATURES OF BROADBAND

INTERNET ACCESS: THE NEED FOR A CLEAR ANTITRUST REMEDY

Over the last decade, the Internet has revolutionized the manner 

in which Americans access and transmit a broad range of information and consume goods. The advent of high speed (broadband) 

Internet access has dramatically enhanced the ability of Americans 

to access this medium. Many credit the rapid rise of the Internet 

to the open architecture that defines it. There is broad recognition 

that the Internet will further expand the ways in which Americans 

live, work, and play.16 However, recent actions taken by the FCC 

and Supreme Court coupled with increased consolidation of network providers, have heightened the risk of anticompetitive behavior in the telecom marketplace. 

Two Supreme Court decisions have particularly had the effect of 

significantly weakening remedies available either under the antitrust laws or through regulatory actions by the FCC. The first, 

Verizon v. Trinko, 540 US 398 (2004), in which the Supreme Court 

observed that the ‘‘regulatory framework that exists in this case 

demonstrates how, in certain circumstances, ‘regulations significantly diminished the likelihood of major antitrust harm.’ ’’ The 

Court then concluded that ‘‘against the slight benefits of antitrust 

intervention here, we must weigh a realistic assessment of its 

costs.’’ This is precisely the judicial analysis that the antitrust savings clause in the 1996 Act expressly precluded. When viewed in 

light of H.R. 5252’s exclusive grant of authority to adjudicate violations of network neutrality principles, the threat to the continued 

application of the antitrust laws to ensure against anticompetitive 

content discrimination by broadband providers is both clear and obvious. 

In addition, the Supreme Court’s decision in NCTA v. Brand X, upholding the FCC’s determination that cable modem service is an 

information service, and the FCC’s subsequent decision to classify 

LEC broadband Internet access as an ‘‘information service’’ suggests that antitrust agencies such as the Federal Trade Commission (which is statutorily obligated to defer to FCC oversight in 


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17Letter from Deborah Platt Majoras, Chairman, Federal Trade Commission to F. James Sensenbrenner, Chairman, House of Representatives Committee on the Judiciary (Apr. 14, 2006) 

(on file with the House Committee on the Judiciary). 18Federal Communications Commission, High Speed Services for Internet Access: Status as 

of June 30, 2005, (2006), available at http://hraunfoss.fcc.gov/edocslpublic/attachmatch/DOC264744A1.pdf. 19 Id. 20 15 U.S.C. § 2. 21Phillip E. Areeda & Herbert Ovenkamp, Antitrust Law: An Analysis of Antitrust Principles 

and Their Applications ¶ 651 (2d ed. 2002). 22See Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 (1985). 23See United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001). 

connection with oversight of services classified as ‘‘common carrier’’ 

offerings) may have an expanded role to play in setting forth policies that protect consumers against unlawful business practices 

and illegal restraints of trade. Indeed, the FTC recently concluded 

that, ‘‘in light of [Brand X], the [FTC] views the provision of cable 

modem services as non-common carrier service subject to the FTC 

Act’s prohibitions on unfair or deceptive acts and practices and on 

unfair methods of competition.’’ 17

According to an FCC report released in April of 2006 containing 

the most recent information on the market features of the high 

speed Internet access market, Americans have essentially two 

choices for broadband Internet access.18 According to this FCC 

data, 98.8 percent of the ‘‘advanced services lines’’ Americans utilize for Internet access are provided by either cable companies or 

ILECs. Cable modem service represents 64.9 percent of these lines, 

while 33.9 percent are DSL connections. Consumer options for 

‘‘high speed lines’’ are also limited—98.2 percent of Americans accessing high speed lines by connecting to cable modem service or 

ILEC lines. Cable modem service represented 61 percent of these 

lines while 37.2 percent were provided by ILECs. The data also indicates that many Americans (particularly in rural areas) have 

only one choice of broadband service, and some Americans have 

none. As a result, most Americans are subject to a broadband duopoly, many to a broadband monopoly, and some Americans (particularly in rural areas) have no access to broadband Internet. Hence, 

broadband providers exercise considerable market power in most 

parts of the country, dominant control in others, and monopoly control in the rest.19

The exercise of market power to engage in discriminatory or unlawful restraints on commerce or trade is clearly the province of 

the antitrust laws. Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize, and combinations or conspiracies 

to monopolize.20 Monopolization or attempts to monopolize are 

demonstrated by anticompetitive or exclusionary conduct.21 The 

Supreme Court held that ‘‘if a firm has been ‘attempting to exclude 

rivals on some basis other than efficiency,’ it is fair to characterize 

its behavior as predatory.’’ 22 The D.C. Circuit Court has also held 

that ‘‘[t]o be condemned as exclusionary, a monopolist’s act must 

have an ‘anti-competitive effect.’ That is, it must harm the competitive process and thereby harm consumers.’’ 23 The market power of 

broadband providers can be utilized to unlawfully restrain trade, 

undermine the competitive process, and limit the ability of consumers to access online content, goods, or services of their choice 


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24See In the Matter of Madison River Communications, available at: http://hraunfoss.fcc.gov/ 

edocslpublic/attachmatch/DA-05-543A2.pdf. See also, http://static.publicknowledge.org/pdf/ 

pk-net-neutrality-whitep-20060206.pdf, pps. 19–24. 25 Network Neutrality: Hearing Before the S. Comm. on Commerce, Science, and Transportation, 109th Cong. (2006) (statement of Lawrence Lessig, Professor of Law at Stanford Law 

School). 26 Id. 27Supra at 16. 

in a nondiscriminatory manner, and this conduct has already occurred.24

Firms that control networks that provide access to the Internet 

may exercise market power to discriminate against rival services or 

competing technologies, or limit the ability of consumers to access 

online information or services in a neutral manner. Abuse of this 

market power threatens the open architecture that has been a key 

feature of the Internet’s success and utility. H.R. 5417 will help to 

ensure that those injured by anticompetitive discriminatory conduct by broadband service providers are provided a cause of action 

under the Clayton Act and an administrative remedy through antitrust enforcement agencies. 

NETWORK NEUTRALITY—DEFINITION, SUPPORT, AND OPPOSITION

While significant efforts have been made to confuse the definition, ‘‘network neutrality’’ refers to the fundamental architecture of 

the Internet that allows for ‘‘end-to-end’’ communications that are 

both uninhibited and transmitted without priority based on content. The open nature of the Internet has served as a catalyst for 

innovations mainly from those with little connection to the owners 

of the physical network itself.25

Former FCC Chairman Michael Powell stressed the importance 

of net neutrality when he enunciated broad ‘‘Internet Freedoms’’ in 

a speech at the University of Colorado Law School. As Chairman 

Powell described, these Internet freedoms include: 

(1) Freedom to Access Content: Consumers should have access to their choice of legal content; 

(2) Freedom to Use Applications: Consumers should be able 

to run applications of their choice; 

(3) Freedom to Attach Personal Devices: Consumers should 

be permitted to attach any devices they choose to the connection in their homes; and 

(4) Freedom to Obtain Service Plan Information: Consumers 

should receive meaningful information regarding their service 

plans.26

Chairman Powell explained that these principles should not preclude network providers from ensuring a quality broadband experience and that reasonable limits could be allowed in circumstances 

where service contracts exist. However, Powell was insistent that 

these limits be both explicitly stated and as minimal as necessary 

in order to foster an environment that allows for the greatest 

amount of innovation. ‘‘Since no one can know for sure which ‘killer’ applications will emerge to drive deployment of the next generation high-speed technologies, the industry must let the market 

work and allow consumers to run applications and attach devices 

unless they exceed service plan limitations or harm the provider’s 

network.’’ 27


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28 John Windhausen, Good Fences Make Bad Broadband, Public Knowledge White Paper 17- 

22, (2006), http://www.publicknowledge.org/content/paperspk-net-neutrality-whitep-20060206. 29See Savethenet.com. 30See Telcos Propose Web Tiers, Red Herring (January 31, 2006) 31Supra at 3. 

ADVOCATES OF NET NEUTRALITY

The concept of net neutrality has been widely supported by traditional entertainment companies, providers of Internet-based applications, software companies, content providers, and device manufacturers. These entities argue that net neutrality is a fundamental 

and necessary component of their willingness to invest significant 

amounts of capital necessary to promote innovation and free market competition. Advocates of net neutrality emphasize that meaningful remedies for network neutrality violators are necessary to 

preserve competition and consumer choice. These groups also assert that network providers not only have a clear market incentive 

to discriminate, there is a documented record of such abuse.28 Advocates also point to regulatory inaction by the FCC and highlight 

insufficiencies in current law to curb abuse. Groups in favor of 

Internet nondiscrimination are broad and diverse, ranging from the 

American Association of Retired Persons, Financial Service Roundtable, Gun Owners of America, the Christian Coalition, National 

Religious Broadcaster, content providers such as Google and Microsoft, Intel and others.29

OPPONENTS OF NET NEUTRALITY

Providers such as incumbent local exchange carriers and some 

cable companies have argued that the proponents of net neutrality 

have raised only speculative concerns. For example, AT&T and others have defended the practice of access-tiering.30 Access tiering is 

‘‘any policy by network owners to condition content or service providers’ right to provide content or service to the network upon the 

payment of some fee. These fees are independent of basic Internet 

access fees. . . . ‘[A]ccess tiering’ adds an additional tax on network innovators based upon the particular service being offered.’’ 31

The network providers argue that by instituting the concept of access-tiering they are addressing the possibility of network congestion. Some have proposed that to remedy the possibility of congestion, network providers institute a fee based on the amount of network congestion the user causes. However, the transactional costs 

of this arrangement render this type of fee impractical. The proposed solution by the network providers is to assess which activities are most likely to account for significant portions of the bandwidth and apportion fees accordingly, which is essentially the theory behind access tiering. Stanford Law Professor Lawrence Lessig 

counters that access tiering may pose some serious issues. He 

states: 

Access-tiering will create an obvious incentive among 

the effective duopoly that now provides broadband service 

to most Americans. By effectively auctioning off lanes of 

broadband service, this form of tiering will restrict the opportunity of many to compete in providing new Internet 

service. For example, there are many new user generated 

video services on the Internet. . . . The incentives in a 


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32Madison River Communications, LLC, Consent Decree File No. EB–05–IH–0110, available 

at http://hraunfoss.fcc.gov/edocslpublic/attachmatch/DA–05–5423A2.pdf. 33Paul Taylor, AT&T Chief Warns on Internet Costs, Fin. Times, Jan. 31, 2006, available at 

http://news.ft.com/cms/s/3ced445e–91c5–11da–bab9–0000779e2340.html. 

world of access-tiering would be to auction to the highest 

bidders the quality service necessary to support video service, and leave to the rest insufficient bandwidth to compete. That may benefit established companies, but it will 

only burden new innovators. 

The broadband network service providers (primarily cable or telephone companies) have also argued that network neutrality is a 

‘‘solution in search of a problem.’’ They assert that there is no need 

to establish clear prohibitions on content discrimination by 

broadband providers because there has been no extensive documentation of abuse. Despite the network service providers’ claims, 

there have been several accounts of discriminatory behavior. The 

most notable example of abuse involved the Madison River Telephone Company obstruction of access to Voice-Over Internet Protocol (VoIP) services provided by Vonage. In this case the FCC initiated an investigation of allegations that Madison River violated 

non-discriminatory obligations contained in section 201(b) of the 

Communications Act. However, this case demonstrated that the 

FCC lacks explicit regulatory or enforcement authority to prevent 

this type of discriminatory behavior.32

INDUSTRY COMMENTS ON NET NEUTRALITY

The following are excerpted quotations from executives within 

the telecommunications industry commenting on the issue of net 

neutrality. 

SBC Chief Executive Officer, Ed Whitacre, was quoted in the Financial Times as stating, ‘‘I think the content providers should be 

paying for the use of the network—obviously not the piece from the 

customer to the network, which has already been paid for by the 

customer in Internet access fees—but for accessing the so-called 

Internet cloud . . . . If someone wants to transmit a high quality 

service with no interruptions and ‘guaranteed this, guaranteed 

that’, they should be willing to pay for that . . . . Now they might 

pass it on to their customers who are looking at a movie, for example. But that ought to be a cost of doing business for them. They 

shouldn’t get on [the network] and expect a free ride.’’ 33

Mr. Whitacre was also quoted in Business Week in response to 

a question regarding his speculation about future competition from 

Internet upstarts. 

How do you think they’re going to get to customers? 

Through a broadband pipe. Cable companies have them. 

We have them. Now what they would like to do is use my 

pipes free, but I ain’t going to let them do that because we 

have spent this capital and we have to have a return on 

it. So there’s going to have to be some mechanism for these 

people who use these pipes to pay for the portion they’re 

using. Why should they be allowed to use my pipes? The 

Internet can’t be free in that sense, because we and the 

cable companies have made an investment and for a 


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34Patricia O’Connell, at SBC, It’s All About ‘‘Scale and Scope,’’ Business Week, Nov. 7, 2005, 

available at http://www.businessweek.com/@@n34h*IUQu7KtOwgA/magazine/content/05l45/ 

b3958092.htm. 35Frank Barnako, BellSouth Wants New Fees, MarketWatch, Jan. 16, 2006, available at 

http://www.marketwatch.com/News/Story/Story.aspx?guid=7B02432D2D-1EE0-4037-A15F54B748D6CF26%7D&siteid=mktw&dist=. 36Marguerite Reardon, Qwest CEO Supports Tiered Internet, CNET News.com, Mar. 15, 

2006, available at http://news.com.com/Qwest+CEO+supports+tiered+Internet/2100-1034l3- 

6050109.html. 37Dionne Searcey and Amy Schatz, Phone Companies Set Off a Battle Over Internet Fees— 

Content Providers May Face Charges for Fast Access; Billing the Consumer Twice?, Wall Street 

Journal, Jan 6. 2006. 

Google or Yahoo! or Vonage or anybody to expect to use 

these pipes [for] free is nuts!’’ 34

BellSouth Chief Technical Officer, William Smith, confirmed in 

MarketWatch that BellSouth ‘‘is pursuing discussions with Internet 

content companies to levy charges to reliably and speedily deliver 

their content and services.’’ Smith was quoted as characterizing 

such fees as ‘‘the shipping business of the digital age.’’ 35

Qwest Chief Executive Officer, Richard Notebaert, asserted in 

CNET News.com that online companies should be allowed to work 

out deals with network providers in an effort to get a leg up over 

their competitors. ‘‘Would this give some content providers an advantage over others? Well, yeah. We’re all trying to provide a little 

bit of differentiation for a competitive edge. That’s what business 

is about.’’ 36

And finally, Verizon Chief Executive Officer, Ivan Seidenberg, 

was quoted by the Wall Street Journal as aligning with AT&T in 

pursuing agreements that favored certain content providers over 

others, ‘‘[W]e have to make sure [content providers] don’t sit on our 

network and chew up our capacity.’’ 37

COMMITTEE CONSIDERATION

On May 25, 2006, the Committee met in open session and ordered favorably reported the bill H.R. 5417 with an amendment by 

rollcall vote of 20 to 13 with one vote as present, a quorum being 

present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth the following 

rollcall votes that occurred during the Committee’s consideration of 

H.R. 5417: 

Final Passage. The motion to report the bill, H.R. 5417, favorably 

as amended to the House was agreed to by a rollcall vote of 20 yeas 

to 13 nays, with one member voting present. 

ROLLCALL NO. 5 DATE: 5–25–06 

COMMITTEE ON THE JUDICIARY 

U.S. HOUSE OF REPRESENTATIVES 

109th CONGRESS 2nd SESSION 

SUBJECT: Motion to Favorably Report H.R. 5417, as amended, 

which was agreed to by a rollcall vote of 20 ayes, 13 nays, and 1 

present. 


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Ayes Nays Present 

MR. HYDE 

MR. COBLE X 

MR. SMITH X 

MR. GALLEGLY X 

MR. GOODLATTE X 

MR. CHABOT X 

MR. LUNGREN X 

MR. JENKINS X 

MR. CANNON X 

MR. BACHUS X 

MR. INGLIS X 

MR. HOSTETTLER X 

MR. GREEN X 

MR. KELLER X 

MR. ISSA X 

MR. FLAKE 

MR. PENCE 

MR. FORBES X 

MR. KING X 

MR. FEENEY X 

MR. FRANKS X 

MR. GOHMERT 

MR. CONYERS X 

MR. BERMAN X 

MR. BOUCHER X 

MR. NADLER X 

MR. SCOTT X 

MR. WATT 

MS. LOFGREN X 

MS. JACKSON LEE X 

MS. WATERS X 

MR. MEEHAN 

MR. DELAHUNT X 


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Ayes Nays Present 

MR. WEXLER X 

MR. WEINER X 

MR. SCHIFF X 

MS. SANCHEZ X 

MR. VAN HOLLEN X 

MRS. WASSERMAN SCHULTZ X 

MR. SENSENBRENNER, CHAIRMAN X 

TOTAL 20 13 1 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 5417, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

H.R. 5417—Internet Freedom and Nondiscrimination Act of 2006 

Summary: H.R. 5417 would prohibit providers of Internet service 

from discriminating between different types of content, applications, or services when providing Internet access to their customers. Under the bill, the Department of Justice (DOJ) and the 

Federal Trade Commission (FTC) would enforce the bill’s provisions by filing antitrust actions in federal court in the event of violations. Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 5417 would cost about $10 million 

over the 2007–2011 period. Enacting the bill would not affect direct 

spending or revenues. 

H.R. 5417 contains an intergovernmental mandate as defined in 

the Unfunded Mandates Reform Act (UMRA), but CBO estimates 

that the costs to state, local, and tribal governments, if any, would 

be small and would not exceed the threshold established in that 

act. 


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H.R. 5417 would impose private-sector mandates as defined in 

UMRA on broadband service providers. Because of uncertainty 

about how the mandates would affect certain business practices, 

CBO cannot estimate whether the aggregate costs of all of the 

mandates in the bill would exceed the annual threshold established 

by UMRA for private-sector mandates ($128 million in 2006, adjusted annually for inflation). 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 5417 is shown in the following table. The costs 

of this legislation fall within budget functions 370 (commerce and 

housing credit) and 750 (administration of justice). For this estimate, CBO assumes that the bill will be enacted near the start of 

fiscal year 2007. Based on information provided by the FTC and 

DOJ, CBO estimates that implementing the bill would cost those 

agencies about $10 million over the 2007–2011 period for the FTC 

and DOJ to enforce the bill’s provisions regarding access to Internet services. 

By fiscal year, in millions of dollars— 

2007 2008 2009 2010 2011 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level ...................................................................... 2 2 2 2 2 

Estimated Outlays ......................................................................................... 2 2 2 2 2 

Estimated impact on state, local, and tribal governments: H.R. 

5417 contains an intergovernmental mandate as defined in UMRA 

because it would prohibit providers of Internet services, some of 

which are intergovernmental entities, from charging additional fees 

for providing certain services and content. In general, state and 

local governments that provide services to access the Internet do 

not currently charge such fees nor do they have plans to do so in 

the future. Therefore, CBO estimates that the costs to intergovernmental entities, if any, would be small and would not exceed the 

threshold established in UMRA ($64 million in 2006, adjusted annually for inflation.) 

Estimated impact on the private sector:H.R. 5417 would impose 

private-sector mandates as defined in UMRA on broadband service 

providers. The bill defines broadband network service as a two-way 

transmission service that connects to the Internet and transmits 

information at an average rate of at least 200 kilobits per second 

in at least one direction. The bill would impose mandates by 

amending the Clayton Act to make it unlawful for broadband service providers to: 

• Provide broadband network services to any provider of content, network applications, or services in a discriminatory manner; 

• Prevent users from attaching any device to the network 

that does no harm to or otherwise degrades the network; 

• Interconnect with other broadband network service providers on discriminatory terms or conditions; or 

• Use surcharges for enhanced quality of service or 

prioritization. 

Because of uncertainty about how the mandates would affect certain business practices, CBO cannot estimate whether the aggregate costs of all of the mandates in the bill would exceed the anVerDate Aug 31 2005 06:03 Jul 04, 2006 Jkt 049006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\HR541.XXX HR541

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nual threshold established by UMRA for private-sector mandates 

($128 million in 2006, adjusted annually for inflation). 

Prohibition on the sale of broadband network services on discriminatory terms 

H.R. 5417 would amend the Clayton Act to make it illegal for 

broadband service providers ‘‘to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that any person can offer or provide content, applications, or services to or over the network in a manner that is at 

least equal to the manner in which the provider or its affiliates 

offer content, applications, and services, free of any surcharge on 

the basis of the content, application, or service . . .’’ 

Currently, cellular telephone providers offer proprietary content, 

such as ring-tones, music, and video clips. Most cellular networks 

do not yet meet the legislation’s definition of broadband (a transmission of 200,000 kilobits per second in either direction), but the 

industry is investing in technology and facilities to reach that goal. 

It is unclear, however, how much of the proprietary content was 

delivered over the Internet. As cellular providers achieve 

broadband speeds, they would have to allow other content or service providers increased access to their networks and, consequently, 

to their subscribers under the bill. 

The costs of the mandate would include the expenditures necessary for converting systems to allow other providers to offer alternatives to the cellular phone company Internet-based proprietary services and products. CBO has no information about the future market size of the Internet-based proprietary content and 

services or the cost of allowing providers access to such a network. 

Consequently, CBO cannot estimate the cost of complying with this 

mandate. 

Prohibition on restricting users from attaching devices to the network 

H.R. 5417 would amend the Clayton Act would make it unlawful 

for a broadband service provider ‘‘to prohibit a user from attaching 

or using a device on the provider’s network that does not physically 

damage or materially degrade other users’ utilization of the network . . .’’ 

At present, cellular networks control which telephone handsets 

can attach to their networks. Telephone handsets are typically 

manufactured by large electronics companies and customized for 

each cellular network. The most important aspect of customization 

provides for the efficient use of the spectrum and the network for 

each cellular provider. Some aspects of customization, however, 

have nothing to do with the efficient operation of the cellular network but allow cellular providers to choose which features of the 

cellular telephone to make available to subscribers depending on 

their commercial strategy. This bill would limit the control of cellular service providers over the types of handsets that have access 

to their networks. 

According to Telecommunications Industry Association data, 

roughly 200 million handsets are attached to cellular networks in 

the United States. Not all handsets are broadband capable, but at 

least 170 million are capable of transmitting on the proprietary 


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data networks and many provide access to the Internet. Industry 

experts project that many more such handsets will become 

broadband capable in the near term. Cellular companies providing 

such broadband services would be affected by this mandate. 

The direct costs of the mandate would include the expenditures 

necessary for operating the cellular telephone system using a wider 

array of handsets than are currently used by each network. According to engineering sources, the data are not currently available to 

determine the costs of complying with the mandate. 

Prohibition on the interconnection with broadband providers on discriminatory terms 

The bill would make it illegal ‘‘to refuse to interconnect its facilities with the facilities of another provider of broadband network 

services on reasonable and nondiscriminatory terms or conditions. 

. . .’’ Currently, the Internet service industry operates on a tiered 

charge system. Large providers of Internet services carry each other’s traffic at no charge but charge the smaller companies for carrying their traffic. If H.R. 5417 were enacted, the large companies 

would no longer be allowed to charge small firms differently than 

larger firms for carriage. The contracts for carriage are currently 

negotiated by the firms individually and the terms of exchange are 

confidential. Consequently, CBO has no basis to estimate the cost 

of this mandate. 

Prohibition on surcharges for enhanced quality of service 

The bill also would require a broadband network provider, if it 

offers enhanced quality of service for any type of data, to offer enhanced quality of service for all data of that type, regardless of the 

ownership of the data, without imposing a surcharge. 

At present, few if any broadband network providers offer enhanced quality of service on open networks. Enhanced quality of 

service is offered regularly on smaller private networks, but rarely, 

if ever, on public networks, most notably the Internet. The principal reason is that thousands of networks have connected to the 

Internet and no single provider controls more than a fraction of the 

Internet traffic routes worldwide. The delivery of messages and 

packets on the Internet depends on the coordination of many providers with different operating conditions on their own networks 

and on the interconnections between networks. For this reason, 

most Internet service providers do not currently offer such priority 

services. The cost of the mandate would be the loss in net income 

from not being able to use a surcharge for certain services. CBO 

has no basis to estimate the cost of this mandate. 

Previous CBO estimate: On May 3, 2006, CBO transmitted a cost 

estimate for H.R. 5252, the Communications Opportunity, Promotion, and Enhancement Act of 2006, as ordered reported by the 

House Committee on Energy and Commerce on April 27, 2006. 

Title II of that bill contains provisions related to access to Internet 

service. Difference between these bills are reflected in CBO’s cost 

estimates. 

Estimate prepared by: Federal Costs: Melissa Z. Petersen. Impact on State, Local, and Tribal Governments: Sarah Puro. Impact 

on the Private Sector: Philip Webre. 


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17 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 5417, is intended to preserve an antitrust remedy for anticompetitive and discriminatory practices by broadband service providers. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in art. I, § 8, of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title 

This section would provide that the legislation may be cited as 

the ‘‘Internet Freedom and Nondiscrimination Act of 2006.’’ 

Sec. 2. Purposes 

This section would specify that the purposes of the Act are to 

promote competition, facilitate trade, and ensure competitive and 

non-discriminatory access to the Internet. 

Sec. 3. Amendments to the Clayton Act 

Section 3(1) amends the Clayton Act by redesignating the existing section 28 as section 29. Section 3(2) inserts a new section 28 

with the following provisions: 

Paragraph (a) of the new section would prohibit the following five 

actions by a broadband network provider: (1) refusing to provide to 

third parties on reasonable and nondiscriminatory terms any 

broadband network service that it provides to itself or any affiliate; 

(2) refusing to interconnect its facilities with those of another 

broadband network provider on reasonable and nondiscriminatory 

terms and conditions; (3) blocking, impairing, discriminating 

against, or interfering with any person’s use of a broadband network service to access, use, send, receive, or offer lawful content, 

applications or services over the network or the Internet, or to impose any additional charge to avoid interference; (4) prohibiting a 

user from attaching any device to, or using any device in connection with, the operator’s network that does not damage, make unauthorized use of, or materially degrade other users’ utilization of 

the network; or (5) failing to clearly and conspicuously disclose accurate information to the public regarding all terms and conditions 

for use of its broadband network and any services provided over 

that network. 

Section 28(a) should not be interpreted to limit the ability of a 

broadband network provider to protect copyrighted works or prevent copyright infringement. 

Paragraph (b) of this section would require that if a broadband 

network provider prioritizes or offers enhanced quality of service to 


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data of a particular type, it must prioritize or offer the same enhanced quality of service to all comparable data without imposing 

a surcharge or other consideration for such prioritization or enhanced quality of service. 

Paragraph (c) of this section would preserve certain authorities 

of network operators. The section provides that a network operator 

may take reasonable and non-discriminatory actions intended to 

manage the functioning of its network to protect the security of its 

network; to give priority to emergency communications; and to prevent any activity that is unlawful under any federal, state, or local 

law or comply with any court-ordered law enforcement directive. 

Paragraph (d) defines the following terms for the Act: affiliate, 

broadband network provider, broadband network service, and user. 

‘‘Affiliate’’ means a person that directly or indirectly controls or 

is controlled by another person or a person that has a contract with 

a content or service provider concerning access to, or distribution 

of, such content or such service. 

‘‘Broadband network provider’’ means a person or entity engaged 

in commerce that owns, controls, operates, or resells and controls, 

any facility used to provide broadband network service to the public, by whatever technology and whether provided separately or as 

part of a bundled package of services for a few in exchange for an 

explicit benefit, or for free. 

‘‘Broad network service’’ means the provision of two-way transmission capacity that transmits information at an average rate of 

at least 200 kilobits per second in at least one direction. Such term 

does not include any transmission capacity used exclusively for the 

transmission of information used for financial transactions. 

‘‘User’’ means any person who takes and uses broadband network 

service, whether provided for a fee, in exchange for an explicit benefit, or for free. 

Section 3(3) of the bill further amends the Clayton Act to provide 

an administrative remedy for the non-discrimination provisions 

contained in the new Section 28. Specifically, Section 3(3) would 

add Section 28 to the existing provisions of the Clayton Act that 

may be enforced by the Federal Trade Commission or other designated administrative agencies pursuant to Section 11 of the Clayton Act. Section 11, which is codified at 15 U.S.C. § 21, provides for 

administrative hearings to enforce designated substantive provisions of the Clayton Act. If a violation is found, the relevant administrative agency shall issue a cease and desist order requiring the 

violator to cease the violation. The administrative remedy provided 

for in Section 11 is in addition to, and does not preclude, the possibility of government or private lawsuits brought in Federal court 

to enforce Section 28. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 


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19 

CLAYTON ACT 

* * * * * * * 

SEC. 11. (a) That authority to enforce compliance with sections 

2, 3, 7, øand 8¿ 8, and 28 of this Act by the persons respectively 

subject thereto is hereby vested in the Surface Transportation 

Board where applicable to common carriers subject to jurisdiction 

under subtitle IV of title 49, United States Code; in the Federal 

Communications Commission where applicable to common carriers 

engaged in wire or radio communication or radio transmission of 

energy; in the Secretary of Transportation where applicable to air 

carriers and foreign air carriers subject to the Federal Aviation Act 

of 1958; in the Federal Reserve Board where applicable to banks, 

banking associations, and trust companies; and in the Federal 

Trade Commission where applicable to all other character of commerce to be exercised as follows: 

(b) Whenever the Commission, Board, or Secretary vested with 

jurisdiction thereof shall have reason to believe that any person is 

violating or has violated any of the provisions of sections 2, 3, 7, 

øand 8¿ 8, and 28 of this Act, it shall issue and serve upon such 

person and the Attorney General a complaint stating its charges in 

that respect, and containing a notice of a hearing upon a day and 

at a place therein fixed at least thirty days after the service of said 

complaint. The person so complained of shall have the right to appear at the place and time so fixed and show cause why an order 

should not be entered by the Commission, Board, or Secretary requiring such person to cease and desist from the violation of the 

law so charged in said complaint. The Attorney General shall have 

the right to intervene and appear in said proceeding and any person may make application, and upon good cause shown may be allowed by the Commission, Board, or Secretary, to intervene and appear in said proceeding by counsel or in person. The testimony in 

any such proceeding shall be reduced to writing and filed in the office of the Commission, Board, or Secretary. If upon such hearing 

the Commission, Board, or Secretary, as the case may be, shall be 

of the opinion that any of the provisions of said sections have been 

or are being violated, it shall make a report in writing, in which 

it shall state its findings as to the facts, and shall issue and cause 

to be served on such person an order requiring such person to cease 

and desist from such violations, and divest itself of the stock, or 

other share capital, or assets, held or rid itself of the directors chosen contrary to the provisions of sections 7 and 8 of this Act, if any 

there be, in the manner and within the time fixed by said order. 

Until the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, or, 

if a petition for review has been filed within such time then until 

the record in the proceeding has been filed in a court of appeals 

of the United States, as hereinafter provided, the Commission, 

Board, or Secretary may at any time, upon such notice and in such 

manner as it shall deem proper, modify or set aside, in whole or 

in part, any report or any order made or issued by it under this 

section. After the expiration of the time allowed for filing a petition 

for review, if no such petition has been duly filed within such time, 

the Commission, Board, or Secretary may at any time, after notice 

and opportunity for hearing, reopen and alter, modify, or set aside, 

in whole or in part, any report or order made or issued by it under 


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20 

this section, whenever in the opinion of the Commission, Board, or 

Secretary conditions of fact or of law have so changed as to require 

such action or if the public interest shall so require: Provided, however, That the said person may, within sixty days after service 

upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of 

the United States, in the manner provided in subsection (c) of this 

section. 

* * * * * * * 

DISCRIMINATION BY BROADBAND NETWORK PROVIDERS

SEC. 28. (a) It shall be unlawful for any broadband network provider— 

(1) to fail to provide its broadband network services on reasonable and nondiscriminatory terms and conditions such that 

any person can offer or provide content, applications, or services 

to or over the network in a manner that is at least equal to the 

manner in which the provider or its affiliates offer content, applications, and services, free of any surcharge on the basis of 

the content, application, or service; 

(2) to refuse to interconnect its facilities with the facilities of 

another provider of broadband network services on reasonable 

and nondiscriminatory terms or conditions; 

(3)(A) to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network 

service to access, to use, to send, to receive, or to offer lawful 

content, applications or services over the Internet; or 

(B) to impose an additional charge to avoid any conduct that 

is prohibited by this subsection; 

(4) to prohibit a user from attaching or using a device on the 

provider’s network that does not physically damage or materially degrade other users’ utilization of the network; or 

(5) to fail to clearly and conspicuously disclose to users, in 

plain language, accurate information concerning any terms, 

conditions, or limitations on the broadband network service. 

(b) If a broadband network provider prioritizes or offers enhanced 

quality of service to data of a particular type, it must prioritize or 

offer enhanced quality of service to all data of that type (regardless 

of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced 

quality of service. 

(c) Nothing in this section shall be construed to prevent a 

broadband network provider from taking reasonable and nondiscriminatory measures— 

(1) to manage the functioning of its network, on a systemwide 

basis, provided that any such management function does not result in discrimination between content, applications, or services 

offered by the provider and unaffiliated provider; 

(2) to give priority to emergency communications; 

(3) to prevent a violation of a Federal or State law, or to comply with an order of a court to enforce such law; 

(4) to offer consumer protection services (such as parental 

controls), provided that a user may refuse or disable such services; 


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21 

(5) to offer special promotional pricing or other marketing initiatives; or 

(6) to prioritize or offer enhanced quality of service to all data 

of a particular type (regardless of the origin or ownership of 

such data) without imposing a surcharge or other consideration 

for such prioritization or quality of service. 

(d) For purposes of this section— 

(1) the term ‘‘affiliate’’ means— 

(A) a person that directly or indirectly owns, controls, is 

owned or controlled by, or is under the common ownership 

or control with another person; or 

(B) a person that has a contract or other arrangement 

with a content or service provider concerning access to, or 

distribution of, such content or such service; 

(2) the term ‘‘broadband network provider’’ means a person 

engaged in commerce that owns, controls, operates, or resells 

any facility used to provide broadband network service to the 

public, by whatever technology and without regard to whether 

provided for a fee, in exchange for an explicit benefit, or for free; 

(3) the term ‘‘broadband network service’’ means a 2-way 

transmission service that connects to the Internet and transmits 

information at an average rate of at least 200 kilobits per second in at least one direction, irrespective of whether such transmission is provided separately or as a component of another 

service; and 

(4) the term ‘‘user’’ means a person who takes and uses 

broadband network service, whether provided for a fee, in exchange for an explicit benefit, or for free. 

SEC. ø28¿ 29. If any clause, sentence, paragraph, or part of this 

Act shall, for any reason, be adjudged by any court of competent 

jurisdiction to be invalid, such judgment shall not affect, impair, or 

invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been 

rendered. 

MARKUP TRANSCRIPT

BUSINESS MEETING 

THURSDAY, MAY 25, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding. 

[Intervening business.] 

Chairman SENSENBRENNER. Okay. Pursuant to notice, I now call 

up the bill, H.R. 5417, the ‘‘Internet Freedom and Nondiscrimination Act of 2006’’ for purposes of markup and move its favorable 

recommendation to the House. Without objection, the bill will be 

considered as read and open for amendment at any point, and the 

Chair recognizes himself for 5 minutes to explain the bill. 

[The bill, H.R. 5417, follows:] 


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22 

1

I

109TH CONGRESS

2D SESSION H. R. 5417

To amend the Clayton Act with respect to competitive and nondiscriminatory

access to the Internet.

IN THE HOUSE OF REPRESENTATIVES

MAY 18, 2006

Mr. SENSENBRENNER (for himself, Mr. CONYERS, Mr. BOUCHER, and Ms.

ZOE LOFGREN of California) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Clayton Act with respect to competitive and

nondiscriminatory access to the Internet.

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 Freedom and

5 Nondiscrimination Act of 2006’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are to promote competition,

8 to facilitate trade, and to ensure competitive and non9 discriminatory access to the Internet.

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23 

2

•HR 5417 IH

1 SEC. 3. AMENDMENTS TO THE CLAYTON ACT.

2 The Clayton Act (15 U.S.C. 12 et seq.) is amended—

3 (1) by redesignating section 28 as section 29,

4 (2) by inserting after section 27 the following:

5 ‘‘DISCRIMINATION BY BROADBAND NETWORK PROVIDERS

6 ‘‘SEC. 28. (a) It shall be unlawful for any broadband

7 network provider—

8 ‘‘(1) to fail to provide its broadband network

9 services on reasonable and nondiscriminatory terms

10 and conditions such that any person can offer or

11 provide content, applications, or services to or over

12 the network in a manner that is at least equal to the

13 manner in which the provider or its affiliates offer

14 content, applications, and services, free of any sur15 charge on the basis of the content, application, or

16 service;

17 ‘‘(2) to refuse to interconnect its facilities with

18 the facilities of another provider of broadband net19 work services on reasonable and nondiscriminatory

20 terms or conditions;

21 ‘‘(3)(A) to block, to impair, to discriminate

22 against, or to interfere with the ability of any person

23 to use a broadband network service to access, to use,

24 to send, to receive, or to offer lawful content, appli25 cations or services over the Internet; or

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3

•HR 5417 IH

1 ‘‘(B) to impose an additional charge to avoid

2 any conduct that is prohibited by this subsection;

3 ‘‘(4) to prohibit a user from attaching or using

4 a device on the provider’s network that does not

5 physically damage or materially degrade other users’

6 utilization of the network; or

7 ‘‘(5) to fail to clearly and conspicuously disclose

8 to users, in plain language, accurate information

9 concerning any terms, conditions, or limitations on

10 the broadband network service.

11 ‘‘(b) If a broadband network provider prioritizes or

12 offers enhanced quality of service to data of a particular

13 type, it must prioritize or offer enhanced quality of service

14 to all data of that type (regardless of the origin or owner15 ship of such data) without imposing a surcharge or other

16 consideration for such prioritization or enhanced quality

17 of service.

18 ‘‘(c) Nothing in this section shall be construed to pre19 vent a broadband network provider from taking reasonable

20 and nondiscriminatory measures—

21 ‘‘(1) to manage the functioning of its network

22 to protect the security of such network and

23 broadband network services if such management

24 does not result in discrimination among the content,

25 applications, or services on the network;

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4

•HR 5417 IH

1 ‘‘(2) to give priority to emergency communica2 tions; or

3 ‘‘(3) to prevent a violation of a Federal or State

4 law, or to comply with an order of a court to enforce

5 such law.

6 ‘‘(d) For purposes of this section—

7 ‘‘(1) the term ‘affiliate’ means—

8 ‘‘(A) a person that directly or indirectly

9 owns, controls, is owned or controlled by, or is

10 under the common ownership or control with

11 another person; or

12 ‘‘(B) a person that has a contract or other

13 arrangement with a content or service provider

14 concerning access to, or distribution of, such

15 content or such service;

16 ‘‘(2) the term ‘broadband network provider’

17 means a person engaged in commerce that owns,

18 controls, operates, or resells any facility used to pro19 vide broadband network service to the public, by

20 whatever technology and without regard to whether

21 provided for a fee, in exchange for an explicit ben22 efit, or for free;

23 ‘‘(3) the term ‘broadband network service’

24 means a 2-way transmission service that connects to

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•HR 5417 IH

1 age rate of at least 200 kilobits per second in at

2 least one direction, irrespective of whether such

3 transmission is provided separately or as a compo4 nent of another service; and

5 ‘‘(4) the term ‘user’ means a person who takes

6 and uses broadband network service, whether pro7 vided for a fee, in exchange for an explicit benefit,

8 or for free.’’, and

9 (3) by amending subsection (a) and the 1st sen10 tence of subsection (b) of section 11 by striking

11 ‘‘and 8’’ and inserting ‘‘8, and 29’’.

Æ

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Chairman SENSENBRENNER. The Internet has revolutionized the 

way Americans access and transmit a broad range of goods, ideas, 

services and information. The central pro-competitive feature of the 

Internet is the nearly unrestricted ability of anyone to connect to 

it to access and post information, download content and consume 

goods and services without discrimination. 

According to FCC data released last month, 98.2 percent of 

Americans access high-speed broadband lines by connecting to either cable modem or digital subscriber lines. As a result, most 

Americans are subject to a broadband duopoly, while others, particularly in rural areas, are subject to a broadband monopoly. 

These conditions create an environment ripe for anticompetitive 

and discriminatory misconduct. 

Since the 1950’s and throughout my chairmanship, the House 

Committee and the Judiciary has played a critical role in fostering 

competition in the telecommunications industry. While the technological dynamics of the telecom marketplace have changed over 

time, the threat of dominant firms abusing their market power to 

restrain competition and consumer choice has not. The lack of competition in the broadband marketplace prevents a clear incentive 

for providers to leverage dominant market power over the 

broadband bottleneck to preselect, favor or prioritize Internet content over their networks. When this market power is utilized to 

violate the nondiscriminatory features that drive Internet innovation and consumer choice, then antitrust remedy is clearly needed. 

This bill preserves the remedy. 

Specifically, H.R. 5417 prohibits anticompetitive conduct in 

which the network provider fails to provide service and interconnection on nondiscriminatory terms, blocks or impairs the lawful content, prohibits users from attaching devices to its network, 

or fails to inform consumers about the terms of the broadband service. These protections do not restrict broadband network providers 

from taking steps necessary to manage networks in a nondiscriminatory manner, or to give priority to emergency or law enforcement communications. 

In addition, I will offer a bipartisan manager’s amendment with 

Ranking Member Conyers to further clarify that nothing in this 

legislation restricts broadband networks from offering controls to 

protect against the transmission of objectionable content or manage 

their networks in a nondiscriminatory manner. 

This legislation is timely for a number of reasons. In the Brand 

X decision last summer, the Supreme Court upheld FCC efforts to 

repeal nondiscriminatory safeguards against broadband misconduct. Recently, the Committee of Energy and Commerce reported legislation that vests the FCC with exclusive authority to 

define and adjudicate discriminatory broadband packages, while 

expressly prohibiting the FCC from issuing any rules and regulations to establish meaningful sanctions for this misconduct. These 

provisions displace the application of the antitrust laws in this field 

and transgresses the authority of this Committee. H.R. 5417 restores these protections. 

Opponents of this legislation have sought to portray efforts to 

provide a meaningful remedy for anticompetitive misconduct by 

broadband providers as regulatory in nature. However, the antitrust laws have served as a competitive backstop against competiVerDate Aug 31 2005 06:03 Jul 04, 2006 Jkt 049006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR541.XXX HR541

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tive abuse by market dominant forces for over a century. Opponents of this bill have also argued that meaningful restrictions on 

the ability of broadband providers to abuse their market power to 

discriminate against online conduct is a solution in search of a 

problem. If this is the case, then this legislation merely represents 

a ‘‘trust but verify’’ approach, and that worked 15 years ago to 

make the world a better place. 

Finally, opponents of this legislation have attempted to transform this debate into a partisan issue. Contrary to the specious arguments advanced by broadband network providers, efforts to perfect online businesses and consumers against predatory and discriminatory practices that produced a broad and diverse coalition 

in support of this legislation. The coalition includes the Christian 

Coalition, the National Retail Federation, AARP, Financial Services Roundtable, Intel Microsoft Content Providers, the Gun Owners of America, the Parents TV Council, and the National Religious 

Broadcasters. And I ask unanimous consent to include their statements of support on Internet freedom in the record at this point. 

[The information referred to follows:] 


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Chairman SENSENBRENNER. I urge my colleagues to support this 

legislation, and now recognize the gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I rise as the cosponsor 

of this legislation, and I’m very proud of the fact that it is bipartisan in nature, and I commend the Chairman on the record for 

making sure that this jurisdiction over this issue remains in the 

Committee on the Judiciary. 

Now, last year, ladies and gentlemen, in August, the FCC voted 

to change the way it enforces the rules dealing with the Internet, 

basically eliminating net neutrality. What we are faced with now 

is an end to net neutrality as we have appreciated it up till now. 

We’re at the final stages, and this is why we’ve introduced this legislation. 

The FCC decision to eliminate, basically eliminate net neutrality 

has a 1–year phase-in period, and so it’s still in effect for the next 

few months, but after August of this year, there will be no rule or 

regulation to stop the phone and cable companies, a duopoly, 98 

percent, from doing what they’ve said they want to do, charge content providers for the right to be on their Internet pipes and making special deals with some companies to ensure their sites and 

services work faster and easier to find—be found by Internet users. 

That’s why it’s so critical now that this Committee on Judiciary 

acts now to protect freedom on the Internet. 

And by the way, this comes right to your office door, because 

many of us enjoy a great deal of interaction and discussion with 

citizens, and without the open pipes that allow this to happen, if 

we, without passing this forward today, allow this to be changed 

as it goes out, expires in August, guess what? You could, I could, 

we could, be put in the slow lane for our talk, our chats, and the 

information that we use ourselves. And so it’s very important that 

we understand what’s going to happen if we get rid of net neutrality, which we’ve enjoyed and worked with so far. 

The service providers, bless their hearts—I like a lot of them— 

would be free to block online content or services for any reason. 

They could also charge websites, assuring that any site that would 

or that couldn’t or wouldn’t pay fees, would not be easy to find. It 

could spell the end of the innovation as small businesses have been 

control—and would now be controlled by the big telephone and 

cable companies. If network providers are allowed to control the 

flow of information, the open and freewheeling nature of the Internet that we respect and like so much would be lost. We’ll lose that 

town hall environment on the Internet, where we talk to one another, exchange views and find information from news, opinions, 

blogs, and engage in the democratic give and take that has made 

the Internet so absolutely popular. 

And so we already have instances of Internet providers blocking 

access to the Internet applications that allow you to access your 

network or share files. We’ve got several cases that I won’t bother 

to cite here. 

Net neutrality has the widest support. It’s a matter now of this 

Committee determining to continue the same principle that has operated so well. Without it, we are going to slide back and goodness 

knows when we will be able to get it repaired. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 


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Mr. CONYERS. Please support this bipartisan measure, and I return—— 

Chairman SENSENBRENNER. Without objection, all Members 

opening statements will appear in the record at this point. 

Are there amendments? And the Chair recognizes himself to offer 

a manager’s amendment on behalf of himself and Mr. Conyers, and 

the clerk will report the amendment. 

The CLERK. Amendment to H.R. 5417, offered by Mr. Sensenbrenner. Page 3, strike lines 21 through 25, and insert the following. 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The Chair recognizes himself for 5 minutes. 

[The amendment follows:] 


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1

H.L.C.

AMENDMENT TO H.R. 5417

OFFERED BY MR. SENSENBRENNER

Page 3, strike lines 21 through 25, and insert the

following:

1 (1) to manage the functioning of its network,

2 on a systemwide basis, provided that any such man3 agement function does not result in discrimination

4 between content, applications, or services offered by

5 the provider and unaffiliated provider;

Page 4, after line 5, insert the following (and make

such technical changes as may be appropriate):

6 (4) to offer consumer protection services (such

7 as parental controls), provided that a user may

8 refuse or disable such services;

9 (5) to offer special promotional pricing or other

10 marketing initiatives; or

11 (6) to prioritize or offer enhanced quality of

12 service to all data of a particular type (regardless of

13 the origin or ownership of such data) without impos14 ing a surcharge or other consideration for such

15 prioritization or quality of service.

Page 5, line 11, strike ‘‘29’’ and insert ‘‘28’’.

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Chairman SENSENBRENNER. As I noted in my opening statement, 

I am offering this amendment along with Ranking Member Conyers to further clarify that nothing in the legislation restricts 

broadband networks from offering controls to protect against the 

transmission of objectionable content or to manage their networks 

in a nondiscriminatory manner. I urge Members to support this 

clarifying amendment, and yield back the balance of my time. 

Gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Before running the clock, let me say that we’re supposed to have 

votes at noon. We have one other bill besides this one that we have 

to act upon. If we do not get finished, we’ll be back after lunch. 

The gentleman is recognized for 5 minutes. 

Mr. NADLER. Thank you. I won’t take the whole 5 minutes. 

Mr. Chairman, in the 19th century, the great super highway of 

the future was the railroad. Congress recognized that if the railroads, which were granted rights-of-way by the Government, could 

engage in price discrimination or in discrimination against captive 

shippers, the Nation’s economy and its future would be strangled. 

Today the Internet is the super highway of the future. We have 

a choice, to allow a small number of companies to control that future, or to ensure that the super highway is open to all in a fair 

and nondiscriminatory basis. The cable and telephone companies 

have a right to a reasonable return on their investment, another 

principle established more than 100 years ago. They are not entitled to squeeze competitors or to decide who gets to be a part of 

the electronic future. This bill embodies that principle. In addition 

to which I want to make one other comment. 

The campaign finance system in this country, everybody agrees 

is a major problem. What we do about it, a lot of disagreement 

about. Many observers have suggested that the Internet may very 

well solve that problem, that years from now people will not do expensive TV ads, but that most communications will be over the 

Internet and cost essentially nothing or very little, and this will restore democracy to our country in a way that we don’t have it now, 

and will eliminate the necessity to raise large sums of money for 

campaigns. Maybe they’re right, maybe they’re wrong, but we 

shouldn’t interfere with that potential. That is just one potential of 

the Internet. It may liberate our country’s democratic process 

again. 

Mr. Chairman, I commend you, and I commend the Ranking 

Member for their work on this bill. I believe it strikes the appropriate balance between the Nation’s interest and reasonable and 

nondiscriminatory access, and the rights of the Nation’s broadband 

companies. I urge its adoption. I yield back the balance of my time. 

Mr. SMITH. Mr. Chairman? 

Chairman SENSENBRENNER. Gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. I move to strike the last 

word. 

Chairman SENSENBRENNER. Okay. The gentleman is recognized. 

Mr. SMITH. First I’d like to thank the Chairman for his strong 

leadership and his determination to protect the prerogatives and 


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jurisdictions of this Committee. No one has been stronger in advocating for this Committee, and all of us on both sides of the aisle 

owe him a tremendous debt of gratitude. 

The Judiciary Committee has always played a vital role in ensuring fair competition in the telecommunications industry. We must 

continue to do so in the constantly evolving environment of the 

Internet, and we will. 

Almost all Members would agree that we need to preserve antitrust scrutiny of the industry. The question is, how do we best do 

that? Do we leave it to the exclusive jurisdiction of the Federal 

Communications Commission? I think the Commission’s record 

with the 1996 Telecommunications Act shows that that is not the 

best way to go. Or as this bill does, should we try to set out the 

rules of competition of a rapidly evolving market before we even 

know where that market is going? Frankly, I do not believe we 

have the ability to do that. Rather, I think it is better to leave 

these decisions to the courts to work out on a case-by-case basis 

under the antitrust laws. 

Every Member of this Committee cares about our jurisdiction, 

but some of us also have concerns about the substance of the bill. 

However, if the Commerce Committee bill comes to the floor, there 

is no guarantee that this bill will be made in order, nor is there 

any guarantee that it will pass on the floor. It is possible that another kind of amendment might be in order, and could pass and get 

this Committee a seat on the Conference Committee. So I don’t 

think that preserving our Committee’s jurisdiction is necessarily 

tied to voting for this bill today. 

It is a well-intentioned bill that would certainly prohibit some 

anticompetitive conduct. The problem is that it would also prohibit 

a lot of conduct that is pro-competitive. Suppose, for example, that 

an innovative company wants to provide a new video service that 

requires greater bandwidth than most existing products? Suppose 

that a broadband provider has the capacity to provide that extra 

bandwidth to one company, but not to six other companies? Under 

this bill’s prohibition on antidiscrimination and the broadband provider’s terms or conditions of service, it would not be able to offer 

the extra bandwidth to the one innovative company because it 

would then be required to provide it to all. This is a regulator’s 

dream, but an entrepreneur’s nightmare. 

Preemptively legislating new regulatory burdens can also have 

many unintended consequences. I am particularly concerned about 

the effects on intellectual property protection. For example, the bill 

says that a broadband provider cannot block access to lawful content. How does that apply when users subscribe to a peer-to-peer 

file-sharing network that is primarily used for infringing purposes, 

but may also include some lawful content? It is also unclear how 

broadband providers would comply with some of the provisions. For 

example, the bill provides that a broadband provider must clearly 

and conspicuously disclose to users in plain language accurate information concerning the terms and conditions of its service. 

This is so broad and vague that I am unsure how anyone could 

know what it means as a practical matter. But if the broadband 

providers violate that requirement, they are subject to all the remedies of the antitrust laws, including treble damages. 


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The point is that it is very difficult to write rules for how the 

Internet should grow. Frankly, so far, it’s done a pretty good job 

of growing on its own. Maybe I am wrong. Maybe the legislation 

would not cause any of these problems, but the uncertain and unpredictable effect of the bill is what makes it worrisome. Even a coalition of first responders has expressed their concern that the bill 

could potentially affect the development of new technologies to address interoperability. 

Instead of writing prescriptive rules to solve speculative problems, it would be better to focus our efforts on preserving the application of current antitrust laws to safeguard against anticompetitive practices on the Internet. This approach would preserve the jurisdiction of this Committee and ensure that we don’t put a straitjacket on this important sector of our economy. 

While I agree with the good intentions of this legislation, I believe that it reaches too far and could stifle future innovations instead of protecting them. Although I have great appreciation for 

the Chairman, his strong feelings on this issue, and his devotion 

to this Committee and its interests, I, frankly, cannot support this 

bill even with the manager’s amendment. 

Thank you, Mr. Chairman. 

Mr. BERMAN. Would the gentleman yield? I ask unanimous consent that the gentleman have an additional minute? 

Chairman SENSENBRENNER. Without objection. 

Mr. BERMAN. Would the gentleman yield? 

Mr. SMITH. I’ll be happy to yield. 

Mr. BERMAN. The one issue I’ve asked you to just address further, if you feel that having only the FCC do the regulation has 

been shown not to be appropriate, and if we don’t pass this bill, in 

other words, on what basis do you get the Rules Committee to say 

something that has an antitrust angle that allows there to be a 

Justice Department review of questions of concentration of power 

and restraint of trade, will be made a Member’s amendment on a 

subject which otherwise is not germane, will have the kind of 

standing that some product coming out of this Committee would 

have in terms of even a approach that addresses some of the concerns that you have and perhaps I share? 

Mr. SMITH. Let me reclaim my time and try to respond to the 

gentleman’s question. First of all, let me reiterate my point that 

there is no guarantee that this bill will be made an order on the 

floor, there is no guarantee that it would perhaps pass on the floor. 

I so think we have options by offering other amendments. It can 

be written in a way that would be germane, and of course, that’s 

up to the leadership and the Rules Committee whether or not they 

accept an amendment. And I am simply saying that that is a possibility, and if that possibility does occur, that does preserve the jurisdiction of the Committee because I happen to also feel it is important for us to have a seat on that conference Committee. 

So I think that it is possible, just there’s a lot of variables involved. 

Mr. ISSA. Would the gentleman yield? 

Mr. SMITH. And I’ll be happy to yield to the gentleman from California. 

Mr. ISSA. Thank you. I don’t want to take any time on my own, 

because I know this is important that we move forward. I just want 


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to associate myself with your comments, and look forward to working on the amendment for the floor should this not prevail today. 

Mr. SMITH. I thank the gentleman and yield back the balance of 

my time. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. Mr. Chairman, I would like to pose a question, and 

I don’t know if you or any of your colleagues, the sponsors of the 

bill, might weigh in on it. I think many of us have been wrestling 

with this over the last couple of weeks, and I think many of us, 

you know, feel the same way about it, that we like the principle 

of net neutrality, and think this is still a growing, vibrant e-industry that we don’t want to take steps that will chill that growth and 

development. The question I think posed for many of us is whether 

using the antitrust laws is the most effective way to guarantee that 

kind of openness and robustness. 

And for me, what it comes down to—and I’m still wrestling with 

this—and maybe the Chairman, or anyone else would like to jump 

in—and that is, not all broadband providers are necessarily in the 

same situation with the same business model, the same market 

conditions. It’s one thing to log onto your computer at home and 

want to be able to travel to any website equally. It’s another potentially if you’re Verizon and you’ve developed a wireless technology 

that allows people to download content to their cell phone, and 

you’ve invested a lot of capital to make that possible for your 

phones and then you have to provide this now to everyone else, and 

allow them to piggyback on the market investment you’ve made in 

that. 

So I think these are tough questions that we’ll have to decide in 

terms of what is really open access and what is freeloading. And 

my question is, what gives us confidence to believe that the antitrust vehicle and the FTC will do a better job than the FCC or 

some other regime? Is this the best approach? 

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. SCHIFF. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. I think the question posed in this 

bill is a very plain one, and that is, is do we want to have antitrust 

and anticompetitive decisions being made by a judge, subject to the 

appeal procedure, or by 7 politically appointed members of the 

FCC? What this bill says is that the judge makes the decision, just 

like it’s done for the last 100 plus years since the passage of the 

Sherman and Clayton Acts. 

Mr. SCHIFF. Mr. Chairman, if I can reclaim my time. And, again, 

I’m really searching for an answer here. These aren’t rhetorical 

questions. But is this a question that is subject to judicial determination, or is this really more of a policy question about what circumstances do we want to require absolute equality, and what circumstances would absolute equality chill the development of those 

new—— 

Ms. LOFGREN. Will the gentleman yield? 

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. SCHIFF. Yes, Mr. Chairman. 


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Chairman SENSENBRENNER. The Energy and Commerce Committee bill this exclusive authority to determine these questions in 

the FCC. And what this bill does is it restores the legal construct 

that we’ve had since the passage of the landmark antitrust laws 

over 100 years ago in the Federal Judiciary, and the policy question is who makes the determination of what is anticompetitive? 

I cast my vote in having the judges do it because I think they’ve 

done it in a fairly responsible manner for over 100 years. The Energy and Commerce Committee wants to change that and to make 

these determinations done by a regulatory body and not by a judicial body. 

Mr. SCHIFF. Mr. Chairman, I would be happy to yield now to the 

gentlewoman from California. 

Ms. LOFGREN. I understand that Members are sorting through. 

It’s a very complicated issue, and that we are all trying to do the 

very best that we can with this complicated issue. 

In the example that the gentleman offered where, let’s say, for 

example, Provider A develops an advanced cell phone that allows 

for enormous text messaging. The provider, under the bill introduced by Mr. Sensenbrenner and Conyers, could charge an accelerated price for that advanced product and the consumer would pay 

that price. Under the bill, what they couldn’t say is that we are 

going to allow you for Price A to go only to our websites or to our 

customers, but if you’re going to go outside this network, we’re 

going to charge you an extra price. And that’s because the Internet 

has worked because newcomers and challengers to incumbents 

have been able to actually have free access to all of their potential 

customers, and it is the customer who decides who they want to 

contact, not the provider, who decides who the customers can contact. 

And so I think that the ability to actually charge for services is 

completely provided for in this. It’s only the discrimination that 

monopoly providers of the actual pipes to access the Internet that 

is controlled by this, and absent this, the ability of consumers to 

decide how they want to access the Internet is, I think, very much 

at risk. 

And I thank the gentleman for yielding to me. 

Mr. CANNON. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. Thank you, Mr. Chairman. For me, this markup is 

like a riddle wrapped in a conundrum, and I just wanted to make 

a couple of things clear. I intend to vote with the Chairman on this 

issue, but I’d like to talk about net neutrality for a moment. Real 

net neutrality, whatever else it is, is going to be a function of consumer choice. Consumer Choice is going to be a function of a return 

on investment, and the problem we have today is that we don’t 

have clarity of law, and that makes it very, very difficult. 

We also have this incredibly complicated competitive environment where the cable companies are now offering telephone service, and they are cutting a bunch of businesses out from under the 

incumbent telephone companies, and what is happening in the 

Commerce bill is an attempt to sort of even the ground so that telephone companies can also offer content over their lines. If that 


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doesn’t happen, we’re going to see some pretty terrific dislocations 

in our whole system. 

So whatever we do here after today, may I suggest that we need 

to do it with clarity, and we need to do it quickly. We need to be 

out of the way of the transformation that is taking place around 

us, and we need to do it in a way that does not constrain, but in 

fact, encourages new competitors to come into the system so that 

consumers can say, ‘‘I don’t need to worry about the constraints on 

Provider A because Provider B doesn’t do those constraints and the 

price is lower, and I get more service.’’ And so may I just encourage 

this Committee, whatever we do on this bill, that we need to move 

quickly and decisively and with clarity so that the playing field 

works in the future. 

And with that, Mr. Chairman, I yield back. 

Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. Gentleman from Massachusetts, Mr. 

Delahunt. 

Mr. DELAHUNT. Mr. Chairman, to listen to some of the interested 

parties, net neutrality is a cut and dry case, but I have to tell you, 

this is a complicated issue, one that—much more than what the 

one pages and the talking points would suggest. The issues are 

complex. They’re arcane, and require a comprehensive understanding of the infrastructure of the Internet, as well as current 

market conditions and the full array of potential possibilities. 

And this, in my opinion, really demands a exhaustive and thorough review. I’ve heard opponents of net neutrality argue that innovation would be stifled if we don’t act because network operators 

will move away from an open Internet and give preferential treatment to some content, and I’ve heard the opponents argue that innovation would be stifled if we do act because regulation will hamper network providers’ ability to ensure delivery of high bandwidth 

services such as video. On top of that there are concerns about the 

impact on deployment and investment in broadband, an area where 

the United States falls further behind our peers every year. And 

I believe that we have not, because of time constraints, had the 

kind of hearings in this Committee that are warranted because of 

the significance and importance and complexity of this issue. 

I understand the issue that the Chairman and Ranking Member’s bill is meant to resolve, would have a profound influence on 

the future of the Internet in the United States. It will also, inevitably have an enormous impact on our economy. 

To be very candid, I acknowledge, for one, I have insufficient information at this point in time to take that vote right now. At the 

same time I recognize that as a Member of this Committee that we 

have, as others have indicated, a legitimate role in this process, 

and often timing is not left up to us. There should be no question 

that this issue falls within the jurisdiction of this Committee, and 

as others have mentioned, Mr. Chairman, I acknowledge your commitment to defend that jurisdiction. We’ve disagreed on many 

issues, and we’ve worked together, and I would suggest achieved 

significant results on other issues. But no one doubts your commitment to protecting the jurisdiction of this Committee, and I would 

state publicly that this is a service for both majority and minority 

Members on this dais. 


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So with that in mind, and because of my respect for you and Mr. 

Conyers, I intend to vote present on this particular proposal. With 

that, I yield back. 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. DELAHUNT. Mr. Chairman, I yield to the gentlelady. 

Ms. JACKSON LEE. I thank the distinguished gentleman, and I 

thank him for his thoughtfulness. 

I want to just make the point that we’re all friends in this room. 

I think we can find, if you will, a pathway of recognition of our 

friendship. I think it’s important to note that we are talking about 

a very unique product and a very limited product. We know that 

the broadband pipes is limited, and new applications and services 

are consuming more and more of it. And we also realize that this 

is a moment in time to be able to assert jurisdiction to work with 

our friends. 

I might commend my colleagues to the Texas model, where we 

talked about protecting consumers and consumer cost. In order to 

get there, I think it’s important for us to make a statement about 

the competitive issue, and I believe that Mr. Smith, Lamar Smith, 

had a very valuable thought, and a very valuable potential amendment, and I also think that as we make our way to the floor, we’ll 

be able to assert a better formula for working together—— 

Chairman SENSENBRENNER. Time of the gentleman has expired. 

The question is—— 

Ms. JACKSON LEE. Let me just say as I close—— 

Chairman SENSENBRENNER.—on the amendment offered by—— 

Ms. JACKSON LEE.—that I think this is a valuable amendment 

and a valuable—— 

Chairman SENSENBRENNER.—by the gentleman from Michigan, 

Mr. Conyers—— 

Ms. JACKSON LEE.—statement on jurisdiction, and I yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Michigan and myself. Those in favor 

will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it, and the amendment is agreed to. Are there further amendments? If there are no 

further amendments—— 

Mr. WEINER. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. WEINER. To strike the requisite number of words. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WEINER. Mr. Chairman, I disagree with you and Mr. Conyers 

and the other sponsors of this legislation on many key points, but 

agree with you on one. You know, I agree that we in this Committee and we in this House have to foster innovation. I think that 

it was the innovation of the content providers that dragged the dinosaurs of the telcos and the cable companies into providing better 

access, and that will continue to happen. I think that, frankly, if 

it weren’t for our need to download music for our iPods, we probably would still have a 33 whatever it is modem I our computer. 

And I think that now after years of kicking and screaming, it 

seems that the cable companies and the telcos get it. It seems that 


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they understand that content and the ability for people to get content is going to be how the winners and losers in the future of this 

are going to be defined. I don’t believe that they have shown any 

instinct, despite some intemperate remarks from their leadership, 

they haven’t shown any instinct, at least up to now, to close off the 

pipe, which is the fear of so many who advocate. 

I think that the winners, the i-tubes, the sling boxes of the future, they are going to be the winners, telcos are going to be the 

winners, cable companies are going to be the winners when we 

allow as much access to content. 

What concerns me is about those that we don’t know, the smaller 

companies we’re unaware of that might not have access. That’s a 

reasonable complaint. But I have to say the very same people who 

are advocating for net neutrality were at the vanguard of advocating that we in Congress take a libertarian view of these issues. 

Stay out of these fights, we were constantly told by these content 

providers. We said that these fights will go on. Everyone will claim 

that big guy is going to squash me, and then 5 years later that big 

guy was getting squashed by someone who seemed like a little guy. 

Stay out of it we were argued. 

And it turned out to be wisdom, I believe. I believe we shouldn’t 

weigh in in these gambling issues by forcing credit card companies 

to get involved. I believe we shouldn’t weigh in, as abhorrent as 

some things are on the Internet. Stay out, it’s a bad idea to legislate in this area. Now those very same libertarians are saying, 

‘‘Wait a minute. We need a new law. We call it net neutrality. Let’s 

put it on top of everything.’’ I disagree with the Chairman and the 

Ranking Member in that regard. But I agree with them in a very 

important way. The way the Energy and Commerce bill is written, 

it is clearly to deny this Committee, and frankly, most citizens, a 

right to remedy. 

On page 43 of the Energy and Commerce bill the adjudicatory 

authority says, the Commission, the FCC, shall have exclusive authority to adjudicate any complaint alleging a violation of the 

broadband policy statement, those four freedoms that are articulated by the FCC and are enshrined in this legislation, and the 

principles incorporated therein. 

A little further down on that same page it has limitations. Nothing in this section shall include authorization for the Commission 

to adopt or implement rules regarding enforcement. It’s almost as 

if they say you can go to the FCC and have this adjudicated, but 

you can’t do anything else. You can’t have rules. You can’t have 

any public input, and the way I read this: ‘‘shall have exclusive authority’’ means that there’s no meaningful—if a court has to decide 

whether or not you can have an antitrust challenge brought, I read 

this to be, to guide any court to say no, that Congress believes 

there’s not going to be any antitrust jurisdiction here. Why would 

you do that? If you say we want this essentially to allow the marketplace to work, why would you then put in language that makes 

it so difficult for the people to have any effort to make sure that 

it does work? 

Mr. CONYERS. Would the gentleman yield very briefly? 

Mr. WEINER. Certainly. 

Mr. CONYERS. Thank you so much. 

Mr. WEINER. Certainly. 


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Mr. CONYERS. The only reason this measure is before us today 

is that it is expiring. In August of this year there won’t be any 

practice. We’re continuing what we already have, my friend—— 

Mr. WEINER. Yes, I—— 

Mr. CONYERS. And that the antitrust provision is the only way 

that each small company will have a right to get in it. FCC doesn’t 

work. FTC does their own thing—— 

Mr. WEINER. And reclaiming my time, and I understand that, 

and I disagree fundamentally with the idea that we want to put 

another regulatory scheme on top, and I believe that we have to 

let kind of the currents of this fight go its various ways. One of the 

ways is to go to the courts and say, you know what, the duopoly 

power that is controlled right now by the cable companies or the 

telcos, we shouldn’t be legislating it, but there are going to be disputes about that, and they may wind up in the courts and we may 

have judges and juries deciding these things. And this is why at 

the end of the day I believe that the Sensenbrenner-Conyers bill is 

a wise idea, and for something else. 

We should want to, in this Committee, be fighting every single 

day to make sure intellectual property discussions don’t just go on 

in the Energy and Commerce Committee. This is more than about 

energy and more than about commerce. It’s also about a fundamental desire that we all have to make sure that speech is fostered, to make sure that technology is fostered. So I take the view 

that while I think we shouldn’t legislate this area, we can slam the 

door shut on these other areas where people can—— 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. WEINER. This is the big ending, Mr. Chairman. In that fundamental way, I—— 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The Chair will once again reiterate that either we get this bill done 

before the votes, which are coming imminently, or we will be back 

here no later than one o’clock. Now, the question is—— 

Mr. ISSA. Move to strike the last word, Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California seek recognition? 

Mr. ISSA. Mr. Chairman, I move to strike the last word. I will 

be incredibly brief. 

Chairman SENSENBRENNER. Okay. 

Mr. ISSA. Although I do have an amendment at the desk, I’ve 

been convinced by staff that we can continue working on the question of the bit rate that’s in the underlying Sensenbrenner-Conyers 

bill, because 200 kilobits is, in my opinion, old technology and far 

too slow, and it does entrap, as the debate spoke about, it does entrap the existing broadband cellular networks unnecessarily, and 

my amendment would have raised that to the one MIP or thousand 

kilobit speed, and I look forward to working with the Chairman, 

and with that, I yield back. 

Chairman SENSENBRENNER. The Chair would ask Members to 

consider whether they want to continue talking. If the Chair recognizes another Member, we will be back at one o’clock. 

The Committee is recessed until one o’clock. 

[Recess.] 

AFTERNOON SESSION 


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Chairman SENSENBRENNER. The Committee will be in order. 

When the Committee recessed, the pending question was on the 

motion to report the bill, H.R. 5417, favorably as amended. The bill 

is open for amendment at any point. 

The gentleman from Maryland, for what purpose do you seek recognition? 

Mr. VAN HOLLEN. I move to strike the last word, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I too, like others 

before the break, want to commend you and Mr. Conyers for your 

leadership on this issue. I also want to associate myself with others 

who made the point that this is a difficult and complicated issue, 

and I do think it’s important that as a Congress we move carefully 

in this area. I believe, as I think all of us on this Committee and 

in Congress do, that we want to maintain the Internet as a free 

and open space in cyber space for the exchange of ideas, products 

and services. And the question is, what’s the best way to do that? 

And I think there is a fair debate as to the best approach to do 

that. 

Like others—and Mr. Weiner discussed this in his comments— 

I do disagree with the approach taken by the Energy and Commerce Committee. And he, I think very ably, made the point that 

the bill that came out of the Energy and Commerce Committee 

both vested the FCC with exclusive jurisdiction, at the same time 

gutted in many ways the meaningfulness of that jurisdiction. 

I would just like to relate a letter from the Federal Trade Commission, the FTC, addressed to Mr. Conyers, April 14th, because it 

relates to this issue. And question No. 8 there was, is there anything the FTC would ask of Congress in order to clarify jurisdictional divisions and/or facilitate the FTC’s work with regard to protecting consumers in the broadband Internet access marketplace. 

And in their response to that question, they say, ‘‘As Congress 

considers legislation on broadband Internet access, the Commission 

believes that any such legislation should clearly preserve the FTC’s 

existing authority over activities within its jurisdiction such as 

broadband Internet access. We note that some recent legislative 

proposals would assign to the FCC specific competition and consumer protection authority regarding such activities, and could be 

misread to oust the FTC from its established jurisdiction.’’ In other 

words, its jurisdiction over anticompetitive behavior. 

While I have to say that I don’t think that the bill before this 

Committee is the very best way to deal with that issue, I think 

there are better ways. For example, I think the best approach 

would be to go into the bill that came out of the Energy and Commerce Committee, get rid of the exclusivity provision, make some 

other changes. I do think it’s the best vehicle before us to send a 

very strong signal that we don’t like what is in the Energy and 

Commerce Committee bill, and I don’t know—— 

Mr. CONYERS. Would the gentleman yield? 

Mr. VAN HOLLEN. I’d be happy to yield. 

Mr. CONYERS. I just want him to know that’s precisely what we 

tried to do. This is our fallback position. What we want to do is 

give individuals and companies a right to sue themselves—sue in 

their own rights, and that the only way we can do it is through 


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antitrust. As we all know, FCC is like a moss pit, there’s nothing 

that can happen there. And I thank the gentleman for his evaluation and mentioning our communication with FTC because it’s so 

important. 

Mr. VAN HOLLEN. I thank you as well. And again, I do have some 

concerns that the language of the bill before us with respect to 

antidiscriminatory practices could have some unintended consequences. Mr. Schiff, in his earlier comments, mentioned a particular hypothetical. And I am concerned that if it was to be enacting the law in its current form, it could curb creativity, it could 

hamper investment, and it could do in some things that we would 

be inconsistent with the very intent of what we’re trying to do. And 

so I am at this time going to be supporting this legislation, with 

the understanding that its primary purpose from my perspective is 

to put the rest of the Congress, put the Energy and Commerce 

Committee on notice we have concerns with what they did and we 

want that addressed in some fashion, even if this isn’t the final solution. 

Mr. CONYERS. Would the gentleman yield briefly again? 

Mr. VAN HOLLEN. I’d be happy to. 

Mr. CONYERS. I just want him to know that those concerns are 

the same as mine, and we want all these companies that are out 

there—I’m sure they want the same kind of things for themselves 

that you want for them too. So I think we’ve got a broad mandate 

from a large part of the telecom community to make those kinds 

of improvements if we can. And I thank the gentleman. 

Mr. VAN HOLLEN. I thank you. 

Chairman SENSENBRENNER. The question is on reporting the bill 

favorably as amended—— 

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Thank you, Mr. Chairman. I move to strike the last 

word. I just want to associate myself with the comments by Mr. 

Van Hollen. I think the bill is a blunt instrument, and yet I think 

it does send a message that it’s important to retain jurisdiction for 

the Justice Department and for antitrust issues. But I would hope 

in the interim between this bill coming up or the other bill coming 

on the floor, there will be an opportunity to visit in greater detail 

some of the issues to improve upon the work product, and on that 

basis, I yield back. 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. SCHIFF. Yes. 

Ms. JACKSON LEE. I thank the gentleman. Listening to both of 

you, I just want to reiterate that this compromise or this approach 

in a bipartisan way has worked, and it has worked in the State of 

Texas, where there was an ability to focus on I think your concern, 

one jurisdiction, but more importantly, consumers having choice, 

having protection. And I hope that everyone understands that’s all 

this legislation is attempting to do, is to provide that kind of protection. 

I am hoping as well, as I said earlier toward the end of the gavel, 

that we can work our will toward the floor and make the kind of, 

I think, holistic opportunity for the broadband providers, but also 

for what I think is important, consumers, who I know that they are 


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respectful of. So my support is based upon that contention, and I 

thank the gentleman for yielding. I yield back. 

Mr. SCHIFF. I yield back, Mr. Chairman. 

Chairman SENSENBRENNER. The question is on reporting the bill 

favorably as amended. A reporting quorum is present. Those in 

favor will say aye. 

Opposed, no. 

Chairman SENSENBRENNER. The ayes appear to have it. 

Mr. SCHIFF. Mr. Chairman, I’d like a recorded vote, please. 

Chairman SENSENBRENNER. A recorded vote is ordered. Those in 

favor of reporting the bill, H.R. 5417, favorably as amended, will 

as your names are called answer aye, those opposed no, and the 

clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

[No response.] 

The CLERK. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

[No response.] 

The CLERK. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 


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The CLERK. Mr. Franks, no. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. Mr. Boucher? 

Mr. BOUCHER. Aye. 

The CLERK. Mr. Boucher, aye. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. Mr. Weiner? 

Mr. WEINER. Pass. 

The CLERK. Mr. Weiner, pass. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Mrs. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Mrs. Wasserman Schultz, aye. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? Gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? Gentlewoman from California, Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. Gentleman from Massachusetts, Mr. 

Delahunt? 

Mr. DELAHUNT. Present. 

The CLERK. Mr. Delahunt, present. 

Chairman SENSENBRENNER. Gentleman from New York, Mr. 

Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 


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Chairman SENSENBRENNER. Further Members who wish—gentleman from California, Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Chairman SENSENBRENNER. Gentleman from Wisconsin, Mr. 

Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Further Members who wish to cast or change their vote? Gentleman from California, Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

[Pause.] 

The CLERK. Mr. Chairman, there are 20 ayes, 13 nays and one 

present. 

Chairman SENSENBRENNER. And the motion to report the bill favorably is agreed to. Without objection, the bill will be reported favorably to the House in the form of a single amendment in the nature of a substitute, incorporating the amendments adopted here 

today. Without objection, the staff is directed to make technical and 

conforming changes, and all Members will be given 2 days as provided by the House rules in which to submit additional dissenting 

supplemental or minority views. 

[Intervening business.] 

[Whereupon, at 1:53 p.m., the Committee was adjourned.] 

Æ 


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