I 

112TH CONGRESS 

1ST SESSION H. R. 166 

To prohibit the Federal Communications Commission from regulating information services or Internet access services absent a market failure, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 5, 2011 

Mr. STEARNS introduced the following bill; which was referred to the 

Committee on Energy and Commerce 

A BILL 

To prohibit the Federal Communications Commission from 

regulating information services or Internet access services absent a market failure, and for other purposes. 

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 Investment, 

5 Innovation, and Competition Preservation Act’’. 


srobinson on DSKHWCL6B1PROD with BILLS
2 

•HR 166 IH

1 SEC. 2. REQUIREMENTS FOR REGULATING INFORMATION 

2 SERVICES OR INTERNET ACCESS SERVICES. 

3 Title I of the Communications Act of 1934 (47 

4 U.S.C. 151 et seq.) is amended by adding at the end the 

5 following: 

6 ‘‘SEC. 12. REQUIREMENTS FOR REGULATING INFORMATION 

7 SERVICES OR INTERNET ACCESS SERVICES. 

8 ‘‘(a) MARKET AND COST-BENEFIT ANALYSIS RE9 QUIRED.— 

10 ‘‘(1) IN GENERAL.—To the extent that the 

11 Commission has the authority to regulate the rates, 

12 terms, conditions, provisioning, or use of an infor13 mation service or an Internet access service, the 

14 Commission shall not regulate such rates, terms, 

15 conditions, provisioning, or use unless— 

16 ‘‘(A) the Commission first transmits a re17 port to Congress concluding that— 

18 ‘‘(i) there is a market failure in the 

19 provision of such information service or 

20 Internet access service; 

21 ‘‘(ii) there is substantial evidence that 

22 the market failure is causing specific, iden23 tified harm to consumers by preventing a 

24 substantial number of consumers nation25 wide from accessing a substantial amount 

26 of lawful Internet content, applications, 


srobinson on DSKHWCL6B1PROD with BILLS
3 

•HR 166 IH

1 and services of their choice on a continuing 

2 basis; and 

3 ‘‘(iii) regulations are necessary to 

4 ameliorate the specific, identified harm to 

5 consumers resulting from the market fail6 ure; 

7 ‘‘(B) in a notice of proposed rulemaking 

8 commenced after the transmission of such re9 port, the Commission— 

10 ‘‘(i) proposes the specific text of the 

11 regulation to be adopted to ameliorate such 

12 specific, identified harm to consumers; 

13 ‘‘(ii) conducts a cost-benefit analysis 

14 determining that the benefit of such regu15 lation exceeds its costs; and 

16 ‘‘(iii) explains how imposing such reg17 ulation would not hinder ubiquitous 

18 broadband availability consistent with the 

19 national broadband plan that section 

20 6001(k) of the American Recovery and Re21 investment Act of 2009 (Public Law 111– 

22 5) requires the Commission to issue; 

23 ‘‘(C) in an order issued after such notice 

24 of proposed rulemaking, the Commission pubVerDate Mar 15 2010 21:59 Jan 11, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H166.IH H166

srobinson on DSKHWCL6B1PROD with BILLS
4 

•HR 166 IH

1 lishes in the Federal Register the specific lan2 guage of a rule codifying such regulation; and 

3 ‘‘(D) the Commission complies with the 

4 transparency requirements under subsection 

5 (d). 

6 ‘‘(2) CONSIDERATION.—In conducting the cost7 benefit analysis under paragraph (1)(B)(ii), the 

8 Commission shall consider the impacts of the regula9 tion, including— 

10 ‘‘(A) any cost of enforcement; 

11 ‘‘(B) any disincentive to investment; 

12 ‘‘(C) any detriment to innovation; 

13 ‘‘(D) any harm to competition, such as to 

14 the ability of providers of content, services, or 

15 applications to differentiate their content, serv16 ices, or applications based on quality, offerings, 

17 or other factors; and 

18 ‘‘(E) any harm to efficiency, such as re19 stricting the ability of broadband network pro20 viders, service providers, application providers, 

21 or content providers to optimize their offering. 

22 ‘‘(3) REQUIRED FINDINGS.—The Commission, 

23 in making the determination under paragraph (1)(A) 

24 and in conducting the cost-benefit analysis under 

25 paragraph (1)(B)(ii), shall— 


srobinson on DSKHWCL6B1PROD with BILLS
5 

•HR 166 IH

1 ‘‘(A) define the relevant product market; 

2 ‘‘(B) determine whether any entity has 

3 market power in the relevant product market, 

4 taking into account competition among and be5 tween broadband network providers (including 

6 such providers using wireline, cable, wireless, 

7 satellite, and broadband over power line tech8 nologies), service providers, application pro9 viders, and content providers; 

10 ‘‘(C) conduct an economic analysis of 

11 whether any such entity has the incentive and 

12 ability to exercise such market power in a way 

13 that harms consumers and that such entity 

14 could continue to profitably exercise that mar15 ket power; and 

16 ‘‘(D) consider— 

17 ‘‘(i) the available data on broadband 

18 availability, including the broadband maps 

19 and other information generated pursuant 

20 to the Broadband Data Improvement Act 

21 (Public Law 110–385) and the American 

22 Recovery and Reinvestment Act of 2009 

23 (Public Law 111–5); 

24 ‘‘(ii) the impact of the broadband 

25 stimulus loans and grants issued pursuant 


srobinson on DSKHWCL6B1PROD with BILLS
6 

•HR 166 IH

1 to the American Recovery and Reinvest2 ment Act of 2009; 

3 ‘‘(iii) the availability of access to the 

4 information service or Internet access serv5 ice from 1 or more sources; and 

6 ‘‘(iv) the ease of entry into the rel7 evant product market. 

8 ‘‘(b) LEAST RESTRICTIVE REGULATION REQUIRED; 

9 NETWORK MANAGEMENT PERMITTED.—If the Commis10 sion decides to regulate the rates, terms, conditions, provi11 sioning, or use of an information service or Internet access 

12 service after meeting its obligation under subsection (a), 

13 the Commission shall adopt a regulation that— 

14 ‘‘(1) shall be the least restrictive necessary to 

15 address the market failure and specific harm to con16 sumers identified under such subsection; and 

17 ‘‘(2) shall not prohibit managed services, net18 work management to address congestion and quality 

19 of service, or measures designed to prevent or deter 

20 unauthorized or illegal activity, including copyright 

21 infringement. 

22 ‘‘(c) PERIODIC RE-EVALUATION REQUIRED.— 

23 ‘‘(1) IN GENERAL.—If the Commission regu24 lates the rates, terms, conditions, provisioning, or 

25 use of an information service or Internet access servVerDate Mar 15 2010 21:59 Jan 11, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H166.IH H166

srobinson on DSKHWCL6B1PROD with BILLS
7 

•HR 166 IH

1 ice, the Commission shall complete a proceeding in 

2 which the Commission shall reexamine the regula3 tion and shall determine whether— 

4 ‘‘(A) the market failure identified in the 

5 report under subsection (a)(1)(A) still exists; 

6 ‘‘(B) the regulation is effectively amelio7 rating the specific harm to consumers identified 

8 in such report; 

9 ‘‘(C) absent continuation of such regula10 tion, such specific, identified harm to con11 sumers will return; and 

12 ‘‘(D) the benefit of such regulation con13 tinues to exceed its costs. 

14 ‘‘(2) DEADLINE.—The Commission shall com15 plete a proceeding under paragraph (1) by the date 

16 that is 2 years after the effective date of the regula17 tion and not less than every 2 years thereafter for 

18 as long as such regulation remains in effect. 

19 ‘‘(3) SUNSET.—Any regulation adopted pursu20 ant to this section shall be deemed to be repealed if 

21 the Commission fails to determine that all of the 

22 conditions in subparagraphs (A) through (D) of 

23 paragraph (1) still exist within the proceeding dead24 line under paragraph (2). 


srobinson on DSKHWCL6B1PROD with BILLS
8 

•HR 166 IH

1 ‘‘(d) TRANSPARENCY REQUIRED.—The Commission 

2 shall not regulate the rates, terms, conditions, provi3 sioning, or use of an information service or Internet access 

4 service unless the Commission complies with the following: 

5 ‘‘(1) Before transmitting a final report to Con6 gress under subsection (a)(1)(A), the Commission 

7 shall commence a notice of inquiry to examine the 

8 issues required to be addressed in such report and 

9 provide— 

10 ‘‘(A) notice and an opportunity for com11 ment on such notice of inquiry to the public for 

12 a period of at least 30 days; 

13 ‘‘(B) public access to comments received 

14 under subparagraph (A) on the Commission’s 

15 Web site and a period of at least 30 days for 

16 replies to such comments; 

17 ‘‘(C) to all Commissioners not less than 30 

18 days after the receipt of such replies under sub19 paragraph (B) to consider the record before the 

20 Commission provides a draft of the report re21 quired under subsection (a)(1)(A) to all Com22 missioners; and 

23 ‘‘(D) at least 30 days to all Commissioners 

24 to consider such draft report before the dead25 line for a vote. 


srobinson on DSKHWCL6B1PROD with BILLS
9 

•HR 166 IH

1 ‘‘(2) Before issuing an order under subsection 

2 (a)(1)(C), the Commission shall provide— 

3 ‘‘(A) notice and an opportunity for com4 ment to the public for a period of at least 30 

5 days on the notice of proposed rulemaking re6 quired under subsection (a)(1)(B); 

7 ‘‘(B) public access to comments received 

8 under subparagraph (A) on the Commission’s 

9 Web site and a period of at least 30 days for 

10 replies to such comments; 

11 ‘‘(C) to all Commissioners, not less than 

12 30 days after the receipt of such replies under 

13 subparagraph (B), a draft of the order to be 

14 issued pursuant to the notice of proposed rule15 making; and 

16 ‘‘(D) at least 30 days to Commissioners to 

17 consider such draft before the deadline for a 

18 vote. 

19 ‘‘(3) Before completing the proceeding required 

20 under subsection (c), the Commission shall pro21 vide— 

22 ‘‘(A) notice and an opportunity for com23 ment to the public for a period of at least 30 

24 days on the determinations made under the 

25 proceeding required by such subsection; 


srobinson on DSKHWCL6B1PROD with BILLS
10 

•HR 166 IH

1 ‘‘(B) public access to comments received 

2 under subparagraph (A) on the Commission’s 

3 Web site and a period of at least 30 days for 

4 replies to such comments; 

5 ‘‘(C) to all Commissioners, not less than 

6 30 days after the receipt of such replies under 

7 subparagraph (B), a draft of such determina8 tions; and 

9 ‘‘(D) at least 30 days to Commissioners to 

10 consider such draft before the deadline for a 

11 vote. 

12 ‘‘(e) NEUTRAL NETWORK NEUTRALITY.—The Com13 mission shall apply and enforce any regulation governing 

14 the rates, terms, conditions, provisioning, or use of an in15 formation service (including any transmission component 

16 of an information service whether or not the transmission 

17 component is offered for a fee directly to the public or 

18 to such class of users as to be effectively available directly 

19 to the public regardless of the facilities used) or an Inter20 net access service on a nondiscriminatory basis between 

21 and among broadband network providers, service pro22 viders, application providers, and content providers. 

23 ‘‘(f) ENFORCEMENT.—If the Commission regulates 

24 the rates, terms, conditions, provisioning, or use of an in25 formation service or an Internet access service, such reguVerDate Mar 15 2010 21:59 Jan 11, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H166.IH H166

srobinson on DSKHWCL6B1PROD with BILLS
11 

•HR 166 IH

1 lation may only be enforced against an entity if the Com2 mission determines, pursuant to a complaint filed by a 

3 consumer, that the entity has engaged in conduct in viola4 tion of that regulation and such conduct caused a specific 

5 and substantial harm to that consumer. 

6 ‘‘(g) RULES OF CONSTRUCTION.—Nothing in this 

7 section shall be construed to— 

8 ‘‘(1) grant the Commission the authority to reg9 ulate information services or Internet access serv10 ices; 

11 ‘‘(2) supersede, repeal, or negate any regula12 tions regarding information services or Internet ac13 cess services that were in effect on January 1, 2010, 

14 including any regulations established pursuant to the 

15 Communications Assistance for Law Enforcement 

16 Act (Public Law 103–414); 

17 ‘‘(3) prohibit the Commission from adopting 

18 any regulation it deems necessary to prevent damage 

19 to national security or public safety or to assist or 

20 facilitate any actions taken by a Federal or State 

21 law enforcement agency; or 

22 ‘‘(4) mean that an Internet access service is not 

23 an information service.’’. 

Æ 


srobinson on DSKHWCL6B1PROD with BILLS