II 

112TH CONGRESS 

1ST SESSION S. 74 

To preserve the free and open nature of the Internet, expand the benefits 

of broadband, and promote universally available and affordable 

broadband service. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 25 (legislative day, JANUARY 5), 2011 

Ms. CANTWELL (for herself and Mr. FRANKEN) introduced the following bill; 

which was read twice and referred to the Committee on Commerce, 

Science, and Transportation 

A BILL 

To preserve the free and open nature of the Internet, expand 

the benefits of broadband, and promote universally available and affordable broadband service. 

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, 

5 Broadband Promotion, and Consumer Protection Act of 

6 2011’’. 

7 SEC. 2. FINDINGS. 

8 The Congress finds the following: 


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1 (1) Two-way communications networks con2 stitute basic infrastructure that is as essential to our 

3 national economy as roads and electricity. 

4 (2) The broadband Internet constitutes the 

5 most important two-way communications infrastruc6 ture of our time. 

7 (3) Access to the broadband Internet is critical 

8 for job creation, economic growth, and technological 

9 innovation. 

10 (4) Access to the broadband Internet creates 

11 opportunity for more direct civic engagement, in12 creased educational attainment, and enables free 

13 speech. 

14 (5) The network design principles fostering the 

15 development of the broadband Internet to date, an 

16 end-to-end design, layered architecture, and open 

17 standards, promotes innovation at the edge of the 

18 network and gives end users choice and control of 

19 their online activities. 

20 (6) These network design principles have led to 

21 the network neutrality of the Internet, where there 

22 are no paid for premium fast lanes and best effort 

23 slow lanes. 

24 (7) According to the Federal Communications 

25 Commission in 2009, technologies now allow network 


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1 operators to distinguish different classes of Internet 

2 traffic, to offer different qualities-of-service, and to 

3 charge different prices to each class of Internet traf4 fic. 

5 (8) Broadband Internet access service providers 

6 have an economic interest to discriminate in favor of 

7 their own or affiliated services, content, and applica8 tions and against other providers of such services, 

9 content, and applications. 

10 (9) Broadband Internet access service providers 

11 have an economic interest in, and the ability to 

12 adopt, pay-for-priority schemes to the detriment of 

13 job creation, economic growth, innovation, and con14 sumer protections. 

15 (10) The market for broadband today dem16 onstrates substantial obstacles to effective competi17 tion, to the protection of users, and to the continued 

18 viability of a free and open Internet. 

19 (11) These obstacles impede the universal de20 ployment and adoption of broadband, impede meet21 ing the goals set forth in the National Broadband 

22 Plan, and perpetuate a digital divide. 

23 (12) The United States needs clear Federal pol24 icy that preserves the historically free and open na25 ture of the Internet, expands the benefits of 


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1 broadband, and promotes universally available and 

2 affordable broadband service that does not chill in3 novation or speech within the content, applications, 

4 and services available online. 

5 (13) The Federal policy to ensure that the 

6 Internet remains free and open must apply equally 

7 to all broadband Internet access services, regardless 

8 of whether those services use wire, radio, or some 

9 combination of those means to reach the end user. 

10 SEC. 3. INTERNET FREEDOM. 

11 Title II of the Communications Act of 1934 (47 

12 U.S.C. 201 et seq.) is amended by adding at the end the 

13 following: 

14 ‘‘SEC. 280. INTERNET FREEDOM AND BROADBAND PRO15 MOTION. 

16 ‘‘(a) PURPOSES.—The purposes of this section are— 

17 ‘‘(1) to promote increased availability and adop18 tion of broadband for all Americans; 

19 ‘‘(2) to promote consumer choice and competi20 tion among broadband Internet access service pro21 viders and among providers of lawful content, appli22 cations, and services; and 

23 ‘‘(3) to protect consumers, innovators and en24 trepreneurs from harmful, discriminatory, or antiVerDate Mar 15 2010 01:25 Jan 29, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S74.IS S74

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1 competitive behavior by providers of broadband 

2 Internet access service. 

3 ‘‘(b) BROADBAND INTERNET ACCESS SERVICE AND

4 CHARGES.— 

5 ‘‘(1) It shall be the duty of every broadband 

6 Internet access service provider to furnish such 

7 broadband Internet access service to end users upon 

8 reasonable request. 

9 ‘‘(2) Broadband Internet access service pro10 viders shall not require end users to purchase voice 

11 grade telephone service, commercial mobile radio 

12 voice services, or multichannel-video programming 

13 distribution services or other specialized services as 

14 a condition on the purchase of any broadband Inter15 net access service. 

16 ‘‘(3) All charges, practices, classifications, and 

17 regulations for and in connection with broadband 

18 Internet access service shall be just and reasonable. 

19 ‘‘(4) If a broadband Internet access service pro20 vider allows its end users to request quality-of-serv21 ice assurances for the transmission of Internet pro22 tocol packets associated with its own applications, 

23 services, or content or that of its affiliates, then— 

24 ‘‘(A) the broadband Internet access service 

25 provider shall permit such assurances for all 


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1 Internet Protocol packets chosen by the end 

2 user, without regard to the content, applica3 tions, or services involved; and 

4 ‘‘(B) any quality-of-service assurance shall 

5 not block, interfere with, or degrade, any other 

6 end user’s access to the content, applications, 

7 and services of their choice. 

8 ‘‘(c) ENSURING OPEN ACCESS TO THE BROADBAND

9 INTERNET.—A broadband Internet access service provider 

10 may not unjustly or unreasonably— 

11 ‘‘(1) block, interfere with, or degrade an end 

12 user’s ability to access, use, send, post, receive, or 

13 offer lawful content (including fair use), applica14 tions, or services of the user’s choice; 

15 ‘‘(2) block, interfere with, or degrade an end 

16 user’s ability to connect and use the end user’s 

17 choice of legal devices that do not harm the network; 

18 ‘‘(3) prevent or interfere with competition 

19 among network, applications, service or content pro20 viders; 

21 ‘‘(4) engage in discrimination against any law22 ful Internet content, application, service, or service 

23 provider with respect to network management prac24 tices, network performance characteristics, or com25 mercial terms and conditions; 


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1 ‘‘(5) give preference to affiliated content, appli2 cations, or services with respect to network manage3 ment practices, network performance characteristics, 

4 or commercial terms and conditions; 

5 ‘‘(6) charge a content, application, or service 

6 provider for access to the broadband Internet access 

7 service providers’ end users based on differing levels 

8 of quality of service or prioritized delivery of Inter9 net protocol packets; 

10 ‘‘(7) prioritize among or between content, appli11 cations, and services, or among or between different 

12 types of content, applications, and services unless 

13 the end user requests to have such prioritization; 

14 ‘‘(8) install or utilize network features, func15 tions, or capabilities that prevent or interfere with 

16 compliance with the requirements of this section; or 

17 ‘‘(9) refuse to interconnect on just and reason18 able terms and conditions. 

19 ‘‘(d) REASONABLE NETWORK MANAGEMENT.— 

20 ‘‘(1) IN GENERAL.—Nothing in this section 

21 shall prohibit a broadband Internet access service 

22 provider from engaging in reasonable network man23 agement. 

24 ‘‘(2) REASONABLENESS PRESUMPTION.—For 

25 purposes of this section, a network management 


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1 practice is presumed to be reasonable for a 

2 broadband Internet access service provider only if it 

3 is— 

4 ‘‘(A) essential for a legitimate network 

5 management purpose assuring the operation of 

6 the network; 

7 ‘‘(B) appropriate for achieving the stated 

8 purpose; 

9 ‘‘(C) narrowly tailored; and 

10 ‘‘(D) among the least restrictive, least dis11 criminatory, and least constricting of consumer 

12 choice available. 

13 ‘‘(3) FACTORS TO BE CONSIDERED.—In deter14 mining whether a network management practice is 

15 reasonable, the Commission shall take into account 

16 the particular network architecture and any tech17 nology and operational limitations of the broadband 

18 Internet access service provider. 

19 ‘‘(4) LIMITATION.—A network management 

20 practice may not be considered to be a reasonable 

21 network management if the broadband Internet ac22 cess service provider charges content, applications, 

23 or other online service providers for differing levels 

24 of quality of service or prioritized delivery of Inter25 net Protocol packets. 


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1 ‘‘(e) OTHER REGULATED SERVICES.—This section 

2 shall not be construed to prevent broadband Internet ac3 cess service providers from offering interconnected Voice 

4 over Internet Protocol (VoIP) services or multichannel5 video programming distribution services regulated under 

6 title VI of this Act on transmission capacity also used by 

7 broadband Internet access services. 

8 ‘‘(f) TRANSPARENCY.— 

9 ‘‘(1) IN GENERAL.—A provider of broadband 

10 Internet access service— 

11 ‘‘(A) shall disclose publicly on its external 

12 Web site and at the point of sale accurate infor13 mation regarding the network management 

14 practices, network performance, and commercial 

15 terms of its broadband Internet access service 

16 in plain language sufficient for end users to 

17 make informed choices regarding use of such 

18 services, and for content, application, service, 

19 and device providers to develop, market, and 

20 maintain Internet offerings; and 

21 ‘‘(B) shall disclose publicly on its external 

22 Web site and at the point of sale any other 

23 practices that affect communications between a 

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1 vider in the ordinary, routine use of such 

2 broadband service. 

3 ‘‘(2) EXEMPTIONS.—The Commission may ex4 empt certain kinds of information from disclosure on 

5 the grounds that it is competitively sensitive or could 

6 compromise network security. Within 90 days after 

7 the date of enactment of the Internet Freedom, 

8 Broadband Promotion, and Consumer Protection 

9 Act of 2011, the Commission shall conclude a rule10 making proceeding to implement this subsection. 

11 ‘‘(g) STAND-ALONE INTERNET ACCESS SERVICE.— 

12 ‘‘(1) IN GENERAL.—Within 180 days after the 

13 date of enactment of the Internet Freedom, 

14 Broadband Promotion, and Consumer Protection 

15 Act of 2011, the Commission shall promulgate rules 

16 to ensure that broadband Internet access providers 

17 do not require the purchase of voice grade telephone 

18 service, commercial mobile radio voice services, or 

19 multichannel-video programming distribution serv20 ices as a condition of purchasing any broadband 

21 Internet access service, and that the rates, terms, 

22 and conditions for providing such service are just 

23 and reasonable. 

24 ‘‘(2) REPORT.—In the report required by sec25 tion 706 of the Telecommunications Act of 1996 (47 


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1 U.S.C. 1302), the Commission shall collect informa2 tion on the availability, promotion, average speed, 

3 and average pricing of stand-alone broadband Inter4 net access service offered by broadband Internet ac5 cess providers. 

6 ‘‘(3) ELIGIBILITY TO ACCESS ANY UNIVERSAL

7 SERVICE FUND FOR BROADBAND.—If the Commis8 sion establishes a universal service fund for 

9 broadband Internet services, only broadband Inter10 net access service providers that offer stand-alone 

11 broadband service shall be eligible to participate in 

12 the fund. 

13 ‘‘(h) ENFORCEMENT, LIABILITY, AND RECOVERY OF

14 DAMAGES.— 

15 ‘‘(1) EXPEDITED COMPLAINT PROCESS.—With16 in 180 days after the date of enactment of the Inter17 net Freedom, Broadband Promotion, and Consumer 

18 Protection Act of 2011, the Commission shall pre19 scribe rules to permit any aggrieved person to file a 

20 complaint with the Commission concerning a viola21 tion of subsections (b), (c), or (g) of this section, 

22 and establish enforcement and expedited adjudica23 tory review procedures including the resolution of 

24 complaints not later than 90 days after such com25 plaint was filed, except for good cause shown. 


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1 ‘‘(2) LIABILITY OF BROADBAND INTERNET AC2 CESS SERVICE PROVIDERS FOR DAMAGES.—If a 

3 broadband Internet access service provider does, or 

4 causes or permits to be done, any act, matter, or 

5 thing that is prohibited under this section, or fails 

6 to do any act, matter, or thing required by this sec7 tion to be done, the provider shall be liable to the 

8 person or persons injured thereby for the full 

9 amount of damages sustained in consequence of any 

10 such violation of the provisions of this section, to11 gether with a reasonable counsel or attorney’s fee, as 

12 determined by the Commission. 

13 ‘‘(3) VENUE.—Any person claiming to be dam14 aged by any broadband Internet access provider sub15 ject to the provisions of this section may either make 

16 a complaint to the Commission as provided for in 

17 paragraph (1), or may bring suit for the recovery of 

18 the damages in a district court of the United States 

19 that meets applicable requirements relating to venue 

20 under section 1391 of title 28, United States Code. 

21 A claimant may not bring an action in a Federal 

22 district court if the claimant has filed a complaint 

23 with the Commission under paragraph (1) with re24 spect to the same violation. 

25 ‘‘(i) ENFORCEMENT BY STATES.— 


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1 ‘‘(1) IN GENERAL.—The chief legal officer of a 

2 State, or any other State officer authorized by law 

3 to bring actions on behalf of the residents of a 

4 State, may bring a civil action, as parens patriae, on 

5 behalf of the residents of that State in an appro6 priate district court of the United States to enforce 

7 this section or to impose civil penalties for violation 

8 of this section, whenever the chief legal officer or 

9 other State officer has reason to believe that the in10 terests of the residents of the State have been or are 

11 being threatened or adversely affected by a violation 

12 of this section. 

13 ‘‘(2) NOTICE.—The chief legal officer or other 

14 State officer shall serve written notice on the Com15 mission of any civil action under paragraph (1) prior 

16 to initiating such civil action. The notice shall in17 clude a copy of the complaint to be filed to initiate 

18 such civil action, except that if it is not feasible for 

19 the State to provide such prior notice, the State 

20 shall provide such notice immediately upon insti21 tuting such civil action. 

22 ‘‘(3) AUTHORITY TO INTERVENE.—Upon receiv23 ing the notice required by paragraph (2), the Com24 mission shall have the right— 

25 ‘‘(A) to intervene in the action; 


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1 ‘‘(B) upon so intervening, to be heard on 

2 all matters arising therein; and 

3 ‘‘(C) to file petitions for appeal. 

4 ‘‘(4) RULE OF CONSTRUCTION.—For purposes 

5 of bringing any civil action under paragraph (1), 

6 nothing in this subsection shall prevent the chief 

7 legal officer or other State officer from exercising 

8 the powers conferred on that officer by the laws of 

9 such State to conduct investigations or to administer 

10 oaths or affirmations or to compel the attendance of 

11 witnesses or the production of documentary and 

12 other evidence. 

13 ‘‘(5) VENUE; SERVICE OF PROCESS.— 

14 ‘‘(A) VENUE.—An action brought under 

15 paragraph (1) shall be brought in a district 

16 court of the United States that meets applicable 

17 requirements relating to venue under section 

18 1391 of title 28, United States Code. 

19 ‘‘(B) SERVICE OF PROCESS.—In an action 

20 brought under paragraph (1)— 

21 ‘‘(i) process may be served without re22 gard to the territorial limits of the district 

23 or of the State in which the action is insti24 tuted; and 


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1 ‘‘(ii) a person who participated in an 

2 alleged violation that is being litigated in 

3 the civil action may be joined in the civil 

4 action without regard to the residence of 

5 the person. 

6 ‘‘(j) COMMISSION AUTHORITY.—The Commission 

7 may perform any and all acts, make such rules and regula8 tions and issue such orders, not inconsistent with this sec9 tion, as may be necessary to implement the purposes of 

10 this section. 

11 ‘‘(k) OTHER LAWS AND CONSIDERATIONS.— 

12 ‘‘(1) Nothing in this section supersedes any ob13 ligation or authorization a provider or broadband 

14 Internet access service may have to address the 

15 needs of emergency communications or law enforce16 ment, public safety, or national security authorities, 

17 consistent with or as permitted by applicable law, or 

18 limits the provider’s ability to do so. 

19 ‘‘(2) Nothing in this section authorizes a pro20 vider of broadband Internet access service to address 

21 copyright infringement or other unlawful activity of 

22 providers, subscribers, or users, beyond its obliga23 tions under the Digital Millennium Copyright Act 

24 (17 U.S.C. 101 note), the amendments made by that 

25 Act, and consistent other applicable laws. 


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1 ‘‘(l) STUDIES.—Within one year after the date of en2 actment of this Act the Government Accountability Office 

3 shall complete and submit reports to the Senate Com4 mittee on Commerce, Science, and Transportation, and 

5 the House Committee on Energy and Commerce, on the 

6 evolution of commercial and other arrangements by which 

7 broadband Internet access service providers interconnect 

8 to Internet backbone providers and intermediary net9 works, and assess whether, as the volume and mix of 

10 Internet Protocol traffic requested by and transported to 

11 and from the customers of broadband Internet access serv12 ice providers has changed over time, there is a market fail13 ure with respect to the existing market mechanisms of 

14 transit contracts and non-settlement peering agreements. 

15 ‘‘(m) DEFINITIONS.—In this section: 

16 ‘‘(1) AFFILIATED.—The term ‘affiliated’ in17 cludes— 

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

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

20 is under common ownership or control with an21 other person; and 

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

23 arrangement with a content, application, or 

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1 tribution of such content, application or services 

2 over the Internet. 

3 ‘‘(2) BROADBAND INTERNET ACCESS.—The 

4 term ‘broadband Internet access’— 

5 ‘‘(A) means the ability for an end user to 

6 transmit and receive data to the Internet using 

7 Internet Protocol at peak download data trans8 fer rates in excess of 200 kilobits per second, 

9 through an always-on connection; but 

10 ‘‘(B) does not include dial-up access re11 quiring an end user to initiate a call across the 

12 public switched telephone network to establish a 

13 connection. 

14 ‘‘(3) BROADBAND INTERNET ACCESS SERV15 ICE.—The term ‘broadband Internet access service’ 

16 means any communications service by wire or radio 

17 that provides broadband Internet access directly to 

18 the public, or to such classes of users as to be effec19 tively available directly to the public. 

20 ‘‘(4) BROADBAND INTERNET ACCESS SERVICE

21 PROVIDER.—The term ‘broadband Internet access 

22 service provider’ means a person or entity that oper23 ates or resells and controls any facility used to pro24 vide an Internet access service directly to the public, 

25 whether provided for a fee or for free, and whether 


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1 provided via wire or radio, except when such service 

2 is offered as an incidendal component of a non3 communications contractual relationship. 

4 ‘‘(5) END USER.—The term ‘end user’ means 

5 any person who, by way of a broadband service, 

6 takes and utilizes Internet services, whether provided 

7 for a fee, in exchange for an explicit benefit, or for 

8 free.’’. 

9 ‘‘(6) INTERNET.—The term ‘Internet’ means a 

10 system of interconnected networks that use the 

11 Internet Protocol for communications with resources 

12 or endpoints reachable, directly or through a proxy, 

13 via a globally unique Internet address assigned by 

14 the Internet Assigned Numbers Authority or any 

15 successor or designee; or any technology the Com16 mission shall find to be functionally equivalent. 

17 ‘‘(7) INTERCONNECTED VOICE OVER INTERNET

18 PROTOCOL (VOIP) SERVICE.—The term ‘Inter19 connected VoIP service’ means a service that enables 

20 real-time, two-way voice communications; requires a 

21 broadband connection from the user’s location; re22 quires Internet protocol compatible customer prem23 ises equipment; and permits users generally to re24 ceive calls that originate on the public switched tele25 phone network and to terminate calls to the public 


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1 switched telephone network subject to section 9.3 of 

2 the Commission’s regulations (47 C.F.R. 9.3). 

Æ 


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