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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 74 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Internet Freedom, Broadband 
Promotion, and Consumer Protection Act of 2011''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Two-way communications networks constitute basic 
        infrastructure that is as essential to our national economy as 
        roads and electricity.
            (2) The broadband Internet constitutes the most important 
        two-way communications infrastructure of our time.
            (3) Access to the broadband Internet is critical for job 
        creation, economic growth, and technological innovation.
            (4) Access to the broadband Internet creates opportunity 
        for more direct civic engagement, increased educational 
        attainment, and enables free speech.
            (5) The network design principles fostering the development 
        of the broadband Internet to date, an end-to-end design, 
        layered architecture, and open standards, promotes innovation 
        at the edge of the network and gives end users choice and 
        control of their online activities.
            (6) These network design principles have led to the network 
        neutrality of the Internet, where there are no paid for premium 
        fast lanes and best effort slow lanes.
            (7) According to the Federal Communications Commission in 
        2009, technologies now allow network operators to distinguish 
        different classes of Internet traffic, to offer different 
        qualities-of-service, and to charge different prices to each 
        class of Internet traffic.
            (8) Broadband Internet access service providers have an 
        economic interest to discriminate in favor of their own or 
        affiliated services, content, and applications and against 
        other providers of such services, content, and applications.
            (9) Broadband Internet access service providers have an 
        economic interest in, and the ability to adopt, pay-for-
        priority schemes to the detriment of job creation, economic 
        growth, innovation, and consumer protections.
            (10) The market for broadband today demonstrates 
        substantial obstacles to effective competition, to the 
        protection of users, and to the continued viability of a free 
        and open Internet.
            (11) These obstacles impede the universal deployment and 
        adoption of broadband, impede meeting the goals set forth in 
        the National Broadband Plan, and perpetuate a digital divide.
            (12) The United States needs clear Federal policy that 
        preserves the historically free and open nature of the 
        Internet, expands the benefits of broadband, and promotes 
        universally available and affordable broadband service that 
        does not chill innovation or speech within the content, 
        applications, and services available online.
            (13) The Federal policy to ensure that the Internet remains 
        free and open must apply equally to all broadband Internet 
        access services, regardless of whether those services use wire, 
        radio, or some combination of those means to reach the end 
        user.

SEC. 3. INTERNET FREEDOM.

    Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) 
is amended by adding at the end the following:

``SEC. 280. INTERNET FREEDOM AND BROADBAND PROMOTION.

    ``(a) Purposes.--The purposes of this section are--
            ``(1) to promote increased availability and adoption of 
        broadband for all Americans;
            ``(2) to promote consumer choice and competition among 
        broadband Internet access service providers and among providers 
        of lawful content, applications, and services; and
            ``(3) to protect consumers, innovators and entrepreneurs 
        from harmful, discriminatory, or anti-competitive behavior by 
        providers of broadband Internet access service.
    ``(b) Broadband Internet Access Service and Charges.--
            ``(1) It shall be the duty of every broadband Internet 
        access service provider to furnish such broadband Internet 
        access service to end users upon reasonable request.
            ``(2) Broadband Internet access service providers shall not 
        require end users to purchase voice grade telephone service, 
        commercial mobile radio voice services, or multichannel-video 
        programming distribution services or other specialized services 
        as a condition on the purchase of any broadband Internet access 
        service.
            ``(3) All charges, practices, classifications, and 
        regulations for and in connection with broadband Internet 
        access service shall be just and reasonable.
            ``(4) If a broadband Internet access service provider 
        allows its end users to request quality-of-service assurances 
        for the transmission of Internet protocol packets associated 
        with its own applications, services, or content or that of its 
        affiliates, then--
                    ``(A) the broadband Internet access service 
                provider shall permit such assurances for all Internet 
                Protocol packets chosen by the end user, without regard 
                to the content, applications, or services involved; and
                    ``(B) any quality-of-service assurance shall not 
                block, interfere with, or degrade, any other end user's 
                access to the content, applications, and services of 
                their choice.
    ``(c) Ensuring Open Access to the Broadband Internet.--A broadband 
Internet access service provider may not unjustly or unreasonably--
            ``(1) block, interfere with, or degrade an end user's 
        ability to access, use, send, post, receive, or offer lawful 
        content (including fair use), applications, or services of the 
        user's choice;
            ``(2) block, interfere with, or degrade an end user's 
        ability to connect and use the end user's choice of legal 
        devices that do not harm the network;
            ``(3) prevent or interfere with competition among network, 
        applications, service or content providers;
            ``(4) engage in discrimination against any lawful Internet 
        content, application, service, or service provider with respect 
        to network management practices, network performance 
        characteristics, or commercial terms and conditions;
            ``(5) give preference to affiliated content, applications, 
        or services with respect to network management practices, 
        network performance characteristics, or commercial terms and 
        conditions;
            ``(6) charge a content, application, or service provider 
        for access to the broadband Internet access service providers' 
        end users based on differing levels of quality of service or 
        prioritized delivery of Internet protocol packets;
            ``(7) prioritize among or between content, applications, 
        and services, or among or between different types of content, 
        applications, and services unless the end user requests to have 
        such prioritization;
            ``(8) install or utilize network features, functions, or 
        capabilities that prevent or interfere with compliance with the 
        requirements of this section; or
            ``(9) refuse to interconnect on just and reasonable terms 
        and conditions.
    ``(d) Reasonable Network Management.--
            ``(1) In general.--Nothing in this section shall prohibit a 
        broadband Internet access service provider from engaging in 
        reasonable network management.
            ``(2) Reasonableness presumption.--For purposes of this 
        section, a network management practice is presumed to be 
        reasonable for a broadband Internet access service provider 
        only if it is--
                    ``(A) essential for a legitimate network management 
                purpose assuring the operation of the network;
                    ``(B) appropriate for achieving the stated purpose;
                    ``(C) narrowly tailored; and
                    ``(D) among the least restrictive, least 
                discriminatory, and least constricting of consumer 
                choice available.
            ``(3) Factors to be considered.--In determining whether a 
        network management practice is reasonable, the Commission shall 
        take into account the particular network architecture and any 
        technology and operational limitations of the broadband 
        Internet access service provider.
            ``(4) Limitation.--A network management practice may not be 
        considered to be a reasonable network management if the 
        broadband Internet access service provider charges content, 
        applications, or other online service providers for differing 
        levels of quality of service or prioritized delivery of 
        Internet Protocol packets.
    ``(e) Other Regulated Services.--This section shall not be 
construed to prevent broadband Internet access service providers from 
offering interconnected Voice over Internet Protocol (VoIP) services or 
multichannel-video programming distribution services regulated under 
title VI of this Act on transmission capacity also used by broadband 
Internet access services.
    ``(f) Transparency.--
            ``(1) In general.--A provider of broadband Internet access 
        service--
                    ``(A) shall disclose publicly on its external Web 
                site and at the point of sale accurate information 
                regarding the network management practices, network 
                performance, and commercial terms of its broadband 
                Internet access service in plain language sufficient 
                for end users to make informed choices regarding use of 
                such services, and for content, application, service, 
                and device providers to develop, market, and maintain 
                Internet offerings; and
                    ``(B) shall disclose publicly on its external Web 
                site and at the point of sale any other practices that 
                affect communications between a user and a content, 
                application, or service provider in the ordinary, 
                routine use of such broadband service.
            ``(2) Exemptions.--The Commission may exempt certain kinds 
        of information from disclosure on the grounds that it is 
        competitively sensitive or could compromise network security. 
        Within 90 days after the date of enactment of the Internet 
        Freedom, Broadband Promotion, and Consumer Protection Act of 
        2011, the Commission shall conclude a rulemaking proceeding to 
        implement this subsection.
    ``(g) Stand-Alone Internet Access Service.--
            ``(1) In general.--Within 180 days after the date of 
        enactment of the Internet Freedom, Broadband Promotion, and 
        Consumer Protection Act of 2011, the Commission shall 
        promulgate rules to ensure that broadband Internet access 
        providers do not require the purchase of voice grade telephone 
        service, commercial mobile radio voice services, or 
        multichannel-video programming distribution services as a 
        condition of purchasing any broadband Internet access service, 
        and that the rates, terms, and conditions for providing such 
        service are just and reasonable.
            ``(2) Report.--In the report required by section 706 of the 
        Telecommunications Act of 1996 (47 U.S.C. 1302), the Commission 
        shall collect information on the availability, promotion, 
        average speed, and average pricing of stand-alone broadband 
        Internet access service offered by broadband Internet access 
        providers.
            ``(3) Eligibility to access any universal service fund for 
        broadband.--If the Commission establishes a universal service 
        fund for broadband Internet services, only broadband Internet 
        access service providers that offer stand-alone broadband 
        service shall be eligible to participate in the fund.
    ``(h) Enforcement, Liability, and Recovery of Damages.--
            ``(1) Expedited complaint process.--Within 180 days after 
        the date of enactment of the Internet Freedom, Broadband 
        Promotion, and Consumer Protection Act of 2011, the Commission 
        shall prescribe rules to permit any aggrieved person to file a 
        complaint with the Commission concerning a violation of 
        subsections (b), (c), or (g) of this section, and establish 
        enforcement and expedited adjudicatory review procedures 
        including the resolution of complaints not later than 90 days 
        after such complaint was filed, except for good cause shown.
            ``(2) Liability of broadband Internet access service 
        providers for damages.--If a broadband Internet access service 
        provider does, or causes or permits to be done, any act, 
        matter, or thing that is prohibited under this section, or 
        fails to do any act, matter, or thing required by this section 
        to be done, the provider shall be liable to the person or 
        persons injured thereby for the full amount of damages 
        sustained in consequence of any such violation of the 
        provisions of this section, together with a reasonable counsel 
        or attorney's fee, as determined by the Commission.
            ``(3) Venue.--Any person claiming to be damaged by any 
        broadband Internet access provider subject to the provisions of 
        this section may either make a complaint to the Commission as 
        provided for in paragraph (1), or may bring suit for the 
        recovery of the damages in a district court of the United 
        States that meets applicable requirements relating to venue 
        under section 1391 of title 28, United States Code. A claimant 
        may not bring an action in a Federal district court if the 
        claimant has filed a complaint with the Commission under 
        paragraph (1) with respect to the same violation.
    ``(i) Enforcement by States.--
            ``(1) In general.--The chief legal officer of a State, or 
        any other State officer authorized by law to bring actions on 
        behalf of the residents of a State, may bring a civil action, 
        as parens patriae, on behalf of the residents of that State in 
        an appropriate district court of the United States to enforce 
        this section or to impose civil penalties for violation of this 
        section, whenever the chief legal officer or other State 
        officer has reason to believe that the interests of the 
        residents of the State have been or are being threatened or 
        adversely affected by a violation of this section.
            ``(2) Notice.--The chief legal officer or other State 
        officer shall serve written notice on the Commission of any 
        civil action under paragraph (1) prior to initiating such civil 
        action. The notice shall include a copy of the complaint to be 
        filed to initiate such civil action, except that if it is not 
        feasible for the State to provide such prior notice, the State 
        shall provide such notice immediately upon instituting such 
        civil action.
            ``(3) Authority to intervene.--Upon receiving the notice 
        required by paragraph (2), the Commission shall have the 
        right--
                    ``(A) to intervene in the action;
                    ``(B) upon so intervening, to be heard on all 
                matters arising therein; and
                    ``(C) to file petitions for appeal.
            ``(4) Rule of construction.--For purposes of bringing any 
        civil action under paragraph (1), nothing in this subsection 
        shall prevent the chief legal officer or other State officer 
        from exercising the powers conferred on that officer by the 
        laws of such State to conduct investigations or to administer 
        oaths or affirmations or to compel the attendance of witnesses 
        or the production of documentary and other evidence.
            ``(5) Venue; service of process.--
                    ``(A) Venue.--An action brought under paragraph (1) 
                shall be brought in a district court of the United 
                States that meets applicable requirements relating to 
                venue under section 1391 of title 28, United States 
                Code.
                    ``(B) Service of process.--In an action brought 
                under paragraph (1)--
                            ``(i) process may be served without regard 
                        to the territorial limits of the district or of 
                        the State in which the action is instituted; 
                        and
                            ``(ii) a person who participated in an 
                        alleged violation that is being litigated in 
                        the civil action may be joined in the civil 
                        action without regard to the residence of the 
                        person.
    ``(j) Commission Authority.--The Commission may perform any and all 
acts, make such rules and regulations and issue such orders, not 
inconsistent with this section, as may be necessary to implement the 
purposes of this section.
    ``(k) Other Laws and Considerations.--
            ``(1) Nothing in this section supersedes any obligation or 
        authorization a provider or broadband Internet access service 
        may have to address the needs of emergency communications or 
        law enforcement, public safety, or national security 
        authorities, consistent with or as permitted by applicable law, 
        or limits the provider's ability to do so.
            ``(2) Nothing in this section authorizes a provider of 
        broadband Internet access service to address copyright 
        infringement or other unlawful activity of providers, 
        subscribers, or users, beyond its obligations under the Digital 
        Millennium Copyright Act (17 U.S.C. 101 note), the amendments 
        made by that Act, and consistent other applicable laws.
    ``(l) Studies.--Within one year after the date of enactment of this 
Act the Government Accountability Office shall complete and submit 
reports to the Senate Committee on Commerce, Science, and 
Transportation, and the House Committee on Energy and Commerce, on the 
evolution of commercial and other arrangements by which broadband 
Internet access service providers interconnect to Internet backbone 
providers and intermediary networks, and assess whether, as the volume 
and mix of Internet Protocol traffic requested by and transported to 
and from the customers of broadband Internet access service providers 
has changed over time, there is a market failure with respect to the 
existing market mechanisms of transit contracts and non-settlement 
peering agreements.
    ``(m) Definitions.--In this section:
            ``(1) Affiliated.--The term `affiliated' includes--
                    ``(A) a person that (directly or indirectly) owns 
                or controls, is owned or controlled by, or is under 
                common ownership or control with another person; and
                    ``(B) a person that has a contract or other 
                arrangement with a content, application, or service 
                provider relating to access to or distribution of such 
                content, application or services over the Internet.
            ``(2) Broadband Internet access.--The term `broadband 
        Internet access'--
                    ``(A) means the ability for an end user to transmit 
                and receive data to the Internet using Internet 
                Protocol at peak download data transfer rates in excess 
                of 200 kilobits per second, through an always-on 
                connection; but
                    ``(B) does not include dial-up access requiring an 
                end user to initiate a call across the public switched 
                telephone network to establish a connection.
            ``(3) Broadband Internet access service.--The term 
        `broadband Internet access service' means any communications 
        service by wire or radio that provides broadband Internet 
        access directly to the public, or to such classes of users as 
        to be effectively available directly to the public.
            ``(4) Broadband Internet access service provider.--The term 
        `broadband Internet access service provider' means a person or 
        entity that operates or resells and controls any facility used 
        to provide an Internet access service directly to the public, 
        whether provided for a fee or for free, and whether provided 
        via wire or radio, except when such service is offered as an 
        incidendal component of a noncommunications contractual 
        relationship.
            ``(5) End user.--The term `end user' means any person who, 
        by way of a broadband service, takes and utilizes Internet 
        services, whether provided for a fee, in exchange for an 
        explicit benefit, or for free.''.
            ``(6) Internet.--The term `Internet' means a system of 
        interconnected networks that use the Internet Protocol for 
        communications with resources or endpoints reachable, directly 
        or through a proxy, via a globally unique Internet address 
        assigned by the Internet Assigned Numbers Authority or any 
        successor or designee; or any technology the Commission shall 
        find to be functionally equivalent.
            ``(7) Interconnected Voice over Internet Protocol (VoIP) 
        service.--The term `Interconnected VoIP service' means a 
        service that enables real-time, two-way voice communications; 
        requires a broadband connection from the user's location; 
        requires Internet protocol compatible customer premises 
        equipment; and permits users generally to receive calls that 
        originate on the public switched telephone network and to 
        terminate calls to the public switched telephone network 
        subject to section 9.3 of the Commission's regulations (47 
        C.F.R. 9.3).
                                 <all>
```