II 

111TH CONGRESS 

2ND SESSION S. 3624 

To encourage continued investment and innovation in communications networks by establishing a new, competition analysis-based regulatory framework for the Federal Communications Commission. 

IN THE SENATE OF THE UNITED STATES 

JULY 21, 2010 

Mr. DEMINT (for himself, Mr. HATCH, Mr. ENSIGN, Mr. THUNE, Mr. 

COBURN, Mr. CORNYN, and Mr. SESSIONS) introduced the following bill; 

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

Science, and Transportation 

A BILL 

To encourage continued investment and innovation in communications networks by establishing a new, competition 

analysis-based regulatory framework for the Federal 

Communications Commission. 

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 ‘‘Freedom For Con5 sumer Choice Act’’. 


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1 SEC. 2. DEFINITIONS. 

2 (a) IN GENERAL.—In this Act, the following defini3 tions shall apply: 

4 (1) ANTITRUST LAWS.—The term ‘‘antitrust 

5 laws’’ includes— 

6 (A) the Act entitled ‘‘An Act to protect 

7 trade and commerce against unlawful restraints 

8 and monopolies’’, approved July 2, 1890; 

9 (B) sections 73 through 76 of an Act enti10 tled ‘‘An Act to reduce taxation, to provide rev11 enue for the Government, and for other pur12 poses’’, approved August 27, 1894; 

13 (C) the Act entitled ‘‘An Act to amend sec14 tions 73 and 76 of the Act of August 27, 1894, 

15 entitled An Act to reduce taxation, to provide 

16 revenue for the Government, and for other pur17 poses’’, approved February 12, 1913; and 

18 (D) the Act entitled ‘‘An Act to supple19 ment existing laws against unlawful restraints 

20 and monopolies, and for other purposes’’, ap21 proved October 15, 1914. 

22 (2) COMMISSION.—The term ‘‘Commission’’ 

23 means the Federal Communications Commission. 

24 (3) ELECTRONIC COMMUNICATIONS NET25 WORK.—The term ‘‘electronic communications net26 work’’ means— 


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1 (A) a transmission system; and 

2 (B) where applicable, switching or routing 

3 equipment and other facilities which permit the 

4 conveyance of signals by wire, radio, optical, or 

5 other electromagnetic means, over satellite, 

6 cable, or other facilities, whether fixed or mo7 bile, to the extent that such facilities are used 

8 for the purpose of transmitting signals, irre9 spective of the type of information conveyed. 

10 (4) ELECTRONIC COMMUNICATIONS SERVICE.— 

11 The term ‘‘electronic communications service’’ 

12 means a service normally provided for remuneration 

13 which consists wholly or mainly in the conveyance of 

14 signals on electronic communications networks. 

15 (5) UNFAIR METHODS OF COMPETITION.— 

16 (A) IN GENERAL.—The term ‘‘unfair 

17 methods of competition’’ means— 

18 (i) practices that present a threat of 

19 abuse of significant and nontransitory 

20 market power as determined by the Com21 mission consistent with the application of 

22 jurisprudential principles grounded in mar23 ket-oriented competition analysis such as 

24 those commonly employed by the Federal 

25 Trade Commission and the United States 


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1 Department of Justice in enforcing the 

2 Federal Trade Commission Act (15 U.S.C. 

3 41 et seq.) and the antitrust laws of the 

4 United States; and 

5 (ii) with respect to interconnection, 

6 practices that pose a substantial and non7 transitory risk to consumer welfare by ma8 terially and substantially impeding the 

9 interconnection of public communications 

10 facilities and services in circumstances in 

11 which the Commission determines that 

12 marketplace competition is not sufficient to 

13 adequately protect consumer welfare. 

14 (B) INTERCONNECTION DETERMINA15 TION.—In making any determination under 

16 subparagraph (A)(ii), the Commission shall con17 sider whether requiring interconnection will ad18 versely affect investment in facilities and inno19 vation in services. 

20 (b) COMMON TERMINOLOGY.—Except as otherwise 

21 provided in subsection (a), terms used in this Act shall 

22 have the same meaning given to such terms under sections 

23 3, 254, and 602 of the Communications Act of 1934 (47 

24 U.S.C. 153, 254, and 522). 


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1 SEC. 3. FINDINGS AND POLICY. 

2 (a) FINDINGS.—Congress finds that— 

3 (1) in 1996, Congress enacted and the Presi4 dent signed into law the Telecommunications Act of 

5 1996, which was intended to provide a procom6 petitive, deregulatory framework designed to facili7 tate the continuing transition to a more competitive 

8 communications market; 

9 (2) since the enactment and implementation of 

10 the Telecommunications Act of 1996, rapid advances 

11 in technology and marketplace developments have 

12 further increased the existence of competition in all 

13 communications markets and the likelihood of the 

14 continuing existence and increasing intensity of com15 petition; 

16 (3) competition in a dynamic communications 

17 marketplace is the most effective and efficient means 

18 for protecting consumers and enhancing the con19 sumer welfare of all the people of the United States 

20 in terms of achieving the optimum mix of price, 

21 quality, and consumer choice; and 

22 (4) unnecessary regulation regarding protection 

23 of consumers and enhancement of consumer welfare 

24 deters— 

25 (A) investment in new and advanced com26 munications facilities; and 


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1 (B) the development of new services and 

2 applications. 

3 (b) POLICY.—It shall be the policy of the United 

4 States Government— 

5 (1) to promote the widespread availability of 

6 communications services for all Americans in order 

7 to assure that the American people have access to a 

8 diversity of information sources necessary for demo9 cratic government; 

10 (2) to promote the integrity, reliability, and ef11 ficiency of communications facilities in a manner 

12 consistent with— 

13 (A) the encouragement of investment in 

14 advanced communications networks; and 

15 (B) innovation in communications services 

16 and applications; 

17 (3) that economic regulation of communications 

18 markets should be presumed unnecessary absent cir19 cumstances that demonstrate the existence of a sig20 nificant threat of abuse of market power that poses 

21 a substantial and nontransitory risk to consumer 

22 welfare; and 

23 (4) that in order to ensure that the actions of 

24 the Federal Communications Commission are con25 sistent with the findings in subsection (a), and to efVerDate Mar 15 2010 04:16 Jul 22, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3624.IS S3624

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1 fectuate the deregulatory policy declared in this sub2 section, the decisions of the Commission should be 

3 based on jurisprudential principles grounded in mar4 ket-oriented competition analysis such as those com5 monly employed by the Federal Trade Commission 

6 and the Department of Justice in enforcing the Fed7 eral Trade Commission Act (15 U.S.C. 41 et seq.) 

8 and the antitrust laws of the United States. 

9 SEC. 4. PROHIBITION OF UNFAIR METHODS OF COMPETI10 TION. 

11 (a) IN GENERAL.—It shall be unlawful for any pro12 vider of electronic communications service, including any 

13 State, or any general purpose political subdivision of a 

14 State, to engage or participate, or to attempt to engage 

15 or participate, in— 

16 (1) unfair methods of competition in or affect17 ing electronic communications networks and elec18 tronic communications services; or 

19 (2) unfair or deceptive practices in or affecting 

20 electronic communications networks and electronic 

21 communications services. 

22 (b) RULEMAKING AUTHORITY.— 

23 (1) IN GENERAL.—The Commission may, by 

24 rule, define with specificity, the acts or practices 

25 that shall constitute unfair methods of competition 


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1 or unfair or deceptive acts or practices as described 

2 in subsection (a). 

3 (2) CONTENT OF RULES.—Rules promulgated 

4 under paragraph (1) may include such requirements 

5 as the Commission determines necessary to prevent 

6 any methods, acts, or practices prohibited by this 

7 section. 

8 (3) LIMITATION.— 

9 (A) IN GENERAL.—Notwithstanding para10 graph (1) and except as provided in subpara11 graph (B), the Commission shall have no au12 thority to issue rules that declare unlawful an 

13 act or practice on the grounds that such act or 

14 practice is an unfair method of competition or 

15 unfair or deceptive act or practice. 

16 (B) EXCEPTION.—The Commission may 

17 declare an act or practice unlawful if the Com18 mission determines, based on a showing of clear 

19 and convincing evidence presented in a rule20 making proceeding, that— 

21 (i) marketplace competition is not suf22 ficient to adequately protect consumer wel23 fare; and 

24 (ii) such act or practice— 


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1 (I) causes or is likely to cause 

2 substantial injury to consumers; and 

3 (II) is not— 

4 (aa) avoidable by consumers 

5 themselves; and 

6 (bb) outweighed by counter7 vailing benefits to consumers or 

8 to competition. 

9 (4) SUNSET OF RULES.—Any rule promulgated 

10 under paragraph (1) shall terminate on the day that 

11 is 5 years after the date on which such rule became 

12 effective unless the Commission, in a proceeding in 

13 which the public is afforded notice and an oppor14 tunity to comment, makes an affirmative determina15 tion, based on a showing of clear and convincing evi16 dence presented in such proceeding, that the rule 

17 continues to be necessary because marketplace com18 petition is not sufficient to adequately protect con19 sumers from substantial injury which is not— 

20 (A) avoidable by consumers themselves; 

21 and 

22 (B) outweighed by countervailing benefits 

23 to consumers or to competition. 

24 SEC. 5. ACTIONS FOR COMPLAINTS. 

25 The Commission shall have authority— 


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1 (1) to hear complaints from any party injured 

2 by a violation of the prohibitions established under 

3 section 4; and 

4 (2) to award damages to such injured party if 

5 the Commission determines that a violation of that 

6 section has occurred. 

7 SEC. 6. TIME LIMITS ON COMMISSION ACTION. 

8 (a) 120-DAY LIMIT FOR APPLICATIONS WITH SUP9 PORTING TESTIMONY.—If an application is filed with the 

10 Commission under this or any other Act, and such applica11 tion is accompanied by supporting testimony from the ap12 plicant or a detailed summary of that testimony, together 

13 with exhibits, if any, the Commission shall issue a decision 

14 on such application not later than 120 days after the ap15 plication is deemed complete (as the Commission shall, by 

16 rule, determine). 

17 (b) 210-DAY LIMIT FOR APPLICATIONS WITHOUT

18 SUPPORTING TESTIMONY.—If an application is filed with 

19 the Commission under this or any other Act, and such 

20 application is not accompanied by supporting testimony 

21 and exhibits, the Commission shall issue a decision on 

22 such application not later than 210 days after the applica23 tion is deemed complete (as the Commission shall, by rule, 

24 determine). 


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1 (c) WAIVER.—The time limits specified in subsections 

2 (a) and (b)— 

3 (1) may be waived by an applicant; and 

4 (2) if so waived, shall not be binding on the 

5 Commission. 

6 (d) EXTENSION OF TIME.—The Commission, in par7 ticular cases, under extraordinary conditions, and after 

8 notice and a hearing at which the existence of such condi9 tions are established, may extend the time limits specified 

10 in subsections (a) and (b) for a period not to exceed an 

11 additional 90 days. 

12 SEC. 7. ADDITIONAL POWERS OF THE COMMISSION. 

13 The Commission shall have authority— 

14 (1) to research and investigate, from time to 

15 time, the organization, business, conduct, or prac16 tices of— 

17 (A) any person or entity engaged in, or 

18 whose business affects, the operation of elec19 tronic communications networks; and 

20 (B) any provider of electronic communica21 tions service; 

22 (2) to require any person or entity that owns or 

23 operates an electronic communications networks, or 

24 any class of such persons or entities, to file, in such 

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1 mission may determine, reports or answers to spe2 cific questions regarding the organization, business, 

3 conduct, or practices of such person or entity, such 

4 reports or answers shall be in writing and made 

5 under penalty of perjury; 

6 (3) to make public, from time to time, in such 

7 form, and in such manner as the Commission deter8 mines— 

9 (A) such portions of the information ob10 tained under paragraph (1) as are in the public 

11 interest; and 

12 (B) the reports and answers described 

13 under paragraph (2), except that the Commis14 sion— 

15 (i) may not make public any trade se16 cret or any privileged or confidential com17 mercial or financial information obtained 

18 from such reports or answers; and 

19 (ii) may disclose such trade secrets or 

20 information to officers and employees of an 

21 appropriate Federal or State law enforce22 ment agency upon prior certification by an 

23 officer of that Federal or State law en24 forcement agency that such trade secrets 

25 or information shall— 


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1 (I) be maintained in confidence; 

2 and 

3 (II) be used only for official law 

4 enforcement purposes; and 

5 (4) to make annual and special reports to Con6 gress and to submit with such reports recommenda7 tions for additional legislation. 

Æ 


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