I 

111TH CONGRESS 

1ST SESSION H. R. 3458 

To amend the Communications Act of 1934 to establish a national broadband 

policy, safeguard consumer rights, spur investment and innovation, and 

for related purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 31, 2009 

Mr. MARKEY of Massachusetts (for himself and Ms. ESHOO) introduced the 

following bill; which was referred to the Committee on Energy and Commerce 

A BILL 

To amend the Communications Act of 1934 to establish 

a national broadband policy, safeguard consumer rights, 

spur investment and innovation, and for related 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 Freedom 

5 Preservation Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 


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1 (1) Our Nation’s economy and society are in2 creasingly dependent on Internet services. 

3 (2) The Internet is an essential infrastructure 

4 that is comparable to roads and electricity in its 

5 support for a diverse array of economic, social, and 

6 political activity. 

7 (3) Internet technologies and services hold the 

8 promise of advancing economic growth, fostering in9 vestment, creating jobs, and spurring technological 

10 innovation. 

11 (4) As the Nation becomes more reliant upon 

12 such Internet technologies and services, unfettered 

13 access to the Internet to offer, access, and utilize 

14 content, services, and applications is vital. 

15 (5) The global leadership in high technology 

16 that the United States provides today stems directly 

17 from historic policies that embraced competition and 

18 openness and that have ensured that telecommuni19 cations networks are open to all lawful uses by all 

20 users. 

21 (6) The Internet was enabled by those historic 

22 policies and provides an open architecture medium 

23 for worldwide communications, providing a low bar24 rier to entry for Internet-based content, applications, 

25 and services. 


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1 (7) Due to legal and marketplace changes, 

2 these features of the Internet are no longer certain, 

3 and erosion of these historic policies permits tele4 communications network operators to control who 

5 can and who cannot offer content, services, and ap6 plications over the Internet utilizing such networks. 

7 (8) The national economy would be severely 

8 harmed if the ability of Internet content, service, 

9 and application providers to reach consumers was 

10 frustrated by interference from broadband tele11 communications network operators. 

12 (9) The overwhelming majority of residential 

13 consumers subscribe to Internet access service from 

14 1 of only 2 wireline providers: the cable operator or 

15 the telephone company. 

16 (10) Internet access service providers have an 

17 economic interest to discriminate in favor of their 

18 own services, content, and applications and against 

19 other providers. 

20 (11) A network neutrality policy based upon the 

21 principle of nondiscrimination and consistent with 

22 the history of the Internet’s development is essential 

23 to ensure that Internet services remain open to all 

24 consumers, entrepreneurs, innovators, and providers 

25 of lawful content, services, and applications. 


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1 (12) A network neutrality policy is also essen2 tial to give certainty to small businesses, leading 

3 global companies, investors, and others who rely 

4 upon the Internet for commercial reasons. 

5 (13) A network neutrality policy can also per6 mit Internet service providers to take action to pro7 tect network reliability, prevent unwanted electronic 

8 mail, and thwart illegal uses in the same way that 

9 telecommunications network operators have histori10 cally done consistent with the overarching principle 

11 of non-discrimination. 

12 (14) Because of the essential role of Internet 

13 services to the economic growth of the United 

14 States, to meet other national priorities, and to our 

15 right to free speech under the First Amendment of 

16 the Constitution of the United States, the United 

17 States should adopt a clear policy preserving the 

18 open nature of Internet communications and net19 works. 

20 SEC. 3. INTERNET FREEDOM. 

21 Title I of the Communications Act of 1934 (47 

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

23 following: 


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1 ‘‘SEC. 12. INTERNET FREEDOM. 

2 ‘‘(a) INTERNET FREEDOM POLICY.—It is the policy 

3 of the United States— 

4 ‘‘(1) to protect the right of consumers to access 

5 lawful content, run lawful applications, and use law6 ful services of their choice on the Internet; 

7 ‘‘(2) to preserve and promote the open and 

8 interconnected nature of broadband networks and to 

9 enable consumers to connect to such networks their 

10 choice of lawful devices, as long as such devices do 

11 not harm the network; 

12 ‘‘(3) to promote consumer choice and competi13 tion among providers of lawful content, applications, 

14 and services; 

15 ‘‘(4) to ensure that consumers receive meaning16 ful information regarding their communications serv17 ices; 

18 ‘‘(5) to ensure the ability to use or offer lawful 

19 broadband content, applications, and services for 

20 lawful purposes, as has been the policy and history 

21 of the Internet and the basis of user expectations 

22 since its inception; 

23 ‘‘(6) to guard against discriminatory favoritism 

24 for, or degradation of, lawful content, applications, 

25 or services by network operators based upon their 

26 source, ownership, or destination on the Internet; 


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1 ‘‘(7) to preserve the freedom of independent 

2 Internet content, application, and service providers 

3 to compete and innovate; 

4 ‘‘(8) to foster an evolving level of capacity avail5 able throughout communications networks to sup6 port competition and innovation for lawful Internet 

7 content, applications, and services, including applica8 tions and services that require substantial down9 stream and upstream bandwidth; and 

10 ‘‘(9) to ensure that the Internet remains an in11 dispensable platform for innovation in the United 

12 States economy, thereby enabling the Nation to pro13 vide global leadership in online commerce and tech14 nological progress. 

15 ‘‘(b) DUTIES OF INTERNET ACCESS SERVICE PRO16 VIDERS.—With respect to any Internet access service of17 fered to the public, each Internet access service provider 

18 shall have the duty to— 

19 ‘‘(1) not block, interfere with, discriminate 

20 against, impair, or degrade the ability of any person 

21 to use an Internet access service to access, use, 

22 send, post, receive, or offer any lawful content, ap23 plication, or service through the Internet; 

24 ‘‘(2) not impose a charge on any Internet con25 tent, service, or application provider to enable any 


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1 lawful Internet content, application, or service to be 

2 offered, provided, or used through the provider’s 

3 service, beyond the end user charges associated with 

4 providing the service to such provider; 

5 ‘‘(3) not prevent or obstruct a user from at6 taching any lawful device to or utilizing any such de7 vice in conjunction with such service, provided such 

8 device does not harm the provider’s network; 

9 ‘‘(4) offer Internet access service to any person 

10 upon reasonable request therefor; 

11 ‘‘(5) not provide or sell to any content, applica12 tion, or service provider, including any affiliate pro13 vider or joint venture, any offering that prioritizes 

14 traffic over that of other such providers on an Inter15 net access service; and 

16 ‘‘(6) not install or utilize network features, 

17 functions, or capabilities that impede or hinder com18 pliance with this section. 

19 ‘‘(c) COMMISSION ACTION.—Not later than 90 days 

20 after the date of enactment of the Internet Freedom Pres21 ervation Act of 2009, the Commission shall promulgate 

22 rules to ensure that providers of Internet access service— 

23 ‘‘(1) fulfill the duties described in subsection 

24 (b); 


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1 ‘‘(2) disclose meaningful information to con2 sumers about a provider’s Internet access service in 

3 a clear, uniform, and conspicuous manner and in 

4 conformity with the duties described in subsection 

5 (e); 

6 ‘‘(3) generally, to the extent feasible, make 

7 available sufficient network capacity to users to en8 able the provision, availability, and use of an Inter9 net access service to support lawful content, applica10 tions, and services that require high bandwidth com11 munications to and from an end user; and 

12 ‘‘(4) not operate Internet access services in an 

13 anticompetitive, unreasonable, unfair, discrimina14 tory, or deceptive manner. 

15 ‘‘(d) REASONABLE NETWORK MANAGEMENT.—Noth16 ing in this section shall be construed to prohibit an Inter17 net access provider from engaging in reasonable network 

18 management consistent with the policies and duties of 

19 nondiscrimination and openness set forth in this Act. For 

20 purposes of subsections (b)(1) and (b)(5), a network man21 agement practice is a reasonable practice only if it fur22 thers a critically important interest, is narrowly tailored 

23 to further that interest, and is the means of furthering 

24 that interest that is the least restrictive, least discrimina25 tory, and least constricting of consumer choice available. 


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1 In determining whether a network management practice 

2 is reasonable, the Commission shall consider, among other 

3 factors, the particular network architecture or technology 

4 limitations of the provider. 

5 ‘‘(e) TRANSPARENCY FOR CONSUMERS.—With re6 spect to any Internet access service or private trans7 mission capacity offered to the public, each Internet access 

8 service provider shall provide to consumers and make pub9 licly available detailed information about such services, in10 cluding information about the speed, nature, and limita11 tions of such services. Each Internet access service pro12 vider must publicly disclose, at a minimum, network man13 agement practices that affect communications between a 

14 user and a content, application, or service provider in the 

15 ordinary, routine use of such broadband service. 

16 ‘‘(f) STAND-ALONE INTERNET ACCESS SERVICE.— 

17 Within 180 days after the date of enactment of the Inter18 net Freedom Preservation Act of 2009, the Commission 

19 shall promulgate rules to ensure that an Internet access 

20 service provider does not require a consumer, as a condi21 tion on the purchase of any Internet access service offered 

22 by such provider, to purchase any other service or offering. 

23 The Commission shall adopt any other rules it determines 

24 necessary to make such requirement effective and mean25 ingful for consumers. 


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1 ‘‘(g) OTHER SERVICES.—Not later than 180 days 

2 after the date of enactment of the Internet Freedom Pres3 ervation Act of 2009, the Commission shall complete all 

4 actions necessary to— 

5 ‘‘(1) promote an ever-increasing level of Inter6 net access service to end users; 

7 ‘‘(2) ensure that such evolving level of service 

8 provided to end users is capable of supporting lawful 

9 content, applications, and services and provides 

10 ample bandwidth for such traffic to and from an end 

11 user; 

12 ‘‘(3) promote both facilities-based and nonfacili13 ties-based competition to enable information service 

14 providers to have marketplace choices for trans15 mission capacity to reach end users; 

16 ‘‘(4) define the term ‘private transmission ca17 pacity services’; 

18 ‘‘(5) clarify whether private transmission capac19 ity services may not be subject to the duties de20 scribed in subsections (b)(5) and (b)(6); 

21 ‘‘(6) ensure that private transmission capacity 

22 services do not undermine the purposes of this Act 

23 and do not diminish or degrade the level of Internet 

24 access service offered to the public by the same pro25 vider; and 


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1 ‘‘(7) ensure that private transmission capacity 

2 services are not offered in an anticompetitive, unrea3 sonable, discriminatory, or deceptive manner. 

4 ‘‘(h) IMPLEMENTATION.—Not later than 180 days 

5 after the date of enactment of the Internet Freedom Pres6 ervation Act of 2009, the Commission shall— 

7 ‘‘(1) prescribe rules to permit any aggrieved 

8 person to file a complaint with the Commission con9 cerning any violation of this section; 

10 ‘‘(2) establish enforcement and expedited adju11 dicatory review procedures consistent with the objec12 tives of this section, including the resolution of any 

13 complaint described in paragraph (1) not later than 

14 90 days after such complaint was filed, except for 

15 good cause shown; 

16 ‘‘(3) prescribe rules with respect to the reason17 able network management practices described under 

18 subsection (d) for all Internet access services; and 

19 ‘‘(4) prescribe rules with respect to the appro20 priate disclosure obligations under subsection (e) for 

21 private transmission capacity services. 

22 ‘‘(i) ENFORCEMENT.— 

23 ‘‘(1) IN GENERAL.—The Commission shall en24 force compliance with this section under title V, ex25 cept that— 


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1 ‘‘(A) no forfeiture liability shall be deter2 mined under section 503(b) against any person 

3 unless such person receives the notice required 

4 by section 503(b)(3) or section 503(b)(4); and 

5 ‘‘(B) the provisions of section 503(b)(5) 

6 shall not apply. 

7 ‘‘(2) SPECIAL ORDERS.—In addition to any 

8 other remedy provided under this Act, the Commis9 sion may issue any appropriate order, including an 

10 order— 

11 ‘‘(A) directing an Internet access service 

12 provider to pay damages to a complaining party 

13 for a violation of this section or the regulations 

14 promulgated pursuant to this section; or 

15 ‘‘(B) to enforce the provisions of this sec16 tion. 

17 ‘‘(j) ILLEGAL CONDUCT.—Nothing in this Act shall 

18 be construed or interpreted to affect any law or regulation 

19 addressing prohibited or unlawful activity, including any 

20 laws or regulations prohibiting theft of content. 

21 ‘‘(k) DEFINITIONS.—For purposes of this section, the 

22 following definitions apply: 

23 ‘‘(1) INTERNET ACCESS SERVICE.—The term 

24 ‘Internet access service’ means a 2-way transmission 

25 offered by an Internet access service provider that 


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1 transmits information between 2 or more points and 

2 that has as its primary, but not exclusive, purpose 

3 the enabling of data to be sent or received from the 

4 Internet. 

5 ‘‘(2) INTERNET ACCESS SERVICE PROVIDER.— 

6 The term ‘Internet access service provider’ means a 

7 person or entity that operates or resells and controls 

8 any facility used to provide an Internet access serv9 ice directly to the public, whether provided for a fee 

10 or for free, and whether provided via wire or radio, 

11 except when such service is offered as an incidental 

12 component of a noncommunications contractual rela13 tionship. 

14 ‘‘(3) USER.—The term ‘user’ means any resi15 dential or business subscriber who, by way of an 

16 Internet access service, takes and utilizes Internet 

17 access services, whether provided for a fee, in ex18 change for an explicit benefit, or for free. 

19 ‘‘(4) REASONABLE NETWORK MANAGEMENT.— 

20 The term ‘reasonable network management’ shall be 

21 defined by the Commission through regulations.’’. 

Æ 


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