I 
112TH CONGRESS 
1ST SESSION 
H. R. 166 
To prohibit the Federal Communications Commission from regulating infor-
mation 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 serv-
ices absent a market failure, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Internet Investment, 
Innovation, and Competition Preservation Act’’. 
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SEC. 2. REQUIREMENTS FOR REGULATING INFORMATION 
SERVICES OR INTERNET ACCESS SERVICES. 
Title I of the Communications Act of 1934 (47 
U.S.C. 151 et seq.) is amended by adding at the end the 
following: 
‘‘SEC. 12. REQUIREMENTS FOR REGULATING INFORMATION 
SERVICES OR INTERNET ACCESS SERVICES. 
‘‘(a) MARKET AND COST-BENEFIT ANALYSIS RE-
QUIRED.— 
‘‘(1) IN
GENERAL.—To the extent that the 
Commission has the authority to regulate the rates, 
terms, conditions, provisioning, or use of an infor-
mation service or an Internet access service, the 
Commission shall not regulate such rates, terms, 
conditions, provisioning, or use unless— 
‘‘(A) the Commission first transmits a re-
port to Congress concluding that— 
‘‘(i) there is a market failure in the 
provision of such information service or 
Internet access service; 
‘‘(ii) there is substantial evidence that 
the market failure is causing specific, iden-
tified harm to consumers by preventing a 
substantial number of consumers nation-
wide from accessing a substantial amount 
of lawful Internet content, applications, 
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and services of their choice on a continuing 
basis; and 
‘‘(iii) regulations are necessary to 
ameliorate the specific, identified harm to 
consumers resulting from the market fail-
ure; 
‘‘(B) in a notice of proposed rulemaking 
commenced after the transmission of such re-
port, the Commission— 
‘‘(i) proposes the specific text of the 
regulation to be adopted to ameliorate such 
specific, identified harm to consumers; 
‘‘(ii) conducts a cost-benefit analysis 
determining that the benefit of such regu-
lation exceeds its costs; and 
‘‘(iii) explains how imposing such reg-
ulation 
would 
not 
hinder 
ubiquitous 
broadband availability consistent with the 
national broadband plan that section 
6001(k) of the American Recovery and Re-
investment Act of 2009 (Public Law 111– 
5) requires the Commission to issue; 
‘‘(C) in an order issued after such notice 
of proposed rulemaking, the Commission pub-
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lishes in the Federal Register the specific lan-
guage of a rule codifying such regulation; and 
‘‘(D) the Commission complies with the 
transparency requirements under subsection 
(d). 
‘‘(2) CONSIDERATION.—In conducting the cost- 
benefit analysis under paragraph (1)(B)(ii), the 
Commission shall consider the impacts of the regula-
tion, including— 
‘‘(A) any cost of enforcement; 
‘‘(B) any disincentive to investment; 
‘‘(C) any detriment to innovation; 
‘‘(D) any harm to competition, such as to 
the ability of providers of content, services, or 
applications to differentiate their content, serv-
ices, or applications based on quality, offerings, 
or other factors; and 
‘‘(E) any harm to efficiency, such as re-
stricting the ability of broadband network pro-
viders, service providers, application providers, 
or content providers to optimize their offering. 
‘‘(3) REQUIRED FINDINGS.—The Commission, 
in making the determination under paragraph (1)(A) 
and in conducting the cost-benefit analysis under 
paragraph (1)(B)(ii), shall— 
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‘‘(A) define the relevant product market; 
‘‘(B) determine whether any entity has 
market power in the relevant product market, 
taking into account competition among and be-
tween broadband network providers (including 
such providers using wireline, cable, wireless, 
satellite, and broadband over power line tech-
nologies), service providers, application pro-
viders, and content providers; 
‘‘(C) conduct an economic analysis of 
whether any such entity has the incentive and 
ability to exercise such market power in a way 
that harms consumers and that such entity 
could continue to profitably exercise that mar-
ket power; and 
‘‘(D) consider— 
‘‘(i) the available data on broadband 
availability, including the broadband maps 
and other information generated pursuant 
to the Broadband Data Improvement Act 
(Public Law 110–385) and the American 
Recovery and Reinvestment Act of 2009 
(Public Law 111–5); 
‘‘(ii) the impact of the broadband 
stimulus loans and grants issued pursuant 
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to the American Recovery and Reinvest-
ment Act of 2009; 
‘‘(iii) the availability of access to the 
information service or Internet access serv-
ice from 1 or more sources; and 
‘‘(iv) the ease of entry into the rel-
evant product market. 
‘‘(b) LEAST RESTRICTIVE REGULATION REQUIRED; 
NETWORK MANAGEMENT PERMITTED.—If the Commis-
sion decides to regulate the rates, terms, conditions, provi-
sioning, or use of an information service or Internet access 
service after meeting its obligation under subsection (a), 
the Commission shall adopt a regulation that— 
‘‘(1) shall be the least restrictive necessary to 
address the market failure and specific harm to con-
sumers identified under such subsection; and 
‘‘(2) shall not prohibit managed services, net-
work management to address congestion and quality 
of service, or measures designed to prevent or deter 
unauthorized or illegal activity, including copyright 
infringement. 
‘‘(c) PERIODIC RE-EVALUATION REQUIRED.— 
‘‘(1) IN GENERAL.—If the Commission regu-
lates the rates, terms, conditions, provisioning, or 
use of an information service or Internet access serv-
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ice, the Commission shall complete a proceeding in 
which the Commission shall reexamine the regula-
tion and shall determine whether— 
‘‘(A) the market failure identified in the 
report under subsection (a)(1)(A) still exists; 
‘‘(B) the regulation is effectively amelio-
rating the specific harm to consumers identified 
in such report; 
‘‘(C) absent continuation of such regula-
tion, such specific, identified harm to con-
sumers will return; and 
‘‘(D) the benefit of such regulation con-
tinues to exceed its costs. 
‘‘(2) DEADLINE.—The Commission shall com-
plete a proceeding under paragraph (1) by the date 
that is 2 years after the effective date of the regula-
tion and not less than every 2 years thereafter for 
as long as such regulation remains in effect. 
‘‘(3) SUNSET.—Any regulation adopted pursu-
ant to this section shall be deemed to be repealed if 
the Commission fails to determine that all of the 
conditions in subparagraphs (A) through (D) of 
paragraph (1) still exist within the proceeding dead-
line under paragraph (2). 
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‘‘(d) TRANSPARENCY REQUIRED.—The Commission 
shall not regulate the rates, terms, conditions, provi-
sioning, or use of an information service or Internet access 
service unless the Commission complies with the following: 
‘‘(1) Before transmitting a final report to Con-
gress under subsection (a)(1)(A), the Commission 
shall commence a notice of inquiry to examine the 
issues required to be addressed in such report and 
provide— 
‘‘(A) notice and an opportunity for com-
ment on such notice of inquiry to the public for 
a period of at least 30 days; 
‘‘(B) public access to comments received 
under subparagraph (A) on the Commission’s 
Web site and a period of at least 30 days for 
replies to such comments; 
‘‘(C) to all Commissioners not less than 30 
days after the receipt of such replies under sub-
paragraph (B) to consider the record before the 
Commission provides a draft of the report re-
quired under subsection (a)(1)(A) to all Com-
missioners; and 
‘‘(D) at least 30 days to all Commissioners 
to consider such draft report before the dead-
line for a vote. 
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‘‘(2) Before issuing an order under subsection 
(a)(1)(C), the Commission shall provide— 
‘‘(A) notice and an opportunity for com-
ment to the public for a period of at least 30 
days on the notice of proposed rulemaking re-
quired under subsection (a)(1)(B); 
‘‘(B) public access to comments received 
under subparagraph (A) on the Commission’s 
Web site and a period of at least 30 days for 
replies to such comments; 
‘‘(C) to all Commissioners, not less than 
30 days after the receipt of such replies under 
subparagraph (B), a draft of the order to be 
issued pursuant to the notice of proposed rule-
making; and 
‘‘(D) at least 30 days to Commissioners to 
consider such draft before the deadline for a 
vote. 
‘‘(3) Before completing the proceeding required 
under subsection (c), the Commission shall pro-
vide— 
‘‘(A) notice and an opportunity for com-
ment to the public for a period of at least 30 
days on the determinations made under the 
proceeding required by such subsection; 
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‘‘(B) public access to comments received 
under subparagraph (A) on the Commission’s 
Web site and a period of at least 30 days for 
replies to such comments; 
‘‘(C) to all Commissioners, not less than 
30 days after the receipt of such replies under 
subparagraph (B), a draft of such determina-
tions; and 
‘‘(D) at least 30 days to Commissioners to 
consider such draft before the deadline for a 
vote. 
‘‘(e) NEUTRAL NETWORK NEUTRALITY.—The Com-
mission shall apply and enforce any regulation governing 
the rates, terms, conditions, provisioning, or use of an in-
formation service (including any transmission component 
of an information service whether or not the transmission 
component is offered for a fee directly to the public or 
to such class of users as to be effectively available directly 
to the public regardless of the facilities used) or an Inter-
net access service on a nondiscriminatory basis between 
and among broadband network providers, service pro-
viders, application providers, and content providers. 
‘‘(f) ENFORCEMENT.—If the Commission regulates 
the rates, terms, conditions, provisioning, or use of an in-
formation service or an Internet access service, such regu-
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lation may only be enforced against an entity if the Com-
mission determines, pursuant to a complaint filed by a 
consumer, that the entity has engaged in conduct in viola-
tion of that regulation and such conduct caused a specific 
and substantial harm to that consumer. 
‘‘(g) RULES OF CONSTRUCTION.—Nothing in this 
section shall be construed to— 
‘‘(1) grant the Commission the authority to reg-
ulate information services or Internet access serv-
ices; 
‘‘(2) supersede, repeal, or negate any regula-
tions regarding information services or Internet ac-
cess services that were in effect on January 1, 2010, 
including any regulations established pursuant to the 
Communications Assistance for Law Enforcement 
Act (Public Law 103–414); 
‘‘(3) prohibit the Commission from adopting 
any regulation it deems necessary to prevent damage 
to national security or public safety or to assist or 
facilitate any actions taken by a Federal or State 
law enforcement agency; or 
‘‘(4) mean that an Internet access service is not 
an information service.’’. 
Æ 
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